Civil Restraining Order Versus Lawyer Reversed

Jacquelynn L. Hansen, a member of the State Bar of California, sought and was granted a three-year civil restraining order under California Code of Civil Procedure § 527.6 against Oleg Volkov, also a member of the State Bar.  The order also protected Ms. Hansen’s paralegal and office receptionist and ordered that Mr. Volkov could only communicate with Ms. Hansen by email and U.S. mail and only for purposes of service of legal papers.

The request was made after Mr. Volkov and Ms. Hansen, representing opposing parties in a marriage dissolution / annulment proceeding pending in Los Angeles Superior Court, got into a heated argument at Ms. Hansen’s office regarding a cancelled deposition of Mr. Volkov’s client.

Mr. Volkov represented the wife in the underlying case and Ms. Hansen represented the husband.

A bit of history about the marriage at issue is helpful.  The wife alleged to the police that the husband committed domestic violence against her.  The Los Angeles City Attorney had filed a criminal complaint against the husband, but the case was ultimately dismissed.  During the pendency of the criminal case, Mr. Volkov had been ordered out of the courtroom by the judge for allegedly recording the proceedings in violation of the Superior Court rules.

Mr. Volkov, on behalf of the wife, then filed a petition for a domestic violence restraining order against the husband.  Ms. Hansen appeared as counsel for the husband. 

Mr. Volkov then filed a petition for dissolution / annulment of the marriage.  According to Ms. Hansen, Mr. Volkov then came to Ms. Hansen’s office “no less than five times” over the next year, insisting upon speaking with an attorney about the pending family law matter and refused to leave despite demands by her office.  Once at the office, he allegedly badgered the office staff about objections to discovery requests.

On the day of the cancelled deposition, Mr. Volkov and his client went to Ms. Hansen’s office.  When Mr. Volkov’s client arrived, she was advised that the deposition had been cancelled and she left.  Mr. Volkov arrived a few minutes later and was similarly advised.  However, upon being told this, he proceeded past the suite’s waiting room, back into the inner office.

Ms. Hansen noted for the court that her three children were in the office, attending school remotely (this was during the height of COVID-19).

The office staff repeatedly told Mr. Volkov that the deposition was cancelled and that he needed to return to the waiting room and / or leave.  Mr. Volkov allegedly refused and insisted upon a letter stating the deposition had been cancelled. 

Ms. Hansen then personally confronted Mr. Volkov and told him he needed to leave the office.  She escorted him out to the waiting room and opened the door for him to leave.  He then took out his cell phone to record the conversation, but ultimately left. 

After he left, Ms. Hansen locked the office door and called 911.

Ms. Hansen then filed the request for a civil restraining order against Mr. Volkov.  At the hearing, Mr. Volkov explained that he personally served all documents in the case rather than using an attorney service.

Ms. Hansen also explained that she had cancelled the deposition of Mr. Volkov’s client the day prior and notified Mr. Volkov of this because of objections made by him to the deposition notice and advised him that she would instead file a motion to compel the deposition of his client.

Mr. Volkov explained that in response to this, he thought he needed to show up with his client for the deposition at Ms. Hansen’s office the following day and so he did.

Mr. Volkov appealed the order to the California Court of Appeal for the Second Appellate District, in Los Angeles, arguing in part that all of the conduct upon which the trial court judge (Christyne Byrd) based its finding of harassment was constitutionally protected activity (litigation-related emails and his appearance at Hansen’s office for his client’s deposition) and that there was insufficient evidence that his actions, to the extend not constitutionally protected, were directed at Hansen, caused Hansen substantial emotional distress, or would cause a reasonable person substantial emotional distress as required to support issuance of a restraining order.

The Second Appellate District agreed with Mr. Volkov.  While it agreed with Ms. Hansen that Mr. Volkov’s arrival at the office despite knowing the deposition was cancelled was improper, but found that the evidence offered against Mr. Volkov was insufficient to support the restraining order with the ‘high probability demanded by the clear and convincing standard of proof.”  See Conservatorship of O.B. (2020)  9 Cal. 5th 989, 1005. 

The appellate court further noted that “severe emotional distress” in the context of a civil restraining order means highly unpleasant mental suffering or anguish “from socially unacceptable conduct [citation], which entails intense, enduring and nontrivial emotional distress that ‘no reasonable [person] in a civilized society should be expected to endure.”  Schid v. Rubin (1991) 232 Cal. App. 3d 755, 762-763; accord California Judges Benchguide, Benchguide 20, Orders Prohibiting Civil Harassment and Workplace / Postsecondary School Violence (CJER 2016) § 20.6 [Definitions] , pp. 20-7 to 20-8.

Here, Ms. Hansen said she felt sick to her stomach and scared that Mr. Volkov would not leave, but the Second Appellate District held this was “far from establishing that Mr. Volkov’s conduct, however offensive or annoying it may have been, caused . . . her to suffer intense, enduring and nontrivial emotional distress.”

Moreover, it noted, a single incident is insufficient to meet the definition of a course of conduct. Leydon v. Alexander (1989) 212 Cal. App. 3d 1, 4; accord Brekke v. Wills (2005) 125 Cal. App. 4th 1400, 1412; California Judges Benchguide, Benchguide 20, Orders Prohibiting Civil Harassment and Workplace / Postsecondary School Violence (CJER 2016) § 20.6 at p. 20-7.