Bookout v. Nielsen

• Decision Date: 31 August 2007
• Docket Number: No. G037727.,G037727.
• Citation: 155 Cal.App.4th 1131,67 Cal.Rptr.3d 2
• Court: California Court of Appeals
• Parties: Rubalee BOOKOUT, Plaintiff and Respondent, v. Ove NIELSEN, Defendant and Appellant.

67 Cal.Rptr.3d 2

155 Cal.App.4th 1131

Rubalee BOOKOUT, Plaintiff and Respondent, v.Ove NIELSEN, Defendant and Appellant.

No. G037727.

Court of Appeal, Fourth District, Division 3.

August 31, 2007.

As Modified on Denial of Rehearing September 24, 3007.

Ove Nielsen, in pro. per.; and Merritt McKeon for Defendant and Appellant.

Law Office of Paul D. Stucki and Paul D. Stucki for Plaintiff and Respondent.

OPINION

FYBEL, J.

INTRODUCTION

Ove Nielsen appeals from a protective order issued against him under the Elder Abuse and Dependent Adult Civil Protection Act(Welf. & Inst.Code, § 15600 et seq.)(Elder Abuse Act).(All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.)In a case of first impression, we hold: (1) protective orders issued under the Elder Abuse Act are reviewed for abuse of discretion, and the factual findings underpinning such protective orders are reviewed for substantial evidence; (2) protective orders under the Elder Abuse Act require proof by a preponderance of the evidence of a past act or acts of elder abuse; (3) in this case, there was substantial evidence of Nielsen's past acts toward Rubalee Bookout, which constituted abusive, threatening, and harassing behavior resulting in mental suffering; and (4)the trial court did not abuse its discretion in issuing the protective order.Nielsen's argument that Bookout's request for a protective order was an abuse of process was never raised in the trial court, and is not properly before us on appeal.We affirm the protective order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Seventy-eight-year-old Bookout met 70-year-old Nielsen in December 2005.At the time, Nielsen was living on a boat in Dana Point and storing his personal property in someone else's garage.He told Bookout he was looking for a room to rent, and Bookout agreed to rent a room to him in her mobile home in San Juan Capistrano for $300 a month starting in January 2006.After two months, Bookout stopped charging him rent in exchange for performing work and repairs on the mobile home and surrounding property.In April, Bookout and Nielsen moved into a residence together in Laguna Woods.They took title to the residence in joint tenancy, although Bookout paid the full purchase price of $155,000.Bookout testified Nielsen's name was listed on the title only because his monthly income was used to meet Laguna Woods's income requirements.

Bookout filed a civil action against Nielsen on July 20, 200(5, seeking to quiet title to the Laguna Woods residence and for fraud, financial elder abuse, breach of an oral agreement, declaratory relief, and constructive trust.

On July 26, 2006, Bookout filed a petition for a protective order under section 15657.03 of the Elder Abuse Act, seeking to have Nielsen excluded from the Laguna Woods residence.In the petition, Bookout declared: "The person to be restrained is a cohabitant/acquaintance of [Bookout] who is currently on title to a stock cooperative in Leisure World as a joint.tenant, due to his deceit, undue influence and fraud upon [Bookout].[Nielsen] paid no part of the purchase price and has paid no rent.After learning of his true intentions, [Bookout] has asked him to leave and return title of the co-op to her, but he"has and continues to refuse.In addition to the financial abuse in having his name put on title, [Nielsen] continues to provoke, intimidate and cause emotional and mental pain and suffering on [Bookout].(1)[Nielsen] has and continues to threaten [Bookout] that she should `give up' the fight over the property as she is weak and will suffer a stroke and would die from his provocations; (2)[Nielsen] has also engaged in various and numerous random acts of provocation, including intentionally locking [Bookout] out of her Property; (3) calling the police alleging that [Bookout] threatened him with a barbecue fork; (4) placing large packing boxes in the living quarters for no reason other than to provoke [Bookout]; (5) placing his personal belongings in places reserved by [Bookout] and to [Bookout]'s exclusion; (6) placing light bulbs behind sofa pillows; (7) putting screws into and rigging kitchen cabinets such that a special tool is required to open the cabinets, depriving [Bookout] access; and (8) continually trying to tape record anything said by [Bookout] without her consent or permission....[Nielsen] has focused bright lights on [Bookout]'s bedroom door, and any time she comes out is taking pictures of her.[Nielsen]'s continued [harass]ment, provocation, intimidation and infliction of mental emotional suffering is harmful to [Bookout]'s health and well being and has precluded her from her own residence purchased with her own money."

A temporary restraining order was granted requiring Nielsen to move out of the Laguna Woods residence and preventing Nielsen from directly or indirectly contacting Bookout until the hearing on the section 15657.03 protective order.In his response to Bookout's petition, Nielsen argued Bookout had no right to relief under the Elder Abuse Act, and had not met her , burden of proof under the Domestic Violence Prevention Act(Fam.Code, § 6200 et seq.)(DVPA).In a declaration submitted with his response, Nielsen denied intentionally locking Bookout out of the residence.Nielsen declared, "I have never assaulted or threatened to assault [Bookout], and I have never committed any physical or emotional harm against her."Nielsen's declaration did not refute any of the other allegations in Bookout's petition.

The trial court conducted a hearing at which both parties testified.¹We summarize their testimony as follows.

Even before Bookout and Nielsen moved to Laguna Woods, there had been problems between them.Bookout testified she asked Nielsen to leave her mobile home after he began "shaking his fists" in her face and telling her to find a new house.She later asked him to move back in.

The problems continued after Bookout and Nielsen moved to Laguna Woods.Nielsen moved Bookout's personal property into a storage facility and demanded $25,000 to tell her where the storage unit was located.Nielsen admittedly screwed a number of kitchen cabinets closed, although he claimed it was to prevent Bookout from emptying his things out of them.Nielsen also admitted carrying around a tape recorder and trying to record Bookout; she claimed he tried to provoke her into saying something incriminating.Nielsen placed lightbulbs under a cushion on the couch, took Bookout's things out of her room and placed them in the living room, and locked Bookout out of the house when she took her dog for a walk.Bookout testified Nielsen asked her, "why don't you quit?... I'm going to provoke you until you die.You're dead."Although Bookout called the police several times saying Nielsen threatened her or caused her emotional distress or physical harm, Bookout said the police told her they could not assist her because Nielsen was listed as a joint owner of the property.

After Bookout filed the civil action, Nielsen held a bright light in his hand, and took pictures of Bookout as she came out of her bedroom.Nielsen claimed he was taking pictures of the mess Bookout had made of the residence, not of her.

At the conclusion of the hearing, the trial court stated: "If I don't have an elder abuse case, I'm going to have one within a month.They are going to be in and are going to get in a physical fight.They hate one another.They can't stand one another's guts anymore.[¶] If we have them living in the same house, locking up cabinets, keeping things from one another.Locking one another out of the unit when the one's out taking the dog for a walk.That kind of thing.We can't have elderly people going through that kind of stress in their lives....[¶] So certainly I have two elderly people, both of them at risk living in this environment.This is a bloody war.How would you like to be 80 years old living like that?[¶] ... [¶] ... That is elder abuse."

The trial court issued a protective order on August 18, 2006, prohibiting Nielsen from: (1) residing in or returning to the Laguna Woods residence; (2) coming within 100 yards of Bookout or the Laguna Woods residence; (3) abusing, intimidating, molesting, attacking, striking, stalking, sexually assaulting, battering, harassing, destroying the personal property of, or disturbing the peace of Bookout; and (4) telephoning or directly or indirectly contacting Bookout.In its minute order, the court found, "acts of elder abuse have occurred between the parties and that [Nielsen] is the perpetrator, [Bookout] is the victim and that the violence did not occur in self-defense."Nielsen timely appealed from the protective order.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ISSUING THE PROTECTIVE ORDER.

I.STANDARD OF REVIEW

The Elder Abuse Act does not specify the standard of review to apply when reviewing protective orders granted under section 15657.03.That statute, includes the following language: "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 an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult."(§ 15657.03, subd. (c), italics added.)The "to the satisfaction of the court" language is identical to language in the DVPA.²In Quintana v. Guijosa(2003)107 Cal.App.4th 1077, 1079, 132 Cal.Rptr.2d 538, the appellate court concluded issuance or failure to issue a protective order under the DVPA is reviewed for abuse of discretion.A protective order under the DVPA is also reviewed to determine whether the trial court's findings are supported by substantial evidence.(Sabbah v. Sabbah(2007)151 Cal.App.4th 818, 822-823, 60 Cal.Rptr.3d 175.)Similarly, injunctions issued under Code of Civil Procedure sections 527.6and527.8, which...