Opinion
F082213
10-21-2022
STEPHAN FIERRO, Plaintiff and Respondent, v. GERTRUDE FIERRO et al., Defendants and Appellants
Coleman &Horowitt and Craig A. Tristao for Defendants and Appellants. Albertoni &Associates and Susan L. Albertoni for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Order Filed Date 10/31/22
APPEAL from a judgment of the Superior Court of Merced County, 20CV-02773, 20CV-02797 Brian L. McCabe, Judge.
Coleman &Horowitt and Craig A. Tristao for Defendants and Appellants.
Albertoni &Associates and Susan L. Albertoni for Plaintiff and Respondent.
ORDER MODIFYING OPINION
It is ordered that, for purposes of correcting a typographical error rather than changing the intended effect of the judgment, the opinion filed herein on October 21, 2022, be modified as follows.
On page 22, first paragraph of the disposition, "respondents" in the first sentence is replaced with "defendants" so the sentence now reads: "The elder abuse restraining orders against defendants Gertrude Fierro and Yohanna Fierro are reversed and vacated."
On page 22, last paragraph of the disposition, "Respondents" is replaced with "Defendants Gertrude Fierro and Yohanna Fierro" so the paragraph now reads: "Defendants Gertrude Fierro and Yohanna Fierro shall recover their costs on appeal."
OPINION
FRANSON, J.
Stephan Fierro requested a restraining order under the Elder Abuse and Dependent Adult Civil Prevention Act (Elder Abuse Act; Welf. &Inst. Code, § 15600, et seq.)against his brother's widow and daughter, alleging they had financially abused his octogenarian mother. The trial court agreed, finding clear and convincing evidence of financial abuse and issuing an elder abuse restraining order (EARO).
Undesignated statutory references are to the Welfare and Institutions Code.
Defendants Gertrude Fierro and Yohanna Fierro appealed, contending the trial court erred by (1) failing to grant their request for a continuance, (2) signing an order containing firearm restrictions that contradicted the court's findings, and (3) finding financial abuse without sufficient supporting evidence. They also contend there is insufficient evidence to establish Stephan had the necessary authority to request an EARO on behalf of his mother.
We do not address the issues involving the sufficiency of the evidence because reversal is required by the trial court's errors in handling the request for a continuance. First, we conclude defendants' request for a continuance was timely because it was ma de during the hearing and the statute allows such requests to "be made ... orally at the hearing." (§ 15657.03, subd. (n)(1).) Second, the reporter's transcript shows the trial court did not accurately understand the full scope of its responsibility to grant a continuance for good cause and, as a result, the court did not properly exercise its discretion in determining whether good cause existed. (See Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90 [discretionary order based on an application of improper criteria or incorrect legal assumption is not an exercise of informed discretion].) Third, we conclude the court's failure to properly exercise its discretion was not a harmless error. Lastly, the inclusion of the firearms and ammunition restriction in the EARO was error because only financial abuse was found. (See § 15657.03, subd. (u)(4).)
We therefore reverse the EARO and remand for further proceedings.
FACTS AND PROCEEDINGS
Elvira Fierro (Vira) had two sons, Rick and Stephan. Rick married Gertrude and they had two children, Ricardo and Y ohanna. Rick died in 2006. From 2006 to 2009, the children were placed with Vira. In December 2009, after Gertrude had regained custody of the children, Gertrude and the children moved into Vira's home. Gertrude contends Vira insisted they move into her home because V ira was lonely and had gotten used to the children being there. In contrast, Stephan characterized the move as a temporary arrangement with Gertrude helping V ira as she recovered from an injury.
On September 23, 2020, Stephan filed requests for an EARO (Judicial Council form EA-100) against Gertrude and Yohanna. The requests asserted they were made by Stephan as trustee and attorney-in-fact for Vira, who was 83 years old at the time. The requests alleged that Gertrude and Yohanna were neglecting Vira's health and were living off Vira's monthly social security benefit and her monthly pension payment, which were deposited directly into Vira's bank account.
On October 2, 2020, the trial court issued temporary restraining orders (Judicial Council form EA-110) that included personal conduct orders and stay-away orders requiring defendants to stay 100 yards away from Vira when not at the residence and two yards away from her while at the residence. The court denied the request for a move-out order, deferring that issue until the hearing. The temporary restraining order also prohibited defendants from possessing any firearms or ammunition.
The hearing on the requests for an EARO were heard on November 2, 2020, in courtroom 10. That morning, before the hearing started, Gertrude and Yohanna filed their responses (Judicial Council form EA-120) to the requests for an EARO. The minute orders from the hearing state Stephan, his counsel, Gertrude, and Y ohanna were "present in courtroom 8 via Zoom." Gertrude and Yohanna represented themselves. Vira did not attend the hearing.
Further details about the hearing are provided later in this opinion. After the court received the testimony of Stephan, Gertrude, and Yohanna, it found "that there is clear and convincing evidence of financial abuse." The court allowed defendants 30 days to move out of the residence. The EARO's (Judicial Council form EA-130) were signed and filed on November 5, 2020. Although the only type of abuse found by the trial court was financial abuse, the EARO's prohibited defendants from possessing firearms or ammunition.
On December 31, 2020, an attorney filed a notice of appeal on Gertrude's behalf. A few days later, the same attorney filed a notice of appeal on Yohanna's behalf.
DISCUSSION
I. ELDER ABUSE ACT
A. Grounds for a Restraining Order
The goal of the Elder Abuse Act is to protect vulnerable elderly adults from abuse and neglect. (§ 15600; Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1139 (Bookout).) One of the protections is the issuance of an EARO pursuant to section 15657.03. A petition for an EARO may be brought by the elder or by certain other persons. For example, a trustee of the elder or an attorney-in-fact acting within the authority of a power of attorney are authorized to seek an EARO on behalf of the elder. (§ 15657.03, subd. (a)(1), (a)(2).) An elder is defined as a California resident, 65 years of age or older. (§ 15610.27.)
" 'Abuse of an elder'" includes "(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] ... [¶] (3) Financial abuse, as defined in Section 15610.30." (§ 15610.07, subd. (a)(1), (a)(3).)" 'Financial abuse'" occurs when a person "[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder ... for a wrongful use or with intent to defraud, or both." (§ 15610.30, subd. (a)(1).) Assisting in these actions also qualifies as financial abuse. (§ 15610.30, subd. (a)(2).) The level of proof required for an EARO is a preponderance of the evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; Bookout, supra, 155 Cal.App.4th at p. 1138.)
The Elder Abuse Act authorizes the issuance of a temporary restraining order upon the filing of a petition. (§ 15657.03, subd. (d).) After notice and a hearing, the court may issue an EARO having a duration of not more than five years. (§ 15657.03, subd. (i)(1).) If the order does not state an expiration date, the duration of the EARO is three years from the date of issuance. (§ 15657.03, subd. (i)(2).)
The provisions in the Elder Abuse Act addressing the timing of the hearing and continuances are set forth in part III.A. of this opinion.
B. Standards of Review
Appellate courts review a trial court's issuance of an EARO for abuse of discretion. (Bookout, supra, 155 Cal.App.4th at p. 1137.) The abuse of discretion standard is not unified. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) "[T]he deference it calls for varies according to the aspect of a trial court's ruling under review." (Ibid.) The trial court's underlying findings of fact are reviewed under the substantial evidence test. (Ibid.; Bookout, at p. 1137.) The trial court's "conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi, supra, at p. 712, fns. omitted.)
II. FAILURE TO ALLOW CROSS-EXAMINATION OF STEPHAN
Defendants contend the trial court abused its discretion by not allowing them to cross-examine Stephan. This argument is intertwined with their argument that the court erred in not granting them a continuance, but we address it first because the absence of any cross-examination is a factor relevant to whether a continuance should have been granted.
A. Applicable Law
As a general principle of law, "[a] person's right of cross-examination and confrontation of witnesses against him [or her] in noncriminal proceedings is a part of procedural due process guaranteed by the Fifth Amendment and the Fourteenth Amendment to the federal Constitution, where there is involved a threat to life, liberty or property." (August v. Department of Motor Vehicles (1968) 264 Cal.App.2d 52, 60 (August).) Similarly, our Supreme Court has recognized the general principle that, while the state and federal confrontation clauses do not apply to civil proceedings, "such a right does exist under the due process clause." (People v. Otto (2001) 26 Cal.4th 200, 214.)
In addition, cross-examination of witnesses is addressed by the Evidence Code. In Fost v. Superior Court (2000) 80 Cal.App.4th 724, the court provided the following summary:
"Cross-examination-defined as 'the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness' (Evid. Code, § 761)-is required under Evidence Code section 711, which provides that '[a]t the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.' (Evid. Code, § 711.) 'A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.' (Evid. Code, § 773.)" (Fost, supra, at p. 733, fn. 4.)
The timing of cross-examination is addressed in Evidence Code section 772, which provides in part:
"(a) The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recrossexamination, and continuing thereafter by redirect and recross-examination.
"(b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins."
Thus, "[c]ross-examination normally follows the direct examination of each witness." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2021) ¶ 10:17, p. 10-4.)
The foregoing general principles about the right to cross-examine a witness have been applied in the specific context of California's restraining order statutes that have streamlined procedures. For instance, in Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719 (Schraer)-a case involving a civil harassment restraining order issued under Code of Civil Procedure section 527.6-the appellate court addressed the defendant's right to cross-examine. (Schraer, at pp. 721-722.) The court cited August and other cases for the principle that a constitutional right to confront and crossexamine witnesses exists in civil proceedings. (Schraer, at p. 731.) The court acknowledged the streamlined procedures used for civil harassment restraining orders, stating there was no full trial on the merits and the statutory hearing "was the only forum the defendant in a harassment proceeding will have to present his or her case." (Id. at pp. 732-733.) The court then stated:
"To limit a defendant's right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendant's due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds." (Schraer, supra, 207 Cal.App.3d at p. 733.)
In Nora v. Kaddo (2004) 116 Cal.App.4th 1026, the appellate court quoted Schraer for the principle that a defendant at a hearing on a request for a civil harassment restraining order has a right to cross-examine witnesses and present evidence. (Nora, at p. 1029.) In that case, the trial court refused to hear witnesses tendered by each party and decided to issue mutual restraining orders based on the declarations and exhibits included in the parties' papers. (Id. at pp 1028-1029.) The appellate court concluded this evidentiary ruling deprived the plaintiff of a full opportunity to present his case and deprived the defendant of his right to defend. (Id. at p. 1029.) It reversed the order granting the mutual restraining orders and remanded for an evidentiary hearing. (Id. at p. 1030; see CVS Hospitality Management LLC v. Lucas (Sept. 20, 2022, A163345) __ Cal.App.5th __ [workplace violence restraining order reversed due to denial of right to cross examine witness during evidentiary hearing].)
Based on the foregoing case law and the fact that similar streamlined procedures are used for obtaining both civil harassment and elder abuse restraining orders, we conclude the due process and statutory right to cross-examine witnesses extends to a civil proceeding seeking the issuance of an EARO. (See Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521-522 [truncated procedures of the civil harassment restraining order statute] (Yost).) The hearing provided by the Elder Abuse Act is the only forum for a defendant to present his or her case and the defendant's presentation includes the right to cross-examine witnesses.
We note that trial courts have the discretion to require the cross-examination be conducted through the court. "The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment." (Evid. Code, § 765, subd. (a).)
B. No Cross-Examination of Stephan
During the hearing, Stephan testified in support of the request for an EARO, with his attorney conducting the direct examination. After the attorney asked her last question, she stated: "Thank you. I have no further questions." Without asking defendants if they had any questions, the trial court stated: "All right. Thank you. [¶] Call your next witness." The attorney responded that Stephan was her only witness. The court then stated: "Why don't you exchange out and then I'll have [defendants] come on up."
The court advised defendants that because they lived in the same home, they could remove their masks and "speak directly into the computer." The court also advised defendants that this was their opportunity to supplement the information provided in the written responses they filed and said, "Let's start with Gertrude first." Neither Gertrude nor Yohanna asserted the right to cross-examine Stephan at the hearing.
The parties characterized what happened at the hearing differently. Defendants contend the trial court did not allow them to cross-examine Stephan. In contrast, Stephan interprets events as giving Yohanna and Gertrude "ample opportunity to cross-examine and provide any information they wanted." He also contends: "Never did the Court prevent either [defendant] from asking any questions they had of Stephan." Thus, in Stephan's view, the court did not deny defendants the opportunity to cross-examine. Stephan supports his argument that no error occurred by quoting County of Orange v. Smith (2005) 132 Cal.App.4th 1434, a case involving a dispute over child support payments, which stated:
"We recognize the fact that the father is appearing without the benefit of legal counsel. However, we are unable to ignore rules of procedure just because we are aware of that fact. 'When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].'" (Id. at p. 1444.)
We conclude the statements in County of Orange v. Smith, supra, 132 Cal.App.4th 1434 for the treatment of self-represented litigants do not apply in proceedings involving a request for an EARO. This conclusion is based on cases involving the issuance of restraining orders under the Domestic Violence Prevention Act (DVPA; Fam. Code, §§ 6200-6460).
In Ross v. Figueroa (2006) 139 Cal.App.4th 856 (Ross), the Second District referred to a 2000 Judicial Council study and stated that, in domestic violence proceedings, "the litigants, both plaintiffs and defendants, are unrepresented by counsel in the vast majority of cases." (Ross, supra, at p. 861.) The court stated that "this fact influences how these hearings should be conducted-with the judge necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order. In such a hearing, the judge cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights." (Ibid.) The Second District reversed the order granting the restraining order because the trial court was required by statute to grant the defendant's request for a continuance. (Id. at p. 864.) The court then addressed some due process and procedural problems that should be avoided on remand-problems related to the defendant being self-represented. (Id. at p. 865.)
One problem in Ross involved the introduction into evidence of defendant's written statement, which had not been served on the plaintiff. The defendant asked the referee if he could present the written statement and the referee answered" 'no,'" and proceeded to grant the restraining order. (Ross, supra, 139 Cal.App.4th at p. 866.) The Second District stated that "the referee should have advised [the defendant that] he could provide oral testimony, even though he would not be permitted to file the written statement he had failed to timely serve on [the plaintiff.]" (Ibid.) Therefore, Ross stands as an example of a case where the trial court should have advised a self-represented litigant of a procedural right and where the giving of such guidance would not have violated the court's duty of impartiality.
In Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, another division of the Second District acknowledged that the high percentage of self-represented litigants in domestic violence restraining order cases placed special burdens on judicial "officers who 'cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights.'" (Id. at p. 420.)
We conclude the principles set forth in Ross and Gonzalez for handling selfrepresented litigants in proceedings under the DVPA extend to cases under the Elder Abuse Act. Those principles place affirmative obligations on the trial court that are different from the obligations generally applied in other types of civil proceedings.
Here, we need not resolve whether the trial court's failure to ask defendants if they had any questions for Stephan after the direct examination constitutes an erroneous failure to advise self-represented litigants of a procedural right similar to the error that occurred in Ross, supra, 139 Cal.App.4th at page 866. Furthermore, we need not address whether the court violated Evidence Code section 772, subdivision (a) by allowing a redirect examination of Stephan without any cross-examination. Instead, we consider the absence of any cross-examination as a factor related to whether there was good cause for defendants' request for a continuance to obtain a lawyer.
III. FAILURE TO GRANT A CONTINUANCE
A. Timing and Continuances
Section 15657.03 provides that a petitioner may obtain a temporary restraining order "[u]pon filing a petition for protective orders." (§ 15657.03, subd. (d).) The order on the temporary restraining order affects when the hearing on the petition is held. Subdivision (f) of section 15657.03 states: "Within 21 days, or, if good cause appears to the court, 25 days, from the date that a request for a temporary restraining order is granted or denied, a hearing shall be held on the petition. If no request for temporary orders is made, the hearing shall be held within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed." (Italics added.)
Despite the mandatory language as to when a hearing shall be held, section 15657.03 also allows the hearing on the petition to be continued. (See § 15 [" 'Shall' is mandatory and 'may' is permissive"].) The relevant subdivisions provide:
"(m) The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.
"(n)(1) Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing or orally at the hearing. The court may also grant a continuance on its own motion.
"(2) If the court grants a continuance, any temporary restraining order that has been granted shall remain in effect until the end of the continued hearing, unless otherwise ordered by the court. In granting a continuance, the court may modify or terminate a temporary restraining order." (§ 15657.03, subds. (m), (n)(1), (n)(2).)
The wording of these subdivisions is identical to subdivisions (o) and (p) of sections 527.6 and 527.8 of the Code of Civil Procedure, which address civil harassment restraining orders and workplace violence restraining orders, respectively. Also, the wording and punctuation of subdivisions (a) through (c) of Family Code section 245 is nearly identical to the foregoing provisions. Those subdivisions apply to restraining orders issued under the DVPA. (E.g., J.M. v. W.T. (2020) 46 Cal.App.5th 1136, 1140.)
B. Mandatory Continuances
First, we consider defendants' argument that they were entitled to a continuance as a matter of course under subdivision (m) of section 15657.03. The wording of that subdivision and other restraining order statutes with the same text authorizes a continuance for the defendant "to respond." (§ 15657.03, subd. (m).) The other statutes have been interpreted to mean that once the party to be restrained has filed a response, the mandatory continuance provision no longer applies. (Goals for Autism v. Rosas (2021) 65 Cal.App.5th 1041, 1045-1046 [interpreting Code Civ. Proc., § 527.8, subd. (o)]; see Ross, supra, 139 Cal.App.4th at p. 862 [interpreting Family Code provision].) We adopt the same interpretation here.
Next, we apply that interpretation to the facts of this case. The file stamped copies of defendants' responses show they were filed at 8:16 and 8:20 a.m. on November 2, 2020. The minute order from the November 2, 2020 hearing states that the matters were recalled at 10:15 a.m. and that the trial court reviewed the defendants' responses before the parties were sworn and testified. Therefore, t he record demonstrates that defendants' responses were filed before their oral request for a continuance. As a result, the mandatory continuance provision does not apply. (§ 15657.03, subd. (m).)
C. Continuances for Good Cause
Second, we consider defendants' argument that Gertrude's oral request for a continuance during the hearing was timely and that good cause was shown. Stephan argues (1) the request for a continuance was untimely because it was made when all but the reply evidence of the case was completed; (2) the trial court accurately understood the discretionary authority granted by subdivision (n)(1) of section 15657.03; and (3) defendants failed to make a showing of good cause.
1. Timeliness
Our analysis begins with a description of the various references to an extension, continuance or more time to get a lawyer made by defendants at the hearing. After the direct examination of Stephan was completed by his attorney, the trial court told defendants he had "read your response filed today, and I am taking notice of it as well." The court then stated that "this is your opportunity to supplement, to expand on, provide more information. [¶] Let's start with Gertrude first."
Gertrude began by referring to an investigation by adult protective services of alleged abuse and was interrupted by Stephan's counsel, who stated "I'd object that testifying to what APS or Social Services did is hearsay." The court sustained the objection and asked if Gertrude had "any type of report." The following exchange occurred:
"GERTRUDE FIERRO: Of course I could not get any kind of representation. If I need to, I can ask the courts if they'll give me more time to - what would be the word? What would be the word?
"YONHANNA FIERRO: An extension
"GERTRUDE FIERRO: An extension to obtain
"YONHANNA FIERRO: -- because we need a lawyer to
"GERTRUDE FIERRO: -- representation
"THE COURT: Hang on. Hang on. Folks. Folks. [¶] Only one at a time, number one. [¶] Number two, I will get to you, Yohanna. [¶] Let me hear just from Gertrude. Okay? So only one of you can speak at a time because the reporter can only take one of you down at a time. [¶] So, Gertrude, please proceed.
"GERTRUDE FIERRO: Proceed. [¶] We didn't know anything about the legal protocols when it it comes to that. Maybe I should try to obtain a lawyer. I was having - I'm having a heck of a time trying to find one that will even take a new case."
"THE COURT: Okay. Well, what is it in your own words that you would like to tell the Court, having heard the testimony today, that you would want to convey to me?"
Gertrude addressed various points, occasionally interrupted by objections from Stephan's attorney. When Gertrude addressed a June 12th visit from adult protective services to evaluate V ira, counsel objected, and the trial court stated the witness could testify about what she understood. Gertrude then stated it was her understanding that adult protective services had not issued a report of her being neglectful after visiting the home. The following exchange then occurred:
"GERTRUDE FIERRO: I do not agree with what [Stephan] says. I really don't know how I could prove otherwise. Or maybe I need to obtain a lawyer. Maybe I should ask for an extension.
"THE COURT: Okay. All right. [¶] Now let me hear from Yohanna."
Later the trial court and Gertrude discussed a notice to terminate that Stephan had served and was attached to her response. The court stated the 60-day notice to terminate was a prelude to a wrongful detainer action and stated V ira could not express an opinion on the matter "because the doctor's already declared her incompetent. So [Stephan] now is standing in her shoes. He has the legal authority to have you removed from the property." The court stated the defendants, as a practical matter, should start looking for a place to move because an order to move would come from either the wrongful detainer action or the action for a restraining order. The following exchange then occurred:
"GERTRUDE FIERRO: Can I ask the Court's permission to see if I can [get] a lawyer?
"THE COURT: Well, usually, that's done at the beginning. [¶] Ms. Albertoni, I presume you're objecting?
"MS. ALBERTONI: Absolutely.
"THE COURT: Yeah. And, usually, what we get is we get a request for a continuance even before the day of the hearing. Usually, we get it -today's a Monday. So I would have usually gotten it last week asking for a continuance. And, in that respect, then the Court would look at the totality of the circumstances and make a decision, and then on most of these the Court will grant them. But once we've started it, and we've gotten in the middle of it, the Court rarely ever continues. [¶] And I'm not the only judge that does that. It's pretty much what the law dictates that we do. So at this stage it would be denied. [¶] Anything else that you want to tell me before I hear from him in a reply to your opposition, from either of you?
"GERTRUDE FIERRO: No, Your Honor. Thank you."
The foregoing excerpts from the reporter's transcript are all the references by defendants at the hearing to extensions, continuances or getting more time. Because defendants did not submit a written request for a continuance on mandatory Judicial Council form EA-115, the request is governed by the language stating that a "party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made ... orally at the hearing." (§ 15657.03, subd. (n)(1).)
The question of whether defendants' request for a continuance was timely requires the interpretation of the statutory phrase "at the hearing." (§ 15657.03, subd. (n)(1).) Our order for supplemental briefing directed the parties to address whether this phrase "is reasonably interpreted narrowly to mean at the beginning of the hearing or at the hearing before testimony is presented; is reasonably interpreted broadly to mean at any time during the hearing or at the hearing before the matter is submitted; or is reasonably interpreted to mean something else. (See Code Civ. Proc., § 1858.)" We advised the parties of similar statutory language in the continuance provisions for civil harassment restraining orders, workplace violence restraining orders, and domestic violence restraining orders. (See Code Civ. Proc., §§ 527.6, subds. (o), (p)(1), 527.8, subds. (o), (p)(1); Fam. Code, § 245, subds. (a), (b).)
The parties' supplemental briefs did not cite, and we have located, no pub lished case interpreting the phrase "at the hearing" to determine whether an oral request was timely. Stephan contends the statute should be interpreted to mean "that the oral request is to be made at the beginning of the hearing or shortly after it started, not after hearing the evidence against you." In contrast, defendants contend the phrase allows a party to request a continuance at any time during the hearing. They assert this broad reading ensures a full and fair opportunity for defendants to prepare their case.
"The process of statutory construction begins with the words of the statute itself, giving them their usual and ordinary meaning. [Citation.] A court's inquiry into the usual and ordinary meaning of the words raises the threshold legal question of whether the words are ambiguous-that is, reasonably susceptible to more than one interpretation." (Cavey v. Tualla (2021) 69 Cal.App.5th 310, 336.) In deciding whether the word "at" is ambiguous, we do not look at the word in isolation, but con sider it in the context of the statutory scheme as a whole. (Los Angeles Dept. of Water &Power v. County of Inyo (2021) 67 Cal.App.5th 1018, 1038.)
Courts appropriately refer to dictionary definitions "to ascertain the ordinary, usual meaning of a word." (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) In Ballantine's Law Dictionary (3d ed. 1969) at page 104, the definition of "at" states: "A word the significance of which is usually controlled by the entire context.... As a d esignation of time, sometimes denoting a fixed and definite point of time, as where a court admonishes the jury, 'be back at 2 P.M.,' and at other times, meaning from or after .." Black's Law Dictionary (6th ed. 1990) at page 124 states: "At. A term of considerable elasticity of meaning, and somewhat indefinite. A function word to describe or indicate presence or occurrence in, on, or near; or to indicate the means, cause, or manner; or to indicate that with which one is occupied or employed. As used to fix a time, it does not necessarily mean eo instante or the identical time named, or even a fixed definite moment. Often expresses simply nearness and proximity, and consequently may denote a reasonable time." Definitions of "at" in The American Heritage Dictionary (2d college ed. 1985) at page 137 include: "4. In the duration of; during: at night."
Based on the many definitions of "at" contained in the dictionaries and the arguments presented by the parties, we answer the threshold issue of statutory interpretation by concluding "at" is ambiguous-that is, it is reasonably susceptible to more than one interpretation-and, thus, the phrase "at the hearing" is ambiguous. Generally, a court's primary goal when construing an ambiguous statute is to adopt the interpretation that best effectuates the legislative intent or purpose. (Los Angeles Dept. of Water &Power v. County of Inyo, supra, 67 Cal.App.5th at p. 1039.)
A purpose of the continuance provisions in restraining order statutes is to assure each side has an opportunity to adequately present their case. (Yost, supra, 51 Cal.App.5th at p. 522.) Like the continuance provision in the civil harassment restraining order statute, this safeguard offsets the expedited procedures in section 15657.03 for obtaining an EARO. (See Yost, supra, at p. 521.) Furthermore, while a continuance operates as a safeguard for defendants, the statute creates a corresponding safeguard for the protected party by providing that "any temporary restraining order that has been granted shall remain in effect until the end of the continued hearing." (§ 15657.03, subd. (n)(2).)
We conclude the interpretation of the Elder Abuse Act's continuance provision that best serves its purpose allows the oral request for a continuance to be made during the hearing and does not restrict the parties to making the request before a particular point in the proceedings is reached, such as before the presentation of the evidence. Among other things, this interpretation protects self-represented litigants from the truncated procedures for obtaining an EARO. For instance, during the hearing self-represented litigants may learn, like defendants in this case, that they are not effectively presenting their case and need a lawyer's assistance.
Furthermore, as shown by The American Heritage Dictionary, one of the ordinary meanings of "at" is "during," which can be substituted directly into the statutory text to provide the meaning of the phrase "at the hearing." (§ 15657.03, subd. (n)(1).) In comparison, the interpretations offered by Stephan require us to read additional limiting language into the statute-language that the Legislature chose not to include. In particular, Stephan contends the statute means the oral request must be made "at the beginning of the hearing" or "shortly after" the hearing started. The first interpretation inserts "the beginning of" into the text, which is contrary to the requirements of Code of Civil Procedure section 1858 (when construing a statute, a judge's role is "not to insert what has been omitted"). The second interpretation offered treats "at" as meaning shortly after the start of the hearing, which is a significant restriction that, if intended by the Legislature, most likely would have been expressed.
In sum, we conclude the phrase "at the hearing" means during the hearing. (§ 15657.03, subd. (n)(1).) Applying this interpretation to the facts of this case, we conclude defendants' request was timely because it was made during the hearing.
2. The Trial Court's Understanding
In Cooper v. Bettinger, supra, 242 Cal.App.4th 77, an appeal of an order renewing a civil harassment restraining order, the appellate court stated:" 'If the [trial] court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumption is not an exercise of informed discretion and is subject to reversal.'" (Id. at p. 90.) Based on the foregoing principles, we next consider whether the trial court was influenced by an erroneous understanding of the responsibilities imposed by section 15657.03, subdivision (n)(1).
After Gertrude asked for permission to see if she could get a lawyer, the trial court explained that, usually, the request for a continuance is made before the day of the hearing. The court stated that, in such a case, it "would look at the totality of the circumstances and make a decision, and then on most of these the Court will grant them." The court's description is incomplete because it does not explain the mandatory requirement for continuances in certain situations. To determine whether a defendant's request falls under the mandatory provision in subdivision (m) of section 15657.03 or under the discretionary provision in subdivision (n)(1), the court must first determine whether the defendant has filed a response to the request for an EARO and whether the defendant previously obtained a continuance. If the defendant has not filed a response and has not obtained an early continuance, the continuance must be granted "as a matter of course." (§ 15657.03, subd. (m).) Here, the court did not describe the mandatory continuance provision. The omission is not critical because defendants had filed responses and, thus, were not entitled to a mandatory continuance.
More significantly, the trial court described its approach to continuance requests that are made once the hearing has started, stating: "But once we've started it, and we've gotten in the middle of it, the Court rarely ever continues. [¶] And I'm not the only judge that does that. It's pretty much what the law dictates that we do. So at this stage it would be denied." The statement that the court rarely grants such continuances and that the law pretty much dictates that outcome is not an accurate description of subdivision (n)(1) of section 15657.03. An accurate statement of the law is that when a party requests a continuance during the hearing, the court "shall grant [the request] on a showing of good cause." (§ 15657.03, subd. (n)(1).) As mentioned early, "shall" is mandatory. (§ 15.) Thus, the law dictates or commands that the continuance be granted when good cause is shown. Here, the court's statements on the record show it did not understand its statutory obligation to grant a continuance upon a showing of good cause. Consequently, we conclude the court's denial of the continuance was "influenced by an erroneous understanding of applicable law." (Cooper v. Bettinger, supra, 242 Cal.App.4th at p. 90.)
3. Good Cause
The trial court explained its view of the law and denied Gertrude's request for a continuance without (1) informing her that a continuance would be granted on a showing of good cause and (2) providing her an opportunity to state all her reasons for a continuance. Nonetheless, the record shows that Gertrude believed she was not effectively presenting her side of the case and needed a lawyer's help. F or instance, Gertrude stated that she and Y ohanna did not know anything about legal protocols and did not know how to prove the points on which she disagreed with Stephan's testimony. Gertrude also stated she had "a heck of a time trying to find [a lawyer] that will even take a new case." On appeal, defendants contend this difficulty was due to the COVID pandemic.
Based on our review of the reporter's transcript from the hearing, which includes the trial court's failure to inform defendants of their right to cross-examine witnesses and defendant's failure to assert that right, we conclude defendants were not effectively representing themselves during the proceeding. When this ineffectiveness and the trial court's approach to cross-examination is viewed in the context of the truncated procedures applied to requests for EARO's, we conclude defendants have shown a reasonable probability that good cause existed for the continuance so that they could obtain counsel. (See In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051 [prejudice is established in a civil case by showing a reasonable probability that in the absence of the error, a result more favorable would have been reached].) As a result, the denial of their request was not harmless error. Furthermore, the fact that they did retain counsel to pursue this appeal demonstrates that their request was sincere and not merely a delaying tactic.
4. Appellate Relief
The issue of whether to grant the continuance need not be remanded to the trial court. The passage of time between the filing of this opinion and the date of the rehearing will act as the continuance and defendants do not require additional time because they already have obtained representation. Consequently, the appropriate relief on appeal is to remand for a new hearing, if Stephan still desires an EARO. (Ross, supra, 139 Cal.App.4th at p. 869 [failure to grant continuance resulted in a reversal with a remand for a new hearing, if protective order was still desired by plaintiff].) Because of the passage of time, the order setting the new hearing also should establish a schedule for the filing of additional papers in support of, or opposition to, the EARO.
The parties are advised that they may stipulate to the early issuance of remittitur pursuant to California Rules of Court, rule 8.272(c)(1), rather than wait for the 60-day period to expire.
IV. FIREARM AND AMMUNITION RESTRICTION
A. Applicable Law
Subdivision (u)(1) of section 15657.03 provides that a "person subject to a protective order under this section shall not own, possess, purchase, receive, or attempt to receive a firearm or ammunition while the protective order is in effect." Subdivision (u)(4) of section 15657.03 creates an exemption to the foregoing rule by stating: "This subdivision does not apply in a case in which the protective order issued ... was made solely on the basis of financial abuse unaccompanied by force, threat, harassment, intimidation, or any other form of abuse." (§ 15657.03, subd. (u)(4).)
B. Trial Court's Findings and Order
The trial court found "that there is clear and convincing evidence of financial abuse." The court did not explicitly find that defendants committed another type of elder abuse.
Both EARO's on mandatory Judicial Council form EA-130 included an "X" in the box contained in item 9. As a result, both defendants were prohibited from owning, possessing or receiving any firearms or ammunition. The second sentence in item 9 of form EA-130 provides the following instruction: "This Order must be granted unless the abuse is financial only." Item 10 of each EARO was completed to state: "This case does not ... involve solely financial abuse unaccompanied by force, threat, harassment, intimidation, or any other form of abuse."
Defendants contend the protective orders in the EARO's should not have contained the firearm and ammunition restrictions because no other abuse other than financial abuse was found. Stephan's brief does not address whether the firearm and ammunition restrictions were improperly included in the EARO's. Based on the contents of the record, we agree with defendants and conclude the firearm and ammunition restrictions should not have been included in the EARO's. (See White v. Wear (2022) 76 Cal.App.5th 24, 34-35 [superior court erred in issuing EARO prohibiting possession of firearms and ammunition].)
DISPOSITION
The elder abuse restraining orders against respondents Gertrude Fierro and Yohanna Fierro are reversed and vacated. The matter is remanded for further proceedings not inconsistent with this opinion.
Upon the issuance of remittitur and the vacatur of the elder abuse restraining orders, the temporary restraining orders issued on October 2, 2020, shall be reinstated and shall remain in effect until the trial court rules on the requests for elder abuse restraining orders, with the exception that firearms and ammunition restrictions in the temporary restraining orders shall not be effective.
Respondents shall recover their costs on appeal.
WE CONCUR: LEVY, ACTING P. J. SMITH, J.