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Gdowski v. Gdowski

June 23, 2009

MICHAEL GDOWSKI, PLAINTIFF AND RESPONDENT,
v.
DIANA GDOWSKI, DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Orange County, Thomas H. Schulte, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed. (Super. Ct. No. 08FL000527).

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

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.*fn1

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 ...


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