1

Filed 9/ 5/23 Richard P. v. Kendall P. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

RICHARD P., an Incompetent Person, etc.,

Plaint iff and Respondent,

v.

KENDALL P.

, Defendant and Appellant. A162642

(San Mateo County Super. Ct. No. 19

- PRO

- 01618)

ORDER MODIFYING OPINION AND DENYING REHEARING;
NO CHANGE IN JUDGMENT

THE COURT: *

It is ordered that the opinion filed herein on August 1 7

, 202 3 , be

modified as follows: At page 10, in the first paragraph, the sentence “ Only

evidence of ‘ a past act or acts of abuse ’ of the elder is required for issuance of

an elder abuse restraining or der ” is deleted and replaced with “ Only evidence

of ‘ a past act or acts of abuse ’ of the elder is required for issuance of an elder

abuse restraining order ; no ‘particularized showing that the wrongful acts

will be continued or repeated’ is necessary.”

* Jackson, P. J.; Si mons, J. ; Burns

, J.2

Th e re is no change in the judgment.

Appellant ’s petition for rehearing is denied.

Dated:

, P. J.

A162642/

Richard P. v. Kendall P.1

Filed 8/1 7 /23 Richard P. v. Kendall P. CA1/5 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

RICHARD P., an Incompetent Person, etc.,

Plaintiff and Respondent,

v.

KENDALL P.

, Defendant and Appellant. A162642

(San Mateo County Super. Ct. No. 19

- PRO

- 01618)

This is an appeal brought by defendant Kendall P. in an elder abuse

case involvin g hi s centenarian father, Richard P. Defendant’s sister

, Cynthia W. , successfully petitioned for an elder abuse restraining order on

behalf of Richard based on allegations of financial and emotional abuse. On

appeal, defendant contends this order was not supported by substantial

evidence of financial abuse. He further contends the trial court commit ted

prejudicial error by failing to issue a timely statement of decision. We

conclude defendant’s claims lack merit and therefore affirm the trial court’s

order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, Richard was in his mid

- 80’s . He and his wife Kathleen moved

into the in

- law unit o f Cynthia and her husband James’s Half Moon Bay

residence . Beginning in 2013, defendant, recently disbarred as a California2

attorney, also lived in separate quarters o f Cynthia and James’s residence

.
Kath leen passed away in 2015.

At some point, Cynthia and James’s son moved back home, and

defendant moved into the in

- law unit with Richard. Cynthia and James

request ed that all three men

— their son, defendant and Richard

— pa y rent.

In April 2017, defendant o btained a durable power of attorney from

Richard, who was diagnosed with dementia associated with Alzheimer’s

Disease that same year

. In early 2018, following a lease dispute, Cynthia and James evicted

defendant and Richard from the in

- law unit, prompting the pair to relocate to

Orange County. On March 29, 2018, Richard executed a lease for a two

bedroom apartment in Corona Del Mar with a monthly rent of $5,900.

Richard moved into the first

- fl oor bedroom, while defendant and his then

girlfriend, Kristie L. , moved into the second

- floor bedroom. The threesome

incurred move

- in expenses of $18,800.

In April 2018, defendant arranged for Richard to execute a lease on a

$150,000 Mercedes

- Benz GT S for $825 per month. At the time, Richard, 96

years old, no longer had a valid California driver’s license and had not driven

for several years

. Overall, mon thly household expenses totaled $12,000 for the three

residents . Defendant, who managed Richard’s finances, used Richard’s bank

accounts and credit cards to pay a share of these expenses. Richard’s

monthly retirement income was only about $4,100.

After Richard and defendant’s relocation to Orange County

, Cynthia

and James received several calls from Kristie reporting that defendant wa s

n ot taking good care o f Richard . Kristie explained that defendant had spent

time in jail and away on unannounced trips

, plac ing the onus of Richard’s3

care on her. Kristie also indicated that defendant had stopped paying their

credit card bills, endangering them financial ly . Finally, when Kristie called

again in December 2019 to report defendant was back in jail

, Cynthia and

James flew to Orange County, packed Richard ’s belongings , and took him

back to their San Mateo County residence.

On December 24, 2019, Cynthia filed a request for an elder or

dependent adult abuse restraining order on grounds of financial, men tal

, and

emotional abuse

. Th e request identified the proposed protected parties as

Richard, James and Cynthia, and the proposed restrained party as

defendant

. On the same day, the trial court issued a temporary restraining

order prohibiting defendant fro m engaging in any abuse toward Richard

, contacting him , or coming within 100 yards of him or his home

. Defendant

was also ordered to stay at least 100 yards away from James and Cynthia.

On January 13, 2020 , the temporary restraining order was modified to

permit one 10

- minute phone call per week between Richard and defendant

, subject to three restrictions: (1) the pair were not to discuss finances ;
(2) Richard could decline to participate in the call ; and (3) the call was to be

“ recorded and prearranged, if possible

. ”

On March 11, 2020, Cynthia and James filed a petition to be appointed

conservators of Richard’s person and estate. In connection with this petition,

an investigator for San Mateo County prob ed Richard’s circumstances and

p repared a confidential report for the court. The investigator interviewed

Cynthia and James , Richard, and Richard’s son Kevin P . Defendant refused

to be interviewed. Nonetheless, the investigator ultimately concluded a

conservatorship was necessary to p rotect Richard because “[t]he evidence

shows that Richard was victimized by Kendall in a number of ways.” In

August of 2020, the conservatorship was established.4

On May 27, 2020, the trial court noted it had made an interim order for

the appointment of i ndependent counsel for Richard “given the polarity of the

positions that have been taken with regard to his care

. . . . ” The court

further ordered the temporary restraining order would remain in effect per

the parties’ stipulation.

On February 22, 2021, the c ourt held an evidentiary hearing on
Cynthia’s el der a buse r estraining o rder petition

. On April 15, 2021 , a fter

taking the matter under submission , the court granted the p etition and

i ssued a restrai n ing order prohibit ing defendant from engaging in any

physical, financial, or em o t ional abuse toward Richard and coming within

1 0 0 yards of him or his home. Subject to Richard’s approval, the restraining

order permitted (1) email and mail communications from defendant to

Richa rd in care of his conservators, (2) weekly 15

- minute audio or video calls,

and (3) monthly 30

- minute supervised meetings. 1 However, defendant was

prohibited during these interactions from discussing Richard’s living

arrangement or financial situation.

O n April 16, 2021, defendant filed a timely notice of appeal.

DISCUSSION

The two issue s raised on appeal are (1) whether substantial evidence

supported the trial court’s finding that defendant financial ly abuse d Richard

and (2) whether the court committed prejudicial error by failing to issue a

statement of decision

. We address each issue in turn.

1 The audio, video or in

- person meetings could be attended or recorded by the conservators.5

I. Substantial evidence supported the court’s order.

Under the Elder Abuse and Dependent Adult Civil Protection Act

( Welf

. & Inst

. Code § 15600 et seq. )

, 2 a trial court may issue a restraining

order to protect an “elder” who has suffered “abuse” within the meaning of

section 15610.07. (§ 15657.03, subd s . (a), (b).) “ ‘ Abuse of an elder ’ ” includes

physical or mental abuse, neglect or abandonment, or financial abuse.

(§ 15610.07, subd. (a).) Relevant here, financial abuse of an elder occurs

when a person “[t]akes, secretes, appropriates, obtains, or retains real or

personal property of an elder” either “for a wrongful use” or “by undue

influence

. . . . ” (§ 15610.30, subd. (a).) Thus, to establish financial abuse, the

plaintiff must establish: (1) a deprivation of an elder’s property right that is

(2) undertaken for a wrongful use or by undue influence. ( Ibid .)

“ The terms ‘wrongful use’ and ‘undue influence’ are specifically defined

as well. ‘A person or entity shall be deemed to have taken, secreted,

appropriated, obtained, or retained property for a wrongful use if, among

other things, the person or entity

. . . knew or should have known that th is

conduct is likely to be harmful to the elder or dependent adult.’ (§ 15610.30,

subd. (b).) ‘ “Undue influence” means excessive persuasion that causes

another person to act or refrain from acting by overcoming that person ’ s free

will and results in ine quity.’ (§ 15610.70.) The test for ‘undue influence’ is

governed by a series of listed factors, including the ‘vulnerability of the

victim’ (§ 15610.70, subd. (a)(1)), the ‘influencer’s apparent authority’

( id

., subd. (a)(2)), the ‘actions or tactics use d by the influencer’ ( id ., subd.

(a)(3)), and the ‘equity of the result’ ( id ., subd. (a)(4)). ” ( Mahan v. Charles W.

Chan Ins. Agency

, Inc . (2017) 14 Cal.App.5th 841, 858 ( Mahan ) .)

2 Unless otherwise stated, all statutory citations herein are to the
Welfare and Institutions Code.6

“ [ A ] n order may be issued under [ the Elder Abuse and Dependent

Adult Civil Protection Act ], with or without notice, to restrain any person for

the purpose of preventing a recurrence of abuse, if an affidavit shows, to the

satisfaction of the court , reasonable proof of a past act or acts of abuse of the

p etitioning elder or dependent adult.” (§ 15657.03, subd. (c).) Moreover,

“consistent with the language, legislative intent, and history of the Elder

Abuse Act in general ( Welf. & Inst. Code, § 15600; Stats. 1982, ch. 1184, § 3,

p. 4223), and

. . . sectio n 15657.03 in particular,” an elder abuse protective

order “may issue on the basis of evidence of past abuse, without any

particularized showing that the wrongful acts will be continued or repeated.”

( Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137 ( Gd owski ) .)

On appeal, “ t he issuance of a protective order under the Elder Abuse

Act is reviewed for abuse of direction [ sic ] , and the factual findings necessary

to support such a protective order are reviewed under the substantial

evidence test. [¶] We resolve all conflicts in the evidence in favor of

respondent, the prevailing party, and indulge all legitimate and reasonable

inferences in favor of upholding the trial court’s findings.” ( Bookout v.

Nielsen (2007) 155 Cal.App.4th 1131, 1137

– 1138 ( Bookout ).)

Evidence presented at the February 22, 2021, hearing on Cynthia’s

elder abuse restraining order petition included the following. 3 A ccording to

testimony from James and defendant, a fter moving to Corona Del Mar,

defendant caused Richard to execute a lease to a two

- bedroom apartment

3 Defendant’s counsel argued for the first time on appeal

, at ora l
argument

, that the evidence offered in support of the elder abuse restraining order petition constituted inadmissible hearsay. We decline to address this argument, as it has been forfeited. ( In re I.C. (2018) 4 Cal.5th 869, 888

, fn. 5 [respondent forfe ited argument raised for first time at oral argument “by failing to raise it in a timely manner”].)7

with a rent of $5,900 per month even though his total retirement income was

only about $4,1 00 per month. Although both defendant and his then

girlfriend

, Kristie, also lived in the apartment (in the second

- floor suite),

neither p laced their name on the lease or otherwise assume d legal

responsibility for the property

.
A round the same time, defendant caused Richard to execute a lease on

a 2018 Mercedes

- Benz even though Richard had no valid driver’s license and

had not driven for several years. The monthly payment on th is lease was

about $82 5

. While defendant used the Mercedes for appointments and

errands benefiting Richard, defendant also used it for his own benefit

. Indeed, defendant acknowledged that for about a year th e Mercedes was the

household’s only car. Moreover

, defendant continued to drive the Mercedes

once Richard , the only person named in the lease, returned to Northern

California

. Defendant testified that he paid the lease. However, he ignored

Cynthia and James’s requests to return the vehicle to the leasing agent after

they re ceived multiple past due notices from Mercedes.

Also during this time period, d efendant used th e p ower of a ttorney that

Richard executed in 2017 to open banking and credit card account s in

Richard’s name, which he then used for his and Kristie ’s benefit , not just

Richard’s benefit. By December 201 9 , Richard ’s credit report revealed he had

over $135,000 in credit card debt . Yet, James testified that when Richard

lived with him and Cynthia

, before relocating to Orange County , Richard

signed checks for his own bills and had little or no credit card debt.

Significantly, James testified that a s this spending was occurring

,
Kristie made several calls to Cynthia to report that Richard was frequen tly

left alone and was not being fed properly . Finally

, when Kristie call ed on

December 17, 2019, to report defendant was in jail

, Cynthia and James8

traveled to Southern California to move Richard and his belongings out of the

Corona Del Mar apartment and back to their home

. And despite this move

, defendant continued to make demands by email that Richard pay his share of

the January 2020 rent and expenses.

Fi nally , in February 2020 , defendant cashed one of Richard’s

retirement checks by forging his name on the back of it

. Specifically, after

discovering Cynthia and James closed the bank account into which Richard’s

checks were nor mally deposited (as they attempt ed to address Richard’s

financial disarray )

, defendant contact ed Richard’s pension administrator and

ask ed that his retirement check be forwarded to a new savings account

defendant opened in Richard’s name . After this check in the amount of

$3,079 .20 was deposited into t h e new account on February 3, 2020 , defendant

withdr e w and cashed it

. While defendant insisted he preserved the money

for R ichard and spent none of it, the court was entitled to find defendant’s

actions in this regard constituted f inancial abuse

. As our First District, Division Four

, colleagues have explained : “ The

text of section 15610.30 is broad. It speaks not only of ‘taking’ real or

personal property, but also ‘secreting, appropriating, obtaining, or retaining’

such property (§ 15610.30, subd. (a)(2); accord, id ., subd. (a)(1)), and then, to

capture the sense of all of these terms, goes on to use the more expansive

term ‘deprive[.]’ (§ 15610.30, subd. (c) [‘a person or entity takes, secretes,

appropriates, obtains, or retains real or personal property when an elder or

dependent adult is deprived of any property right’]). Some of the terms used

i n section 15610.30 are narrower than others; to ‘secret [ sic ] ,’ for example,

suggests hiding or concealment, and to ‘retain’ or to ‘obtain’ suggests

affirmatively acquiring possession of something. But we have no trouble

concluding that the broadest of th ese terms

— the word ‘deprive’

— in its9

ordinary meaning covers what the [plaintiffs] have alleged. (See § 15610.30,

subd. (c); Oxford English Dict. Online (2017) [‘Deprivation’ means ‘[t]he

action of depriving or fact of being deprived; the taking away of anything

enjoyed; dispossession, loss’] at <www.oed.com> [as of Aug. 23, 2017].) ”

( Mahan, supra , 14 Cal.App.5th at p. 861.)

Similarly, in our case, there was a wealth of evidence demonstr ating

defendant deprived Richard of his property for a wrongful use and by undue

influence when he , among other things, caused Richard to execute leases for

the Corona Del Mar apartment and the Mercedes

- Benz GT S and open ed

bank accounts and cashed checks in Richard’s name. C ollectively, these acts

placed Richard on the hook for monthly payments far exceed ing his modest

retirement income , all while benefiting defendant and his then girlfriend

. On

this record, we conclude Cynthia met her burden of proving by a

preponderance of the evidence that defendant engaged in acts of financial

abuse that support ed the issuance of a restraining order for an elder’s

protection.

Defendant insist s his actions benefited Richard and thus did not

constitut e abuse. However, James provided credible testimony that by the

time Richard returned to Northern California in late 2019, his credit card

debt far exceeded $100,000, despite having little or no credit card debt prior

to that time. This fact alone underm ines defendant’s claim . ( Bookout, supra

, 155 Cal.App.4th at pp. 1137

– 1138 [ all conflicts in evidence resolved on appeal

in favor of respondent, and all reasonable inferences indulged in favor of

upholding the trial court’s findings] ; Thompson v. Asimos (2016) 6

Cal.App.5th 970, 981 [one witness’s testimony may constitute substantial

evidence to support a finding] .)10

Finally, d efendant a rgues that given the establishment of a
conservatorship over Richard and his estate, no purpose was se rved by

imposing the restraining order because defendant lacks any ability to

financially abuse Richard in the future. Defendant’s argument is misplaced.

The statutory language is clear. Only evidence of “a past act or acts of abuse”

of the elder is req uired for issuance of an elder abuse restraining order.

(§ 15657. 03

, subd. (c) ; Gdowski, supra , 175 Cal.App.4th at p. 137 .)

Accordingly, the order in t h is case stands.

II. No statement of decision was required.

W e also reject defendant’s remaining claim that the trial court

prejudicial ly err ed by failing to issue a statement of decision despite the

request defendant made for one on February 16, 2021, a week before the

evidentiary hearing

. As explained post , no statement of decision was

required in this case.

A trial court must issue a statement of decision “upon the trial of a

question of fact” if a party makes a timely request for one. (Code Civ. Proc.,

§ 632.) Generally speaking, this statute applies where there has been a trial

followed by entry of a judgment. It does not apply to a court’s ruling on a

motion “even if the motion involves an evidentiary hearing and the order is

appealable.” ( In re Marriage of Askmo (2000) 85 Cal.App.4 th 1032, 1040

( Askmo ).)

Defendant insists the proceedings in this case involved “in every real

sense a ‘trial,’ not merely [ a ] motion

, ” such that Code of Civil Procedure

section 632 should apply. However, the trial court itself recognized

, when

scheduling the ev identiary hearing

, “ This is a restraining order trial, not a

court trial on the merits.” More importantly, we know of no case requiring a

statement of decision after issuance of a restraining order or simply because11

there was an evidentiary hearing and live testimony . W e decline to be the

first to do so. 4 ( See People v. Landlords Professional Services, Inc . (1986) 178

Cal.App.3d 68, 72 [“section 632 speaks only in terms of ‘ trial ’ ; and we have

discovered no case which defines a hearing on a preliminar y injunction, live

testimony or not, as a trial ”] ; In re Marriage of Simmons (1975) 49

Cal.App.3d 833, 836 [ f indings of fact are only required on issues joined by the

pleadings where the decision of the court following the findings is a

judgment ] .)

DISPOSITION

The elder abuse restraining order of April 15, 2021, is affirmed.

4 Some courts, following Gruendl v. Oewel Partnership, Inc . (1997) 55 Cal.App.4th 654, have recognized an exception to th e rule limiting application of Code of Civil Procedure section 632 to cases involving a trial
where special proceedings we re involved. These courts have done so based on a balancing of the following factors: “ ‘ “ (1) the importance of the issues at
stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings. ” [Citation.] ’ ” ( Askmo, supra , 85 Cal.App.4 th at p. 1040, citing Gruendl, supra , at p. 660.) Other courts have rejected such a broad reading of Gruendl . ( E.g., In re Marriage of Fong ( 2011 ) 193 Cal.App.4th 278,

29 6 [ concluding Gruendl ’s two

- part test was not applicable in all cases involving special proceedings, as “ Gruendl cited the two

- part test relating to special proceedings by analogy and did not hold that the same two

- part test applied to the ruling on a motion ”]. ) In any event, the Gruendl standard is not met here. Putting aside the importance of the issues at stake, the second prong is not met. The factual issues in this case are straightforward

, and given the modest evidentiary record, there are no obstacles to effective appellate review notwithstan ding the absence of a statement of decision.12 _________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Burns, J.

A162642/

Richard P. v. Kendall P.