Date: 04-15-2018

Case Style: Gordon B. v. Sergio Alberto Gomez

Case Number: B278083

Judge: Bendix

Court: California Court of Appeals Second Appellate District Division One on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Gordon B. in pro.per.

Defendant's Attorney: No appearance

Description: Gordon B., in propria persona, appeals from the trial
court’s denial of his request to renew an elder abuse restraining
order against his neighbor, respondent Sergio Alberto Gomez
(Gomez). Gordon B. contends the trial court erred by denying his
request for lack of evidence that further significant abuse
occurred since the original restraining order was issued. We
agree, and reverse and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
We rely on the record provided to piece together and
summarize the factual and procedural history of this dispute.
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Gordon B., a 75-year-old disabled veteran, resides alone.
Gordon B. appeared as a witness at two animal control hearings
on June 24, 2014 and October 16, 2014. Soon thereafter,
according to Gordon B., five persons involved in those hearings—
Gomez, Nohemi Matias Gomez (Gomez’s wife), Maria Matsuda,
Marylou Sanchez, and Jesus Gonzalez—began to harass him.
Gordon B. does not provide details of how each person harassed
him, but alleges the destruction of his personal property, verbal
1 Gordon B. provided copies of the following documents:
(a) the trial court’s July 31 and August 21, 2015 minute orders;
(b) the trial court’s August 21, 2015 elder or dependent adult
abuse restraining order after hearing; (c) the August 15, 2016
notice of hearing to renew restraining order; (d) the reporter’s
transcript of the September 6, 2016 hearing; and (e) the trial
court’s September 6, 2016 minute order denying his petition to
renew orders prohibiting harassment. Based on a review of the
case summary, Gordon B. did not provide copies of the following
documents: (f) his July 10, 2015 request for elder or dependent
adult abuse restraining orders; (g) his July 10, 2015 declaration;
(h) the July 10, 2015 temporary restraining order; or (i) the
reporter’s transcript of the August 21, 2015 hearing, if one was
prepared.
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abuse, and obscene gestures when he ventured out of his house.
Gordon B. also alleges that Gomez, a neighbor, tried to run him
down with a Ford pickup truck on April 4, 2015, and set off large
firecrackers on his driveway on July 7, 2015.
On July 10, 2015, Gordon B. obtained elder adult or
dependent adult abuse temporary restraining orders against all
five of his harassers pursuant to Welfare and Institutions Code
section 15657.03. Gomez, his wife, and Maria Matsuda were
served, but the other two, Jesus Gonzales and Marylou Sanchez,
apparently disappeared upon learning of the restraining orders.
On July 31, 2015, the trial court issued an order continuing the
hearing on the restraining orders to August 21, 2015 and
maintaining the temporary restraining orders in full force and
effect.
At the August 21, 2015 hearing, the case against
Maria Matsu was dismissed by agreement of the parties. The
trial court issued a “stay away” restraining order directing
Gomez to stay at least 100 feet from Gordon B. and his residence,
and to sell, store or surrender any guns in his possession. The
court made the order effective for one year, expiring at midnight
on August 21, 2016. The court also issued a restraining order
against Gomez’s wife, which is not the subject of this appeal. We
do not know whether a reporter’s transcript was prepared; there
is no such transcript in the record. Thus, we do not know what
evidence the court considered, what findings it made, or its
reasons for issuing the original restraining orders.
Gordon B. filed a request to renew the restraining order
against Gomez before it expired. Gordon B.’s request is not in the
record. The trial court issued a notice of hearing to renew the
restraining order on August 15, 2016, set a hearing for
September 6, 2016, and ordered that the current restraining
order remain in effect until the end of that hearing.
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Gordon B., then represented by counsel, appeared at the
September 6, 2016 hearing. So did Gomez. The trial court
reviewed the record and Gordon B.’s request to renew the
restraining order against Gomez. The trial court explained it
was not concerned with what had happened in the past, and
asked Gordon B. what had happened recently, and if he had
“called the police to enforce the restraining order.” Gordon B.
stated that he had “called the police a number of times to enforce
the restraining order and they had been out and spoke with
Mr. and Mrs. Gomez. Each time, for a brief period, there was
improvement.”
Gordon B. recounted several incidents. Gordon B. stated
that on January 14, 2016, he observed Gomez double-parked
within 100 feet of his house. Gordon B. also said Gomez drove by
his house looking at him in a threatening way. The court
responded, “What I need from you are specific dates and specific
contact as opposed to threatening, dirty looks, giving you the
finger, screaming something at you. I need acts that would
justify a renewal of the restraining order.”
Gordon B. said that in January 2016, he was walking down
the alley by his house, after checking on a neighbor’s house.
There, he encountered Gomez, who came through the alley very
quickly and right at Gordon B. Gordon B. said he called the
police, who spoke with Gomez.
The court stated, “the fact is that, as I explained to you
before, it’s hard to get a renewal and it’s hard to get enforcement
unless there is a significant threat, a reasonable threat or an act
of violence.”
The court then asked to hear from Gomez, who opposed the
renewal of the restraining order. Gomez asked the court to
consider a letter he brought related to a case that had been closed
in which Gordon B. “said that [Gomez] wanted to run him over
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with the car.” Gordon B.’s counsel reviewed the letter, and stated
it concerned an alleged assault with a deadly weapon, but did not
specify the date of the incident or the weapon. The letter referred
to a September 19, 2015 hearing at which the hearing officer
found insufficient evidence to bring criminal charges. Gordon B.
concedes this incident occurred on April 4, 2015, before the
original restraining order was issued.
The trial court asked Gordon B. about other incidents.
Gordon B. stated that on the Fourth of July in 2015 and again in
2016, several “large military-grade firecrackers” were thrown on
the front lawn and driveway of his house. Gordon B. said he
witnessed Gomez throw the firecrackers on one occasion, and on
another the perpetrator was an unknown male. The incident he
attributed to Gomez was raised at the August 21, 2015 hearing at
which the original restraining order was issued. The court
stated, “Well, that’s a long time ago. Do you have anything else?”
Gordon B. stated that someone used a device to puncture
the sidewall of a tire of his car. The court responded that it could
do nothing about property damage, which Gordon B. could report
to the police as vandalism. Gordon B.’s counsel argued that the
culprit trespassed to puncture Gordon B.’s tire, but the trial court
noted there was no proof of who did it.
Gordon B.’s counsel argued that there had been “a drastic
improvement since this particular restraining order has been in
place. Prior to the restraining order, there were confrontations.
There was aggressive behavior. There were obscenities. Since
the restraining order has been in place, there has been a drastic
difference in the experience that Mr. [B.] has had with his
neighbors.” The trial court responded, “Well, it expired on
[August 21] and nothing has happened.” Gordon B’s counsel
corrected the court, stating the restraining order had remained in
effect pending the hearing on its renewal, and explained Gordon
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B.’s “fear is that once this restraining order is no longer in place,
the behavior of the respondent is going to go back to what it was.”
The court rejected these concerns as “speculative” and
concluded, “You have insufficient evidence for a renewal.” The
court recommended that Gordon B. install security cameras. The
court admonished Gomez to stay away from Gordon B., his
property, and his car.
This appeal followed.
DISCUSSION
Gordon B. contends the trial court erroneously denied his
request to renew the restraining order against Gomez for lack of
evidence of further abuse, and failed to determine whether
Gordon B. demonstrated a reasonable apprehension of future
abuse. Gordon B. also contends the trial court violated his due
process rights by refusing to consider his documentary evidence
and by denying his counsel the opportunity to be heard. We
agree that the trial court applied the incorrect legal standard, as
discussed below, and therefore reverse with directions. Gordon
B.’s second contention is not supported by the record, which
shows he did not seek to admit documentary evidence and the
trial court permitted his counsel to be heard.
I. Denial of Request to Renew Restraining Order
Gordon B. requested the trial court renew a restraining
order issued pursuant to the Elder Abuse and Dependent Adult
Civil Protection Act (Elder Abuse Act), codified as Welfare and
Institutions Code section 15657.03. The trial court denied
Gordon B.’s request.
The denial or “issuance of a protective order under the
Elder Abuse Act is reviewed for abuse of discretion, and the
factual findings necessary to support such a protective order are
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reviewed under the substantial evidence test.” (Bookout v.
Nielsen (2007) 155 Cal.App.4th 1131, 1137 (Bookout) [adopting
the standard of review for protective orders under the Domestic
Violence Prevention Act].) “However, the question of ‘whether a
trial court applied the correct legal standard to an issue in
exercising its discretion is a question of law [citation] requiring
de novo review.’ ” (Cueto v. Dozier (2015) 241 Cal.App.4th 550,
560 (Cueto).)
In relevant part, Welfare and Institutions Code section
15657.03 provides: “These orders may be renewed upon the
request of a party, either for five years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of
the court either on written stipulation filed with the court or on
the motion of a party. The request for renewal may be brought at
any time within the three months before the expiration of the
order.” (Welf. & Inst. Code, § 15657.03, subd. (i)(1).)
Because a protective order specific to elder abuse is of
relatively recent vintage, cases interpreting the statute have
looked to analogous procedures governing domestic violence
restraining orders under Family Code section 6300 et seq.
(See, e.g., Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137
(Gdowski); see also Bookout, supra, 155 Cal.App.4th at p. 1137.)
Because no reported case has addressed the showing required to
renew an elder abuse restraining order, we rely on cases applying
the statutory provision for renewing a domestic violence
restraining order, which is virtually identical to that for renewing
an elder abuse restraining order: “These orders may be renewed,
upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the
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court or on the motion of a party. The request for renewal may
be brought at any time within the three months before the
expiration of the orders.” (Fam. Code, § 6345, subd. (a).)
By their terms, both statutes permit a party to request
the court to renew a restraining order “without a showing of
any further abuse since the issuance of the original order.”
(Fam. Code, § 6345, subd. (a); Welf. & Inst. Code, § 15657.03,
subd. (i)(1).) A leading case interpreting Family Code
section 6345, subdivision (a) explained: “It would be anomalous
to require the protected party to prove further abuse occurred
in order to justify renewal of that original order. If this were
the standard, the protected party would have to demonstrate
the initial order had proved ineffectual in halting the restrained
party’s abusive conduct just to obtain an extension of that
ineffectual order. Indeed[,] the fact a protective order has
proved effective is a good reason for seeking its renewal.”
(Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1284 (Ritchie).)
Thus, “a trial court errs when it requires a party to show a
violation of the restraining order as a condition to renewing that
order.” (Cueto, supra, 241 Cal.App.4th at p. 561.)
Instead, a “trial court should renew the protective order, if,
and only if, it finds by a preponderance of the evidence that the
protected party entertains a ‘reasonable apprehension’ of future
abuse. So there should be no misunderstanding, this does not
mean the court must find it is more likely than not future abuse
will occur if the protective order is not renewed. It only means
the evidence demonstrates it is more probable than not there is a
sufficient risk of future abuse to find the protected party’s
apprehension is genuine and reasonable.” (Ritchie, supra,
115 Cal.App.4th at p. 1290.)
Here, the trial court erroneously required evidence of
further abuse that violated the restraining order. Based on the
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legislative history and language of the Elder Abuse Act, “a
protective order under the Elder Abuse Act may issue on the
basis of past abuse, without any particularized showing that the
wrongful acts will be continued or repeated.” (Gdowski, supra,
175 Cal.App.4th at p. 137.) The trial court here stated it was not
interested in “what happened in the past” but “what has been
happening recently,” and asked Gordon B. if he had “called the
police to enforce the restraining order.” The trial court also asked
Gordon B. for “specific dates and specific contact as opposed to
threatening, dirty looks, giving you the finger, screaming
something at you. I need acts that would justify a renewal of the
restraining order.”
No such acts needed to have been shown. As Ritchie,
supra, 115 Cal.App.4th 1275 explained, the trial court should
have considered whether, based upon Gordon B.’s evidence, it
was “more probable than not there is a sufficient risk of future
abuse to find the protected party’s apprehension is genuine and
reasonable.” (Id. at p. 1290.) Under Ritchie, that inquiry begins
by considering the “evidence and findings” that supported the
issuance of the original restraining order to appraise the risk
of future abuse. (Ibid.) The trial court should also consider
whether there have been “any significant changes in
circumstances” by asking, for example, “have the restrained
and protected parties moved on with their lives so far that the
opportunity and likelihood of future abuse has diminished to
the degree they no longer support a renewal of the order?”
(Id. at p. 1291.)
The record does not include Gordon B.’s application for the
original restraining order. It appears, however, to have been
based in part on Gordon B.’s allegation that Gomez tried to run
him down with a Ford pickup truck in April 2015 and exploded
firecrackers on his driveway in July 2015. At the September 6,
10
2016 hearing, Gordon B. told the trial court about a further
incident in January 2016, when he was walking down the alley
by his house and Gomez came through the alley very quickly and
right at him. Gordon B. did not state whether Gomez was driving
a vehicle, possibly because the trial court cut him off to inquire
whether he had called the police. Gordon B. confirmed he had,
and the police spoke with Gomez. Gordon B. also stated that an
unidentified person had exploded firecrackers on his lawn in
July 2016.
These and other examples Gordon B. provided suggest that
he and Gomez have not “moved on with their lives.” They remain
neighbors and have encountered one another several times since
the restraining order was issued. Gordon B. stated that
“Mr. Gomez will cruise by my house and look at me in a
threatening way,” which reflects Gordon B.’s belief that Gomez
continues to harbor animus towards him.
Lastly, the trial court dismissed as “speculative” counsel’s
argument that the restraining order against Gomez had been
effective in eliminating “confrontations” and “aggressive
behavior,” and without a restraining order, Gordon B. feared
Gomez’s behavior would “go back to what it was.” Gordon B.’s
fear is based on more than speculation, and evidence that
“ ‘a protective order has proved effective is a good reason for
seeking its renewal.’ ” (Cueto, supra, 241 Cal.App.4th at p. 561.)
We hold the trial court erroneously based its denial of
Gordon B.’s request to renew the protective order on his failure to
present evidence of further abuse. On the record before us, we
cannot determine whether the error was harmless. We do not
know, for example, what findings the trial court that issued the
original restraining order made concerning verbal or physical
threats by Gomez. Nor can we determine from the record
whether the alleged January 2016 incident in the alley involved a
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threat with a motor vehicle. If that were the case and found to be
true, it would support Gordon B.’s reasonable apprehension of
future abuse from Gomez.
For these reasons, we reverse for a further hearing on
Gordon B.’s request to renew the protective order, at which
hearing the trial court should determine whether Gordon B. has
a reasonable apprehension of future abuse that is sufficient to
warrant renewal of the original protective order.
II. The Trial Court’s Alleged Due Process
Violations
Gordon B. contends the trial court violated his right to due
process by refusing to consider his documentary evidence.
Gordon B. asserts he possessed “ample evidential documents to
support his case” including four police reports, a log of incidents,
an affidavit, and photos showing Gomez within 100 feet of his
house, all since the first restraining order was issued. Nowhere
in the transcript of the September 6, 2016 hearing does it appear
that Gordon B. or his counsel sought to introduce documentary
evidence, or that the court declined to consider such evidence.
Rather, at the page and line numbers Gordon B. cites, the trial
court merely stated, “And I see that you have kept a notebook—.”
Gordon B. interjected, “Yes, I do. And—” The court continued,
“—which is excellent. That makes sense.”
Gordon B. also contends the court “rejected the
documentation offered up by [his counsel] to establish the
necessary standard of proof, under §6345(a) of the California
Family Code.” Here, Gordon B. disregards the rules governing
appellate briefs by failing to support this factual assertion with a
citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C);
see City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239
[appellate court need not consider any matter asserted without
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appropriate reference to the record].) Nor could we find anywhere
in the reporter’s transcript an attempt by Gordon B.’s counsel to
offer documents or legal authorities to the court, much less any
refusal to let him do so.
2
Gordon B. also contends the trial court violated his due
process rights by denying his counsel’s requests to speak on his
behalf. Gordon B. cites two examples in the record, but in each
case, the court simply asked Gordon B. personally to respond to a
question. In the first example, following a colloquy with Gordon
B.’s counsel, the court stated, “And since you did have a
restraining order, have you called the police to enforce that
restraining order? And if you can answer that, sir, I’d appreciate
that.” In Gordon B.’s second example, the court asked for specific
dates and acts “that would justify renewal of the restraining
order.” Gordon B.’s counsel stated, “Your honor, may I speak on
behalf of my client?” The court responded, “Yes, you may, although
I do want him to address the . . . I want to hear it from him as
opposed to you.” Subsequently, Gordon B.’s counsel was able to
address the court without any interference on numerous occasions.
2 The only document presented to the court at the
September 6, 2016 hearing was a letter offered by Gomez, which
prompted the court to ask, “Who is this letter from because I can
only elicit testimony in court.” Gomez explained he went to the
court on La Cienega Boulevard, where he was given the
document. The court asked him to show it to Gordon B.’s counsel,
who discussed its contents with the trial court.

Outcome: The order is reversed and remanded with directions for the
trial court to reconsider Gordon B.’s request to renew the elder
abuse restraining order. In exercising its discretion, the trial
court should consider whether Gordon B. has proved a reasonable
apprehension of future abuse by Sergio Alberto Gomez. We
express no view on the outcome upon remand. The parties are to
bear their own costs on appeal.

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