Tanguilig v. Valdez

• Decision Date: 20 May 2019
• Docket Number: No. A151994,A151994
• Citation: 248 Cal.Rptr.3d 672,36 Cal.App.5th 514
• Parties: Feliciano TANGUILIG, Plaintiff and Respondent, v. Steve VALDEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

36 Cal.App.5th 514

248 Cal.Rptr.3d 672

Feliciano TANGUILIG, Plaintiff and Respondent,

v.Steve VALDEZ, Defendant and Appellant.

No. A151994

Court of Appeal, First District, Division 2, California.

Filed May 20, 2019

Steve Valdez, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

STEWART, J.

In this dispute between neighbors in the city of San Francisco, Steve Valdez, respondent to a petition for a restraining order filed by Feliciano Tanguilig under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act, Welf. & Inst. Code, § 15600 et seq. ), seeks reversal of the superior court's order, issued after a hearing on Tanguilig's petition, restraining Valdez from engaging in abusive conduct toward Tanguilig and Tanguilig's family members, all of whom lived next door to Valdez, and ordering him to stay away from them. Valdez, appearing in propria persona, either contends or questions whether the court made three categories of reversible error at the hearing. These involve the court's consideration of statements by Tanguilig's son-in-law at the hearing; the burden of proof the court applied in reviewing the evidence; and the court's consideration, or lack of consideration, of Valdez's "mens rea." We conclude Valdez's arguments have been forfeited for failure to raise them first below, lack merit and/or are insufficient to affirmatively show error. Therefore, we affirm the order.

BACKGROUND

In April 2017, Tanguilig, then 74 years of age, filed his petition for a restraining order under Welfare and Institutions Code section 15657.03 of the Elder Abuse Act in San Francisco Superior Court. He sought protection from elder abuse allegedly committed against him by Valdez.¹ Tanguilig also sought protection for four members of his family, including his son-in-law Michael Rutledge, all of whom lived in the same house, located on Niagara Avenue in San Francisco (the Tanguilig/Rutledge residence), immediately next to Valdez's house. Under penalty of perjury, Tanguilig recounted a number of incidents that he asserted constituted elder abuse by Valdez against him. We focus on two categories of incidents that are relevant to our resolution of this appeal.

According to Tanguilig's sworn petition statements, he was seeking a protective order against Valdez "for mental anguish, emotional distress and general nuisance behavior causing additional harm and keeping plaintiff, and plaintiff's family from the full enjoyment of their property."

Among his contentions was, first, that "[n]early every trash day in 2016 [Valdez] places his trash cans in the driveway of [the Tanguilig/Rutledge residence], blocking the residents of [the Tanguilig/Rutledge residence] from using their driveway. In order to get to medical appointments, and other errands, Tanguilig is forced to move [Valdez's] trash cans, which is a nuisance and also dangerous as Tanguilig has to sometimes go into the street in order to move them. Tanguilig has asked [Valdez] numerous times to stop doing this. [Valdez] has his own driveway, but refuses to place his trash cans there, instead he chooses to annoy, harass and be a nuisance on the residents of [the Tanguilig/Rutledge residence] and block their access to their driveway. This causes Tanguilig mental anguish, and endangers Tanguilig's safety as he is elderly and has to go into [the] street and lift the trash cans out of the way constantly." Second, Tanguilig wrote, Valdez "has assaulted Tanguilig by spraying him with his garden [hose] (through the fence separating the properties) on numerous occasions. This is assault on an elder."

The court issued a temporary restraining order. It concluded Tanguilig had provided insufficient facts to support an order restraining Valdez from contact with anyone other than Tanguilig (besides other family members, Tanguilig asserted that Valdez was also harassing workers on his property). The court issued a temporary restraining order prohibiting Valdez from engaging in conduct that was abusive to Tanguilig and from having any contact with Tanguilig, and ordered Valdez to stay five yards away from Tanguilig and his home.

Valdez filed a written response to Tanguilig's petition, which likewise included statements under penalty of perjury. He denied Tanguilig's allegations about the trash cans and contended that photographs Tanguilig attached to his petition and previous petition showed trash cans placed in certain positions by others, including employees of the trash collection company, not by himself as Tanguilig alleged. He stated that he had "never directed a spray from a ‘garden [hose]’ thru the fence at the petitioner," and that "[t]he backyard fence as viewed from my side measures 10 feet above my grade and has two rows of solid panels on both sides forming a solid barrier with zero openness."

The superior court held a hearing on Tanguilig's petition. Tanguilig, his son-in-law, Michael Rutledge,² and Valdez appeared at the hearing. The court, without swearing anyone in as a witness, heard from each about what had occurred between them. Tanguilig told the court that Valdez blocked his driveway with his trash cans "on a regular basis," once a week on trash collection day. Valdez's claim that someone else put the cans in Tanguilig's driveway was "a lie," and Tanguilig sometimes saw Valdez put the cans there from where he lived in the downstairs part of the house at the Tanguilig/Rutledge residence. Once, Tanguilig asked Valdez to please move the cans because they were directly behind Tanguilig's car, but Valdez would not move them; Tanguilig backed his car into a trash can and Valdez said, " ‘Thank you.’ " Rutledge told the court that after the filing of Tanguilig's first petition, Valdez started putting his trash cans in his own driveway and the cans were no longer blocking the driveway at the Tanguilig/Rutledge residence. He contended this showed it was not the trash collection company that had been blocking the driveway.

Tanguilig also told the court that Valdez had sprayed him with a garden hose "[s]everal times." Tanguilig said, "I'm outside my yard doing some yard work. He turn on his garden hose and tried to direct his water hose towards my fence, and I'm right behind the fence, and he knew I'm right behind the fence because I'm making some noises there. [¶] And the water came over towards me, and the fence was kind of taller than me so I yell at him ‘Stop’ and ‘I'm here.’ " Tanguilig continued, "He stop a little bit, and then—and he came back again. The water came back again. And I yell and try to hit the fence with the broom. That's how I stop." Police arrived a few minutes later. Tanguilig believed Valdez had called them, but Valdez would not answer his door when the police knocked on it. Tanguilig and Rutledge then recounted other incidents involving Valdez consistent with allegations in Tanguilig's petition.

Valdez told the court he never put any trash cans behind Tanguilig's car, either someone from the trash collection company, another neighbor or someone taking a parking space did it, and there was no conversation about the trash cans. He denied spraying Tanguilig with a garden hose to try and harm him, saying the fence between the properties was ten feet high and there was "absolutely no way to tell if there's someone there." Rutledge told the court Valdez had "a patio that's way above the fence," that Valdez "knows when I'm there," and that "[h]e's always coming. He tends to come out when we're there." Valdez conceded that he had back stairs that were four or five feet high, but asserted that "even if you're standing on top of the stairs, ... if there's someone standing on the other side of the fence for about eight or ten feet, you cannot see the person at all." He also suggested there might have been spray from the wind when he was using "a pressure washer or whatever."

Rutledge and Valdez then told the court about other incidents, some between the two of them directly. Some of these incidents were mentioned in Tanguilig's petition and others were not. Eventually, the court stopped this discussion, saying, "A lot of what I've heard is disputes among neighbors over building and property rights. [¶] But this is an elder abuse petition; so the only thing I've heard that Mr. Tanguilig has endured is the trash cans." Rutledge replied, "And the water," to which the court responded, "And the water." Tanguilig then added that Valdez had "stalked" him by coming up behind him and saying such things as, "Hey old man? How come you're not talking to me?" Also, after Tanguilig indicated he wanted to say something about the trash cans, he conferred with Rutledge off the record. Rutledge then told the court that Valdez had his own double driveway and so there was no need for him to place his trash cans anywhere near the Tanguilig/Rutledge residence. Rutledge also briefly addressed other factual contentions he and/or Tanguilig had made.

At the conclusion of the hearing, the court found that Tanguilig had met his burden of proof, which the court stated was "reasonable proof by a preponderance of the evidence," and had proven elder abuse. It issued a "no harassment" order against Valdez for a period of three years, thereby prohibiting him from engaging in any abusive conduct against Tanguilig and the family members named in Tanguilig's petition, including Rutledge. The court did not order a "no contact" order because it thought the parties would need to talk at times as neighbors. It ordered Valdez to stay at least five yards away from Tanguilig and the other family members unless Valdez was using the alleyway between the houses, and to stay at least 30 inches away if he was on his own premises.

Valdez filed a timely notice of appeal from the court's order. His opening brief is the only brief filed in this appeal.

DISCUSSION

Valdez makes three claims of reversible error. Before reviewing them, we note that as a party appearing in propria persona,...