California Court of Appeal Publishes Decision on Lawyer v. Lawyer Harassment Restraining Order and the First Amendment

I blogged two weeks ago about Hansen v. Volkov, a then-nonprecedential decision on the subject (I quote that post below). Last Friday, Prof. Aaron Caplan (Loyola) and I—who have both written about First Amendment limits on harassment restraining orders—filed a letter asking the California Court of Appeal to "publish" the decision, which is to say to make it precedential; and I'm delighted to say that yesterday the court agreed, ruling (in relevant part):

The opinion in this case filed September 18, 2023 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the nonparty's request pursuant to California Rules of Court, rule 8.1120(a) for publication is granted.

Prof. Caplan and I had done the same in 2020 with regard to Curcio v. Pels, another important case involving limits on harassment restraining orders. You can read the new precedential opinion in Hansen v. Volkov here, though it's very close to the nonprecedential opinion I discussed in the original post (the minor changes are described in the docket):

In Hansen v. Volkov, decided Monday [September 19] by the California Court of Appeal, in an opinion by Justice Dennis Perluss, joined by Justices John Segal and Gonzalo Martinez, the parties were opposing counsel in a divorce case:

Following an incident at Hansen's office relating to the canceled deposition of Volkov's client, … Hansen obtained a three-year civil harassment restraining order pursuant to Code of Civil Procedure section 527.6, protecting her, as well as her paralegal and office receptionist, from further harassment by Volkov and authorizing Volkov in connection with his representation of [his client] to contact Hansen only by United States mail or email and only for purposes of service of legal papers.

The alleged harassment consisted of "litigation-related emails and his appearance at Hansen's office for his client's deposition," and the appellate court held this wasn't enough to justify the order. First, as to the emails:

… [T]he trial court expressly found the multiple emails sent by Volkov after Hansen had notified him that [the] deposition was canceled were "argumentative and self-serving and entirely unnecessary." Perhaps they were, and maybe also seriously annoying. But they did not contain any threats of violence (credible or otherwise). As such, Volkov's emails were constitutionally protected litigation activity…. [L]itigation activities, including filing and prosecution of a lawsuit by an attorney representing a client, constitute acts in furtherance of a person's right of petition or free speech ….

Because the emails were constitutionally protected, it was error for the court to conclude they were properly considered part of a course of conduct of harassment. (§ 527.6, subd. (b)(1) ["[c]onstitutionally protected activity is not included within the meaning of 'course of conduct'"]; see Thomas v. Quintero (Cal. App. 2005) [even if petitioner had been seriously alarmed, annoyed or harassed by respondent's conduct—a public demonstration at petitioner's church protesting petitioner's eviction of respondent—there was no showing that respondent's injurious actions were part of a "course of conduct" within the meaning of section 527.6 because the conduct constituted a form of protected speech].)

And as to the office visit:

Other than Volkov's pre-deposition emails, the trial court identified only the incident at Hansen's office on October 2, 2020 to support the findings that Volkov had willfully or knowingly engaged in a course of conduct directed at Hansen that seriously alarmed, annoyed or harassed her and that would have caused a reasonable person to suffer serious emotional damage. Based on the court's credibility findings we accept, as we must, Hansen's and Rouse's version of the incident—that is, Volkov came to Hansen's office knowing the deposition had been canceled and without any other legitimate reason to be there, remained at the office for approximately 30 minutes despite repeated demands that he leave and then feigned injury and recorded Hansen without permission when the door Hansen had been holding open struck Volkov as he slowly left the suite. (Hansen concedes on appeal, as Volkov testified, that Volkov had no reason to know that Hansen's children would be at the office on the morning of October 2, 2020.)

{The trial court did not identify as part of Volkov's course of conduct of harassment his several pre-October 2, 2020 visits to Hansen's office during which he served legal papers and demanded to speak to an attorney about his client's family law case. Nor could it have properly done so. Even if this litigation-related conduct did not constitute constitutionally protected speech and petitioning activity, there was no evidence Volkov's actions were directed to Hansen, who admitted during the evidentiary hearing that she never spoke to, or otherwise interacted with, Volkov on any of those occasions. Indeed, in her October 31, 2019 letter to Volkov Hansen described his conduct at the office after serving papers as "badger[ing] my staff as well about the discovery objections," and Hansen testified she wrote the letter because of her employees' concerns and complaints that Volkov was "creepy."}

This evidence was insufficient for a reasonable trier of fact to make the findings necessary to support the restraining order with the high probability demanded by the clear and convincing standard of proof. Although "[s]ection 527.6 does not define the phrase 'substantial emotional distress,'" in "the analogous context of the tort of intentional infliction of emotional distress, the similar phrase 'severe emotional distress' means highly unpleasant mental suffering or anguish 'from socially unacceptable conduct' [citation], which entails such intense, enduring and nontrivial emotional distress that 'no reasonable [person] in a civilized society should be expected to endure it.'"

Here, Hansen testified only that she felt sick to her stomach and scared that Volkov would not leave when she received the text message that Volkov was at her office and felt horrible once Volkov left because she had put others (her staff and her children) in this situation. That testimony was far from establishing that Volkov's conduct, however offensive or annoying it may have been, caused Hansen—an experienced family law attorney who presumably has litigated many cases with difficult opposing counsel—to suffer intense, enduring and nontrivial emotional distress.

But even were we to agree the evidence supported a finding that, as a result of the October 2, 2020 episode, Hansen suffered, and a reasonable person in her position would have suffered, substantial emotional distress within the meaning of section 527.6, a "single incident" is "insufficient to meet the statutory requirement of a course of conduct." The trial court in its findings referred to Volkov's presence at Hansen's office as a singular event ("his conduct in coming to the office") and found it "more in the course of conduct of civil harassment" established by the pre-October 2, 2020 emails. Considered on its own, the 30-minute episode (if, in fact, it lasted that long) does not support issuance of the civil harassment restraining order.

And the court concluded with this:

Although we reverse the civil harassment restraining order because Volkov's conduct was partially protected and failed to cause Hansen severe emotional distress, that does not mean his behavior was appropriate. Nor was it appropriate for Hansen to seek a civil harassment restraining order against her opposing counsel based on an argument over deposition scheduling that reasonable attorneys could have resolved without court intervention or because her office staff considered Volkov "creepy" or annoying. … "Civility matters not simply because lawyers are examples to others on how to engage competing ideas and interests. It matters because our system of justice simply cannot function fairly and reliably with systemic incivility."