September 20, 2018
Our legislature “desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment.” (Wel. & Inst. Code § 15600(b).) Accordingly, an elder or dependent adult may seek a restraining order to prevent another from abusing them pursuant to Welfare and Institutions Code section 15657.03. Subdivision (c) of that provision states: “An order may be issued under this section, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.” (Emphasis added.) But what proof is required if an elder or dependent adult obtained a restraining order, and wishes to renew the restraining order before it expires?
In Gordon B. v. Gomez (2018) 22 Cal.App.5th 92, 95, Gordon B., a 75-year-old disabled veteran, alleged that his neighbors destroyed his personal property, verbally abused him and made obscene gestures at him. Gordon B. further alleged his neighbor Sergio Alberto Gomez (“Gomez”) “tried to run him down with a Ford pickup truck on April 4, 2015, and set off large firecrackers on his driveway on July 7, 2015.” (Id.) The trial court issued a restraining order, effective until August 21, 2016, directing Gomez “to stay at least 100 feet from Gordon B. and his residence, and to sell, store or surrender any guns in his possession.” (Id.) Before expiration of the restraining order, Gordon B. filed a request to renew the order. (Id.) At the hearing on his request for a renewal, Gordon B. explained Gomez violated the restraining order by coming within 100 feet of his house on January 14, 2016, and that Gomez “drove by his house looking at him in a threatening way.” (Id.) Before denying Gordon B.’s request, the trial court stated: “What I need from you are specific dates and specific contact as opposed to threatening, dirty looks, giving you the finger, screaming something at you. I need acts that would justify a renewal of the restraining order.” (Id.)
The Court of Appeal held “the trial court erroneously based its denial of Gordon B.’s request to renew the protective order on his failure to present evidence of further abuse. (Id. at 100.) Welfare and Institutions Code section 15657.03, subdivision (i)(1), specifically states a party need not demonstrate any further abuse since the issuance of the original restraining order. Rather, a “trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse. So there should be no misunderstanding, this does not mean the court must find it is more likely than not that future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Id. at 99 [quoting Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290.) Ultimately, the Court of Appeal sent the case back to the trial court so it could perform this analysis. (Id. at 100.)
The reason a person does not need to demonstrate acts of abuse to renew an existing restraining order is that if no acts of abuse occurred, since the initial issuance of the order, this could indicate simply that the restraining order was effective. (Gordon B., 22 Cal.App.5th at p. 99.) If, on the other hand, an elder or dependent adult were required to prove additional acts of abuse since issuance of the order, they would effectively be requesting the renewal of an ineffective order. (Id.) Thus, as the Court of Appeal has clarified, the key to renewing an elder abuse restraining order is presentation of evidence demonstrating it is “more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Id.)
Author: Eric G. Salbert, Enterprise Counsel Group, Associate