Filed 12/13/18 C.R. v. Martinez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Eloy Martinez appeals from a restraining order issued against him under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.; Elder Abuse Act).[1] Martinez fails to demonstrate error and we affirm.

I. Factual and Procedural Background

On July 10, 2017, C.R. (then aged 71) filed an elder abuse restraining order request. She declared Martinez, who is her deceased husband’s son, entered her home when she was not there and changed the locks. As a result, C.R. stated she could not sleep, was “afraid of being at home alone,” and “had a panic attack because [she was] terrified of [Martinez].” As background, C.R. explained that “when [her husband] was alive, [Martinez] would [frequently] come to ask for money and would be very aggressive towards his father in front of [her].”

On August 23, 2017, the trial court heard testimony from both C.R. and Martinez and granted the restraining order. Martinez admitted making an unannounced visit to C.R.’s home in her absence, at which time he entered, intending to “get some papers,” and changed the locks. Martinez asserted his actions were justified because the house was his father’s separate property, it appeared abandoned, his father had told Martinez to “handle it,” and neither C.R. nor her daughter would return his text messages or phone calls. The trial court granted the restraining order against Martinez, explaining “in your opinion, [you could] go to that house, assume it was empty, change the locks with the intention of going in and taking personal property out . . . . No one’s prosecuting you criminally. That’s the good news. But you need to consult with an attorney before you take any actions. [C.R.] is an elderly person, and I’m very concerned for her safety and her well-being.”

The restraining order was valid for one year and included personal conduct orders, stay-away orders, and a no-gun order. Martinez filed a timely notice of appeal.[2]

II. Discussion

A protective order under the Elder Abuse Act is reviewed for abuse of discretion, and the court’s underlying factual findings are reviewed for substantial evidence. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 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. [Citation.] Declarations favoring the prevailing party’s contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court’s determination of the controverted facts will not be disturbed on appeal.” (Id. at pp. 1137–1138.) “[W]e 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.)

Martinez has failed to meet his burden. Preliminarily, we note the restraining order has expired, and the appeal appears moot. (See Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1088 [“ ‘[i]f relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot’ ”].) Whether the trial court abused its discretion in granting C.R.’s request for a restraining order is not a question of broad public interest that is likely to recur. (Ibid.) Nor does Martinez urge any other discretionary exception to the mootness doctrine. Although we could dismiss Martinez’s appeal, we consider the merits because the parties have not addressed the mootness issue in their appellate briefing.

On the merits, Martinez has not shown the trial court abused its discretion. Martinez concedes C.R., who was 71 years old, qualified for protection as an elder. (§ 15610.27.) Martinez contends the facts underlying her application do “not come within the statutory definition of ‘abuse of an elder’ as a matter of law.” “An order may be issued under [the Elder Abuse Act], with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.” (§ 15657.03, subd. (c).) “ ‘Abuse of an elder . . .’ means any of the following: (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶] (3) Financial abuse, as defined in section 15610.30.” (§ 15610.07, subd. (a), italics added.) “Mental suffering” is defined as “fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, [or] harassment . . . .” (§ 15610.53.) “[A] protective order under the Elder Abuse Act may issue on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated.” (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)

Martinez does not argue his conduct, as shown by C.R.’s declaration and testimony, fails to satisfy the threshold set by the italicized statutory language. Instead, Martinez contends the trial court’s order can only be supported if his actions constitute “financial abuse”[3] because his conduct cannot be characterized as “physical abuse, neglect, abandonment, isolation, or abduction.” Martinez’s interpretation of the statute is unpersuasive because it completely fails to account for the language in section 15610.07, subdivision (a)(1), italicized in the preceding paragraph. The statute does not require an act resulting in mental suffering also be “financial abuse” in order to constitute “abuse.” (See § 15610.07, subd. (a); Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1316.) Because Martinez fails to present any challenge to the evidence underlying a finding on the italicized prong of section 15610.07, subdivision (a)(1), he has failed to meet his burden to demonstrate abuse of discretion.[4]

III. Disposition

The order dated August 23, 2017 is affirmed. C.R. is to recover her costs on appeal.

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BRUINIERS, J.*

WE CONCUR:

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SIMONS, Acting P. J.

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NEEDHAM, J.

A152920