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Court of Appeal:
Lawyer’s Repulsive Conduct Didn’t Justify Retraining Order
By a MetNews Staff Writer
A lawyer’s obnoxiousness in the course of litigation was not an adequate basis for imposing a civil harassment restraining order on him in favor of his opposing counsel, the Court of Appeal for this district has held.
Presiding Justice Dennis M. Perluss of Div. Seven wrote the opinion, filed Monday and not certified for publication. It reverses a Dec. 4, 2020 order by Los Angeles Superior Court Judge Christine Byrd requiring that Westwood attorney Oleg Volkov contact Brentwood practitioner Jacquelynn L. Hansen only by U.S. mail or email and only in connection with the family law matter in which they were representing adverse parties.
Volkov’s client was Iuliia Platokhina, whose deposition at Hansen’s office had been scheduled for Oct. 2, 2020, then cancelled. Volkov sent a stream of emails expressing uncertainty as to whether the deposition would take place notwithstanding having received a letter from Hansen declaring, “[W]e will not be proceeding with Friday’s deposition.”
Came to Office
He nonetheless showed up at Hansen’s office on Oct. 2. The respondent’s appellate brief recites:
“…Volkov insisted on barging right past Hansen’s receptionist, Collette Darby, into Hansen’s inner office demanding to be at a deposition he knew was off-calendar….Then asked to leave the office over 12 times by Hansen and her paralegal Robin Rouse, Volkov insisted on staying there, typing an email, and then filming Hansen when she returned from her daughter’s preschool.”
The brief says that Hansen, after dropping a daughter off at her pre-school, received a text message advising that “Volkov is here.” She testified that she felt sick to her stomach and was “scared,” explaining:
“I was afraid he wouldn’t leave and my kids were sitting there.”
Three of her children, without classes to attend in light of the pandemic, were present.
Half-Hour Visit
Volkov allegedly remained for about half an hour, finally leaving after Hansen threatened to call the police and ordering five times that he depart. The brief notes:
“After Volkov’s exit, a pall of fear remained over her office and staff.”
It quotes Hansen as testifying:
“Robin was shaking. She started tearing up….Ms. Darby had run into the corner of where the conference room was and file cabinets where my kids were, and she was standing there in the corner and was very upset.”
According to Hansen’s account, this was against a backdrop of Volkov having shown up repeatedly at her office unexpectedly, purportedly to serve papers, but then insisting on talking with an attorney there, refusing to leave until there was compliance. That occurred “at least five times” before Hansen sent a letter to Volkov in 2019 demanding that he cease conducting himself in that manner and “three or less” times after that, she testified.
Her letter set forth:
“I understand you recently came by 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.”
Volkow’s Brief
Citing the litigation privilege contained in Civil Code §47, Voklov argued in his appellate brief:
“California law specifically protects attorneys from frivolous or malicious claims arising out of their conduct as counsel for their clients….Appellant’s emails and Deposition appearance [arising] from Appellant’s conduct as counsel for his client in Dissolution proceedings and thereby constitute protected activity.”
He maintained that the cancellation of the deposition had been ambiguous and that he lingered in Hansen’s office on Oct. 2 for the purpose of composing an email seeking a confirmation that he had shown up (with his client present in the building), positing:
“Even if we assume arguendo, that Appellant did not leave immediately after being asked, Appellant had a legitimate purpose of staying for a short period of time, i.e. getting a written confirmation of his appearance which also makes it a part of petitioning activity (i.e. absolutely protected).”
Voklov contended that evidence shows he was not in Hansen’s office for half an hour, as Hansen testified, but that he arrived at 9:08 a.m., Hanson got there two minutes later, and that, after she “yelled” at him to “get out,” he “started slowly exiting the office while typing his email.”
Byrd’s Ruling
Byrd declared that Volkov’s emails prior to Oct. 2 amounted to “civil harassment, without question,” terming those emails “argumentative and self-serving and entirely unnecessary and part of a course of conduct of civil harassment.”
She added:
“It was entirely unreasonable for him to appear at the office on October 2nd. There was no legitimate purpose for him being there, and his conduct by coming to the office was more in the course of conduct of civil harassment.”
She found that Volkov’s conduct would “cause a reasonable person to suffer severe emotional distress,” did “actually cause substantial emotional distress to” Hansen, and would probably “continue in the future unless a restraining order is issued.”
A three-year restraining order was granted, extending to Rouse and Darby.
Perluss’s Opinion
In his opinion reversing Byrd’s Dec. 4, 2020 order, Perluss noted that Code of Civil Procedure §527.6 authorizes a restraining order in favor of a person who has been subjected to “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”
He said, with respect to the emails:
“[T]he trial court expressly found the multiple emails sent by Volkov after Hansen had notified him that Platokhina’s 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….
“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.”
Oct. 2 Conduct
Addressing Volkov’s conduct on Oct. 2, 2020, Perluss wrote:
“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….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.”
A single episode, he said, is insufficient to support a civil harassment restraining order, adding:
“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.”
Criticizes Parties
Perluss commented:
“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.”
He continued:
“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.’…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.”
Volkov’s Remarks
Hansen did not respond to a request for a comment. Volkov did, saying:
“I appreciate the Court’s decision and statements regarding civility.”
He continued that “in this particular case,” the petition for a Volkov’s civil harassment restraining order “was not a mere lack of civility but rather a part of calculated and malicious attempts of Ms. Hansen and” her co-counsel in the family law litigation “to obtain an unfair advantage in the underlying proceedings.”
Volkov proceeded to assail the co-counsel, Larry Mark Bakman, quoting from a 2015 decision from Div. Three of the Fourth District Court of Appeal criticizing tactics of an unnamed attorney, which Volkov implied was Bakman.
Bakman was mentioned only tangentially in Perluss’s opinion, in quoting from a declaration by Hansen.
Perluss’s opinion came in Hansen v. Volkov, B311524.
Volkov was in pro per and Robert Collings Little of the Buchalter firm represented Hansen.
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