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I blogged a couple of weeks ago about Hansen v. Volkov, an unprecedented decision at the time on the subject (I quote this post below). Last Friday, Professor Aaron Kaplan (Loyola) and I — who have written about the limits of the First Amendment on anti-harassment orders — filed a letter asking the California Court of Appeals to “publish” the decision, meaning to set it as a precedent; I am happy to say that yesterday in court Agreedruling (in relevant part):

The opinion in this case filed on September 18, 2023 has not been approved for publication. If the opinion appears to meet the standards for publication set forth in California Rules of Court, Rule 8.1105(c), the nonparty’s request under California Rules of Court, Rule 8.1120(a) for publication may be granted.

Professor Kaplan and I did the same thing in 2020 with regard to Curcio vs. Bills, another important issue involving restrictions on harassment restraining orders. You can read the new previous opinion at Hansen v. Volkov herealthough it is very close to the unprecedented view I discussed in the original post (minor changes are described On the agenda):

in Hansen v. Volkovdecided on Monday [September 19] By the California Court of Appeals, in the opinion of Judge Dennis Perls, joined by Justices John Segal and Gonzalo Martinez, the parties had conflict of counsel in the divorce case:

Following an incident at Hansen’s office in connection with the cancellation of a Volkoff client, … Hansen obtained a three-year civil harassment restraining order pursuant to Code of Civil Procedure Section 527.6, to protect her, as well as her paralegal and office receptionist, from further harassment. By Volkov and Volkov’s authorization in connection with his representation of [his client] To contact Hansen only by mail or email in the United States and for legal paperwork purposes only.

The alleged harassment consisted of “emails related to litigation and his appearances at Hansen’s office to debrief his client,” and the appeals court held that this was not enough to justify the order. First: For emails:

… [T]The court explicitly found multiple emails sent by Volkov after Hansen notified him [the] The canceled filing was “controversial, self-serving and completely unnecessary.” Maybe they were, and maybe they were pretty annoying too. But it did not include any threats of violence (credible or otherwise). As such, Volkoff’s emails constituted constitutionally protected litigation activity…. [L]Litigation activities, including filing and prosecuting a lawsuit by an attorney representing a client, constitute acts in furtherance of a person’s right to petition or freedom of expression….

Because the emails were constitutionally protected, it was wrong for the court to conclude that they constituted part of a course of harassing conduct. (§ 527.6, subd. (b)(1) [“[c]Institutionally 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].)

As for visiting the office:

Unlike Volkoff’s pre-deposition emails, the court only identified the incident that occurred in Hansen’s office on October 2, 2020 to support findings that Volkoff knowingly or knowingly engaged in a course of conduct directed at Hansen that seriously alarmed, disturbed, or harassed her. This would have caused a reasonable person serious emotional damage. Based on the court’s credibility findings, we accept, as we must, Hansen and Ross’s version of the incident—namely, that Volkov came to Hansen’s office knowing that the deposition had been canceled and without any other legitimate reason for being there, and remained in the office for approximately 30 minutes Despite repeated demands for him to leave he then feigned injury and scored Hansen without permission when he slammed the door Hansen had open Volkov as he slowly left the suite. (Hansen admitted on appeal, as Volkoff testified, that Volkoff had no reason to know that Hansen’s children would be in the office on the morning of October 2, 2020.)

{The trial court did not identify as part of Volkoff’s course of conduct from harassment his numerous pre-October 2, 2020 visits to Hansen’s office during which he filed legal papers and demanded to speak to an attorney about his client’s family law case. And there was no way she could do it right. Even if such litigation-related conduct did not constitute constitutionally protected speech and petitioning activity, there was no evidence that Volkoff’s actions were directed at Hansen, who admitted during the evidentiary hearing that she never spoke with Volkoff or interacted with him in any way in any way. Of those things. Occasions. In fact, in her October 31, 2019 letter to Volkoff-Hansen, she described his behavior in the office after filing the papers as “badger.”[ing] My staff also raised objections to discovery,” and Hansen testified that she wrote the letter because of her employees’ concerns and complaints that Volkoff was “intimidating.”}

This evidence was insufficient for a reasonable trier of fact to make the findings necessary to uphold a restraining order with the high probability required by the clear and convincing standard of proof. despite of “[s]Section 527.6 does not define the phrase “substantial emotional distress,” in “the analogous context to the tort of intentional infliction of emotional distress, the analogous phrase ‘severe emotional distress’ means extremely distressing mental suffering or the suffering of ‘socially unacceptable conduct’.” [citation]which involves such severe, permanent, and non-trivial emotional distress that it is “unreasonable.” [person] In a civilized society he should be expected to bear it.

Here, Hansen testified only that she felt sick to her stomach and was afraid Volkoff would not leave when she received a text message that Volkoff was in her office and felt terrible once Volkoff left because she had put others (her employees and her children) in her place. this case. That testimony was far from proving that Volkoff’s conduct, no matter how insulting or annoying, caused Hansen — an experienced family law attorney who had supposedly litigated many cases with difficult opposing counsel — to suffer severe, permanent, and non-trivial emotional distress. .

But even if we agree that the evidence supports a finding that as a result of the October 2, 2020 incident, Hansen suffered, and a reasonable person in her position would have suffered, significant emotional distress within the meaning of Section 527.6, a “single incident” is not sufficient to satisfy In its findings, the trial court cited Volkov’s presence in Hansen’s office as an individual event (“his conduct in coming into the office”) and found that it “relates more in the context of civil harassment conduct” identified prior to October 2, letters Email 2020 Viewed alone, the 30-minute episode (if it actually lasted that long) does not support the issuance of a civil harassment restraining order.

The court concluded this:

Although we vacated 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 conduct was appropriate. It was also not appropriate for Hansen to seek a civil harassment restraining order against her opposing attorney based on a deposition scheduling argument that reasonable attorneys could have resolved without court intervention or because her office staff deemed Volkoff “intimidating” or annoying. … “Civility is important not just because lawyers are examples to others of how to handle competing ideas and interests. It is important because our justice system simply cannot function fairly and reliably with systemic incivility.”

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