Opinion
A142946
01-13-2017
WYVETTA ROBINSON, an Incompetent Person, etc., Plaintiff and Respondent, v. DELORIS CALHOUN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RF14723547)
After an evidentiary hearing, the trial court issued a protective order under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act) against Deloris Calhoun. The trial court's order prohibited Deloris from, among other things, contacting her elderly sister Wyvetta L. Robinson, Wyvetta's husband, Leandrew Robinson, their daughter Debra Robinson, or their grandson (Debra's child), Jon-Gregory Harris, or coming within 100 yards of any of them, their home, or Wyvetta's and Leandrew's financial institutions and physicians' offices.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Because some parties share a last name, we will refer to all by their first names to avoid confusion; we intend no disrespect.
Deloris filed a motion to vacate the protective order, which was denied. She now appeals the protective order and the order denying her motion to vacate it. We affirm both orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
In accord with the usual rules on appeal, we state the facts in the manner most favorable to the trial court's orders. (People v. Flores (2016) 2 Cal.App.5th 855, 861, fn. 3.)
A. Debra's Applications for Protective Order and to be Appointed Guardian Ad Litem
On May 1, 2014, acting without counsel, Debra applied to the trial court to be appointed as guardian ad litem for her mother, Wyvetta, and, on behalf of Wyvetta, for a protective order against Deloris. In the application, Debra declared under penalty of perjury, that she and her teenage son lived with her elderly parents, whom she cared for with assistance from in-home support caregivers. According to a doctor's letters, which Debra attached to her application, Wyvetta, then 83, had Alzheimer's disease, and Wyvetta's husband, Debra's father, Leandrew, then 86, had dementia and Parkinson's disease. Neither was competent to make financial decisions independently, the doctor advised. Wyvetta and Leandrew had executed durable powers of attorney in 2005 and again in 2011, and Debra attached the 2011 documents to her application. They appeared to give Debra authority to make medical and financial decisions for her parents when her parents no longer could make those decisions for themselves or for each other.
We refer collectively to the documents that Debra filed on this date as the application. Although some of the documents use the term "restraining order," to avoid confusion we exclusively use the statutory term "protective order." (Welf. & Inst. Code, § 15657.03).
In her application, Debra declared that she had been appointed guardian ad litem for her father in a related matter the month before, and had obtained a protective order prohibiting her brother Darryl from contacting anyone in her household (i.e., Debra, her parents, or her son). She explained that Deloris and Darryl had been acting together to take large sums of money, in cash and checks, from her parents for use in a "Mafia" money-making scheme. As proof, she attached copies of checks totaling $9,175 that her mother, Wyvetta, had written to Deloris between 2010 and 2012, and copies of checks totaling $2,375 that Wyvetta had written to Darryl, between 2010 and 2013. Debra advised the court that these continuous outlays had drained her parents' resources, causing them to be delinquent in paying several bills, jeopardizing their financial security and, by extension, their ability to remain together in their home. She asked to be appointed as her mother's guardian ad litem so that, acting in this capacity for both parents, she would be able to ensure they continued receiving good care in their own home, avoiding displacement to a skilled nursing facility.
Debra also attached to her application copies of reports she had submitted to the Oakland Police Department on January 29 and April 17, 2014, respectively, detailing her continuing difficulties with Deloris and Darryl. In the first report, Debra alleged the following: On November 1, 2013, she received a call from the manager of Wyvetta's bank, advising that Deloris had accompanied her mother to the bank on that date to help her withdraw $4,000. The bank reported the incident to adult protective services and Debra thereafter established a trust account for her parents that only she could access. In December, Debra took over responsibility for paying her parents' bills.
In January 2014, Debra's first police report continued, she learned that her parents' social security checks had been mailed to Deloris. She was able to recover Wyvetta's check and attached a copy to the application, but Darryl had already cashed Leandrew's check. Debra alerted the social security office and became her parents' assigned payee. The same month, Wyvetta fell, fracturing her hip, and underwent surgery. A week later, Debra received a call from the hospital social worker, advising that Deloris claimed Darryl was to be their parents' caregiver, and had advised hospital staff Debra was the one causing problems. When Debra visited her mother several days later, she found Deloris with Wyvetta, holding an envelope containing her parents' financial papers. The next day, when Debra again visited Wyvetta, the hospital social worker told her that Deloris and Darryl had presented a document purporting to revoke Wyvetta's and Leandrew's powers of attorney, and that Deloris had asserted Wyvetta did not have Alzheimer's.
The attached check listed Wyvetta as payee, and listed an address for Wyvetta that matched the one listed for Deloris on the proof of service showing personal delivery to her of the temporary protective order, a document Deloris did not deny receiving.
In the April 2014 police report, Debra alleged she had received notice in the mail of an appointment for her mother with a physician belonging to the medical group that Deloris used. Debra reported that Deloris and Darryl were attempting to overturn her parents' dementia diagnoses to regain control of their finances. The two also had been selling Wyvetta's prescribed codeine cough syrup for cash, and Deloris had left two threatening telephone messages for Leandrew's in-home support caregiver, Cris Williams, because she refused to take Wyvetta and Leandrew to their bank.
Debra acknowledged in the application that her parents would oppose entry of a protective order against Deloris. She declared that she was acting in their best interests, however, observing that both parents' were very ill, and that Deloris and Darryl had already caused them considerable hurt and pain.
The trial court granted Debra's application on the day it was received, May 1, 2014, appointing her as guardian ad litem for Wyvetta, and issuing a temporary restraining order (TRO) against Deloris pending a hearing on the matter. The protective order, among other things, directed Deloris not to contact Wyvetta, "either directly or indirectly, in any way," or come within 100 yards of her.
B. Deloris's Response to the Application
Deloris retained an attorney who filed a response on May 14, 2014, opposing the protective order. Deloris signed her response, confirming under penalty of perjury that all facts stated in it were true. The response denied that Wyvetta suffered from dementia or that Deloris had subjected Wyvetta to financial or emotional abuse. To the contrary, Deloris alleged, she and Wyvetta were close, they spoke daily on the telephone, and Wyvetta had given her money as repayment of a loan.
It was not Deloris who was mistreating Wyvetta and Leandrew, Deloris alleged in her response, but rather Debra. Debra had moved in with her parents and was isolating them from friends and family, threatening to put them in a nursing home, and leaving them alone on the weekends. She did not pay rent, was spending her parents' money on herself and on her son's private school tuition, and generally was exerting control over their finances improperly, as Wyvetta had revoked her power of attorney for financial matters. In support of the latter point, Deloris attached to her response a document entitled "Revocation of Power of Attorney," which Wyvetta and Leandrew apparently signed in January 2014, purporting to revoke powers of attorney they executed in 2005. The revocation did not purport to cover the powers of attorney the two executed in 2011.
Deloris acknowledged in her response that she gave Wyvetta her doctor's contact information. She claimed she did so only at Wyvetta's request, however, and that Wyvetta herself made the medical appointment mentioned in Debra's application, because she was upset her regular doctor had written the letters suggesting she and her husband no longer were able to manage their own affairs. Deloris also conceded she left telephone messages for Leandrew's caregiver (Cris Williams), but claimed she did so because the caregiver had threatened Wyvetta, who called her crying, and that she had only instructed the caregiver not to harass her sister.
C. Deloris is Found Guilty of Contempt of Court for Violations of the Temporary Protective Order
The parties appeared before the trial court on May 16, 2014, for a hearing on Debra's request for a permanent protective order. At the hearing, the court granted Deloris's request for a continuance, to allow her newly retained attorney time to prepare. In addition, the court scheduled an order to show cause (OSC) hearing because Debra reported that Deloris had violated the TRO.
Unless otherwise indicated, all remaining events described below occurred in 2014.
At the OSC hearing on May 23, Debra told the court Deloris was still telephoning Wyvetta and had ridden in an elevator with her to attend a recent court hearing, acts that violated the no-contact and stay-away instructions included in the TRO. On further questioning, the court determined Debra had admissible evidence of only one violation, a telephone call that Deloris made to Wyvetta on May 10. Debra testified that she was seated next to Wyvetta when Deloris called her on that occasion and recognized Deloris's voice.
Deloris refused the opportunity to testify at the OSC hearing. Instead, her attorney called Wyvetta as a witness and Wyvetta denied having received a call from Deloris on May 10. The court did not credit Wyvetta's testimony, however, "given [her] infirm condition, particularly her impaired psychological functioning." Instead, the court credited Debra's testimony, noting particularly her forthright concessions that she lacked admissible evidence to support other claimed violations of the TRO.
Wyvetta claimed, for example, that family called her on her cell phone because Debra had tapped the home phone. Although she specifically denied Deloris had called her on May 10, Wyvetta could not recall the precise dates of any calls from Deloris and later acknowledged she did not know for certain whether Deloris had called on that date. She also could not recall her own cell phone number.
The court took judicial notice of the uncontradicted proof of service that Debra filed with the court, reflecting that Deloris had been personally served with a copy of the TRO on May 5, and also noted the order specifically directed Deloris not to "contact" Wyvetta "by any means, including . . . telephone." It found beyond a reasonable doubt that Deloris called Wyvetta on May 10, knowingly disobeying a lawful order and, therefore, found her guilty of contempt, sentencing her to pay a $500 fine.
The court initially stayed execution of the sentence pending further proceedings in this matter. It lifted the stay on July 11, however, when it found that Deloris had violated the TRO a second time by leaving a cell phone on a table next to Wyvetta when both appeared in court for a hearing on June 20. Although Deloris denied having left the phone on the table, the court specifically found that she was lying as another witness testified she saw Deloris leave it there, and Wyvetta confirmed she found the phone on a table in front of her. Deloris subsequently paid half of the contempt fine ($250) and the court waived the remainder.
Although the trial court did not explain its reasoning on this point, it appears to have concluded Deloris violated the TRO by indirectly contacting Wyvetta in leaving the telephone for her.
D. Evidentiary Hearing and Trial Court's Order Granting a Permanent Protective Order
The court heard testimony from seven witnesses over the course of three days (on June 20, July 11, and July 18) before granting Debra's application for a permanent protective order.
1. Wyvetta's Mental Capacity
Neurologist Brian Richardson, who wrote the letters that Debra submitted with her application, testified that he saw Wyvetta as a patient at the request of her primary physician on three occasions. He first tested Wyvetta's mental cognition in April 2011, finding only mild cognitive impairment. When he tested her again in June 2013, however, he diagnosed her as having mild to moderate Alzheimer's disease, a degenerative brain disease, causing dementia and loss of cognitive powers. Patients with this condition experience problems with short-term memory, judgment, and the ability to make complex decisions and appropriate decisions for their own care. The difference in Wyvetta's test results, Dr. Richardson testified, typically means a "huge" decline in "daily functioning, judgment and cognition." It was "huge[ly] significan[t]."
The diagnosis matched Dr. Richardson's casual observations, as Wyvetta's husband, Leandrew, also was his patient and he saw Wyvetta many times when she accompanied Leandrew to his appointments. Over time it became increasingly clear, Dr. Richardson testified, that Wyvetta had cognitive impairment, because she had difficulty understanding when he explained things and began to express illogical concerns about particular treatments recommended for her husband. Dr. Richardson offered Wyvetta medication for her condition, strongly recommending that she take it, because her memory otherwise would worsen rapidly, but she declined.
Dr. Richardson testified he also treated another of Wyvetta's sisters 10 years earlier for Alzheimer's.
Dr. Richardson had treated Alzheimer's patients since 1987, was certified in adult neuropathy by the Board of Psychiatry and Neurology, and in vascular stroke neurology by the American Board of Psychiatry and Neurology. By the time of the hearing in this matter, he had testified as an expert many times, including on the subject of Alzheimer's disease. In his opinion, Wyvetta "most definitely [was] not" capable of caring for herself or of exercising sound judgment over her own financial affairs. Although she might be able to speak coherently, he testified, he questioned her cognitive ability to understand the full ramification of her decisions, and expressed concern that she might inadvertently harm herself by making poor decisions.
Hospital social worker Jayne Roseman, who assisted Wyvetta and Debra during the two or three weeks that Wyvetta was hospitalized after her fall in mid-January 2014, and the caregiver who worked in Wyvetta's home for two years, Cris Williams, also testified about Wyvetta's cognitive limitations. The former, a geriatric social worker since 1985, testified that Wyvetta's safety awareness was not good and that she did not appear to understand her own mental limitations. Wyvetta insisted she was fine and did not need care, despite the conclusions to the contrary of her hospital team, including a neuropsychologist and psychiatrist. The in-home caregiver, Cris Williams, also testified that Wyvetta forgot things, required assistance, and did not seem able to take care of things or manage her finances independently.
Finally, the court heard directly from Wyvetta, who testified that no doctor ever told her she had Alzheimer's disease, she did not have any memory problems, and she thought Dr. Richardson simply "made it up" when he gave her that diagnosis, although she could not say why he would do so.
2. Debra's Motives in Seeking the Protective Order
The court heard testimony from the same independent sources about Debra and her relationship with her parents. Dr. Richardson testified that, for years, Debra brought her parents and their caregivers to every appointment they had with him; she was very patient with her parents, "very attentive and respectful," and "tried to include them in decision making"; and "she made it very clear" she wanted to keep her parents in their home. Dr. Richardson had "complete confidence" Debra "would only act in their best interest" and remarked that she seemed to be "the ideal child taking care of her parents."
Cris Williams, the caregiver who worked with Debra's father for two years, saw no sign that Debra abused her parents, never heard Debra threaten placement in a nursing home, and described Debra's interactions with Wyvetta as pleasant, volunteering that she helped Wyvetta "a lot." The hospital social worker never saw any sign that Debra abused Wyvetta; she testified that Debra was "very involved and very concerned" during Wyvetta's hospitalization, calling the social worker almost daily as she worked to ensure Wyvetta would have sufficient care and services on her return home. Debra's former husband, who was still in contact with Wyvetta and Leandrew, said they appeared to be receiving good care. Finally, Wyvetta herself told the court she remained able to talk to other family members; Debra had invited Deloris to visit in the past; she (Wyvetta) did not need for anything, as Debra paid the bills and bought all their food; and Debra never left her alone overnight.
There was no evidence that Debra benefited financially from living with her parents or handling their financial affairs. To the contrary, Debra undisputedly had an outside job and was a single mother, while also independently overseeing her parents' in-home care and attending to all their needs in the evenings and on weekends. Although she did not pay rent, Debra testified that she covered most other monthly household bills, many of which were delinquent and had gone to collection when she assumed responsibility for them. She also increasingly covered the costs of her parents' medication and other personal items, as their retirement income now had to cover additional in-home caregivers following her mother's surgery. Debra's former husband testified that he always paid half of their son's private school tuition and other expenses and, although Wyvetta said she sometimes had helped to pay the remainder of the tuition, there was no evidence her financial contributions were substantial, routine, or recent.
3. Evidence that Deloris Engaged in Financial Abuse and Caused Mental Suffering
Beginning in 2009 or 2010, Debra testified, Deloris and Darryl became involved in what she called a shared "Mafia" scheme to get money. Deloris knew a person who reportedly would take money that Darryl delivered, tracking it on a computer until their "number [came] up," at which point Deloris and Darryl expected they would "get money" back. Deloris told Debra about this scheme, saying she was going to receive $100 million. To win money, however, they had to pay money, so Deloris and Darryl "always . . . needed more money," and this continued "for years, and years," Debra testified. It became a pattern that Darryl or Deloris would begin calling Wyvetta two weeks before the first of each month, saying someone was after Darryl, that he had borrowed money to put into this scheme and would be hurt or killed if he did not now pay it back. Debra said she heard "numerous" such calls and also heard her mother saying "somebody is after Darryl; Deloris says they're going to kill him."
Wyvetta remembered Deloris telling her and Debra about paying a certain amount of money, with the expectation of getting a lot back "at the end." Although she could not recall the details, Wyvetta said she told Deloris she should not do it.
Debra also heard both of her parents say they needed to help Deloris for various reasons, and that Deloris would pay them back. On one occasion, Wyvetta wrote Deloris a check for $3,000, and then received a notice from her credit union advising that there were insufficient funds to cover it. Debra heard her mother call Deloris asking her to return the money and, when Deloris was unable to comply, Debra had to borrow $3,000 from another family member to cover the check the following day. On another occasion, when Deloris was spending the night, Darryl called asking for $400. When Debra tried to explain to Deloris that her parents should not give him money, Deloris said it was not Debra's house and persisted in begging Leandrew to allow Darryl to come by.
Debra testified she received a call from the bank manager in October 2013, saying that her brother was trying to get $3,000 out of their parents' account. In November, the bank manager called again to say Deloris was with Wyvetta trying to withdraw $4,000. The bank said it would report the incident to the adult protective services agency, and Debra reported it as well. The adult protective services agency told Debra it would ask the public guardian to establish a conservatorship for her parents if she did not set up a restricted trust account to hold their money, which she ultimately did.
Wyvetta recalled, "I had a walker, and [Deloris] went with me to the bank," although she denied Deloris accompanied her to get money for a "Mafia" scheme.
Shortly afterward, on December 1, 2013, Debra testified, Wyvetta was "very, very upset and distraught," because Darryl told her he would be killed if he did not pay $3,300. Debra, by then, had control of the finances and would not agree to pay. Darryl then reportedly ingested some pills and was hospitalized, Debra testified, and Deloris gave Wyvetta the telephone number of her youngest brother's girlfriend for her to call and borrow the money.
Wyvetta remembered receiving a call that Darryl "had gone to the hospital saying he had taken some medicine."
Debra testified that she was present when Wyvetta wrote some of the checks, copies of which she included in her application, and that she also personally loaned money to Deloris. She denied that Wyvetta wrote checks to Deloris to repay a loan, however, explaining that Wyvetta drew upon money from the sale of her home in writing the checks. Debra also noted that Wyvetta wrote the checks on random and sporadic dates, rather than at the start of each month when she and Leandrew received their income checks, as one might if repaying a loan. Debra never saw records indicating that Wyvetta deposited checks from Deloris repaying amounts she had received and was not aware of any cash repayments.
The trial court observed that the check amounts varied also, ranging from $55 to $3,000.
In 2013, as she became more involved in her parents' finances, Debra testified, rather than writing checks to Deloris and Darryl, Wyvetta dispensed cash. Deloris would call Wyvetta asking for cash, and Darryl would come by later to pick it up. Once, in 2013, Wyvetta had Debra take Deloris $300, supposedly to help her get a larger apartment where Darryl also could live. Another time, Debra overheard Wyvetta agreeing that Deloris could sell her codeine cough syrup on the street for $75. Wyvetta also began calling in the prescription to a pharmacy near Darryl's house. Eventually the pharmacy technician called Debra, telling her the prescription had been flagged, the medication no longer would be mailed to them, and it could only be picked up in person by Debra. These events, Debra testified, occurring over the course of several years, had caused Wyvetta and the entire household considerable distress, and also had drained her parents' financial cushion at a time when they needed increasing levels of care and therefore had increased expenses.
Wyvetta initially denied giving Darryl or Deloris her prescriptions, but later said it had been "so long, [she did] not recall."
Leandrew's in-home caregiver, Cris Williams, confirmed several aspects of Debra's account. She testified, for example, that she once saw Deloris ask Wyvetta for money, saying she did not have enough for groceries. A few times, in apparent desperation, Wyvetta actually asked Cris to lend Deloris $200, telling her Deloris did not have food or was unable to buy her own basic necessities. Cris also testified that Darryl would "beg for money from his mother" when he visited and, once, Wyvetta handed her a check to take out to Darryl who was waiting in his car. Other times, Wyvetta asked Cris for money for herself. Cris refused these requests, and told Debra about them. Cris never heard Debra tell Wyvetta she could not speak to Deloris, and Debra never told Cris not to allow calls from Deloris.
Supporting an incident referenced in Debra's application to the court, Cris also testified that she once refused to take Wyvetta and Leandrew to their bank, because her employment contract prohibited her from involvement in a client's finances. Wyvetta and Leandrew became upset at her refusal and began telephoning back and forth with Deloris. Deloris then called Cris, leaving multiple long and angry voice messages on her cell phone, telling her that she worked for Wyvetta and Leandrew, not Debra, and that she was obligated to drive them where they wanted to go regardless of her contract. In her messages, Deloris called Debra a "bald headed bitch" and other derogatory terms.
Finally, the court heard testimony from Wyvetta and Deloris. Both agreed that Wyvetta had given Deloris money in cash and checks. Although Wyvetta said Deloris previously had given her money from the sale of a family home, which Wyvetta used as a down payment in purchasing her current home, Wyvetta denied Deloris's money had been a loan or that she was repaying Deloris when she gave her money, and Deloris did not contradict her. Wyvetta said she gave Deloris money as a gift because she needed it.
Deloris did contradict Wyvetta on the last point, claiming she did not need money from her sister, but took Wyvetta's money only to buy food and clothing for Darryl, who, she said, had chosen not to work. Although the checks that Debra included in her application to the court all bore Wyvetta's signature, and the judge hearing the matter thought all the signatures appeared identical, Deloris claimed Debra had written some of the checks, never providing them to Deloris, suggesting an effort to create false evidence against her. Deloris told the court Debra did this because she hated Wyvetta and Deloris, and was an "[e]vil daughter," equating her to "Satan." Deloris also told the court caregiver Cris Williams was "a liar."
4. The Trial Court's Rulings
At the conclusion of the evidentiary hearing on July 18, the judge announced he did not "believe a word" Deloris was saying, and thought Wyvetta was "covering up for [Deloris] and for Darryl." The judge specifically rejected the argument that Debra and Cris Williams were making things up. Based on the testimony, he found sufficient evidence that Wyvetta was not capable of handling her own affairs or exercising good judgment. Observing that every independent witness who had testified confirmed Debra had "done nothing over the last several years but try to care for her parents," the judge found that Debra had "the best interests of her parents at heart." Although acknowledging that the protective order could be very difficult for the family, the judge also reasoned that it would provide the benefit of clarity for all concerned, and seemed the only alternative to allow Debra to manage her parents' affairs without interference. Accordingly, the court entered a protective order on July 18, 2014, to last five years.
On August 26, Deloris filed a motion to vacate the protective order and the order imposing sanctions against her for contempt, presenting a cursory argument that both were void because the trial court had erred in allowing Debra to represent herself while acting as guardian ad litem for Wyvetta. The trial court denied her motion without a hearing, and Deloris then filed this appeal challenging the protective order and the denial of her motion to vacate the order. The only briefing on the appeal is supplied by Deloris's opening brief, as Debra did not file a respondent's brief and there was no reply.
II. DISCUSSION
A. The Protective Order
1. Standard of Review
"We review the issuance of a protective order under the Elder Abuse Act for abuse of discretion." (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 135 (Gdowski).) We will only find an abuse "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" that the trial court abused its discretion. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1140 (Bookout).)
We review the factual findings necessary to support the protective order under the substantial evidence test. (Gdowski, supra, 175 Cal.App.4th 128, 135.) "We resolve all conflicts in the evidence in favor of . . . 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 [a] competing declaration[], the trial court's determination of the controverted facts will not be disturbed on appeal. [Citation.]" (Bookout, supra, 155 Cal.App.4th at pp. 1137-1138.)
2. The Statutory Framework
The Elder Abuse Act "was enacted to provide for the 'private, civil enforcement of laws against elder abuse and neglect' [citation]." (Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315.) Section 15657.03, subdivision (c) of the act permits a trial court to issue a protective order "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." (See Gdowski, supra, 175 Cal.App.4th at p. 137 [under the Elder Abuse act, a protective order may issue "without any particularized showing that [past] wrongful acts will be continued or repeated"].) "An 'elder' is defined as a California resident, age 65 years or older." (Bookout, supra, 155 Cal.App.4th at p. 1141, citing Welf. & Inst. Code, § 15610.27.)
At the time of this action, "[a]buse of an elder" included "financial abuse . . . or other treatment with resulting . . . mental suffering." (Former Welf. & Inst. Code, § 15610.07, added by Stats. 1998, ch. 946, § 2.) "Financial abuse" occurs when someone "[t]akes . . . or retains . . . personal property of an elder . . . for a wrongful use or with intent to defraud, or both." (Welf. & Inst. Code, § 15610.30, subd. (a)(1).) "A person . . . shall be deemed to have taken . . . or retained property for a wrongful use if . . . the person . . . takes . . . or retains the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder." (Id., § 15610.30, subd. (b).) "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." (Id., § 15610.53.) The facts necessary to support a protective order under the Elder Abuse Act need be established only by a preponderance of the evidence. (Gdowski, supra, 175 Cal.App.4th at p. 137.)
Former section 15610.07 became inoperative on July 1, 2016, and was replaced on that date by a new section 15610.07 (as amended by Stats. 2015, ch. 285, §§ 1-2), which is substantively similar. (See Welf. & Inst. Code, § 15610.07, subd. (a)(3) ["Abuse of an elder" includes "[f]inancial abuse, as defined in Section 15610.30"].)
3. Sufficiency of the Evidence
Deloris contends the trial court lacked sufficient evidence to issue a protective order. " 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.' " (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) Having reviewed the entire record, we here answer that question in the affirmative.
Deloris maintains there was no evidence either that she took Wyvetta's money for a wrongful use or that she caused Wyvetta mental suffering. Under the legal standard set forth above, however, there is sufficient evidence that she did both. There is considerable evidence that Deloris collaborated with Darryl over the course of several years to take thousands of dollars from Wyvetta and Leandrew, draining their finite financial resources in their advanced years at a time when they needed increasing levels of care, and so, had increasing costs. There is also evidence that Deloris, at a minimum, should have known her conduct would be harmful to them, because Wyvetta at least once told Deloris she lacked the funds to cover a $3,000 check she wrote for her. Debra told the court Deloris's actions were jeopardizing her ability to keep Wyvetta and Leandrew in their home, creating a risk that they would have to move to a more institutional setting, and the trial court made it clear that it credited her testimony.
By taking and selling Wyvetta's prescription medicine, Deloris also made it more difficult for Wyvetta to obtain medication she needed from her doctor.
The evidence also was sufficient to support a finding that Deloris played upon Wyvetta's emotions at a time when she had Alzheimer's and other illnesses and was particularly vulnerable. Debra testified that Deloris repeatedly caused Wyvetta to be fearful and distraught, telling her Darryl would be killed if she did not give Deloris money to assist him. Caregiver Cris Williams also testified that she saw Deloris ask Wyvetta for money for herself to buy groceries, and that Wyvetta, apparently "in desperation," a few times asked Cris to loan Deloris $200 as Deloris was unable to buy food and basic necessities. The record also reflects that Deloris's repeated suggestions—to Wyvetta, the hospital, and the trial court—that Debra did not have Wyvetta's best interests at heart, that Debra hated Wyvetta, was mishandling her finances, and was making things up when she said Wyvetta had Alzheimer's, also caused Wyvetta pain and confusion.
Wyvetta told the court, for example, that Debra actually hit her once on the thigh with an open hand, leaving a bruise that lasted a year, a claim that the trial court questioned, eliciting increasingly confused responses from Wyvetta.
There was abundant evidence that Deloris subjected Wyvetta to financial abuse for years taking money from her in a manner Deloris should have known jeopardized Wyvetta's financial security and continued ability to remain in her home, and substantial evidence also that Deloris caused Wyvetta considerable mental suffering. The trial court did not abuse its discretion in entering the protective order.
4. Debra's Request for a Protective Order Acting in Propria Persona as Guardian Ad Litem
Deloris contends that the trial court erred in allowing Debra to seek a protective order under the Elder Abuse Act, acting as Wyvetta's guardian ad litem, because Debra was not an attorney herself and was not represented by an attorney. Deloris accurately cites to cases in which courts have held that a guardian ad litem may not proceed in propria persona (see, e.g., J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 969 [paternity action under the Uniform Parentage Act]). Deloris, however, did not raise this argument in her response to Debra's application or at any point during the five hearings that the trial court held before issuing its order. Accordingly, we conclude that the forfeiture rule applies.
"Strong policy reasons support [the forfeiture] rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] ' " ' " The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' " [Citation.]' [Citation.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) As stated in Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, " ' " '[i]t would seem . . . intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' " ' [Citations.]" (Id. at p. 1337.)
Even if the issue were not forfeited, we reject Deloris's argument on the merits. She contends the judgment should be vacated because the court acted "in excess of its jurisdiction," citing In re Marriage of Goddard (2004) 33 Cal.4th 49, 56. While the principle Deloris recites—that a judgment entered in excess of jurisdiction must be vacated—is sound, she does not cite to any case holding that a judgment rendered in an action in which a guardian ad litem (or other representative person) proceeded in propria persona on behalf of a party is in excess of jurisdiction. Indeed, the cases Deloris does rely on teach us that only a party aggrieved by the absence of proper legal representation may seek relief on that ground.
Deloris first cites to People ex rel. Dept. of Public Works v. Malone (1965) 232 Cal.App.2d 531 (Malone). There, in a condemnation action regarding a parcel of land owned by two brothers, one brother (Carroll) held a power of attorney for the other brother (Paul), who was absent from the jurisdiction due to military service. (Id. at p. 532.) Carroll, acting in propria persona, settled the case on behalf of himself and Paul, relying on Paul's power of attorney. (Ibid.) Although Paul rejected the settlement on being informed of it, the trial court entered the judgment over his objections. (Id. at p. 534.) The court of appeal reversed, ruling that "[a] power of attorney does not permit an agent to act as an attorney at law," and that "Carroll Malone had no right whatsoever to act as attorney for his absent brother." (Id. at pp. 536-537.) "This fact alone requires us to say that we cannot uphold the judgment as to Paul T. Malone," the court concluded. (Id. at p. 537.) Malone is not apposite because the appellant there was the person harmed by the improper attempt of his attorney-in-fact to act as his legal counsel. Deloris is not so aggrieved.
Attempting to avoid this result, Deloris argues that, even if the absence of a lawyer did not affect her rights, it cannot be treated as harmless error because it is a "fraud on the judicial system," citing Russell v. Dopp (1995) 36 Cal.App.4th 765 (Russell). No such categorical rule was handed down in Russell. There, judgment was entered against the defendant after a jury trial, although the trial court learned, before the verdict was rendered, that the person acting as defendant's counsel had resigned from the bar years earlier. (Id. at p. 769.) After holding a hearing on the issue, the trial court ruled the defendant had waived the irregularity concluding she had been aware of this fact all along, and allowed the trial to go forward. (Id. at p. 771.) The court of appeal reversed, concluding "the integrity of the litigation process [had] been compromised." (Id. at p. 778.) It observed, however, that reversal would "not necessarily follow" in every case. (Id. at p. 767, 775.) Although, "[t]o protect the integrity of the litigation process, [it had] inherent power to set aside a judgment for fraud on the court itself," the court explained, "if the unlicensed person wins the lawsuit," a court might find the litigation had been "unaffected by the fraud." (Id. at p. 774.) Reversal was appropriate in Russell, in contrast, the court reasoned, because the unlicensed person lost the case, performing so poorly that the trial court commented on it (id. at p. 771 & fn. 6), and there was no evidence the represented party had actively engaged in the fraud for tactical purposes (e.g., to provide grounds for later appeal). (Id. at pp. 780-782.)
Unlike the defendant in Russell, Deloris has no cause for complaint. Here, it was the opposing party who was not represented by counsel, and who prevailed in the action. This is not grounds for a reversal. As the court explained in Gomes v. Roney (1979) 88 Cal.App.3d 274: "[A] commentator has pointed out that the weight of authority is that a proceeding participated in by a nonattorney acting as an attorney will be reversed as absolutely void. The reasons for this approach are predicated in public policy designed to preserve the rights of litigants from the mistakes of the ignorant and against injuries caused by the unscrupulous. [Citations.] This policy is obviously not applicable in cases where the litigant to be protected is the successful one." (Id. at p. 275.) In short, Deloris cannot seek to vacate the judgment on the ground that the opposing party should have been represented by counsel, and, in any event, the contention was forfeited because it was not raised in a timely fashion below.
By extension, Deloris may not rely on this argument to obtain the return of the money that she paid after the trial court found her guilty of contempt.
Although, more than five weeks after the trial court issued the protective order, Deloris filed a motion to vacate it, presenting a cursory argument that Debra could not proceed in propria persona as a guardian ad litem, her action was not timely, and the motion was defective in other regards, as will be discussed below.
We also reject Deloris's tangentially related argument that, while acting in propria persona, Debra violated rule 3.7 of the American Bar Association Model Rules of Professional Conduct by simultaneously acting as an advocate and a witness. That rule, by definition, applies to lawyers. (See, e.g., ABA Model Rules Prof. Conduct, rule 3.7(a), ["A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . . ."], italics added.) Deloris cites no authority suggesting the rule applies to self-represented litigants, nor could it, as the long-established right of self-representation would be severely undercut if it meant the litigant could not also testify on his or her own behalf. (See, e.g., People v. Barnum (2003) 29 Cal.4th 1210, 1223 [a defendant representing himself at trial has the right to testify].)
See, e.g., Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1525. --------
5. Deloris's Remaining Arguments
Deloris cursorily presents a number of other arguments, variously contending the trial court erred by: barring Wyvetta from addressing the court at the conclusion of the evidentiary hearing; presiding over this matter itself when the case properly should have been presented to the probate court; acting to protect Debra from interference; failing to appoint "independent counsel" for Wyvetta; and issuing a protective order contrary to Wyvetta's expressed wishes. None of the arguments have merit.
The record confirms the trial court heard from Wyvetta at each of the five hearings it held in this matter, even repeatedly inviting her input when she had not been called as a witness but indicated she wanted to speak during a hearing. The court did not err in refusing to allow her to interject while Deloris was testifying at the conclusion of the fifth hearing, particularly as Wyvetta's comments indicated she just wanted to bolster Deloris's claim that the in-home caregiver, Cris Williams, was "a liar." By that point in the proceedings, the trial court had had ample opportunity to make the credibility determinations it subsequently stated for the record, and we do not question its conclusion that Wyvetta was "covering for [Deloris] and for Darryl."
Deloris offers no authority to support her argument that only the probate court could decide Debra's application, nor are we aware of any. Deloris appears to equate a decision regarding appointment of a guardian ad litem under the Code of Civil Procedure to represent a person lacking legal competence in litigation (see, e.g., Code Civ. Proc., §§ 372, 373; Alex R. v. Superior Court (2016) 248 Cal.App.4th 1, 8), with appointment of a guardian or conservator under the Probate Code, although the roles are clearly different. (See, e.g., Golin v. Allenby (2010) 190 Cal.App.4th 616, 643; see also, e.g., Sarracino v. Superior Court (1974) 13 Cal.3d 1, 12 (Sarracino) ["prior independent adjudication of incompetency" not required for appointment of a guardian ad litem].)
As for Deloris's contention that the trial court had an improper purpose in entering its order—namely, to protect Debra from interference—this is not an accurate summary of the trial court's reasoning. The judge who presided over the evidentiary hearings found that Debra had "done nothing over the last several years but try to care for her parents" and that Darryl and Deloris, motivated purely by their own selfish purposes, were "getting in the way of that." The protective order was necessary, the judge concluded, to support "[Debra's] efforts to care for her elderly parents." (Italics added.) It is clear from the record, therefore, that the court entered its order to protect Wyvetta from further financial abuse and mental suffering.
Deloris cites no authority for her contention that Wyvetta had the right to representation by "independent counsel," and we have found none. Notably Deloris does not suggest the court had authority or an obligation to appoint a publicly compensated attorney in this context. (See, e.g., Welf. & Inst. Code, § 15600, subd. (j) [declaration of legislative intent that attorney fee provisions included in the Elder Abuse Act were intended to "enable interested persons to engage attorneys"]; id., §§ 15657, subds. (a), (c), 15657.03, subd. (t), 15657.05, subd. (a) [attorney fee provisions].) In any event, Deloris does not have standing to assert Wyvetta's rights in a proceeding in which Wyvetta sought a protective order against her.
Finally, Deloris's contention that Wyvetta opposed the restraining order is irrelevant. Appointment of a guardian ad litem is appropriate if the protected person is not "competent to manage her financial affairs or protect her property." (Sarracino, supra, 13 Cal.3d at p. 12.) There was ample evidence from independent sources, including a neurologist who knew her for years and twice tested her, confirming Wyvetta met this description. As Wyvetta's guardian ad litem, Debra was her "representative of record." (Id. at p. 13.) Although, as discussed, the court heard from Wyvetta and understood her position, it credited Debra's testimony that she needed the protective order to manage her mother's affairs without interference, and to avoid further financial abuse that might foreclose her parents' ability to remain in their home. Because Wyvetta was not competent to make such decisions, her wishes do not control.
B. Denial of Motion to Vacate the Protective Order
Deloris also appeals the trial court's ruling denying her motion to vacate the protective order. She relies, in doing so, on the forfeited argument previously discussed, that the trial court erred in allowing Debra to proceed in propria persona as Wyvetta's guardian ad litem. The argument fails as support for this portion of her appeal also, for the reasons discussed above.
Additionally, the appeal fails because the motion to vacate, in substance, amounted to a motion to dissolve an injunction (see, e.g., Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503-1504 (Loeffler) ["A ... restraining order is a type of injunction, as it is an 'order requiring a person to refrain from a particular act' "], citing Code Civ. Proc., § 525 [defining an "injunction"]), and Deloris neither acknowledged nor satisfied the requisite standard in her motion to the trial court.
By law, a court may dissolve an injunction on a showing that (1) "[T]here has been a material change in the facts upon which the injunction . . . was granted," (2) "the law upon which the injunction . . . was granted has changed," or (3) "the ends of justice would be served by the . . . dissolution of the injunction . . . ." (Code Civ. Proc., § 533; see, e.g., Loeffler, supra, 174 Cal.App.4th at p. 1504 [applying this standard in evaluating an appeal from an order refusing to terminate a domestic violence restraining order].) Deloris did not contend in her motion to vacate, and does not contend on appeal, that there has been a material change in the facts or a change in the law upon which the injunction was granted. Nor, as discussed above, would the ends of justice be served by allowing the only represented party in this matter to wait until an unfavorable decision had been entered against her before first raising a claim of error with the trial court. This is particularly true in light of the evidence of abuse submitted in this case, and the public policy declared in the Elder Abuse Act (see Welf. & Inst. Code, § 15600) of protecting vulnerable elders from abuse. As Deloris did not meet the required standard, the trial court did not abuse its discretion in denying her motion. (See Loeffler, supra, at p. 1505 [applying "an abuse of discretion standard of review" for appeal of a ruling declining to terminate a restraining order].)
III. DISPOSITION
The trial court's orders are affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.