Filed 10/7/26 S.K. v. Graham CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
S.K.,
Plaintiff and Respondent, G065005
v. (Super. Ct. No. 30-2024-
01417725)
BRETT GRAHAM,
OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Ebrahim Baytieh, Judge. Affirmed. Motion for Vacatur and Dismissal.
Denied. Motion to Augment. Denied. Motion to Augment and Take Additional
Discovery, and Request for Judicial Notice. Denied. Application for Leave to
File Reply. Denied.
Brett Graham, in pro. per, for Defendant and Appellant.
Guadan Law Group and Elisa Guadan for Plaintiff and
Respondent.
Plaintiff and respondent S.K. filed a petition for an elder abuse
restraining order against defendant and appellant Brett Graham under
Welfare and Institutions Code section 15657.03.1 Following hearings and the
appointment of a guardian ad litem (GAL), the trial court found Graham had
committed financial elder abuse and granted a restraining order. On appeal,
Graham makes multiple arguments for reversal, none of which are availing.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2024, S.K., who was then 84 years old and proceeding
in propria persona, filed a petition for an elder abuse restraining order
against her son, Graham, asserting he had stolen $8.4 million from her. In
October 2024, Graham filed a response asserting, among other things, that
“nothing has been stolen” and he had simply borrowed funds from his mother
at her suggestion after he had surgery. Graham contended the petition had
been authored by his sister and was contrary to his mother’s wishes, and that
his sister had “groomed [his] [d]ementia stricken” mother.
On November 4, 2024, the trial court held a hearing. S.K., who by
then was represented by counsel, appeared at the hearing with her counsel;
Graham appeared remotely. S.K.’s daughter also attended the hearing.
Graham stipulated that, between February 28, 2018 and February 29, 2024,
he made 101 withdrawals from one of his mother’s accounts, totaling
$8,427,000. Graham said he had spent the majority of that money on “life.”
Graham stated he had surgery and health issues and he had borrowed more
money than he had expected, for a longer period of time. He also said he had
1
All undesignated statutory references are to the Welfare and
Institutions Code.
2
put his mother in investments that he believed “will more than fully
replenish her estate” but the investments were not liquid. He confirmed he
had not repaid any of the $8.4 million.
S.K. testified that, after her husband passed away, she received
$8.4 million from the sale of a property and then moved into a senior living
facility in New York. S.K. said she granted Graham access to her account so
he could pay her rent, and her funds were intended to support her monthly
living expenses and any additional care she might need. She acknowledged
loaning Graham some money but denied loaning him $8.4 million. S.K.
further said she was informed her rent at the senior living facility had not
been paid. S.K. testified her daughter had not forced her to file the request
for a restraining order.
S.K. also gave some testimony that suggested she was feeling
some ambivalence about the requested restraining order. When asked by her
counsel whether it was still her desire to seek an elder abuse restraining
order, S.K. replied: “To be honest, no. I mean, I rather have him really work
hard to pay it back. Much better than having anything happen to him.
Because these are good people. [¶] And it’s—it’s had to be so difficult for him
to do something like this, to be honest. It’s out of anything that I have ever
seen with him in my life. And so I would hope we could do something else
instead.” S.K. noted she was sad, and when asked if she was sad because she
was requesting a stayaway order from her son, she responded: “It would—I
would like it, if it was possible, and have him just do some really good works
and do some good things for people. And that, to me, would be much better
than something else, which would be the wrong thing to do.” S.K. also noted
Graham was the oldest son and she “would like to see his coming of age.
We’re talking about where he can do some good works. And, please, God, let
3
him understand and learn and stay—stay with us.” As to whether she was
requesting that day to have the court order her son not to contact her, S.K.
stated she did not “necessarily think so, have no conversation or interaction,”
and she “would like to see if we could gently work into something” and “would
not mind that starting soon.” She further noted she “would like to see us
slowly interact, and possibly on the phone or just meet very quietly or
something. But it will take a little bit of time. And but it would—I would like
to see something start to move in that direction.”
The trial court stated it had some concerns given what was stated
in the petition compared to what S.K. had just testified to, but that it was
also concerned about Graham’s withdrawal of $8.4 million of his mother’s
money. The court continued the hearing and said it would appoint an
attorney, Mark Ross, as S.K.’s GAL. Neither S.K. nor her counsel objected to
the appointment. Graham also did not object. Indeed, after the court noted it
needed more information and told Graham he should cooperate with the
GAL, Graham stated he was “happy to cooperate with everything that you’re
doing, that you’re seeking. And I understand it.”
During the November 4, 2024 hearing, Graham asked to be
allowed to contact his mother by phone. When the court asked S.K. whether
she would like to talk to Graham on the phone, she responded that she
would. The court indicated Graham could speak with S.K. as long as he did
not discuss anything financial and S.K.’s daughter was listening, but Graham
responded that he would not speak with his sister listening because his
mother “cannot speak honestly to [him] in front of [his] sister” and his mother
“has been groomed by [his] sister,” who “has deliberately cut [him] out of [his]
mom’s life forcibly to become the only voice in her head.” Graham added that
his mother had dementia and Alzheimer’s disease. The court ordered Graham
4
not to contact his mother until the next hearing and reminded him he must
not violate the temporary restraining order that was already in place.2
On November 7, 2024, Graham filed a request to modify the
temporary restraining order, and on November 13, 2024, he filed a request to
terminate it. Among other things, Graham’s requests argued the petition was
his sister’s doing and did not reflect his mother’s wishes.
On November 26, 2024, the GAL filed a report. Among other
things, it recounted the GAL’s interviews with Graham, S.K., and her
daughter, including that the daughter had stated S.K. had been diagnosed
with dementia, and S.K. had told the GAL she did not want to see or talk to
Graham. The GAL reported S.K. thought some of the handwriting in the
request for restraining order was her own, but S.K. was not sure whether her
daughter had filled out the request, and the daughter told him she had
completed the entire application for S.K. The GAL also noted at no time did
he feel the daughter had influenced S.K. regarding what to say. The GAL
stated his opinion Graham had committed financial and physical elder abuse
against S.K. and an injunction should be issued against Graham for the
maximum period allowed.
On December 2, 2024, the trial court held another hearing, at
which S.K., her counsel, and the GAL all appeared; again, Graham appeared
remotely. S.K.’s daughter also attended the hearing. The GAL testified,
confirming the information in his report was accurate based on his interviews
and investigation. The GAL testified he met with S.K. before the hearing. He
further testified S.K. told him she did not want to be in contact with Graham
2
The trial court had previously granted a temporary restraining
order against Graham; Graham did not designate it as part of the record on
appeal.
5
even if he were to pay her back; she wanted a restraining order against
Graham; and her testimony was different at the prior hearing because it had
been a frightening experience for her and she was nervous. The GAL also
testified S.K. confirmed Graham had never physically harassed or threatened
her. The GAL confirmed it was still his recommendation the court grant an
elder abuse restraining order.
Graham, S.K.’s daughter, and S.K. also testified at the hearing.
Among other things, Graham testified his mother has dementia that “renders
her particularly susceptible to being influenced and groomed”; his sister has
“set about to systematically whitewash [him] from [his] mom’s memory and
fill [his] mom’s cognitively compromised brain with falsities towards [him]”;
and the petition should be dismissed because it had been authored by his
sister, did not reflect his mother’s true wishes, and was “deceitfully false with
respect to material facts.”
S.K. testified she recalled suggesting that Graham borrow some
money after a surgery, but only intended the loan to be a few hundred
dollars. In response to questions by the trial court, S.K. testified she never
told Graham he could take all of her money and do whatever he wanted with
it. She said it was “frightening that this is taking place” and “is very sad.”
When asked if she was in agreement with an order to keep her son away from
her and require him to return her money, S.K. said “[i]t sounds almost
unbelievable and—but it sounds like it would be very fair.” S.K. stated she
was “a bit nervous, because you can see I haven’t been really looking at him.”
When S.K. was asked about Graham’s claim that she was being controlled by
his sister, she responded “absolutely not” and said she is a “very independent
person about what I say and how I feel.” S.K. also said her daughter was not
putting her up to asking for the restraining order and that she was “asking
6
for it because it’s so frightening. It’s—it’s—it’s, like, make-believe. It’s so
really, really scary. And it’s hard to believe that someone could turn into a
different kind of person that he has.”
At the conclusion of the hearing, the court found Graham had
committed financial elder abuse against S.K. The court issued a five-year
restraining order against Graham and, among other things, ordered him to
reimburse S.K. the $8.4 million he had taken from her. The court made a
factual finding under Evidence Code section 780 that Graham’s assertions
were not credible and it found “the testimony of [S.K.] to be credible and what
she told [the court] about her nervousness and how she feels about even being
in the same room when she’s looking at [Graham] to be credible . . . .” The
court also denied Graham’s motions to modify and terminate the previously
issued temporary restraining order.
DISCUSSION
“We presume a trial court’s judgment or order to be correct on
appeal, and all intendments and presumptions are indulged in favor of its
correctness. [Citation.] To rebut that presumption, appellant has the burden
to show error with cogent argument supported by legal authority and citation
to the record. [Citation.] ‘“The appellant bears this burden of rebutting the
presumption of correctness accorded to the trial court’s decision, regardless of
the applicable standard of review.”’” (Consumer Protection Group, LLC v.
Signal Brands, LLC (2026) 122 Cal.App.5th 214, 226.) The appellant “‘has
the burden of providing an adequate record’” and “‘[f]ailure to provide an
adequate record on an issue requires that the issue be resolved against [the
appellant].’” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
“On appeal, our review ‘“‘is limited to issues which have been
adequately raised and supported in [the appellant’s opening] brief.’”’” (County
7
of Los Angeles v. Niblett (2025) 116 Cal.App.5th 454, 474 (Niblett).) “‘It is not
our place to construct theories or arguments to undermine the judgment and
defeat the presumption of correctness.’ [Citation.] Nor are we ‘required to
search the record on [our] own seeking error.’ [Citation.] Consequently,
‘[w]hen an appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the point as
waived. [Citation.]’ [Citation.] Likewise, ‘“[i]f a party fails to support an
argument with the necessary citations to the record, . . . the argument [will
be] deemed to have been waived.”’” (L.O. v. Kilrain (2023) 96 Cal.App.5th
616, 620.)
Graham is not exempt from the rules governing appeals because
he is representing himself. (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570,
574.) “A self-represented party is to be treated like any other party and is
entitled to the same, but no greater, consideration than other litigants having
attorneys.” (Ibid.) As discussed below, Graham has forfeited many of his
arguments by failing to provide developed argument with citations to
applicable authority and the record on appeal.3
3
In multiple instances throughout his appellate briefing, Graham
mischaracterizes the facts and/or holdings of cases and attributes quotations
to cases that do not contain the purported quotations. For example, Graham
claims the court of appeal in Bookout v. Nielsen (2007) 155 Cal.App.4th 1131
(Bookout), “reversed an elder abuse restraining order where the protected
party testified she did not want the order, holding that ‘the trial court lacked
evidence of any present danger warranting continuation.’” The purported
quotation (“‘the trial court lacked evidence of any present danger warranting
continuation’”) does not appear in Bookout. Moreover, Bookout does not
indicate that the protected party testified she did not want the protective
order, and the protective order was affirmed by the court of appeal, not
reversed as Graham asserts. (Id. at pp. 1134–1136.) Given the number of
citation errors, we do not address each of them individually.
8
I.
LEGAL PRINCIPLES REGARDING ELDER ABUSE
“An elder or dependent adult who has suffered abuse, as defined
in [s]ection 15610.07, may seek protective orders as provided in” section
15657.03. (Id., subd. (a)(1).) “‘Abuse of an elder’” includes “[f]inancial abuse,
as defined in [s]ection 15610.30.” (§ 15610.07, subd. (a)(3).)4 “‘Elder’ means
any person residing in this state, 65 years of age or older.” (§ 15610.27.)
“[T]he issuance of a protective order under the Elder Abuse Act is
reviewed for abuse of direction, and the factual findings necessary to support
such a protective order are reviewed under the substantial evidence test.”
(Bookout, supra, 155 Cal.App.4th at p. 1137.) “We resolve all conflicts in the
evidence in favor of respondent, the prevailing party, and indulge all
legitimate and reasonable inferences in favor of upholding the trial court’s
findings.” (Id. at pp. 1137–1138.) “In reviewing the issuance of a restraining
order, we will only find an abuse of discretion when the trial court exceeds
the bounds of reason or disregards the uncontradicted evidence. The party
challenging the issuance of the order bears the burden of showing an abuse of
discretion by the trial court.” (Id. at p. 1140.)
4
“‘Financial abuse’ of an elder or dependent adult occurs when a
person or entity does any of the following: [¶] (1) Takes, secretes,
appropriates, obtains, or retains real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both. [¶]
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or
personal property of an elder or dependent adult for a wrongful use or with
intent to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or
retains, or assists in taking, secreting, appropriating, obtaining, or retaining,
real or personal property of an elder or dependent adult by undue influence,
as defined in [s]ection 15610.70.” (§ 15610.30, subds. (a)(1)–(3).)
9
II.
ANALYSIS
Graham has not shown the trial court abused its discretion in
finding he committed financial elder abuse and issuing the restraining order.
The court found Graham committed financial elder abuse because he took
$8.4 million from his mother. Graham has failed to provide developed
argument on appeal, with citations to applicable authority and the record,
that the evidence of him taking $8.4 million from S.K. was not sufficient to
find that he committed financial abuse against S.K. Indeed, Graham’s
appellate briefs do not even cite the statutory requirements for what
constitutes financial elder abuse. Graham stipulated that he withdrew $8.4
million from S.K.’s account and admitted he spent the majority of that money
on “life.” Although he claimed in the trial court that the withdrawals were
loans and that he had put his mother into investments that would more than
repay the money, the court found Graham not credible. We accept the court’s
credibility finding. (See Bookout, supra, 155 Cal.App.4th at p. 1141 [“It was
for the trial court to weigh the evidence and consider the demeanor and
credibility of the witnesses”]; Consolidated Irrigation Dist. v. City of Selma
(2012) 204 Cal.App.4th 187, 201 [“a trial court’s credibility findings cannot be
reversed on appeal unless that testimony is incredible on its face or
inherently improbable”].)
Graham attempts to raise various other arguments on appeal.
They do not establish a ground for reversal.
In the statement of facts section of his opening brief on appeal,
Graham points to an entry in the register of actions from December 2, 2024,
which states: “Based on moving party’s declaration which has been confirmed
under the penalty of perjury, the testimony regarding the violation of
10
temporary restraining order, and review of respondent’s criminal record; the
court finds by preponderance of evidence that elder abuse has occurred in
this matter; respondent is the perpetrator and [S.K.] is the victim, and the
abuse did not occur in self-defense.”5 Graham contends the statements that
he had a criminal record and had violated the temporary restraining order
were inaccurate. Even if that were the case, Graham has not shown
reversible error.6 First, Graham forfeited this argument because his opening
brief failed to state these points under a proper heading and—more
important—failed to provide developed argument, with citation to applicable
authority, demonstrating how these alleged misstatements would require
reversal. (See Bitner v. Department of Corrections & Rehabilitation (2023) 87
Cal.App.5th 1048, 1065 [“‘Failure to provide proper headings forfeits issues
that may be discussed in the brief but are not clearly identified by a
heading’”]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th
857, 862 [“‘When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat the
5
The court’s December 2, 2024 minute order includes a similar
paragraph, although there are some differences (including no mention of a
violation of the temporary restraining order): “Based on moving party’s
declaration which has been confirmed under the penalty of perjury, the
testimony given, and review of respondent’s criminal record; the court finds
by preponderance of evidence that financial elder abuse has occurred in this
matter; respondent is the perpetrator and [S.K.] is the victim, and the abuse
did not occur in self-defense.”
6
Graham attached a declaration to his opening brief on appeal.
We decline to consider it. There is no indication the declaration was
presented to the trial court; it is not part of the record on appeal; and it is not
a type of document permitted to be attached to a brief under California Rules
of Court, rule 8.204(d).
11
point as waived’”].)7 Even if Graham did not have a criminal record at the
time and had not violated the temporary restraining order, the record amply
supports the trial court’s restraining order, in light of Graham’s admission
that he took $8.4 million of his mother’s money and the court’s rejection of
Graham’s explanations and excuses for his conduct as not credible.8
Graham makes multiple arguments that he was deprived of due
process and a fair hearing. None of them have merit. According to Graham,
the trial court delegated all fact finding to the GAL and simply engaged in
“adjudication by proxy.” Graham’s limited citations to the record do not
7
Graham’s reply brief includes separate headings that state “the
supposed criminal record is unsupported by evidence or judicial notice and
respondent’s brief makes no attempt to identify it” and “the alleged TRO
violations were never presented, tested, or adjudicated in open court.”
(Capitalization and boldface omitted.) Graham cannot belatedly raise these
points in his reply brief after failing to adequately present them in his
opening brief. (See Niblett, supra, 116 Cal.App.5th at p. 477 [“By alluding
vaguely in the factual and procedural background section of his opening brief
to the first issue regarding the trial court’s failure to find a likelihood of
future harm and waiting until his reply to provide belated analysis and case
citations in support of it, [the appellant] forfeited that claim of error”]; Bitner
v. Department of Corrections & Rehabilitation, supra, 87 Cal.App.5th at
p. 1065, fn. 3 [“‘As a general rule, points not addressed until a reply brief will
not be considered unless good reason is shown for failing to address them
earlier’”].)
8
In the statement of facts section of his opening brief, Graham
suggests the court relied on a “hidden” declaration that he never received,
and he moves “to have the declaration unsealed, the moving party’s identity
revealed and for the perjury penalty to be enforced on the moving party.”
Even if this were a proper request as part of his appellate brief, we deny this
request. Graham has not shown any sealed or “hidden” declaration was
submitted to the court.
12
support this argument.9 Although the GAL submitted a report to the court,
that was not the end of the proceedings. The court also heard testimony from
the GAL, Graham, S.K., and S.K.’s daughter, and it made explicit credibility
findings regarding testimony it heard. Nothing in the record suggests the
court abdicated its adjudicative role and simply adopted the GAL’s
recommendation without exercising its own judgment.
Graham also appears to argue his due process rights were
violated because, in his view, the GAL’s report was inaccurate and
incomplete, and because the trial court purportedly appointed the GAL “to a
de facto fact-finding role,” and then “treated the GAL report as dispositive
despite its omissions.” Graham argues the GAL report omitted exculpatory
evidence, including purportedly exculpatory financial evidence and S.K.’s
inconsistent testimony from the November 4, 2024 hearing. Again, Graham
has shown no due process violation or other reversible error.
First, to the extent Graham’s due process arguments are based
on the trial court allegedly abdicating its responsibilities to the GAL, we have
already addressed and rejected that assertion.10
Second, to the extent Graham is suggesting the GAL was
obligated to include in his report Graham’s purported “exculpatory financial
9
Graham appears to attribute the quotation, “‘The court may not
shift its fact-finding responsibilities to a GAL under the guise of protecting
the ward,’” to In re Jessica G. (2001) 93 Cal.App.4th 1180, but no such
language appears in Jessica G.
10
Graham appears to suggest the trial court did not consider the
testimony from the November 4, 2024 hearing because a transcript was not
available. We are not persuaded. The same judge presided over both the
November 4 and the December 2 hearings and heard all of the testimony
presented.
13
evidence,” we are not persuaded.11 Graham had a full opportunity to be heard
and to provide the trial court evidence he thought could explain away his
admitted withdrawals of $8.4 million of S.K.’s funds.12
Graham argues “the trial court’s unfamiliarity with [his] pre-
[November] 4 submissions at the final hearing on [December] 2 is indicative
that it willfully ignored them.” (Capitalization and boldface omitted.) We
disagree. Nothing in the record suggests the trial court ignored Graham’s
filings. As support for this assertion, Graham cites a portion of the reporter’s
transcript from the December 2, 2024 hearing regarding the court’s
comments about an exhibit. Graham advised the court he would like to read
to the court a statement he had submitted “through the electronic evidence
11
Graham asserts the GAL’s report “deliberately omitted all
exculpatory financial evidence.” (Capitalization and boldface omitted.)
Graham claims, “[d]espite receiving the asset information on November 19,”
the report “made no mention of the investments.” This is not an accurate
characterization of the report. The report specifically stated Graham claimed
to have put S.K. “into private placement investments as well and expects that
once they monetize, the profits will exceed the $8.4 million he took.” The
report said that when the GAL asked for statements showing the private
placement investments, Graham emailed him a document, which was
attached as an exhibit to the report. The report further noted the GAL
requested additional information about the underlying companies, Graham
had sent narratives about the companies and links to their websites, but due
to time constraints, the GAL had not been able to look further into the
companies.
12
Graham testified extensively at the December 2, 2024 hearing,
with the trial court noting he spoke for about 50 minutes. Nevertheless, in
his reply brief, Graham appears to suggest the court improperly limited the
scope of the proceeding and his ability to question witnesses. Any such
argument has been forfeited by Graham’s failure to assert developed
argument, with citation to applicable authority, in his opening brief. (See
Niblett, supra, 116 Cal.App.5th at p. 477.)
14
portal.” After initially stating it did not see the statement in the portal, the
court indicated it had found the document and would admit it as an exhibit.
Graham then proceeded to provide lengthy testimony to the court, apparently
reading from his statement.13 To the extent Graham is suggesting the court
was required to review all potential exhibits before they were offered or
introduced into evidence at the hearing, he cites no authority for such a
proposition.
Graham argues a fraud was perpetrated on the court because the
petition for a restraining order “was fraudulently presented to the court as
having been filed by” S.K. when in fact it had been filled out by her daughter.
Graham points to the GAL’s report, which noted S.K.’s daughter said she had
completed the entire application for her mother. We find no merit to this
argument. Even if S.K.’s daughter completed the petition on S.K.’s behalf, we
do not conclude that amounted to a fraud on the court or somehow voided the
proceedings. The trial court heard testimony directly from S.K., both at the
November 4, 2024 and the December 2, 2024 hearings. It was informed by the
GAL that S.K.’s daughter said she had completed the petition for her mother.
The court had ample opportunity to assess for itself whether S.K. wanted the
restraining order or was being manipulated or controlled by her daughter,
13
Graham asserts his written statement “has subsequently,
inexplicably, been purged.” At the end of the hearing, the trial court noted
“exhibits are to be returned to the parties that submitted them.” Graham’s
notice designating the record on appeal listed an exhibit he called “Brett
Graham statement” (capitalization omitted), but a clerk’s note in the clerk’s
transcript noted there were no exhibits currently lodged in the superior court.
If Graham wanted that exhibit to be included in the clerk’s transcript, he was
required to “deliver it to the superior court clerk within 10 days after the
notice designating the exhibit is served.” (Cal. Rules of Court, rule
8.122(a)(3).) In any event, the reporter’s transcript includes the lengthy
statement Graham orally made at the hearing.
15
and it plainly was satisfied there was no fraud on the court, S.K. wanted the
restraining order, and a restraining order was warranted. The court found
S.K.’s testimony—including her testimony about how “frightening” and
“really, really scary” it was for Graham to have taken more than $8 million of
her money—was credible. We will not revisit or second guess the trial court’s
credibility determinations.14
Graham also argues the trial court was required to decide his
motion to terminate the temporary restraining order (including his “fraud on
the court” argument) before it took evidence and ruled on the petition for an
elder abuse restraining order. Graham suggests his allegation that the
petition amounted to a fraud on the court meant the court had no jurisdiction
to consider the petition until it had first ruled on whether to modify or
terminate the existing temporary restraining order. We disagree. Graham
cites no legal authority holding that an allegation of fraud on the court in
14
Graham argues in his opening brief on appeal that he
“submitted to an AI-assisted forensic analysis comparing the TRO Petition
signature to [S.K.’s] signature of her Power of Attorney conferred upon
[Graham] and executed in front of her attorney,” and he attached the
purported analysis to his brief. Graham does not contend he presented this
purported analysis to the trial court, and we disregard it. (See Lona v.
Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 [“Factual matters that are not
part of the appellate record will not be considered on appeal and such matters
should not be referred to in the briefs”].) We reject Graham’s assertion that
he properly attached the AI analysis to his brief under California Rules of
Court, rule 8.204(d). That rule permits a party to attach to a brief “copies of
exhibits or other materials in the appellate record.” Graham has not
demonstrated this document meets the requirements of the rule.
16
securing an underlying temporary restraining order cannot be resolved at the
same time as the petition for an elder abuse restraining order.15
Finally, Graham contends the restraining order should be
reversed because the GAL was unlawfully appointed. Although Graham
represented to the trial court at the November 4, 2024 hearing that S.K. had
dementia and Alzheimer’s disease and was being controlled by his sister,
Graham now contends S.K.’s testimony at that hearing demonstrates she was
legally competent at the time. He also asserts “[t]he [GAL’s] appointment was
made without motion, hearing, evidentiary record, or opportunity for
objection,” and “[t]here is no minute order, no written ruling, and no oral
finding” that S.K. is legally incompetent.16 We find the arguments forfeited.
15
Graham cites In re Marriage of Stevenot (1984) 154 Cal.App.3d
1051, for the proposition that, “[u]nder binding precedent, the court was
obligated to decide the Motion to Terminate the TRO proceedings before
taking further action.” That case noted it “explore[d] the most repetitively
troublesome issue in the family law field over the last 40 years, the issue of
what constitutes extrinsic fraud justifying the setting aside of a judgment
and marital settlement agreement in a family law action, and what
constitutes intrinsic fraud and thus is insufficient to achieve this result.” (Id.
at p. 1056.) It had nothing to do with whether a motion to terminate a
temporary restraining order must be decided prior to the hearing on the
petition for a restraining order.
16
Under Code of Civil Procedure section 372, subdivision (a)(1),
“[w]hen . . . a person who lacks legal capacity to make decisions . . . is a party,
that person shall appear either by a guardian or conservator of the estate or
by a guardian ad litem appointed by the court in which the action or
proceeding is pending, or by a judge thereof, in each case.” (Ibid.) “A guardian
ad litem may be appointed in any case when it is deemed by the court in
which the action or proceeding is prosecuted, or by a judge thereof, expedient
to appoint a guardian ad litem to represent the . . . person who lacks legal
capacity to make decisions . . . .” (Id., subd. (a)(2)(A).) A GAL may be
appointed when a person lacking legal competence to make decisions is a
party by the court on its own motion. (Code Civ. Proc., § 373, subd. (c).)
17
As an initial matter, Graham forfeited his arguments concerning
the appointment of the GAL by failing to provide an adequate record on
appeal. (See Hernandez v. California Hospital Medical Center (2000) 78
Cal.App.4th 498, 502 [stating “[f]ailure to provide an adequate record on an
issue requires that the issue be resolved against” the appellant].) The record
on appeal contains the reporter’s transcript from the November 4, 2024
hearing. But the register of actions indicates the trial court issued minutes
for the November 4, 2024 hearing and also issued that same day an “order
appointing guardian ad litem” (capitalization omitted). Graham did not
designate either document as part of the record on appeal.
Graham also forfeited his challenge to the appointment of the
GAL by failing to object in the trial court. (See Kevin R. v. Superior Court
(2010) 191 Cal.App.4th 676, 686 [“‘A party forfeits the right to claim error as
grounds for reversal on appeal when he or she fails to raise the objection in
the trial court’”].) Graham’s assertion that he had no opportunity to object is
belied by the record. Graham appeared at, and actively participated in, the
November 4, 2024 hearing, and when the court indicated it intended to
appoint a GAL and directed Graham to cooperate with him, Graham did not
object. To the contrary, Graham confirmed he was “happy to cooperate with
everything that you’re doing, that you’re seeking,” and he “understand[s] it.”
Having asserted his objection to the appointment for the first time on appeal,
Graham has forfeited any challenge to the appointment of the GAL.
18
III.
MOTIONS
Graham has filed multiple motions on appeal, and we address
below those that have not yet been ruled upon by this court.
On June 30, 2025, Graham filed a motion for “mandatory vacatur
and dismissal based on structural error and jurisdictional defects pursuant to
prior court of appeal rulings.” (Capitalization and boldface omitted.) The
motion is based in part on his arguments about claimed errors by the trial
court and in part on his assertion that this court erred by augmenting the
record with the GAL report and purportedly denying a motion to compel
discovery. The motion is denied.
On April 1, 2026, Graham filed a motion to augment the record
with seven documents from the trial court, all of which are dated after the
order that is at issue on this appeal. They include (1) Graham’s August 26,
2025 motion to unseal and investigate register of actions number 63; (2) a
September 10, 2025 minute order; (3) a December 30, 2025 minute order;
(4) a January 21, 2026 minute order; (5) an August 25, 2025 declaration by
Graham; (6) Graham’s August 13, 2025 petition to remove GAL; and
(7) Graham’s August 29, 2025 ex parte application to calendar hearing on
petition to remove GAL. This motion is also denied. These filings were not
before the trial court when it decided the order that is the subject of this
appeal. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th
434, 444, fn. 3 [“Augmentation does not function to supplement the record
with materials not before the trial court”].)
On June 22, 2026, more than two months after filing his reply
brief, Graham filed a “combined motion to augment the record on appeal
reflecting opposing counsel’s undisclosed knowledge of parallel recoveries &
19
perjury in violation of CRPC Rule 3.3, and application to take additional
evidence and request for judicial notice.” (Capitalization and boldface
omitted.) In support of this motion, he filed a declaration and three exhibits:
(1) a document purportedly showing the monetary results of an arbitration;
(2) an August 18, 2025 opinion and order from a case in United States
District Court for the Southern District of New York; and (3) emails from
June 2026. And on July 7, 2026, Graham also sought leave to file a reply in
support of his “[c]ombined [m]otion.” We deny both the “[c]ombined [m]otion”
and the request for leave to file a reply in support of it. The documents
attached to Graham’s declaration were not before the trial court, and
augmenting the record to include them therefore would not be proper. (See
Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 444,
fn. 3.) Moreover, “[r]eviewing courts generally do not take judicial notice of
evidence not presented to the trial court. Rather, normally ‘when reviewing
the correctness of a trial court’s judgment, an appellate court will consider
only matters which were part of the record at the time the judgment was
entered.’” (Ibid.) Here, there are no exceptional circumstances “that would
justify deviating from that rule, either by taking judicial notice or exercising
the power to take evidence under Code of Civil Procedure section 909.” (Ibid.)
20
DISPOSITION
The order is affirmed. Graham’s June 30, 2025 motion for vacatur
and dismissal; April 1, 2026 motion to augment; June 22, 2026 motion to
augment and take additional discovery, and request for judicial notice; and
July 7, 2026 application for leave to file a reply are denied. Respondent shall
recover her costs on appeal.
GOODING, ACTING P. J.
WE CONCUR:
SCOTT, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
21