Filed 7/24/24 Miller-Petetan v. O’Brien CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SHIRLEY MILLER-PETETAN,

Plaintiff and Respondent, 

v.

THOMAS L. O’BRIEN,

Defendant and Appellant.

MARGO LADREW,

Plaintiff and Respondent,

v.

THOMAS L. O’BRIEN,

Defendant and Appellant.

THOMAS L. O’BRIEN,

Plaintiff and Appellant, 

v.

LAWRENCE LADREW,

 B321498, B321532, 

 B321567

 (Los Angeles County

 Super. Ct. Nos. 

 22STRO01226, 

 22STRO01084, 

 22STRO01499)
2

Defendant and Respondent.

APPEALS from orders of the Superior Court of Los Angeles 

County, Doreen Boxer, Commissioner. Affirmed.

Shirley A. Miller-Petetan, Margo LaDrew, and Lawrence 

LaDrew, in pro. per., for Respondents.

Thomas L. O’Brien, in pro. per., for Appellant.

___________________________

Margo LaDrew (Margo) and Shirley Miller-Petetan (MillerPetetan) obtained civil harassment restraining orders against 

their neighbor, Thomas O’Brien (O’Brien). The trial court denied 

O’Brien’s petition for an elder abuse restraining order against 

Margo’s husband, Lawrence LaDrew (Lawrence).1 In this

consolidated appeal from the trial court’s three rulings, O’Brien 

asks us to decide whether the court abused its discretion in 

excluding testimony he wanted to introduce and in concluding he 

made no showing justifying issuance of an elder abuse 

restraining order against Lawrence.

I. BACKGROUND

A. Restraining Order Petitions

O’Brien and the LaDrews live next door to each other in the 

View Park neighborhood of Los Angeles County. The two 

properties are separated by an alley. O’Brien and the LaDrews’ 

1 We refer to Margo and Lawrence collectively as the 

LaDrews.
3

relationship has been marked by conflict since 2018, and that 

conflict has drawn in other neighbors, including Miller-Petetan. 

Margo petitioned for a civil harassment restraining order 

against O’Brien, with her husband Lawrence named as an 

additional protected person, in February 2022. Among other 

things, Margo alleged O’Brien “purposely open[ed] his garage 

door and just bang[ed] on the drums anytime during the day and 

anytime during the night,” “walk[ed] around with a gun handle 

sticking out of his pocket to let [the LaDrews] know he has a 

figure of a gun,” “passed [the LaDrews’] house and put his hand 

like a gun trigger,” and “stomped [the LaDrews’] newly planted 

garden . . . .” In addition to seeking an order prohibiting O’Brien 

from harassing or contacting her, Margo asked the trial court to 

order O’Brien “to cease and desist playing all musical 

instruments.” 

Miller-Petetan petitioned for a civil harassment restraining 

order against O’Brien around the same time as Margo. Her

petition included many of the same allegations. 

O’Brien subsequently filed his own petitions for elder abuse

restraining orders against Margo, Lawrence, and Miller-Petetan. 

The trial court held a hearing on all five petitions in May 2022. 

B. Hearing Testimony

1. Margo

Margo testified her conflict with O’Brien began in 2018, 

when she asked him to stop blowing leaves across the alley. 

O’Brien called her “crazy,” and she “kind of left it alone.” When 

she raised the issue with O’Brien again later in 2018, however, 

he “went off” on her. Lawrence came outside, they “all had a few 

words,” and Margo called the police. 
4

In 2019, O’Brien started “playing some drums to aggravate 

[the LaDrews], continued to blow the leaves, [and] started 

writing graffiti in the alley . . . .” On July 4, 2019, when several

neighbors were lighting fireworks, the LaDrews saw O’Brien in 

front of their home with “a young lady” who appeared to be 

“shaking her head like she’s telling him not to do something.” 

The next morning, the LaDrews discovered the plants in front of 

their home had been “stomped.” Margo photographed O’Brien’s 

house to “get the address,” and O’Brien asked what she was 

doing. Margo and Lawrence told O’Brien they knew he had 

stomped on their plants, and the three argued in the street.

O’Brien later apologized to Lawrence for damaging the plants 

and gave him $25. 

The peace did not last. O’Brien “would come out and just 

drum any times of night or day just to antagonize [the 

LaDrews].” He also fired a gun in the alley at times. The trial 

court remarked that a recording of O’Brien’s drumming played at 

the hearing “[did] seem to be loud.” The trial court also stated

another recording included O’Brien “yelling out very disturbing 

language.” 

2. Miller-Petetan

Miller-Petetan testified that she was talking with Los 

Angeles County Sheriff’s deputies outside O’Brien’s home in 

February 2022 when O’Brien asked who was complaining about 

his drumming. Miller-Petetan was identified as one of the 

complainants, and O’Brien then told Miller-Petetan she “[did not] 

know who she [was] fucking with.” A Sheriff’s deputy asked 

O’Brien whether he was threatening Miller-Petetan, and O’Brien 

said, “I’m just saying if she does something, can I report her?” 
5

3. O’Brien

O’Brien testified that he has cancer and playing the drums 

is “therapeutic.” He previously played the drums inside his 

house, but he moved his drum set to his garage when he had 

children. He did not play to antagonize his neighbors. He 

installed muting devices on his drums, and generally played at 

times suggested by Sheriff’s deputies, but the neighbors 

continued to complain. 

O’Brien admitted he and his daughter stepped on the 

LaDrews’ plants on July 4, 2019, but testified it was an accident 

and he apologized the next day. He believed he was justified in 

blowing leaves across the alley because the leaves fell from the 

LaDrews’ trees. 

O’Brien testified he never threatened Lawrence, but the 

trial court interjected to point out an audio recording appeared to 

document O’Brien telling Lawrence, “I’m dying anyway, 

motherfucker, and when I die, . . . you better be careful, 

motherfucker, because you’re going to be going with me.” O’Brien 

admitted making these statements, but he said “that was all out 

of anger of him approaching me, threatening me and 

everything . . . .” O’Brien also admitted saying Miller-Petetan did 

not know who she was messing with. He explained that he 

meant, “Whatever she do to me, if she make a citizen arrest on 

me, I’m going to turn around and make a citizen arrest on [her].” 

O’Brien also accused both the LaDrews and Miller-Petetan 

of harassing him. He testified the LaDrews installed lights “to 

flicker off and on in front of [his] house and [his] bedroom.” The 

LaDrews played music “real, real loud . . . to aggravate

[O’Brien],” and O’Brien believed many of the other neighbors’ 

complaints about noise from his home were prompted by the 
6

LaDrews’ music. Lawrence once “ran up” on O’Brien when 

O’Brien was talking to Margo with “a little pistol in his [waist] 

band” and threatened to kill O’Brien. On another occasion,

according to O’Brien, Lawrence said, “Keep on playing them 

drums. I’ll catch your ass. I’ll catch your ass.” O’Brien further 

claimed the LaDrews made statements implying someone might

steal O’Brien’s car, and Lawrence suggested O’Brien “would be 

kidnapped and all this and that.” O’Brien stated the “[o]nly thing 

[Miller-Petetan] does is call the police and lie,” but he sought a 

restraining order against her because he feared her sons and/or 

grandsons. 

4. Lawrence

The trial court asked Lawrence whether he had anything to 

say in response to O’Brien’s request for a restraining order 

against him. Lawrence said, “All I can say at this time, your 

honor, is I’m not familiar of any of the situations that he has 

applied—implied . . . .” The trial court summarized Lawrence’s 

statement as “[j]ust a general denial.” Lawrence agreed, “Yeah. 

Yeah, general denial. I don’t know.” 

C. Rulings

O’Brien asked to have his significant other testify.

2

 O’Brien 

indicated she would discuss the July 4th incident “and the night 

of [Lawrence] running up on [O’Brien],” as well as “several times 

that [Lawrence] threatened [O’Brien].” The trial court asked 

what this testimony would add to O’Brien’s testimony, and 

2 O’Brien referred to the proposed witness as “[m]y wife—my 

girlfriend.” 
7

O’Brien responded, “Her view—she’ll tell her view of what 

happened.” The trial court excluded the testimony as

cumulative. 

The trial court denied O’Brien’s petition for a restraining 

order against Miller-Petetan. The court explained O’Brien’s fear 

of her grandsons and her practice of calling the police when he 

played the drums were “just not enough to issue a restraining 

order.” 

The trial court also denied O’Brien’s petitions for 

restraining orders against the LaDrews. The court “recognize[d]

that the burden of proof . . . [is] by a preponderance of the 

evidence, and even with that, [the court] [did] not find that 

[O’Brien] . . . sustained those burdens.” The trial court 

emphasized it did “not find [O’Brien] to be a credible witness.” 

“In particular, [O’Brien] [did not] understand that when [he was] 

threatening people, that [he was], in fact, threatening people.” 

The trial court granted Miller-Petetan and Margo’s 

petitions for restraining orders against O’Brien. Among other 

things, the restraining orders the court issued require O’Brien to 

stay away from Miller-Petetan and the LaDrews and prohibit 

him from harassing or contacting them. The orders the court 

issued do not include any restriction on playing musical 

instruments. At the restraining order hearing, the trial court 

explained it could not bar O’Brien from playing all musical 

instruments but stated he “must play in such a manner so as not 

to be heard by the next-door neighbors. So he can play them, but 

he has to do something to—I don’t know—soundproof your home 

or maybe play some other type of instrument or play it in such—

whatever you have to do so that the neighbors don’t hear you.” 
8

D. Appeal

O’Brien noticed appeals from the trial court’s orders 

granting Margo and Miller-Petetan’s petitions and denying his 

petitions. O’Brien’s appeals from the orders denying his petitions 

for restraining orders against Margo and Miller-Petetan were 

dismissed in 2022. We ordered the three remaining appeals 

consolidated for briefing, argument, and decision. 

II. DISCUSSION

O’Brien challenges the trial court’s exclusion of his 

significant other’s testimony and argues the trial court should 

have granted his petition for a restraining order against 

Lawrence. Neither argument, however, warrants reversal. Even 

if we assume the trial court erred in excluding O’Brien’s partner’s 

testimony, it is not probable that this testimony would have 

changed the trial court’s rulings. O’Brien’s contentions

concerning his petition for a restraining order against Lawrence, 

i.e., that the trial court should have required Lawrence to 

disprove O’Brien’s allegations of abuse and that the court 

actually did find O’Brien had carried his burden of proof, are 

wrong on the law and the facts, respectively.

3

3 O’Brien also suggests the restraining orders granted in 

favor of Miller-Petetan and the LaDrews include unconstitutional 

restrictions on his speech rights. Specifically, O’Brien objects to 

the trial court’s remarks suggesting he cannot play the drums 

such that they are audible to Miller-Petetan or the LaDrews. 

Because the written orders do not include any restriction on

O’Brien’s drumming, the remarks do not provide a basis for 

reversal. (See CALCRIM No. 2701.)
9

A. O’Brien’s Motion to Strike Miller-Petetan and the 

LaDrews’ Respondents’ Brief

Preliminarily, O’Brien moves to strike Miller-Petetan and 

the LaDrews’ respondents’ brief because it does not include any 

citations to the record or relevant authority, discusses matters 

outside the record, and includes irrelevant and allegedly 

defamatory statements. Although we deny O’Brien’s motion to 

strike Miller-Petetan and the LaDrews’ brief, we disregard 

statements of fact that are not supported by citations to the 

record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)

B. The Trial Court’s Exclusion of Testimony from 

O’Brien’s Significant Other Did Not Prejudice O’Brien

Evidence Code section 352 states that “[t]he court in its 

discretion may exclude evidence if its probative value is 

substantially outweighed by the probability that its admission 

will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.” Pursuant to this statute, “‘a trial court 

has broad discretion to exclude evidence it deems irrelevant, 

cumulative, or unduly prejudicial or time-consuming.’ 

[Citations.]” (People v. Johnson (2022) 12 Cal.5th 544, 605.) 

Even when the trial court abuses this discretion, “[the] court’s 

error in excluding evidence is grounds for reversal only if the 

appellant demonstrates a miscarriage of justice, that is, that a 

different result would have been probable had the error not 

occurred.” (Major v. R.J. Reynolds Tobacco Co. (2017) 14 

Cal.App.5th 1179, 1202.)

Assuming for argument’s sake that the testimony O’Brien 

wanted to elicit would not have been cumulative and that 
10

O’Brien’s rather perfunctory proffer at the hearing constitutes a 

sufficient offer of proof (Evid. Code, § 354, subd. (a)), it still is not 

reasonably probable that allowing the testimony would have 

yielded a different result.

With respect to Miller-Petetan and Margo’s petitions, the 

trial court emphasized O’Brien admitted to harassing and 

threatening conduct but lacked the insight to recognize it as such. 

Testimony from O’Brien’s significant other would not have 

changed that. She could not have meaningfully contradicted his 

concessions to having told Miller-Petetan she “[did not] know who 

she [was] fucking with” and told Lawrence that he was “going to 

be going with [O’Brien]” when O’Brien died. 

With respect to O’Brien’s petition for a restraining order 

against Lawrence, O’Brien’s significant other’s testimony 

presumably would have corroborated his own claims of harassing 

and threatening conduct. We similarly conclude such testimony 

is not reasonably likely to have changed the outcome. O’Brien’s 

own testimony suggested his significant other was not present for 

several of the incidents he described; he said he was talking to 

Margo when Lawrence purportedly “ran up” with a gun, and he 

conceded “no one else” was there when Lawrence purportedly 

said he would “catch [his] ass.” Moreover, other asserted threats, 

e.g., that O’Brien “would be kidnapped and all this and that,”

were so lacking in detail that corroborative testimony by 

O’Brien’s significant other would have had little probative value.

O’Brien alternatively contends that “[i]f the court wasn’t 

going to let” his significant other testify, it should have permitted 

her to be “inside with [him] as [his] ‘support person’” under 

Welfare and Institutions Code section 15657.03, subdivision (j). 

That statute does not, however, entitle an elder or dependent 
11

adult seeking a restraining order to any specific support person, 

and the trial court has discretion to exclude potential witnesses. 

(Evid. Code, § 777.) Because the basis of the trial court’s order 

excluding O’Brien’s significant other’s testimony did not emerge 

until after O’Brien testified, the trial court did not abuse its 

discretion in excluding her from the courtroom earlier in the 

proceedings.

C. The Trial Court Did Not Err in Denying O’Brien’s 

Petition for a Restraining Order Against Lawrence

Welfare and Institutions Code section 15657.03 governs the 

issuance of protective orders under the Elder Abuse and 

Dependent Adult Civil Protection Act (the Elder Abuse Act). 

(Welf. & Inst. Code, § 15600 et seq.) An elder or dependent adult

who has suffered abuse, including “physical abuse . . . or other 

treatment with resulting physical harm or pain or mental 

suffering,” may seek a protective order. (Welf. & Inst. Code, 

§§ 15657.03, subd. (a), 15610.07, subd. (a)(1).) We review the 

trial court’s ruling on a petition for a protective order under the 

Elder Abuse Act for abuse of discretion, and we review the court’s 

underlying factual findings for substantial evidence. (White v. 

Wear (2022) 76 Cal.App.5th 24, 35.) “The level of proof required 

for a protective order under the Elder Abuse Act is a 

preponderance of the evidence. [Citations.]” (Ibid.)

O’Brien contends a restraining order against Lawrence 

should have issued because Lawrence failed to disprove his 

allegations of abuse and because the trial court supposedly found 

he had shown abuse by a preponderance of the evidence. But the 

fact that Lawrence “provided no evidence that he has not 

harassed [O’Brien]” does not undermine the trial court’s ruling;
12

O’Brien had the burden to prove he suffered abuse.4 (Gdowski v. 

Gdowski (2009) 175 Cal.App.4th 128, 138.) O’Brien’s claim that 

the trial court “stat[ed] that there was a preponderance of the 

evidence” is based on a misreading of the reporter’s transcript. 

The trial court explained O’Brien had the burden to show abuse 

by a preponderance of the evidence and found that he failed to do 

so because his testimony was not credible.

The trial court’s finding that O’Brien did not suffer abuse is 

supported by substantial evidence, and the trial court did not 

abuse its discretion in denying his petition for an elder abuse 

restraining order against Lawrence.

4 O’Brien’s related suggestion that the trial court improperly 

“advocated” that Lawrence should generally deny O’Brien’s 

allegations is baseless. The trial court characterized Lawrence’s 

brief testimony as a general denial, and Lawrence agreed.
13

DISPOSITION

The trial court’s orders granting Miller-Petetan and 

Margo’s petitions for restraining orders against O’Brien and 

denying O’Brien’s petition for a restraining order against 

Lawrence are affirmed. Miller-Petetan and the LaDrews are 

awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

LEE, J.*

*

Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.