Friday, April 13, 2018
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C.A. Disguises Identity of Plaintiff Who Seeks Renewal of Elder-Abuse Restraining Order
By a MetNews Staff Writer
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U.S. Department of Veterans Affairs GORDON BERGELSON Appellant |
The Court of Appeal for this district, in an apparent last-minute decision, has lent anonymity to a man whose true name is a matter of public record.
The slip opinion identifies the appellant, throughout, as “Gordon B.”
However, the docket on the Judicial Council’s website reflects the actual name of the appellant—Gordon Bergelson—as does the docket on the Los Angeles Superior Court’s website.
Under “case details,” on the Judicial Council’s site, is the “disposition” as it seemingly read originally:
“The order is reversed and remanded with directions for the trial court to reconsider Gordon Bergelson’s request to renew the elder abuse restraining order. In exercising its discretion, the trial court should consider whether Gordon Bergelson has proved a reasonable apprehension of future abuse by Sergio Alberto Gomez. We express no view on the outcome upon remand.”
The disposition in the opinion, itself, now refers to “Gordon B.” The case was filed Tuesday, but was not posted until late Wednesday.
Opinion by Bendix
Acting Justice Helen Bendix, a Los Angeles Superior Court judge sitting on assignment, wrote the opinion for Div. One. It reverses a decision of Los Angeles Superior Court Judge Carol Boas Goodson denying the renewal of a July 10, 2015 elder abuse restraining order obtained by Bergelson against Gomez, a neighbor.
At a hearing on Sept. 6, 2016, Boas denied a renewal of the order, reasoning that it was no longer needed because there had been no new instances of harassment against Bergelson, a disabled veteran, now 75. The plaintiff’s lawyer, Robin Beth Ratner, explained that Bergelson’s “fear is that once this restraining order is no longer in place, the behavior of the respondent is going to go back to what it was.”
That was “speculative,” Boas said, and declared:
“You have insufficient evidence for a renewal.”
She recommended that Bergelson install security cameras.
No Precedent
Bendix wrote, in explaining the reversal:
“Because a protective order specific to elder abuse is of relatively recent vintage, cases interpreting the statute have looked to analogous procedures governing domestic violence restraining orders under Family Code section 6300 et seq….Because no reported case has addressed the showing required to renew an elder abuse restraining order, we rely on cases applying the statutory provision for renewing a domestic violence restraining order….”
The jurist pointed to the 2004 case of Ritchie v. Konrad, decided by Div. Seven of this district’s Court of Appeal. There, then-Justice Earl Johnson J. (since retired) said:
“A trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a “reasonable apprehension” of future abuse. So there should be no misunderstanding, this does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.”
Inadequate Record
Bendix declared:
“We hold the trial court erroneously based its denial of Gordon B.’s request to renew the protective order on his failure to present evidence of further abuse. On the record before us, we cannot determine whether the error was harmless. We do not know, for example, what findings the trial court that issued the original restraining order made concerning verbal or physical threats by Gomez.”
Bergelson testified that Gordon B. said that in January 2016, he was walking down an alley by his house and encountered Gomez came through the alley quickly and right at him, prompting him to telephone the police, who came and spoke with Gomez.
Bendix said it was not clear whether Gomez was in a motor vehicle, remarking:
“If that were the case and found to be true, it would support Gordon B.’s reasonable apprehension of future abuse from Gomez.”
The case, formerly Bergelson v. Gomez, is now captioned Gordon B. v. Gomez. It appears at 2018 S.O.S. 1698.
Bergelson represented himself on appeal, and there was no appearance by Gomez.
Copyright 2018, Metropolitan News Company