Fierro v. Fierro
| Decision Date | 21 October 2022 |
| Docket Number | F082213 |
| Parties | STEPHAN FIERRO, Plaintiff and Respondent, v. GERTRUDE FIERRO et al., Defendants and Appellants |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Order Filed Date 10/31/22
APPEAL from a judgment of the Superior Court of Merced County 20CV-02773, 20CV-02797 Brian L. McCabe, Judge.
Coleman &Horowitt and Craig A. Tristao for Defendants and Appellants.
Albertoni &Associates and Susan L. Albertoni for Plaintiff and Respondent.
It is ordered that, for purposes of correcting a typographical error rather than changing the intended effect of the judgment, the opinion filed herein on October 21, 2022, be modified as follows.
On page 22, first paragraph of the disposition "respondents" in the first sentence is replaced with "defendants" so the sentence now reads: "The elder abuse restraining orders against defendants Gertrude Fierro and Yohanna Fierro are reversed and vacated."
On page 22, last paragraph of the disposition, "Respondents" is replaced with "Defendants Gertrude Fierro and Yohanna Fierro" so the paragraph now reads: "Defendants Gertrude Fierro and Yohanna Fierro shall recover their costs on appeal."
Stephan Fierro requested a restraining order under the Elder Abuse and Dependent Adult Civil Prevention Act (Elder Abuse Act; Welf. &Inst. Code, § 15600, et seq.)[1]against his brother's widow and daughter, alleging they had financially abused his octogenarian mother. The trial court agreed, finding clear and convincing evidence of financial abuse and issuing an elder abuse restraining order (EARO).
Defendants Gertrude Fierro and Yohanna Fierro appealed, contending the trial court erred by (1) failing to grant their request for a continuance, (2) signing an order containing firearm restrictions that contradicted the court's findings, and (3) finding financial abuse without sufficient supporting evidence. They also contend there is insufficient evidence to establish Stephan had the necessary authority to request an EARO on behalf of his mother.
We do not address the issues involving the sufficiency of the evidence because reversal is required by the trial court's errors in handling the request for a continuance. First, we conclude defendants' request for a continuance was timely because it was ma de during the hearing and the statute allows such requests to "be made ... orally at the hearing." (§ 15657.03, subd. (n)(1).) Second, the reporter's transcript shows the trial court did not accurately understand the full scope of its responsibility to grant a continuance for good cause and, as a result, the court did not properly exercise its discretion in determining whether good cause existed. (See Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90 [].) Third, we conclude the court's failure to properly exercise its discretion was not a harmless error. Lastly, the inclusion of the firearms and ammunition restriction in the EARO was error because only financial abuse was found. (See § 15657.03, subd. (u)(4).)
We therefore reverse the EARO and remand for further proceedings.
Elvira Fierro (Vira) had two sons, Rick and Stephan. Rick married Gertrude and they had two children, Ricardo and Y ohanna. Rick died in 2006. From 2006 to 2009, the children were placed with Vira. In December 2009, after Gertrude had regained custody of the children, Gertrude and the children moved into Vira's home. Gertrude contends Vira insisted they move into her home because V ira was lonely and had gotten used to the children being there. In contrast, Stephan characterized the move as a temporary arrangement with Gertrude helping V ira as she recovered from an injury.
On September 23, 2020, Stephan filed requests for an EARO (Judicial Council form EA-100) against Gertrude and Yohanna. The requests asserted they were made by Stephan as trustee and attorney-in-fact for Vira, who was 83 years old at the time. The requests alleged that Gertrude and Yohanna were neglecting Vira's health and were living off Vira's monthly social security benefit and her monthly pension payment, which were deposited directly into Vira's bank account.
On October 2, 2020, the trial court issued temporary restraining orders (Judicial Council form EA-110) that included personal conduct orders and stay-away orders requiring defendants to stay 100 yards away from Vira when not at the residence and two yards away from her while at the residence. The court denied the request for a move-out order, deferring that issue until the hearing. The temporary restraining order also prohibited defendants from possessing any firearms or ammunition.
The hearing on the requests for an EARO were heard on November 2, 2020, in courtroom 10. That morning, before the hearing started, Gertrude and Yohanna filed their responses (Judicial Council form EA-120) to the requests for an EARO. The minute orders from the hearing state Stephan, his counsel, Gertrude, and Y ohanna were "present in courtroom 8 via Zoom." Gertrude and Yohanna represented themselves. Vira did not attend the hearing.
Further details about the hearing are provided later in this opinion. After the court received the testimony of Stephan, Gertrude, and Yohanna, it found "that there is clear and convincing evidence of financial abuse." The court allowed defendants 30 days to move out of the residence. The EARO's (Judicial Council form EA-130) were signed and filed on November 5, 2020. Although the only type of abuse found by the trial court was financial abuse, the EARO's prohibited defendants from possessing firearms or ammunition.
On December 31, 2020, an attorney filed a notice of appeal on Gertrude's behalf. A few days later, the same attorney filed a notice of appeal on Yohanna's behalf.
The goal of the Elder Abuse Act is to protect vulnerable elderly adults from abuse and neglect. (§ 15600; Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1139 (Bookout).) One of the protections is the issuance of an EARO pursuant to section 15657.03. A petition for an EARO may be brought by the elder or by certain other persons. For example, a trustee of the elder or an attorney-in-fact acting within the authority of a power of attorney are authorized to seek an EARO on behalf of the elder. (§ 15657.03, subd. (a)(1), (a)(2).) An elder is defined as a California resident, 65 years of age or older. (§ 15610.27.)
" 'Abuse of an elder'" includes (§ 15610.07, subd. (a)(1), (a)(3).)" 'Financial abuse'" occurs when a person "[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder ... for a wrongful use or with intent to defraud, or both." (§ 15610.30, subd. (a)(1).) Assisting in these actions also qualifies as financial abuse. (§ 15610.30, subd. (a)(2).) The level of proof required for an EARO is a preponderance of the evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; Bookout, supra, 155 Cal.App.4th at p. 1138.)
The Elder Abuse Act authorizes the issuance of a temporary restraining order upon the filing of a petition. (§ 15657.03, subd. (d).) After notice and a hearing, the court may issue an EARO having a duration of not more than five years. (§ 15657.03, subd. (i)(1).)
If the order does not state an expiration date, the duration of the EARO is three years from the date of issuance. (§ 15657.03, subd. (i)(2).)
The provisions in the Elder Abuse Act addressing the timing of the hearing and continuances are set forth in part III.A. of this opinion.
Appellate courts review a trial court's issuance of an EARO for abuse of discretion. (Bookout, supra, 155 Cal.App.4th at p. 1137.) The abuse of discretion standard is not unified. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) "[T]he deference it calls for varies according to the aspect of a trial court's ruling under review." (Ibid.) The trial court's underlying findings of fact are reviewed under the substantial evidence test. (Ibid.; Bookout, at p. 1137.) The trial court's "conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi, supra, at p. 712, fns. omitted.)
Defendants contend the trial court abused its discretion by not allowing them to cross-examine Stephan. This argument is intertwined with their argument that the court erred in not granting them a continuance, but we address it first because the absence of any cross-examination is a factor relevant to whether a continuance should have been granted.
As a general principle of law, "[a] person's right of cross-examination and confrontation of witnesses against him [or her] in noncriminal proceedings is a part of procedural due process guaranteed by the Fifth Amendment and the Fourteenth Amendment to the federal Constitution, where there is involved a threat to life, liberty or property." (August v. Department of Motor Vehicles (1968) 264 Cal.App.2d 52, 60 (August).) Similarly, our Supreme Court has recognized the general principle that, while the state and federal confrontation clauses do not apply to civil proceedings, "such a right does exist under the due process clause." (People v. Otto (2001) 26 Cal.4th 200, 214.)
In addition, cross-examination of...
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