22 Cal. App. 5th 92
Cal. Ct. App. 5th2018Background
- Gordon B., a 75‑year‑old disabled veteran, obtained an elder‑abuse temporary restraining order (TRO) against neighbor Sergio Gomez in August 2015 after alleged incidents including an April 4, 2015 vehicle threat and July 2015 firecrackers. The TRO was made a one‑year order expiring August 21, 2016.
- Gordon filed a request to renew the restraining order before expiration; a hearing was set for September 6, 2016 and the TRO remained in effect pending that hearing.
- At the renewal hearing Gordon (through counsel) reported post‑order encounters and incidents including a January 2016 alley incident (Gomez allegedly came at him quickly), continued threatening looks and occasional fireworks in July 2016; police had been called on some occasions.
- The trial court denied renewal, stating it required evidence of further abusive acts (specific dates/contacts and violations) rather than past conduct or speculative fears, and recommended security cameras.
- Gordon appealed, arguing the court applied the wrong legal standard (requiring new abuse) and failed to assess whether he had a reasonable apprehension of future abuse; the appellate court agreed the wrong standard was applied and reversed and remanded for reconsideration under the correct standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a renewal under the Elder Abuse Act requires proof of further abuse since the original order | Gordon: renewal may be granted without showing further abuse; court should evaluate whether he has a reasonable apprehension of future abuse | Gomez: opposed renewal; emphasized absence of recent specific abusive acts and prior hearing finding on insufficiency of criminal charges | Court: Trial court erred by requiring proof of further abuse; renewal must turn on whether protected party shows by preponderance a reasonable apprehension of future abuse |
| Whether trial court violated due process by refusing documentary evidence and limiting counsel | Gordon: trial court refused to consider documentary evidence and curtailed counsel | Gomez: argued procedure was proper; court allowed counsel to speak and considered record | Court: No due process violation shown; record shows counsel was heard and Gordon did not attempt to admit documents at hearing |
Key Cases Cited
- Bookout v. Nielsen, 155 Cal.App.4th 1131 (explains standard of review for protective orders under analogous domestic‑violence framework)
- Cueto v. Dozier, 241 Cal.App.4th 550 (trial court errs if it requires violation of order to justify renewal)
- Ritchie v. Konrad, 115 Cal.App.4th 1275 (renewal may be granted without further abuse; court should assess whether protected party has a reasonable apprehension of future abuse)
- Gdowski v. Gdowski, 175 Cal.App.4th 128 (Elder Abuse Act permits orders based on past abuse without particularized showing of continued misconduct)