96 Cal.App.5th 94
Cal. Ct. App.2023Background:
- Hansen and Volkov, both attorneys, opposed in related family law litigation; Hansen sought a civil harassment restraining order under Cal. Code Civ. Proc. § 527.6 after an October 2, 2020 office incident and prior email exchanges.
- Prior to October 2, Hansen emailed that Platokhina’s deposition was canceled; Volkov sent multiple follow-up emails asserting he and his client would appear.
- On October 2 Volkov’s client arrived despite the cancellation; Volkov then came to Hansen’s office, remained after staff asked him to leave, was filmed as he exited, and later claimed the door injured him.
- Trial court found a willful course of harassment (relying on the emails and the office incident), found Hansen credible, and issued a three-year restraining order protecting Hansen and two staff members, with limited mail/email exceptions for service.
- Volkov appealed, arguing the emails and litigation-related conduct were constitutionally protected petitioning/speech, the single office incident did not establish the required course of conduct or substantial emotional distress, and staff members were improperly included as protected persons.
- The Court of Appeal reversed: it held the emails were constitutionally protected litigation activity; the nonprotected office incident, even credited, did not satisfy the clear-and-convincing course-of-conduct and severe-distress requirements; it ordered entry of a denial of Hansen’s request.
Issues:
| Issue | Hansen's Argument | Volkov's Argument | Held |
|---|---|---|---|
| Whether Volkov’s multiple pre‑deposition emails could be considered harassment as part of a course of conduct | Emails were argumentative, unnecessary, and formed part of a harassing course | Emails were litigation-related communications entitled to petition/speech protection | Emails are constitutionally protected petitioning/litigation activity and may not be used as part of a §527.6 course of conduct |
| Whether the October 2 office encounter established a willful/knowing course of conduct directed at Hansen | The office visit (refusal to leave, filming, feigned injury) showed willful harassment and alarmed Hansen and staff | The office incident was litigation-related attendance to confirm appearance; brief and not directed to Hansen, not part of a broader course | Even accepting petitioner’s version, the single incident (absent nonprotected repeated acts) did not meet clear‑and‑convincing course‑of‑conduct or severe‑distress standards |
| Whether Hansen suffered substantial emotional distress (objective and subjective) from Volkov’s conduct | Hansen feared for her children and staff, felt sick and scared; conduct caused substantial emotional distress | Any fear/distress was transient and not the intense, enduring suffering required by §527.6 | Testimony showed transient fear; insufficient to prove the high‑probability severe/substantial emotional distress required |
| Whether Hansen could include employees as protected persons in the §527.6 order | Employees were harmed and deserved protection; court may include family/household-like members | Staff are not family/household; protection should be sought via employees’ own petitions or a workplace‑violence order §527.8 | Court improperly included employees; naming staff was not justified under §527.6; remedy is denial on remand |
Key Cases Cited
- Finton Constr., Inc. v. Bidna & Keys, APLC, 238 Cal.App.4th 200 (litigation‑related communications by attorneys are petitioning activity)
- Cabral v. Martins, 177 Cal.App.4th 471 (communications in litigation context are protected)
- Rusheen v. Cohen, 37 Cal.4th 1048 (litigation activities constitute petitioning/free‑speech protections)
- Kolar v. Donahue, McIntosh & Hammerton, 145 Cal.App.4th 1532 (anti‑SLAPP/ petitioning protection extends to conduct related to litigation)
- Conservatorship of O.B., 9 Cal.5th 989 (standard for reviewing sufficiency under clear and convincing evidence)
- Leydon v. Alexander, 212 Cal.App.3d 1 (single incident insufficient to establish a §527.6 course of conduct)
- Brekke v. Wills, 125 Cal.App.4th 1400 (same principle on course‑of‑conduct requirement)
- Thomas v. Quintero, 126 Cal.App.4th 635 (protected speech cannot be converted into §527.6 harassment without more)
- Schild v. Rubin, 232 Cal.App.3d 755 (definition/standard for severe emotional distress in analogous tort context)