JACQUELYNN L. HANSEN, Plaintiff and Respondent, v. OLEG VOLKOV, Defendant and Appellant.
B311524
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 9/18/23
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. 20STR005408)
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Oleg Volkov, in pro. per., Defendant and Appellant.
Buchalter and Robert Collings Little for Plaintiff and Respondent.
On appeal Volkov contends, in part, that all of the conduct upon which the trial court based its findings of harassment was constitutionally protected activity (litigation-related emails and his appearance at Hansen‘s office for his client‘s deposition) and there was insufficient evidence his actions, to the extent 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 the restraining order. Volkov also contends the court erred in including in the order members of Hansen‘s office staff as protected individuals. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Hansen‘s Request for Civil Harassment Restraining Orders
Hansen filed her request for civil harassment restraining orders on October 2, 2020 and included, without notice to Volkov, a request for issuance of a temporary restraining order. In the portion of the Judicial Council form permitting the petitioner to request protection for other family or household members, Hansen asked that two of her employees, Anita Collette Darby (her receptionist) and Robin Rouse (a paralegal), be included as protected individuals.
Hansen declared she was scared of Volkov because he repeatedly came to her office (“no less than five (5) times over the last year“), insisted on speaking to an attorney about the pending family law matter and refused to leave despite demands by her office staff. Hansen attached as an exhibit a letter sent to Volkov on October 31, 2019 (that is, approximately one year prior to the request for the restraining order), which, after asserting that Hansen‘s objections to Volkov‘s written discovery had been timely served, stated, “I understand you recently came to my office and badgered my staff as well about the discovery objections. Your conduct is unbefitting of an attorney. I understand your position regarding discovery. Please do not harass me or my staff any further.”
Hansen‘s declaration then described the October 2, 2020 incident, summarizing in part the accompanying declarations of Rouse and Darby concerning the events of the morning. Hansen‘s declaration attached as exhibits a September 29, 2020 letter (sent via email) canceling Platokhina‘s deposition, previously scheduled for October 2, 2020, because Volkov had failed to confirm his client would appear, and a portion of the email exchange between Hansen and Volkov restating the deposition had been canceled. Notwithstanding notice that the deposition had been canceled, Platokhina appeared at Hansen‘s office at 9:05 a.m. on October 2 for the deposition. Rouse informed Platokhina the deposition had been canceled, as Volkov had been advised, and asked her to leave, which she did. Volkov then arrived a few minutes later. Volkov walked past Darby in the suite‘s waiting room and entered the inner office area. (Hansen noted that three of her children were in the conference room attending school remotely when Volkov entered the office.) Rouse saw Volkov and told him he had to return to the waiting room. Once the two of them were in the reception area, Rouse told Volkov there was no deposition and he had to leave. Volkov responded he would not leave until he received written confirmation there was no deposition. Rouse again told Volkov he needed to leave and added, “There are children here.”
The court issued a temporary restraining order on October 2, 2020 and set Hansen‘s request for a permanent civil harassment restraining order for an evidentiary hearing.
2. The Hearing on Hansen‘s Request for Civil Harassment Restraining Orders
The hearing on Hansen‘s request was held December 4, 2020.1 Both Hansen and Volkov were represented by counsel. Hansen‘s and Rouse‘s declarations were received in evidence, subject to cross-examination. Hansen, Volkov and Rouse were present and testified.
a. Volkov‘s testimony
Volkov, originally testifying as the first witness in Hansen‘s case-in-chief pursuant to
Turning to the events leading to the incident on October 2, 2020, Volkov acknowledged he had received via email, apparently sent at 2:12 p.m. on September 29, 2020, Hansen‘s letter stating Platokhina‘s deposition, scheduled for October 2, 2020, had been canceled because of Volkov‘s objections.
Volkov testified that, when he arrived at Hansen‘s office on the morning of October 2, 2020, he asked the receptionist about the deposition. The receptionist responded that he should speak to Rouse and pointed toward Rouse‘s office, which Volkov believed to be an invitation to walk into the interior of the suite. Rouse came out of her office and asked Volkov to leave the inner area of the suite and go to the waiting room. After he returned to the reception area, Hansen came into the suite and immediately yelled at Volkov to leave. Volkov was in the process of drafting an email to confirm he had appeared for the deposition when Hansen ordered him out of the office. He then described how his foot was caught in the door as he was leaving.
During direct examination during the defense case, Volkov testified he was in Hansen‘s suite for approximately two minutes on October 2, 2020 from the time he entered until he was hit by the door. Volkov also explained he insisted on confirming he and his client had been present that morning because he did not trust his opposing counsel: “I was afraid that they would claim that I, my client, didn‘t appear at the deposition.” Volkov began drafting an email on his phone, but Rouse told him to take a video of the office rather than writing the email to memorialize his appearance. At that point Hansen entered the suite and demanded Volkov get out.
b. Hansen‘s testimony
In her testimony Hansen identified her October 31, 2019 letter to Volkov and explained she had sent it on behalf of her employees, who had complained about Volkov‘s appearance at the office and demand to speak to them.
Hansen next testified about setting Platokhina‘s deposition for October 2, 2020, Hansen‘s letter of September 29, 2020 canceling the deposition, the subsequent email that reiterated the deposition had been canceled, and her belief that there was absolutely no reason for Volkov to be at her office on October 2, 2020. She explained, because of a blackout at her home, she brought her children (eight, nine and 11 years old) to the office to continue their remote schooling in the conference room and then took her youngest child to preschool. While at the preschool, she received a text that said, “Volkov is here.” When she received that message, Hansen felt “sick to her stomach” and “scared” because “I was afraid he wouldn‘t leave and my kids were sitting there.”
Hansen returned to the office, went upstairs to her suite, opened the door and said to Volkov, “Leave.” Volkov was typing on his phone as Hansen repeatedly told him to get out of her office and said she would call the police if he refused. She then described the episode with the door and Volkov‘s recording of her as he screamed he had been hurt by the door closing on him. Asked how she felt after Volkov left, Hansen stated, “I felt horrible that I put all these people in this situation, especially my kids.”3
Hansen also testified that, subsequent to October 2, 2020, her building management contacted her and reported that Volkov had requested any video recordings from that morning of Hansen‘s floor, building lobby and parking garage. That request, she testified, made her “scared that he was trying to get more information about me.” Hansen‘s counsel explained he was not offering that testimony for the truth but only for Hansen‘s state of mind.
On cross-examination Hansen acknowledged that, when Volkov came to her office prior to October 2, 2020, “he has served paperwork,” before “demand[ing] to speak to an attorney in the office, and he has refused to
c. Rouse‘s testimony
Rouse testified (consistently with the description of the October 2 incident in her declaration as summarized by Hansen) that, when she saw Volkov in the inner office area, Volkov said he was there for his client‘s deposition. Rouse asked him to go back to the reception area where she then told him the deposition had been canceled, as he knew, and he had to leave. Volkov said he needed confirmation he had appeared for the deposition and began using his phone to type an email. Rouse told him he could prepare his email downstairs (that is, not in Hansen‘s office suite), but Volkov ignored her. According to Rouse, Volkov was in the office for approximately 10 minutes before Hansen arrived. Once there, Hansen repeatedly asked Volkov to leave and held the door open for him. Volkov started walking very slowly toward the door. As he reached the door frame, he used his body to stop the door from closing, held his phone up as if he was recording, and said, “You‘re hurting me; you‘re hurting me.”
3. The Trial Court‘s Findings and Order
At the conclusion of the hearing the court signed a three-year civil harassment restraining order protecting Hansen, Darby and Rouse from Volkov, which included a general prohibition against any contact, direct or indirect, and ordered Volkov to stay at least 100 yards away from each of them, as well as Hansen‘s home, workplace and vehicle and her children‘s school and place of child care. The order additionally provided that Volkov, in connection with his representation of Platokhina in the family law proceedings, was allowed to contact the protected individuals by United States mail and email “for purposes of service of legal papers only. No other contact of any kind without authorization in advance by court order for such contact.”
Detailing its findings at the hearing, the court stated that Volkov had “engaged in a course of conduct directed at petitioner, Ms. Hansen, that seriously alarmed, annoyed, or harassed her; that it was knowing and willful; that it served no legitimate purpose; that it was not constitutionally protected; that it would cause a reasonable person to suffer substantial emotional distress; and that it did actually cause substantial emotional distress to the petitioner.” The court also found it highly probable the conduct would
Volkov filed a timely notice of appeal.4
DISCUSSION
1. Governing Law and Standard of Review
A “[c]ourse of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means. . . .” (
At the hearing on a petition for a civil harassment restraining order, the court “shall receive any testimony that is relevant, and may make an independent inquiry.” (
“[W]hen presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) “Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Id. at p. 996.)
“[W]hether the facts, when construed most favorably in [petitioner‘s] favor, are legally sufficient to constitute civil harassment under
2. Volkov‘s Emails Regarding His Client‘s Deposition Constituted Constitutionally Protected Activity
As discussed, the trial court expressly found the multiple emails sent by Volkov after Hansen had notified him that Platokhina‘s deposition was
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. (
3. The Evidence of Volkov‘s Nonprotected Conduct Did Not Support the Court‘s Findings of a Willful or Knowing Course of Conduct That Would Cause a Reasonable Person, and Did Cause Hansen, Substantial Emotional Distress
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.6 Based on the court‘s credibility findings we accept, as we must, Hansen‘s and Rouse‘s
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. (See Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) Although ”
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
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. Counsel‘s mutual lack of civility in this case lends all the more support for the recommendations of the California Civility Task Force, which warned that “[d]iscourtesy, hostility, intemperance, and other unprofessional conduct prolong litigation, making it more expensive for the litigants and the court system.” (Beyond the Oath: Recommendations for Improving Civility, Initial Report of the California Civility Task Force (Sept. 2021) p. 2.) Indeed, one of the Task Force‘s recommendations would have been particularly helpful in this case: requiring attorneys to take an hour of mandatory continuing legal education devoted to civility. (Id. at p. 3.) As the Task Force concluded: “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.” (Id. at p. 6.)
DISPOSITION
The civil harassment restraining order issued December 4, 2020 is reversed. On remand the trial court is directed to enter a new order denying Hansen‘s request for a restraining order. The parties are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
MARTINEZ, J.