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Past Acts of Abuse Sufficient to Renew Elder Abuse Protective Order—C.A.
Judge Erred by Focusing on What Happened After Initial Order Was Issued, Opinion Says
By a MetNews Staff Writer
Div. Two of the First District Court of Appeal held yesterday that a trial judge erred in denying a request to renew a restraining order issued pursuant to the Elder Abuse and Dependent Adult Civil Protection Act where the court focused on what happened after the issuance of initial restraining order and failed to consider all available evidence offered by the parties.
Mendocino Superior Court Judge Cindee F. Mayfield, sitting on assignment, wrote the unpublished opinion, reversing the order by Alameda County Superior Court Judge Tamiza Hockenhull. Acting Presiding Justice James A. Richman and Justice Marla J. Miller joined in the opinion.
Plaintiff Carol Ruth Denney is 70 years old and has lived in the same apartment complex in Berkeley for more than 35 years. Joe Wright is a healthcare worker who takes care of a blind man who also lives in the apartment building, Frank Clark.
Wright works six days a week for Clark and spends up to 12 hours a day in the complex.
2020 Request
In June of 2020, Denney requested a restraining order against Wright pursuant to Welfare and Institutions Code §15657.03 which protects persons 65 years old who have suffered abuse. Under that section, abuse includes “mental suffering” which is defined as “fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed…with malicious intent to agitate, confuse, frighten or cause severe depression or serious emotional distress of the elder.”
Denney specifically alleged in her petition that Wright had yelled at her, banged on her door, threatened to break her fingers, called her a “bitch,” made stabbing motions toward her with a screwdriver and vandalized her property (including an allegation that he poured cat feces and urine into her car). Wright denied these allegations and claimed that it was Denney who harassed him.
In October 2020, a hearing was conducted at which several witnesses including the two parties, testified. A one-year restraining order was issued, requiring Wright to stay at least 100 yards away from Denney, but allowing him to be on the premises when assisting Clark as long as he stayed at least 10 yards from her.
Permanent Order
In September 2021, Denney filed a request to renew the order permanently, alleging that Wright continued to harass her.
In support of her request, she offered various letters from friends, photographs of alleged vandalism, a log documenting instances where she claims Wright violated the original order, four thumb drives of photographic and video evidence, and a declaration describing an incident where the order was violated.
Hockenhull allowed Denney, Wright and Clark to testify, as well as one additional witness called by Denney. However, she did not allow Denney to present the testimony of additional witnesses due to “time constraints” nor did she allow Denney an opportunity to cross-examine Wright’s employer.
In denying the request to renew the order, Hockenhull said:
“What I’ve been asked to do is look at here and now and also what has occurred since the restraining order was put in place….That is what I was most interested in because that’s what I need to make a decision about.”
She acknowledged that there was an on-going issue between the parties, but concluded that there was not a basis to issue or continue a restraining order against Wright.
Past Abuse
In yesterday’s opinion, Mayfield declared that Hockenhull had applied an incorrect legal standard.
She looked to the language of §15657.03 which provides that an elder abuse restraining order may be issued to “restrain any person for the purpose of preventing a recurrence of abuse” upon a showing of “reasonable proof of a past act or acts of abuse” against the senior.
Citing subsection (i), with italics added, she wrote:
“As relevant here, an order may be renewed ‘without a showing of any further abuse since the issuance of the original order.’ ”
Mayfield continued:
“The court thus erred by focusing primarily on what had happened since the restraining order was put in place to deny Denney ’s renewal request.”
She pointed out that Hockenhull admonished Wright after denying the request for renewal that there were cameras on the property and that he might be subject to another request for a restraining order if he misbehaved.
That admonition, the jurist wrote, “compound[ed] the error,” explaining:
“An admonition of the restrained party at a renewal hearing indicates that the protected party had something to fear.”
She noted that Wright argued that the denial was proper on the basis that the record did not provide any substantive evidence of wrongdoing on his part, but found that argument wanting, remarking:
“[T]he record reflects that the court did not consider all of the available evidence, including Denney ’s video evidence which shows at least two instances of Wright being in close proximity to her. On the record before us, we cannot determine whether the trial court would have determined that Denney had a reasonable apprehension of future harm had it considered all of the available evidence and applied the correct legal principles. On this record, reversal is required.”
The case is Denney D. v. Wright, A165330.
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