Filed 3/4/22 Acevedo v. Olah CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed. Motion for judicial notice granted.

Evelynne Olah, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Evelynne Olah appeals from a protective order issued against her under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code,[1] § 15600 et seq.) (Elder Abuse Act), preventing her from having any contact with her elderly mother or stepfather for the next five years. For the reasons explained below, we conclude the trial court did not abuse its discretion in issuing the protective order. We therefore affirm the order.

FACTS

Evelynne[2] is a single woman in her early 50’s. Until July 2020, she was living with her mother, Virginia Acevedo (then age 74), and her stepfather, Raul Acevedo, Sr. (then age 81), at their house in Brea. Evelynne never entered into a lease agreement for her room, but her mother Virginia allegedly assured Evelynne she could live there while she looked for a job.

By all accounts, Evelynne had a strained relationship with her mother and stepfather, and that strain increased once the COVID-19 pandemic took hold in spring 2020. To illustrate the extent of the discord, Virginia at one point sent Evelynne this email: “We don’t have you here against your will, you can pack your things and leave anytime.” In response, Evelynne sent Virginia an email calling her “a nasty heartless woman,” “cold-hearted,” “dishonest,” and “a Nazi,” and suggesting she had early onset dementia.

In May 2020, as their relationship worsened, Virginia and Raul served Evelynne with a handwritten “Notice to Vacate,” stating that if Evelynne did not move out of the house by August 1, they would initiate eviction proceedings and file an elder abuse claim. In July, after Evelynne returned from a trip to Hawaii, Virginia and Raul served her with a notice of belief of abandonment of the premises.

In response, Evelynne filed two petitions for restraining orders against Virginia and Raul, accusing them of abusive and harassing behavior, and asking the court to order them to stay away from her, her vehicle, her bedroom, and her personal belongings (Case Nos. 20V001300, 20V001301). The court denied Evelynne’s requests for temporary restraining orders based on her failure to provide notice to Virginia and Raul, and it set a hearing several months out.[3]

Five days later, unaware of Evelynne’s pending petitions for restraining orders, Raul filed a request for an elder abuse restraining order against Evelynne. In support of his request, Raul attested Evelynne was cruel and abusive toward him and Virginia, and that she yelled and cursed at them, threatened them (e.g., “terrible things are coming to you!” and “you don’t know what’s coming to you, you just wait!”), and caused them to suffer shortness of breath, psychological and emotional duress, and fear. He added, “I’m afraid to leave [Virginia] at home with Evelynne. We are afraid of a physical assault occurring within our home. We feel we have been victims of assault without being physically hit yet. Evelynne can be extremely aggressive and volatile. We fear she will become violent or give one of us a heart attack.”

After reviewing Raul’s ex parte papers, the trial court issued a temporary restraining order against Evelynne and set a hearing for mid-August. The following day, the Brea Police Department removed Evelynne from Raul and Virginia’s home, rendering her homeless. Evelynne filed a response to Raul’s request for restraining order, denying the allegations against her, and accusing Raul and Virginia of threatening and harassing behavior.

At the August hearing, Raul and Virginia appeared in person, and Evelynne appeared telephonically. Evelynne denied any abusive conduct. Raul testified that Evelynne yells and invades their space, enters their bedroom uninvited, bangs on doors at 3:00 a.m., and insults them constantly. Virginia testified that Evelynne had used abusive language toward her in recent months and had come very close to hitting her.

After hearing the parties’ testimony, the trial court found Raul’s allegations of elder abuse true by a preponderance of the evidence: “Based on [Raul’s] declaration which has been confirmed under the penalty of perjury, the testimony regarding the temporary restraining order, and review of [Evelynne’s] criminal record[,] the court finds by preponderance of evidence that elder abuse has occurred in this matter . . . , and the abuse did not occur in self-defense.” The court entered a permanent restraining order against Evelynne for a period of five years, enjoining her from abusing, threatening, harassing, or contacting Virginia and Raul, and requiring her to stay at least 100 yards away from them and their home. Evelynne appeals that restraining order.

DISCUSSION

The Elder Abuse Act broadly defines elder abuse to include “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering,” and it permits an elder (i.e., any California resident age 65 or older) who has suffered such abuse to seek a protective order enjoining the other party from abusing, harassing, or otherwise contacting that elder. (§§ 15610.07, subd. (a)(1), 15610.27, 15657.03.)

Protective orders issued under the Elder Abuse Act require proof by a preponderance of the evidence of a past act of elder abuse. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1134.) We review such orders for abuse of discretion, and we review the factual findings underpinning such orders for substantial evidence. (Ibid.)

Applying those standards here, we conclude substantial evidence (specifically, the testimony of both Raul and Virginia concerning Evelynne’s threats and other conduct causing them to suffer pain and mental suffering) establishes past acts of elder abuse by Evelynne. We find no abuse of discretion in the court’s issuance of the order.

Evelynne insists the trial court abused its discretion in issuing the restraining order for three reasons. First, she asserts the court was frustrated by her telephonic appearance, the occasional accidental muting of her line, and her overall conduct during the evidentiary hearing. The record does not support this argument. Although Evelynne occasionally muted the line by mistake, and although the court noted it did not appreciate Evelynne losing her temper during the hearing, the court also noted those matters were “irrelevant to [its] decision.”

Evelynne next contends the trial court abused its decision when it based its decision, in part, on its review of Evelynne’s “criminal record.” Evelynne appears to be correct that the record in this case contains no evidence that Evelynne has a criminal background, so it is unclear what the court was referring to in its minute order when it referenced its “review of [Evelynne’s] criminal record.” Nevertheless, since other evidence amply supports Raul’s allegations of elder abuse, we discern no abuse of discretion in the court’s issuance of the order.

Third, Evelynne argues the trial court abused its discretion because “there is overwhelming evidence to distrust” Raul and Virginia. However, “we defer to the trier of fact on issues of credibility” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968), and for good reason. “We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) “The juvenile court had the opportunity to observe the demeanor of the relevant witnesses . . . . It is not our role to interfere with the trial court’s assessment of the witnesses’ demeanor and credibility.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 824.) We must defer “to the trier of fact on such determinations, and ha[ve] no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence.” (Sheila B., at p. 199.)

DISPOSITION

The order is affirmed. In the interests of justice, both sides shall bear their own costs. (Cal. Rules of Court, rule 8.278(a)(5).)

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

MARKS, J.*

* Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further undesignated statutory references are to this code.

[2] We refer to the parties by their first names to avoid confusion. We mean no disrespect.

[3] The court presiding over those petitions eventually denied Evelynne’s requests for restraining orders against Raul and Virginia, finding insufficient evidence of domestic violence. Evelynne asks us to take judicial notice of those rulings; we grant her request.