Gdowski v. Gdowski

• Decision Date: 23 June 2009
• Docket Number: No. G040975.,G040975.
• Citation: 95 Cal. Rptr. 3d 799,175 Cal.App.4th 128
• Court: California Court of Appeals Court of Appeals
• Parties: MICHAEL GDOWSKI, Plaintiff and Respondent, v. DIANA GDOWSKI, Defendant and Appellant.

175 Cal.App.4th 128

95 Cal. Rptr. 3d 799

MICHAEL GDOWSKI, Plaintiff and Respondent, v. DIANA GDOWSKI, Defendant and Appellant.

No. G040975.

Court of Appeals of California, Fourth District, Division Three.

June 23, 2009.

Cox, Castle & Nicholson and Stanley W. Lamport for Defendant and Appellant.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Lisa R. Wiley for Plaintiff and Respondent.

OPINION

FYBEL, J. —

INTRODUCTION

After an evidentiary hearing, the trial court issued a protective order under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act), prohibiting Diana Gdowski from contacting, striking, or otherwise abusing her 83-year-old father, Michael Gdowski, and requiring her to stay away from his residence.¹

Diana argues the trial court erred by issuing the protective order because no evidence was presented that Diana posed an immediate threat of future abuse against Michael. We hold a protective order under the Elder Abuse Act may be issued on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated.

Diana also contends that the trial court abused its discretion in issuing the protective order. The court stated that its decision was "tipp[ed]" by Diana's counsel's aggressive and confrontational cross-examination of Michael, which the court assumed was consistent with Diana's desires. Counsel's tone of voice or style of examination is not evidence, and cannot be the basis for the issuance of a protective order under the Elder Abuse Act. We conclude the trial court erred in issuing the order, and therefore reverse.

STATEMENT OF FACTS

A. Michael Files a Request for a Protective Order, and Diana Responds

On June 12, 2008, 83-year-old Michael filed a request for a protective order against his adult daughter, 56-year-old Diana, pursuant to Welfare and Institutions Code section 15657.03. In a declaration attached to his request, Michael claimed Diana had physically and emotionally abused him, and had caused caregivers for 88-year-old Frances Gdowski, Michael's wife and Diana's mother, to quit. Specifically, Michael claimed Diana had punched him on six occasions between October 2007 and February 2008. Michael also stated that Diana had yelled at him several times during March 2008, causing Frances to cry. Michael and his other daughter, Sandra Schulz, disagreed with Diana regarding Frances's medical care. Michael declared that Frances's caregiver had quit because Diana's harassment and threats were causing the caregiver too much stress. (Michael also made numerous hearsay statements about Diana's threats to kidnap Frances and take her to Italy, her desire that Michael and Schulz were dead, and references to her lawyer's friends in the Mafia.) Based on Michael's declaration, a temporary restraining order was issued against Diana on that same day, without notice or a hearing.

Diana filed a written response to Michael's request for a protective order on July 22, 2008. In a declaration attached to the response, Diana denied punching or striking Michael, stating she wished Michael and Sandra would die, threatening to kidnap Frances, or having a lawyer with friends in the Mafia. Diana claimed Michael did not want to spend money on Frances and feared losing control of Frances's share of their community property. Diana admitted she would support the assignment of a professional third party to manage Michael and Frances's estate, but denied trying to declare Michael incompetent so she could take over the estate. Diana contended Michael and Schulz had neglected Frances's medical needs, causing Frances to be in constant pain. Diana also claimed that, since October 2007, Michael had told her many times that as far as he was concerned Frances was dead, she was no longer of any use to him, he no longer had a wife, she was not worth spending money on, and their money would be better spent invested in the stock market.

B. The Hearing

An evidentiary hearing was conducted on July 23, 2008. Michael and Diana testified. Michael admitted he had filed a petition to be appointed conservator for Frances. He was seeking a protective order against Diana because of "[t]hreat of bodily harm, and threats of kidnapping. And stabilizes [sic] the family." Michael testified Diana had struck his back with her fists in February or March 2008. Michael said this was the first time Diana had hit him, and it occurred "spontaneously" and not in response to an argument. Michael and Diana were always having disagreements, during which Diana would get excited and scream at him; Michael claimed his hearing problems were the result of Diana screaming "right up close to my ear." Michael also testified Diana created confusion and disrupted the order of the household. A full-time caregiver provided care for Frances. Michael testified two caregivers had quit, although no testimony was offered for the reasons they left. Michael felt Diana posed a threat to the health and safety of himself, Frances, and other members of his family.

On cross-examination, Michael admitted he reported the February or March 2008 incident of physical abuse only after he had filed a petition in the probate court to be appointed Frances's conservator. Michael also testified on cross-examination that, although he had only identified one incident of physical abuse on direct examination, there were actually multiple incidents; Michael did not provide any testimony as to the nature or timing of those other incidents.

Diana testified she had never struck Michael, and they had never had "heated" arguments. Diana claimed she and her father agreed about everything other than his investments and the care to be provided for Frances. Diana had concerns about Frances's welfare, objected to Michael's conservatorship petition, and filed her own petition asking that a professional conservator be appointed. Before the temporary restraining order was issued, Diana had almost daily contact with Frances, and made her dinner every night. Diana denied ever threatening Michael or suggesting to anyone she would harm him. Diana testified that when she expressed her belief that the money Michael was investing should be used to provide care for Frances, Michael replied, "he didn't have a wife any more," and Frances "was not worth spending any money on." Diana believed Michael's investments were very risky because too much of his and Frances's portfolio was tied up in oil, gas, and gold, and because he traded on margin. Diana testified Frances's former caregiver quit because caring for Frances was too physically demanding, and the caregiver "was not happy about the situation there." Diana claimed that Michael's hearing loss was due to his age, diet, and circulatory problems, not to her yelling at him.

C. The Trial Court's Ruling

After the parties completed their testimony, the trial court made the following ruling:

"The Court: [¶] ... [¶] What I have here, is simply a rather close call. It's one person's word against the other. The court has observed carefully the demeanor of this process. Frankly, the court is affected by the manner in which [Michael] was examined, and that [Diana] allowed that to happen.

"[Counsel for Diana],² I assume that your rather aggressive and confrontational cross-examination of [Michael] was consistent with your client's desire to treat her father in such a fashion.

"[Diana's counsel]: That is an unfair characterization.

"The Court: I'm speaking, counsel. I'm the one that sat and watched you beat up on this fellow. And speak to him in such a way.

"There is a problem here. It's an elderly man that is having difficulty. His wife is disabled, and in need of a conservatorship. He has concern about her. He has come to this court to ask for relief.

"What he has got in response is an allegation that he is a bad person, and in some fashion that he is out for some evil motive and that he does not have the best interest of his wife.

"The examination of him I think was abusive to him. We're in a court of families that go through these difficult times. And they need to be treated with respect.

"And I compared that to how [Michael's counsel] cross examined [Diana]. With respect, without raising his voice, without being confrontational.

"This is a family in trouble. It's not a war we're fighting ... in this courtroom. This is a family. The court observed that happening and your client didn't tap you on the shoulder and say to you this is my father you are speaking to. That was the straw that made the difference in tipping the scale as to whether or not [Michael] has been treated in an abusive way. [¶] ... [¶]

"... The Elder [Abuse] statute provides that causing emotional distress or mental suffering to an elder person is elder abuse. So it's not the same as domestic violence, where you have to hit, where you have to commit something equivalent to a crime in order to have a restraining order issued.

"We treat our elderly with respect. We don't yell at them, we don't treat them rudely, we don't tell them I have a right to come in your house whether or not you want me here or not. They have rights. [¶] ... [¶] "So it's a very close call. I can only judge it on a preponderance of the evidence. Has [Michael] been yelled at, treated rudely, to the point that would cause him emotional [di]stress or mental suffering? Pursuant to the elder abuse statutes the court believes that he has.

"I don't have an opinion as to whether he's been hit or how many times he might have been hit. I'm not making a finding on that. But I'm quite sure that he's been treated in an abusive fashion on an emotional level.

"And on that basis the court will grant the order that [Diana] will not contact, molest, attack, strike, threaten or assault or otherwise disturb the peace of [Michael]. She is to stay 100 yards away from his place of residence and ... his...