Newman v. Casey ( 2024 )

Filed 1/30/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
RICHARD NEWMAN, as Executor,
etc., A165210
Plaintiff and Respondent,
(San Mateo County
v. Super. Ct. No. 22PRO00138)
MARINA CASEY,
Defendant and Appellant.
This is an appeal from elder abuse restraining orders (EAROs) issued
pursuant to Welfare and Institutions Code section 15657.031 and a
subsequent order declaring a deed transferring property owned by Gracia
Bovis to her daughter, Marina Casey, void ab initio. Casey challenges the
restraining orders as not supported by the evidence. She challenges the order
declaring the deed void on the additional ground the trial court exceeded its
authority under section 15657.03. We conclude sufficient evidence supports
the restraining orders, but agree the court exceeded its statutory authority in
issuing the subsequent order declaring the deed void. As we explain, section
15657.03 establishes a summary and initially provisional remedy to secure
the immediate protection of elders from further abuse. The statute expressly
enumerates the kinds of restraining orders the court may issue, and in some
situations, a restraining order, alone, may provide an elder a sufficient
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise indicated.
1
remedy. In other situations, it may not, and, in such situations, the
summary restraining order process serves as an important adjunct to a civil
or probate action for elder abuse under the Elder Abuse and Dependent Adult
Civil Protection Act (§ 15600 et seq.) (Elder Abuse Act or the Act). We
therefore affirm in part and reverse in part.
BACKGROUND
In February 2022, Bovis filed a “Request for Elder or Dependent Adult
Abuse Restraining Orders” on Judicial Council form EA-100.2 She described
the alleged abuse as follows: “[She] was misled by her daughter that she
needed to protect her home from rising property taxes. Marina Casey, her
daughter, told her mother to sign some documents last year or else her
property taxes would skyrocket. Bovis later learned that the documents did
not protect her from rising property taxes, but instead transferred the
property into her daughter’s name.”
Bovis requested (by checking the appropriate box on the form) a
“Personal Conduct Order[]” that Casey “not to do any of the following things”
to Bovis: “Physically abuse, financially abuse, intimidate, molest attack,
strike, stalk, threaten, assault (sexually or otherwise), hit, harass, destroy
the personal property of, or disturb the peace of the person.” (Boldface
omitted.) She also requested (by checking the appropriate box) a no contact
order instructing that Casey not contact Bovis “either directly or indirectly, in
any way, including but not limited to, in person, by telephone, in writing, by
2 Section 15657.03, subdivision (y)(1) states, “The Judicial Council
shall develop forms, instructions, and rules relating to matters governed by
this section. The petition and response forms shall be simple and concise,
and shall be used by parties in actions brought pursuant to this section.”
(See Cal. Rules of Court, rule 3.1160 [augmenting procedures set forth in
statute].)
2
public or private mail, by interoffice mail, by e-mail, by text message, by fax,
or by other electronic means.” (Boldface omitted.) She additionally requested
(by checking the appropriate box) a “Stay-Away” order requiring Casey to
stay at least 100 yards away from Bovis and her home. In another section of
the form, she requested an “Additional Order[]” requiring Casey “to sign the
rescission deed to return her home to her” and attorney fees. (Boldface
omitted.)
Casey filed a “Response to Request for Elder or Dependent Adult Abuse
Restraining Orders” on Judicial Council form EA-120. As permitted by the
form, Casey attached a declaration by her attorney. Counsel averred as
follows: The transfer “was made because of Proposition 19, and to avoid
reassessment of property that would otherwise be trigged by an
intergenerational transfer.” Proposition 19 “added new restrictions” on
change of ownership and “prompted a rush on parent-child transfers to beat
the deadline for filing reassessment exclusion forms on or before February 15,
2021.”
The following were attached to counsel’s declaration as exhibits: a copy
of the grant deed transferring the property from Bovis to Casey as a gift from
parent to child;3 a copy of Bovis’s will dated February 6, 2020; and a copy of
“the Second Amendment to the Survivor’s Trust under the Revocable Trust
Agreement of James N. Bovis and Gracia Bovis dated February 18, 1997,”
executed on February 6, 2020.
These documents, according to counsel, effectively disinherit Bovis’s
son. For example, the will provides that all household goods and personal
property are to be given to Marina Casey and makes “no provision herein for
Nicholas J. Bovis, my son.” (Boldface & some capitalization omitted.) The
3 The deed was recorded February 8, 2021.
3
will also nominates Marina as the executor of the will. The second
amendment to the trust reads, “At the time that this Declaration of Trust is
executed, the Settlors have two (2) children living: Nicholas J. Bovis and
Marina V. Casey, both of whom are adults. The Surviving Settlor intends to
make no provision in this trust for Nicholas J. Bovis, in that, in the Settlor’s
view, Nicholas J. Bovis has certain criminal issues and the Settlor does not
wish provide [sic] any financial support or distribution to him as a result.[4]
All remaining property in the trust shall be allocated and distributed to
Marina V. Casey, outright and free of trust, if she is then living, and if not, to
her issue by right of representation.” (Boldface & some capitalization
omitted.)
Counsel additionally averred that Bovis’s son had started spending
significant time with his mother. Casey was concerned he was exercising
undue influence over Bovis and had convinced his mother to seek return of
the property so he could use it for “improper purposes,” as he had previously
done in connection with “other properties that belonged to his mother.” Also
attached to counsel’s declaration was a “draft-copy of The Gracia Bovis
Irrevocable Trust, showing redline edits made” by counsel’s law firm to
transfer title of the residential property to the trust and place management
in the hands of an independent, professional fiduciary to ensure no undue
influence by Bovis’s son. Bovis’s attorney had not agreed to management by
a professional fiduciary, and Casey and Casey’s counsel were concerned this
was due to pressure by Bovis’s son.
The hearing commenced remotely with only Bovis and her attorney
present. Bovis proceeded to testify as follows: She had lived in her house for
4 Counsel declared he had read in a bulletin issued by the United
States Attorney’s Office that Bovis’s son had been convicted of wire fraud.
4
over 50 years. Her daughter, Casey, “tricked me into signing papers” so she
“would not get higher taxes” under Proposition 19. When Casey presented
the documents to Bovis to sign, she did not tell her the home would no longer
be in her name. Bovis admittedly did not read the documents. She later
discovered the documents transferred title to Casey. Casey had threatened to
put Bovis “in an old folk’s home,”5 and Bovis had been receiving voicemails
from realtors and was concerned Casey was trying to sell her home. She “had
quite a difficult relationship” with Casey, and Casey was “abusive to me.”
Bovis wanted Casey “out of my life,” and she wanted her house back.
When the court asked Bovis why she had not read the documents,
Bovis stated, “There was so much confusion going on in this matter
discussing this, and I just trusted her. It wouldn’t have entered my mind
that she would do anything like that. So she said to sign the papers so I
would [not] get higher taxes. . . . It was confusing for me.” Casey only
discussed the situation with her “one time.”
Just as Bovis finished testifying, Casey and her counsel were connected
to the hearing. The reason for their delay in appearing was that the notice of
hearing stated the matter would be heard in a different department, and
when it became apparent the hearing was not going to be held in that
department, counsel had to work remotely through the clerks to get
electronically connected into the proper department. The court deemed this a
reasonable explanation for the tardy appearance and continued the hearing
to the following week.
In light of Bovis’s testimony that she had received telephone calls from
realtors, her attorney asked that temporary restraining orders be extended
until the continued hearing and that they include a prohibition on Casey
5 Bovis was not clear as to when Casey made this asserted threat.
5
taking any steps to sell or encumber the property. Casey’s counsel denied
that Casey was doing any such thing and stated her efforts, at his
instruction, were focused on transferring the property into a trust and
arranging for management by an independent, professional. “I advised her
not to undo the status quo for now until we can work this out in a way that
protects the property from Nick Bovis.”
The court extended the temporary restraining orders with the
additional prohibition that Casey “take no action whatsoever to encumber the
property,” and that Casey “have no communication with any realtors,” “with
any mortgage broker, with any lender as it relates to this particular
property.”
On cross-examination during the resumed hearing, Bovis conceded she
signed the deed conveying her property to Casey but maintained Casey told
her “to sign papers so I would not get taxed.” Casey selected the attorney,
and she and Bovis went to his office. The attorney did not explain to her that
she was “deeding the property to Ms. Casey.” The attorney “had his daughter
with him at the time. It just seemed that everybody was talking at the same
time. And I just probably didn’t pick up what was going on in the room and
what they were discussing.” She thought the attorney was Casey’s attorney
but could not recall whether she wrote a check to pay him and stated, “All I
know is Marina was in charge of this whole transaction.” She did not know if
the attorney had the deed recorded. It was never her “intention to give [her]
house to [Casey] during [her] lifetime.”
Casey also testified. She discussed Bovis’s estate planning documents
and asserted she had not pressured Bovis to execute the Second Amendment
to the Survivor’s Trust. Rather, Bovis and Bovis’s attorney had “put it
together.” Nor did Casey pressure her mother into signing the transfer deed.
6
Rather, she and Bovis “were talking about it because of Prop 19, and my—we
thought that it would be a good way to protect the asset for my brother and I,
and that’s all it was.”
Casey was referred to an attorney—a different attorney than the one
who prepared the second amendment to the trust—to prepare the transfer
deed. She twice took Bovis to this attorney. During the first meeting, the
attorney spoke about “[m]oving the house out of [Bovis’s] name” to “protect
the Prop 13 property tax base.” He explained to Bovis she “would be
transferring the property to” Casey and Bovis “would no longer own the
property.” During the second visit, Bovis signed the deed. Either the
attorney or his daughter prepared the document and presented it to Bovis for
signature. When they did so they “told her she would no longer own her
home.” Bovis asked questions, but Casey could not recall any specifics.
Casey denied “confusing” Bovis into signing the deed. She maintained
Bovis “knew the house was in my name for over a year,” and the accusation of
Casey “tricking her” only started when her “brother said he found out
accidentally that the house” was in Casey’s name. She stated Nick had sent
her a text “accusing” her of “making my mother do it.” And it “was only after
[Nick] made this accusation that [Bovis] starting accusing” her.
Casey acknowledged Bovis asked her to “return the house” a “number
of times.” She did not do so immediately because she “was worried about the
tax implication of putting it back” and wanted to “find counsel” for advice.
After she located counsel (who was representing her in the EARO
proceeding), he advised her “to put [the property] into a trust agreement.”
Her attorney drew up documents regarding a transfer of the house back to
Bovis through an irrevocable trust and sent them to Bovis’s attorney. Casey
was “waiting for my lawyer to tell me when I can sign it.” She acknowledged
7
she had been presented with a “recission,” which Casey forwarded to her
attorney because she had questions “about the tax implication, and I wanted
to make sure it was going to be okay.”
After hearing argument by counsel, the trial court found Bovis had met
her burden “by clear and convincing evidence for the issuance of a restraining
order.”6 “It is clear,” said the court, that Bovis “did not understand fully what
was ongoing when she signed the deed. She was taken to the attorney’s office
by Ms. Casey. Ms. Casey selected the attorney. And Ms. Bovis’s responses to
many questions throughout the course of this hearing are demonstrative of
her confusion over a variety of issues.” The court ruled the case involved
“solely financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse” and issued restraining orders on
Judicial Council form EA-130 with a stated expiration date of two years.7
(Boldface omitted.)
By checking the appropriate box, the court issued “Personal Conduct
Orders” that prohibited Casey from, among other things, financially abusing
or contacting Bovis (see p. 3, ante), as well as from “encumber[ing] financially
the property.” It also issued, by checking the appropriate box, a “Stay-Away
Order[]” prohibiting Casey from coming within 100 yards of Bovis or her
home. (Boldface omitted.) At the end of the form, the court added it would
“consider adding an order that [Casey] sign a recission deed after briefing
6 While not an issue on appeal, we note this is not the correct standard
of proof under section 15657.03; rather, the standard is preponderance of the
evidence. (§ 15657.03, subd. (b)(5)(A) [restraining order may issue “on a
showing of good cause”]; White v. Wear (2022) 76 Cal.App.5th 24, 35 (White)
[“The level of proof required for a protective order under the Elder Abuse Act
is a preponderance of the evidence.”].)
7 A court has discretion under section 15657.03 to issue restraining
orders of up to five years’ duration. (§ 15657.03, subd. (i)(1).)
8
and argument by counsel.” (Capitalization omitted.) It further ordered
“Mandatory Entry of Order into CARPOS Through CLETS” by the close of
business of the date of the order. (Boldface omitted.)
Casey thereafter filed a request for reconsideration, objection to
issuance of the EAROs, and briefing on the authority of the court to order
recission. Bovis, in turn, abandoned her request for recission and, instead,
maintained the “simplest way” for the court to order the remedy sought—
transfer of the property to Bovis— “is a court order to void the transfer deed
ab initio.” After hearing argument, the court denied reconsideration, stated
it was going to order “Ms. Casey return the property to Ms. Bovis; that she do
so within . . . 30 days of today’s date,” and issued a written order stating
“Casey’s possession of title is ongoing elder financial abuse that must be
enjoined. Therefore, the court hereby orders the transfer deed void ab
initio.”8
DISCUSSION
The Restraining Orders
Under the Elder Abuse Act, a trial court may issue a restraining order
to protect an “elder” who has suffered “abuse” within the meaning of section
15610.07. (§ 15657.03, subds. (a), (b).)
Section 15610.07 defines “ ‘Abuse of an elder’ ” as including physical or
mental abuse, neglect or abandonment, or financial abuse as defined in
section 15610.30. (§ 15610.07, subd. (a)(1), (3).)
Relevant here, “ ‘[f]inancial abuse’ claims are authorized in the Elder
Abuse Act by section 15657.5, which works hand-in-hand with a set of
defined terms in sections 15610.30 and 15610.70. As provided in Section
8The court’s order declaring the deed void was not on a form EA-130
order approved by the Judicial Council.
9
15610.30, subdivision (a), ‘ “[f]inancial abuse” of an elder . . . occurs when a
person or entity does any of the following: [¶] (1) Takes, secretes,
appropriates, obtains, or retains real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2)
Assists in taking, secreting, appropriating, obtaining, or retaining real or
personal property of an elder or dependent adult for a wrongful use or with
intent to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or
retains, or assists in taking, secreting, appropriating, obtaining, or retaining,
real or personal property of an elder or dependent adult by undue influence,” ’
as defined in section 15610.70.” (Mahan v. Charles W. Chan Ins. Agency, Inc.
(2017) 14 Cal.App.5th 841, 856 (Mahan).)
“Section 15610.30, subdivision (c) defines the phrase ‘[t]akes, secretes,
appropriates, obtains, or retains’ as occurring ‘when an elder or dependent
adult is deprived of any property right, including by means of an agreement,
donative transfer, or testamentary bequest, regardless of whether the
property is held directly or by a representative of an elder or dependent
adult.’ Section 15610.30, subdivisions (a), (b) and (c), together, define the
requisite level of culpability broadly. The defendant will be liable for
‘depriv[ation]’ (§ 15610.30, subd. (c)) of an elder’s property that is taken ‘for a
wrongful use or with intent to defraud’ (id., subd. (a)(1), (2)), or that is
committed by ‘undue influence’ (id., subd. (a)(3)).” (Mahan, supra,14 Cal.App.5th at pp. 856–857.)
“The terms ‘wrongful use’ and ‘undue influence’ are specifically defined
as well. ‘A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a wrongful use if, among
other things, the person or entity. . . knew or should have known that this
conduct is likely to be harmful to the elder or dependent adult.’ (§ 15610.30,
10
subd. (b).) ‘ “Undue influence” means excessive persuasion that causes
another person to act or refrain from acting by overcoming that person’s free
will and results in inequity.’ (§ 15610.70.) The test for ‘undue influence’ is
governed by a series of listed factors, including the ‘vulnerability of the
victim’ (§ 15610.70, subd. (a)(1)), the ‘influencer’s apparent authority’ (id.,
subd. (a)(2)), the ‘actions or tactics used by the influencer’ (id., subd. (a)(3)),
and the ‘equity of the result’ (id., subd. (a)(4)).” (Mahan, supra,14 Cal.App.5th at p. 857.)
A protective order “may be issued under [the Elder Abuse Act], with or
without notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse of the petitioning elder or
dependent adult.” (§ 15657.03, subd. (c).) Thus, an elder abuse protective
order “may issue on the basis of evidence of past abuse, without any
particularized showing that the wrongful acts will be continued or repeated.”
(Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)
Generally, “the issuance of a protective order under the Elder Abuse
Act is reviewed for abuse of direction [sic], and the factual findings necessary
to support such a protective order are reviewed under the substantial
evidence test. [¶] We resolve all conflicts in the evidence in favor of
respondent, the prevailing party, and indulge all legitimate and reasonable
inferences in favor of upholding the trial court’s findings.” (Bookout v.
Nielsen (2007) 155 Cal.App.4th 1131, 1137–1138; accord, White, supra,
76 Cal.App.5th at p. 35.) Under the substantial evidence standard, the
testimony of even one witness may support a finding based thereon. (See In
re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 119 [“ ‘The testimony
of one witness, even that of a party, may constitute substantial evidence.’ ”];
11
Plastic Pipe & Fittings Assn. v. California Building Standards Com. (2004)
124 Cal.App.4th 1390, 1407 [“The uncorroborated testimony of one witness
can constitute substantial evidence, unless the testimony is inherently
unreliable.”].)
In her appellant’s opening brief, Casey obliquely indicates her mother
has passed away. We confirmed this by examining the superior court’s
probate files, and on our own motion take judicial notice of Casey’s petition
for letters of administration in case No. 23PR000362. (Evid. Code, §§ 452,
subd. (d), 459.) Thus, the restraining orders issued to protect Bovis from any
further act of abuse are of no further practical effect, which would generally
moot any appeal therefrom.9 (See generally Building a Better Redondo, Inc.
v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866 [“If the issues on
appeal are rendered moot, a reversal would be without practical effect, and
the appeal will be dismissed.”]; 9 Witkin, Cal. Procedure (6th ed. 2023)
Appeal, § 783 [“Where the order is rendered ineffective by the death of a
party . . . , an appeal from it will be dismissed as moot.”]; cf. City of Monterey
v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1078–1079 [expiration of
permanent injunction renders appeal moot].)
However, neither party has raised the issue of mootness in connection
with the restraining orders, and we shall exercise our discretion to decide the
appeal as to those orders given that the same findings undergird both the
restraining orders and the order declaring the deed void.10 (See
9 Moreover, here, it appears that under the estate planning documents
Casey may be entitled to the property, and any dispute in that regard will be
litigated in the probate court.
10 We note that section 15657.3, subdivision (c) provides that “The
death of the elder or dependent adult does not cause the court to lose
jurisdiction of a claim for relief for abuse of that elder or dependent adult.”
This survival provision pertains to a civil action for elder abuse (see
12
Environmental Charter High School v. Centinela Valley Union High School
Dist. (2004) 122 Cal.App.4th 139, 144 [a “ ‘discretionary exception[] to the
rules regarding mootness’ ” is “ ‘when a material question remains for the
court’s determination’ ”].)
There is sufficient evidence in the record, largely Bovis’s testimony, to
support the restraining orders. Specifically, there is evidence of each of the
four undue influence factors.
The first factor—the victim’s vulnerability—may be shown by
“incapacity, illness, disability, injury, age, education, impaired cognitive
function, emotional distress, isolation, or dependency, and whether the
influencer knew or should have known of the alleged victim’s vulnerability.”
(§ 15610.70, subd. (a)(1).) Bovis was approximately 86 years old at the time
of the events in question, and the trial court found she did not fully
understand what she was told by Casey or the attorney who prepared the
deed transferring title of her house to Casey. Bovis’s testimony suffices to
support the court’s finding. As the court observed, Bovis’s “responses to
many questions throughout the course of this hearing are demonstrative of
her confusion over a variety of issues.”
The second factor—the “influencer’s apparent authority”—may be
shown by the influencer’s “status as a fiduciary, family member, care
provider, health care professional, legal professional, spiritual adviser,
expert, or other qualification.” (§ 15610.70, subd. (a)(2).) Since Casey is
Bovis’s daughter, sufficient evidence supports a finding that this factor is
present. (See Keading v. Keading (2021) 60 Cal.App.5th 1115, 1126 [second
discussion, at pp. 26–29 & fn. 16, post) and does not, on its face or in context,
continue the enforcement of a restraining order issued under
section 15657.03 following the death of the protected elder.
13
undue influence factor “readily satisfied” as the appellant was the elder’s
“only son and one of his care providers”].)
The third factor—the influencer’s actions or tactics—may be
demonstrated by the influencer’s “[u]se of affection, intimidation, or coercion,”
or “[i]nitiation of changes in personal property rights, use of haste or secrecy
in effecting those changes, [and] effecting those changes at inappropriate
times and places.” (§ 15610.70, subd. (a)(3)(A) & (C).) There is no dispute
there was a change in Bovis’s property rights, but Casey claims there is no
evidence she engaged in any “nefarious ‘tactics.’ ” However, Bovis argues
there was urgency, or “haste,” because of the Proposition 19 deadline and
“inappropriate[ness]” because Casey made arrangements with an attorney
other than Bovis’s own estate planning attorney to handle the transaction.
This certainly is not abundant evidence, but it is enough to support the trial
court’s implied finding on this point, particularly given Bovis’s testimony that
she was confused and felt pressured to sign the deed.
The fourth factor—the equity of the result—may be demonstrated by
“the economic consequences to the victim, any divergence from the victim’s
prior intent or course of conduct or dealing, [or] the relationship of the value
conveyed to the value of any services or consideration received. . . .”
(§ 15610.70, subd. (a)(4).) The deed transferred title to Bovis’s residential
property as a “[g]ift from Parent to Child” and “[f]or no consideration.”
(Capitalization omitted.) Accordingly, Bovis was not financially compensated
and incurred a financial loss as a result of the transaction. She also testified
it was not her intent that Casey receive the property during Bovis’s lifetime.
Casey maintains she did not take advantage of her mother and wanted
only to ensure that her mother’s estate would not be depleted by taxes. As
her attorney observed, Proposition 19 “prompted a rush on parent-child
14
transfers to beat the deadline for filing reassessment exclusion forms on or
before February 15, 2021,” and according to Casey, the “transfer of the
subject property was made because of Proposition 19, and to avoid
reassessment of the property that would otherwise be triggered by an
intergenerational transfer” after that date. She points out the deed
transferring title was recorded seven days before the deadline. Casey could
not remember how long before the deadline she discussed a transfer with
Bovis, but she maintains she did so. She asserts there is no evidence she
“engaged in . . . nefarious ‘tactics,’ ” but rather, was a “dutiful daughter who
helped her mother get around.”
Ultimately, Casey’s challenge to the restraining orders boils down to an
argument that the court should have credited her testimony, rather than her
mother’s. We agree she provided a logical explanation for the transfer of the
property, and in our view, this was an exceedingly close case even under the
preponderance of the evidence standard. However, the question before us is
not whether we would have reached a different conclusion had we been the
triers of fact. Rather, our review is confined to whether any substantial
evidence supports the trial court’s findings, and in this regard it has often
been said “[i]t 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 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.) We therefore
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.” (Ibid.)
15
Accordingly, we affirm the restraining orders with one exception. As
we shall explain in the next section of this opinion, the trial court did not
have authority under section 15657.03 to issue a separate order declaring the
deed from Bovis to Casey void ab initio. Accordingly, the court could not,
under the express terms of the statute, issue a restraining order excluding
Casey from the property as she was the record owner. (§ 15657.03, subd.
(b)(5)(B) [court can issue restraining order “excluding a party from the
petitioner’s residence or dwelling, except that this order shall not be issued if
legal or equitable title to . . . the residence or dwelling is in the sole name of
the party to be excluded”].) The court did, however, have authority to issue
an order requiring Casey to stay at least 100 yards from Bovis.
Order Voiding Deed
Casey’s challenge to the trial court’s authority to issue the subsequent
order declaring the deed void ab initio stands on different footing and
presents an issue of statutory construction which we review de novo. (See
Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 507–
508 (Cameron).)
The Statutory Language
We first examine the plain language of the statute. (Cameron, supra,
82 Cal.App.5th at p. 508 [“ ‘ “we look first to the words the Legislature used,
giving them their usual and ordinary meaning” ’ ”]; Mahan, supra,14 Cal.App.5th at p. 856 [“In construing the Elder Abuse Act, we begin with
its words.”].)
It is immediately apparent that the statute, titled “Protective orders”
(§ 15657.03), speaks only of “protective orders,” which are statutorily defined
to mean “an order that includes any of the following restraining orders,
16
whether issued ex parte, after notice and hearing, or in a judgment.”
(§ 15657.03, subd. (b)(5).)
These enumerated restraining orders include: (1) an order “enjoining a
party from abusing, intimidating, molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing, telephoning,
including, but not limited to, making annoying telephone calls as described in
Section 653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within a specified
distance of, or disturbing the peace of, the petitioner, and, in the discretion of
the court, on a showing of good cause, of other named family or household
members or a conservator, if any, of the petitioner”11 (§ 15657.03, subd.
(b)(5)(A)); (2) an order “excluding a party from the petitioner’s residence or
dwelling, except that this order shall not be issued if legal or equitable title
to, or lease of, the residence or dwelling is in the sole name of the party to be
excluded, or is in the name of the party to be excluded and any other party
besides the petitioner (id., subd. (b)(5)(B)); and (3) an order “enjoining a party
from specified behavior that the court determines is necessary to effectuate
orders described in subparagraph (A) or (B)” (id., subd. (b)(5)(C)).12
11 The court can also, “[o]n a showing of good cause, in an order issued
pursuant to this subparagraph in connection with an animal owned,
possessed, leased, kept, or held by the petitioner, or residing in the residence
or household of the petitioner, . . . do either or both of the following: [¶] (i)
Grant the petitioner exclusive care, possession, or control of the animal.
[¶] (ii) Order the respondent to stay away from the animal and refrain from
taking, transferring, encumbering, concealing, molesting, attacking, striking,
threatening, harming, or otherwise disposing of the animal.” (§ 15657.03,
subd. (b)(5)(A)(i), (ii).)
12 In addition, a court may, after notice and hearing, in conjunction
with a restraining order for “abuse involving acts described in” section
15610.07, subdivision (a)(1) or (2), that is, for physical or emotional abuse or
17
The statute also authorizes two additional “restraining orders” which
may be issued only after notice and a hearing: (1) an order “finding that
specific debts were incurred as the result of financial abuse of the elder or
dependent adult by the respondent” (§ 15657.03, subd. (b)(5)(D)); and (2) an
“order enjoining a party from abusing an elder or dependent by isolating
them”13 (§ 15657.03, subd. (b)(5)(E)).
neglect, order the restrained party “to participate in mandatory clinical
counseling or anger management.” (§ 15657.03, subd. (z).)
13Such an order may issue “if the court finds by a preponderance of the
evidence, to the satisfaction of the court, that the following requirements are
met:
“(I) The respondent’s past act or acts of isolation of the elder or
dependent adult repeatedly prevented contact with the interested party.
“(II) The elder or dependent adult expressly desires contact with the
interested party. A court shall use all means at its disposal to determine
whether the elder or dependent adult desires contact with the person and has
the capacity to consent to that contact.
“(III) The respondent’s isolation of the elder or dependent adult from
the interested party was not in response to an actual or threatened abuse of
the elder or dependent adult by the interested party or the elder or
dependent adult’s desire not to have contact with the interested party.
“(ii) The order may specify the actions to be enjoined, including
enjoining the respondent from preventing the interested party from in-person
or remote online visits with the elder or dependent adult, including telephone
and online contact.
“(iii) An order enjoining isolation under this section is not required for
an elder or dependent adult to visit with anyone with whom the elder or
dependent adult desires visitation.
“(iv) An order enjoining isolation shall not be issued under this section
if the elder or dependent adult resides in a long-term care facility, as defined
in Section 9701, or a residential facility, as defined in Section 1502 of the
Health and Safety Code. In those cases, action may be taken under
appropriate federal law.” (§ 15657.03, subd. (b)(5)(E)(i)(I)–(III)(ii)–(iv).)
18
None of these enumerated—and carefully defined—restraining orders
embrace an order declaring a document “void ab initio.”
The procedural provisions of the statute underscore that section
15657.03 provides an important, but targeted, summary remedy to secure the
immediate protection of an elder from any further act of abuse.
The statute specifies that “an order may be issued under this section,
with or without notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse.” (§ 15657.03, subd. (c).)
On the filing of a request for a protective order, the petitioner may
request and obtain ex parte a temporary restraining order (TRO).
(§ 15657.03, subd. (d).) A request for a “temporary restraining order without
notice under this section shall be granted or denied on the same day that the
petition is submitted to the court” unless the petition is submitted “too late in
the day to permit effective review.” (Id., subd. (e).) Within 21 days, or if good
cause is shown 25 days, of the date of ruling on a request for a TRO, or of the
date of filing the petition if no TRO is requested, “a hearing shall be held on
the petition.” (Id., subd. (f).)
On “the filing of a petition for protective orders under this section, the
respondent shall be personally served with a copy of the petition, notice of the
hearing or order to show cause, temporary restraining order, if any, and any
declarations in support of the petition. Service shall be made at least five
days before the hearing.” (§ 15657.03, subd. (k).) The court at the request of
the petitioner or on its own may shorten the time for service. (Ibid.) The
notice “shall notify the respondent that if the respondent does not attend the
hearing, the court may make orders against the respondent that could last up
to five years.” (Id., subd. (l).)
19
“The respondent may file a response that explains or denies the alleged
abuse.” (§ 15657.03, subd. (g).) The respondent “shall be entitled, as a
matter of course, to one continuance, for a reasonable period, to respond to
the petition.” (Id., subd. (m).) Either party may request a continuance
“which the court shall grant on a showing of good cause,” or the court can
grant a continuance on its own motion. (Id., subd. (n)(1).) Parties may
represent themselves or appear with counsel. (Id., subd. (q).)
Upon notice and a hearing, the court may issue “any of the orders set
forth in paragraph (5) of subdivision (b).” (§ 15657.03, subd. (h).) “In the
discretion of the court, an order issued after notice and a hearing under this
section may have a duration of not more than five years. . . . These orders
may be renewed upon the request of a party, either for five years or
permanently, without a showing of any further abuse since the issuance of
the original order. . . . The request for renewal may be brought within the
three months before the expiration of the order.” (Id., subd. (i)(1).) “The
failure to state the expiration date on the face of the form creates an order
with a duration of three years from the date of issuance.” (Id., subd. (i)(2).)
The information “on a protective order relating to elder or dependent
adult abuse issued by a court pursuant to this section” must be transmitted
to law enforcement, either the Department of Justice or a local law
enforcement agency authorized by the Department of Justice to enter orders
into the California Law Enforcement Telecommunications System (CLETS).
(§ 15657.03, subd. (p)(1), (3)(A)–(B).) Unless the “protective order issued
under this section was made solely on the basis of financial abuse or isolation
unaccompanied by force, threat, harassment, intimidation, or any other form
of abuse,” the respondent is also subject to a mandatory firearms ban. (Id.,
subd. (u)(4).)
20
The “prevailing party” in “an action brought under this section may be
awarded court costs and attorney’s fees, if any.” (§ 15657.03, subd. (t).)
In sum, the entirety of section 15657.03 is focused on restraining orders
to prevent further acts of abuse, and the statute sets forth a summary
procedure to ensure the immediate protection of an elder.
The trial court’s order declaring the deed void ab initio is at odds with
the statutory language. For example, upon notice and a hearing, a trial court
is authorized to issue “any of the orders set forth in paragraph (5) of
subdivision (b).” (§ 15657.03, subd. (h), italics added.) The order declaring
the deed void ab initio is not among the orders enumerated in subdivision
(b)(5), all of which are specifically defined restraining orders.
The statute further specifies that “an order issued after notice and a
hearing under this section may have a duration of not more than five years”
and if no expiration date is set forth in the restraining order, its duration is
three years. (§ 15657.03, subd. (i)(1), (2).) Thus, when issued, a restraining
order is a provisional remedy akin to a preliminary injunction. It may, or
may not, become permanent, depending on whether the protected party takes
further action within three months of the expiration of the initial restraining
order and the change of status is approved by the court. Here, the trial court
specified the restraining orders had a two-year duration. The order declaring
the deed void ab initio, in contrast, is a permanent pronouncement as to the
validity and existence of the deed and, as such, cannot be squared with any of
the durational provisions of the statute.14
14 Although the trial court characterized its order as not an order
requiring “rescission,” but rather an order “that [Casey] return the property
to Ms. Bovis” effectuated through a declaration “the transfer deed [is] void ab
initio,” the substance and practical effect of the order is a final judgment of
rescission. (See generally Greenwald et al., Cal. Practice Guide: Real
21
The Relevant Legislative History
The legislative history of the Elder Abuse Act, and section 15657.03
specifically, also makes clear this statute was enacted as an adjunct to the
private civil actions for elder abuse already authorized by the Act to provide
an immediate, ancillary remedy against any further act of abuse.
As the Court of Appeal explained in Mahan, “civil actions may be
brought under the Act for ‘ “[p]hysical abuse” ’ (§ 15610.63; see § 15657),
‘[n]eglect’ (§ 15610.57; see § 15657), or ‘ “[f]inancial abuse” ’ (§ 15610.30; see
§ 15657.5).” (Mahan, supra, 14 Cal.App.5th at p. 858.) “To strengthen what
had previously been a scheme relying on reporting by mandated reporters
(Welf. & Inst. Code, former §§ 15620–15621, Stats. 1982, ch. 1184, § 3,
pp. 4225–4226) and public enforcement by prosecutorial authorities, in 1991
the Legislature created a remedial scheme specifically for these private
actions. (Welf. & Inst. Code, §§ 15657 [physical abuse, neglect,
abandonment], 15657.5 [financial elder abuse].” (Royals v. Lu (2022)
81 Cal.App.5th 328, 346 (Royals).)
“The template for private enforcement in cases involving physical abuse
or neglect was set by the addition of section 15657.” (Mahan, supra,14 Cal.App.5th at p. 858.) That statute has been amended “several times
since then, but the core of it remains the same today. It sets forth a scheme
of heightened remedies—punitive damages (§ 15657, subd. (c)), attorney’s
fees and costs (id., subd. (a)), and exemption from certain limitations on
recoverable damages in survivorship actions (id., subd. (b))—designed to
Property Transactions (The Rutter Group 2023) ¶ 11:460 [“Rescission is a
remedy that disaffirms the contract (Civ. [Code,] § 1688 et seq.). The remedy
assumes the contract was properly formed, but effectively extinguishes the
contract ab initio as though it never came into existence; and its terms cease
to be enforceable.”].)
22
provide incentives for ‘interested persons to engage attorneys to take up the
cause of abused elderly persons. . .’ (§ 15600, subd. (j)). These remedies are
available only where the plaintiff proves by clear and convincing evidence
that ‘the defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse.’ (§ 15657.)”15 (Mahan, supra,14 Cal.App.5th at p. 858.)
In 1999, the Legislature added section 15657.03 to the Act. The
Assembly Committee on Aging and Long Term Care explained the need for
this additional statute as follows: “In 1996, the court of appeals held that the
Domestic Violence Prevention Act (DVPA) was not intended to extend its
protections to unrelated persons living together who do not now, or have
never shared an intimate relationship. Historically, the DVPA was the legal
tool used by Adult Protective Services to remove an abuser from the home of
an elderly person. The 1996 decision removed the ability to obtain a
15 A cause of action for elder abuse under the Act can be asserted in a
civil complaint (e.g., Cameron, supra, 82 Cal.App.5th at p. 493 [complaint
alleged causes of action for wrongful eviction and elder abuse]; Munoz v. Patel
(2022) 81 Cal.App.5th 761, 765 [complaint alleged causes of action for breach
of contract, breach of the covenant of good faith and fair dealing, promissory
fraud, and elder abuse]; Arace v. Medico Investments, LLC (2020)
48 Cal.App.5th 977, 981 [complaint against care facility alleged causes of
action for fraud, conversion, emotional distress, and elder abuse]) or in a
petition in a probate proceeding (e.g., Royals, supra, 81 Cal.App.5th at
pp. 336–337 [action by successor trustee of living trust]); Levin v. Winston-
Levin (2019) 39 Cal.App.5th 1025, 1032 [probate petition for breach of
contract, interference with expected inheritance, breach of fiduciary duty,
and elder abuse]). (See Conservatorship of Kayle (2005) 134 Cal.App.4th 1,
6–8 [probate court should have entertained motion to transfer elder abuse
complaint seeking damages not available in conservatorship proceeding];
Balisok, Elder Abuse Litigation (The Rutter Group 2022 Update) Ch. 8,
¶¶ 8:12 to 8:17 [discussing litigating elder abuse claims in civil actions and
probate proceedings].) In elder abuse actions instituted pursuant to a civil
complaint, either party may request a jury trial. (CACI No. 3100 et seq.)
23
restraining order when an abuser is not related to the victim. Therefore,
abusive roommates or caregivers cannot be forced to leave the home of the
victim and to stay away. [¶] . . . This bill . . . sets forth procedures by which
an elder or dependent adult who has suffered abuse may obtain protective
orders against an unrelated person.” (Assem. Com. on Aging and Long Term
Care, Analysis of Assem. Bill No. 59 (1999–2000 Reg. Sess.) as amended Mar.
3, 1999, p. 2; see Sen. Com. on Judiciary, Analysis of Assem. Bill No. 59
(1999–2000 Reg. Sess.) as amended May 28, 1999, pp. 1–2 [“bill would
authorize the issuance of emergency and other protective orders, similar to
domestic violence protective orders, to prevent abuse of the elderly and
dependent adults by unrelated roommates or housemates”; “[T]o breach a gap
in the law covering harassment and domestic violence protective orders as
they apply to the elderly and dependent adults . . . [¶] . . . the Committee’s
recommendation [during the prior session] was to create a separate procedure
for issuance of protective orders for the elderly and dependent adults. AB 59
is the product of that recommendation.”].) As enacted, section 15657.03
authorized only the restraining orders now set forth in subdivisions (b)(5)(A)
through (C). (See Stats. 1999, ch. 561, § 6.)
“In 2004, the Legislature ‘created a new class of claims for “financial
abuse,” enacting a private enforcement provision—[Welfare and Intuitions
Code] section 15657.5––tailored to these claims in particular. [Welfare and
Institutions Code] [s]ection 15657.5 sets forth a scheme of heightened
remedies closely paralleling those available under [Welfare and Institutions
Code] section 15657, but with some key differences, principally that
attorney’s fee and cost awards are available for “financial abuse” claims
proved by the preponderance of the evidence, while clear and convincing
evidence remains the standard applicable to fee and cost recovery for claims
24
of “physical abuse” or “neglect.” ’ (Mahan, supra, 14 Cal.App.4th at p. 859,
fns. omitted.)” (Royals, supra, 81 Cal.App.5th at p. 347.) The standard of
proof for recovering punitive damages remains “clear and convincing evidence
of recklessness, oppression, fraud, or malice. (See Welf. & Inst. Code,
§ 15657.5, subds. (c), (d).)” (Ibid.)
Three years later, in 2007, the Legislature, “ ‘made available the
remedy of prejudgment attachment as a way to facilitate quick recovery of
losses in “financial abuse” cases ([Welf. & Inst. Code,] § 15657.01).’ ”16
(Royals, supra 81 Cal.App.5th at p. 347.) Its purpose in doing so was to help
claimants “ ‘preserve the elder or dependent adult’s assets wrongfully held by
defendant until judgment is rendered.’ (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 611 (2007–2008 Reg. Sess.) as amended Mar. 26, 2007, p. 4; see
Assem. Com. on Judiciary, Analysis of Senate Bill No. 611 (2007–2008 Reg.
Sess.) as amended May 31, 2007, p. 4 [‘The attachment procedure is a useful
tool to prohibit the perpetrator from disposing of the elder or dependent
adult’s assets in his or her possession prior to final disposition of the case.’].)”
(Royals, at p. 347; see Balisok, Elder Abuse Litigation, supra, ch. 8, ¶¶ 8:29 to
8:38 [discussing the importance of attachment to assure recovery of property
in elder abuse cases].)
16 This statute provides: “Notwithstanding Section 483.010 of the Code
of Civil Procedure, an attachment may be issued in any action for damages
pursuant to Section 15657.5 for financial abuse of an elder or dependent
adult, as defined in Section 15610.30. The other provisions of the Code of
Civil Procedure not inconsistent with this article shall govern the issuance of
an attachment pursuant to this section. In an application for a writ of
attachment, the claimant shall refer to this section. An attachment may be
issued pursuant to this section whether or not other forms of relief are
demanded.” (§ 15657.01.)
25
The following year, the Legislature passed further legislation
enhancing the ability of elders subject to financial abuse to recover their
property. Among other things, this 2008 legislation (1) redefined what it
means to take property for a “wrongful use,” replacing the prior requirement
that “bad faith” be shown with a standard based on whether the defendant
“knew or should have known” of “likely” harm to the elder (§ 15610.30, subd.
(b)); (2) redefined the phrase “takes, secretes, appropriates, obtains, or
retains” so that any “depriv[ation]” of property is subject to liability,
including “by means of an agreement, donative transfer, or testamentary
bequest, regardless of whether the property is held directly” by the elder or
on his behalf by a third-party (id., subd. (c)); (3) created a new basis for
liability, adding “depriv[ation]” of property by “undue influence” (id., subd.
(a)(3)) as a “new cause of action” separate from “depriv[ation]” “for wrongful
use or with intent to defraud” (id., subd. (a)(1)–(2)); and (4) added a new
“cause of action for financial abuse against a person who takes the property
of an elder or dependent adult who lacks capacity and then refuses to return
the property after a demand for return of the property was made by the elder
or dependent adult.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1140
(2007–2008 Reg. Sess.) as amended Mar. 10, 2008, p. 1; § 15657.6; Assem.
Com. on Judiciary, Analysis of Sen. Bill No. 1140 (2007–2008 Reg. Sess.) as
amended Jun. 2, 2008, pp. 1–2.)
As reported by the Assembly Committee on Judiciary, “The author
states that incapacitated and unduly influenced elder and dependent adults
are devastated by the loss of property taken from them and this bill seeks to
prevent or minimize that abuse by authorizing elder and dependent adults to
recover attorney’s fees where their property is taken through undue influence
or where a person delays returning property taken from an incapacitated
26
adult.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1140 (2007–2008
Reg. Sess.) as amended Jun. 2, 2008, p. 1, italics omitted.)
The Senate Judiciary Committee Report explained that “existing law”
permitted “an elder or dependent adult to bring a financial abuse civil action
when real or personal property [has been] taken or appropriated . . . for
wrongful use or with intent to defraud, or both,” referencing section
15657.5.17 (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1140 (2007–
2008 Reg. Sess.) as amended Mar. 10, 2008, p. 3; Assem. Com. on Judiciary,
Analysis of Sen. Bill No. 1140 (2007–2008 Reg. Sess.) as amended Jun. 2,
2008, p. 3 [under the existing Act “an elder or dependent adult whose
property is wrongfully taken by another may bring a civil action for financial
abuse to recover the loss of the property and the expense of hiring an
attorney to bring the action”].)
However, the existing definitions of “financial abuse” and “wrongful
use” did not extend to all abusive contexts and in such cases elders and
dependent adults had recourse only through a traditional action for recission
which does not carry with it the incentives for private suit provided by the
Elder Abuse Act. The new, more inclusive definition of “financial abuse” and
the replacement of the “wrongful use” terminology harnessed these incentives
to pursue civil litigation under the Act. (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 1140 (2007–2008 Reg. Sess.) as amended Mar. 10, 2008, p. 6
[“recission, according to proponents, is an inadequate remedy for elders
because not only must the elder bear the attorney’s fees in pursuing a
recission action” but “the person who took the property is encouraged to delay
17 Section 15657.5, titled “Defendant liable for financial abuse;
attorney’s fees and costs; limits on damages; punitive damages; statement to
be included in judgment,” sets forth the enhanced remedies and other
incentives to redress elder abuse through private civil actions.
27
resolution so as to promote a compromise settlement”]; id., p. 7 [the proposed
legislation “addresses these problems by authorizing elders or dependent
adults to recover attorney’s fees and costs where their property is taken
through undue influence or where the person taking the property delays the
return of the property”]; see Assem. Com. on Judiciary, Analysis Sen. Bill No.
1140 (2007–2008 Reg. Sess.) as amended Jun. 2, 2008, p. 3 [legislation “seeks
to strengthen” the Act]; id., p. 4 [“[p]roponents” argue “elders are often
exploited through undue influence and under circumstances where the
current elements necessary for financial abuse are lacking”], ibid. [legislation
addresses problems inherent in elders seeking return of their property
through a recission action by authorizing the recovery of attorney’s fee and
costs]; Off. of Planning and Research, Enrolled Bill Rep. on Sen. Bill No. 1140
(2007–2008 Reg. Sess.) Aug. 13, 2008, p. 4 [discussing the problems in
seeking the recovery of property through traditional rescission actions].)
The Senate Judiciary Committee analysis further explained the
proposed legislation, through enactment of a new statute—section 15657.6
titled “Return of property to elder or dependent adult lacking capacity”18—
18 This statute provides: “A person or entity that takes, secretes,
appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining the real or personal property of an
elder or dependent adult when the elder or dependent adult lacks capacity
pursuant to Section 812 of the Probate Code, or is of unsound mind, but not
entirely without understanding, pursuant to Section 39 of the Civil Code,
shall, upon demand by the elder or dependent adult or a representative of the
elder or dependent adult, as defined in subdivision (d) of Section 15610.30,
return the property and if that person or entity fails to return the property,
the elder or dependent adult shall be entitled to the remedies provided by
Section 15657.5, including attorney’s fees and costs. This section shall not
apply to any agreement entered into by an elder or dependent adult when the
elder or dependent adult had capacity.” (§ 15657.6.)
28
would also “require the person who takes, secretes, appropriates, obtains or
retains real or personal property of an elder or dependent adult who lacks
capacity . . . to return the property upon demand.” (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 1140 (2007–2008 Reg. Sess.) as amended on Mar. 10,
2008, p. 3.) This new statute additionally included an enforcement
mechanism, specifically “a new civil cause of action for an elder or dependent
adult who lacks capacity to recover . . . property that was not returned after a
demand” that affords “all the remedies available under [the Act], including
attorney’s fees.” (Ibid.; Assem. Com. on Judiciary, Analysis of Sen. Bill No.
1140 (2007–2008 Reg. Sess.) as amended on Jun. 2, 2008, p. 4 [“bill provides a
new remedy when an elder or dependent lacks capacity—return the property
to avoid attorney’s fees,” (underscoring omitted)].) The requirement that a
demand first be made would give a party who did not know the elder or
dependent lacked capacity at the time, the opportunity to return the
property. The elder or dependent would thereby quickly recover his or her
property, and the party who took or removed it from the elder or dependent
would avoid liability for the elder’s or dependent’s attorney’s fee and court
costs. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1140 (2007–2008
Reg. Sess.) as amended on Mar. 10, 2008, p. 7; Assem. Com. on Judiciary,
Analysis of Sen. Bill No. 1140 (2007–2008 Reg. Sess.) as amended Jun. 2,
2008, p. 4; Off. of Planning and Research, Enrolled Bill Rep. on Sen. Bill
No. 1140 (2007–2007 Reg. Sess.) Aug. 13, 2008, pp. 4–5.)
In 2021, in the midst of, and because of, the COVID-19 pandemic, the
Legislature amended section 15657.03, adding the restraining orders
authorized in subdivisions (b)(5)(D) pertaining to findings that “specific
debts” were incurred due to financial elder abuse and (b)(5)(E) prohibiting the
29
isolation of elders. (2021 Stats. ch. 273, § 3 (Assem. Bill No. 1243).)19 The
legislative history recites that the Elder Abuse Act “[p]ermits an elder or
dependent adult to bring a financial abuse civil action when real or personal
property is taken or appropriated from the elder or dependent adult for a
wrongful use or with intent to defraud, or both,” citing section 15657.5.
(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1243 (2021–2022 Reg.
Sess.) as amended Apr. 28, 2021, p. 4.) It further recites the Act also
“[a]llows an elder or dependent adult who has suffered abuse to seek a
protective order,” citing section 15657.03. (Assem. Com. on Judiciary,
Analysis of Assem. Bill No. 1243 (2021–2022 Reg. Sess.) as amended Apr. 28,
2021, p. 4.)
The reported purpose of the amendment with respect to isolation was
explained as follows: “Due to the ongoing COVID-19 pandemic, visitation to
vulnerable groups including elderly individuals has been limited to
prevent/minimize exposure to the virus. For many families caring for
relatives in [the] community this meant little or no visitation outside of
primary caregivers. AB 1243 helps prevent isolation of vulnerable
Californians by allowing family members or other persons with a pre-existing
relationship (as defined in the bill language) to petition the court through the
existing elder and dependent adult abuse restraining order process for orders
enjoining the isolation and allowing contact . . . as long as the elder or
dependent adult wants that contact.” (Assem. Com. on Judiciary, Analysis. of
Assem. Bill No. 1243 (2021–2022 Reg. Sess.) as amended Apr. 28, 2021, p. 5,
19 Technically, the legislation ultimately repealed and enacted a
revised version of the statute. (Legis. Counsel’s Dig. of Assem. Bill No. 1243
(2021–2022 Reg. Sess.) [“An act to amend, repeal, and add section 15657.03 of
the Welfare and Institutions Code, relating to protective orders.” (Italics
omitted.)], approved by the Governor on Sept. 23, 2021.)
30
boldface omitted; see Sen. Rules Com., 3d reading Analysis of Assem. Bill No.
1243 (2021–2022 Reg. Sess.) as amended Aug. 26, 2021, p. 3 [“The pandemic
and resulting stay-at-home orders, as well as older adults’ vulnerability to
COVID-19, have amplified the need for additional protections, as well as
creative ways to ensure older adults remain connected to their
communities.”].)
With respect to financial abuse/specific debt findings, the reported
purpose was to “provide[] an additional elder and dependent adult abuse
restraining order . . . to allow judges issuing elder and dependent adult
restraining orders to make . . . findings that specific debts are the result of
coerced debt. This will give the protected party an additional tool to use
when facing collection activity by creditors and collectors. They can use the
coerced debt findings to dispute debts with creditors, collectors, and/or credit
reporting agencies, which will protect their future income and facilitate their
economic recovery.” (Assem. Com. on Judiciary, Analysis of Assem. Bill
No. 1243 (2021–2022 Reg. Sess.) as amended Apr. 28, 2021, p. 5; id., at p. 8
[“Used together with the relief provided to victims of identity theft in Civil
Code Section 1798.93, this should help protect elder or dependent adult abuse
victims from third parties who go after them to collect on debt that was
unlawfully established in their name.”].) Such a finding, however, would “not
affect the priority of any lien or other security interest” and would “not entitle
the petitioner to any remedies other than those actually set forth in the
protective order statute.”20 (Assem. Com. on Judiciary, Analysis of Assem.
20 Thus, the statutory language expressly states, “The finding
pursuant to clause (i) [of a specific debt incurred due to elder financial abuse]
shall not entitle the petitioner to any remedies other than those actually set
forth in this section. The finding pursuant to clause (i) shall not affect the
31
Bill No. 1243 (2021–2022 Reg. Sess.) as amended Apr. 28, 2021, at p. 8, italics
added; see Sen. Rules Com., 3d reading Analysis of Assem. Bill No. 1243
(2021–2022 Reg. Sess.) as amended Aug. 26, 2021, p. 4.)
The legislative history recounted above reinforces what is evident from
the plain language of section 15657.03—that it serves a specific purpose and
provides a specific ancillary remedy, namely restraining orders of specified
duration to secure the immediate safety of an elder from any further act of
abuse. The statute does not supplant the other provisions of the Elder Abuse
Act that authorize and encourage private civil actions wherein a full array of
permanent remedies, including declaratory and injunctive relief, are
available. (See Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148,
155–156 (Winn) [in addition to the ordinary meaning of the statutory
language, we consider “its relationship to the text of related provisions, terms
used elsewhere in the statute, and the overarching structure of the statutory
scheme”]; see also Balisok, Elder Abuse Litigation, supra, ¶8:43 [“Among the
specific [restraining] orders available [under section 15657.03] are orders to
prevent the destruction of personal property [citation]. . . . The balance of the
protective orders available under this section provide for physical and
emotional security of the elder or dependent adult, but not direct assistance
in the recovery or preservation of property.”].)
This history also makes clear that when the Legislature has deemed it
necessary to authorize additional remedies, including, for example, to
facilitate the return of real property, it knows how to do so, and, in fact, has
done so through the enactment of other statutory provisions, such as section
15657.01 authorizing attachment and section 15657.6 establishing a new
priority of any lien or other security interest.” (§ 15657.03, subd.
(b)(5)(D)(ii).)
32
elder abuse cause of action for failure to return misappropriated property on
the demand of an elder who, at the time, “lack[ed] capacity.” (See Winn,
supra, 63 Cal.4th at p. 159 [“In construing statutes, we bear in mind that the
scope of certain terms may sometimes be elucidated by related provisions.”].)
It is additionally apparent from this history that when it passed the
2008 amendments facilitating the return of property, the Legislature
understood that an elder’s misappropriated property was recoverable through
a civil action under the Act, but only when the definitional provisions of
“financial abuse” then in effect were met. Otherwise, the elder had to pursue
a traditional recission action. The amendments rectified the limitations of a
traditional rescission action with respect to financially abused elders by
enhancing the Act’s provisions pertinent to civil actions. Nowhere in the
legislative history of these amendments is there any mention of section
15657.03 even though that statute had been in place for nearly 10 years, let
alone any suggestion that through the summary protective order process
authorized by that statute the trial courts were already authorized to issue,
as the trial court did here, what for all intents and purposes is a final
judgment of rescission.
In sum, the legislative history reinforces the plain language of the
statute—that courts may, pursuant to the summary procedure set forth in
section 15657.03, issue any of the specified restraining orders to secure, for a
specified period of time not to exceed five years, the immediate safety of an
elder and prohibit any further act of abuse. Other permanent remedies,
when necessary, including for the return of property, may be secured through
a civil action under other provisions of the Act.
In an effort to invoke provisions of the Act other than section 15657.03,
Bovis points to section 15657.6 (added by the 2008 amendments) and argues
33
the facts on which the trial court based its “undue influence” finding and
issued restraining orders also establish that she “lacked capacity” when she
executed the deed and therefore the court was authorized to order the return
of the property. To begin with, as we have explained, section 15657.6 was not
enacted to expand the trial courts’ authority to issue restraining orders under
section 15657.03. Rather, section 15657.6 was enacted as part of an
expansion of civil proceedings under other provisions of the Act to facilitate
the recovery of property, including by establishing a new species of elder
abuse claim for failure to return property misappropriated from an elder
lacking capacity. Furthermore, while Bovis claimed in her “Request for Elder
or Dependent Adult Abuse Restraining Orders” that she had been subject to
“undue influence,” she did not claim that she “lacked capacity” and was
entitled to the return of the property under section 15657.6. Accordingly, the
trial court never cited to section 15657.6 nor made any “lack of capacity”
finding thereunder.
DISPOSITION
The elder abuse restraining order stay-away order barring Casey from
the property on which Bovis resided is REVERSED; in all other respects, the
restraining orders set forth in the court’s form order filed April 13, 2022, are
AFFIRMED. The “Order To Void Transfer Deed Ab Initio” filed May 12,
2022, is REVERSED. Parties to bear their own costs on appeal.
34
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Castro, J.*
**Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A165210, Bovis v. Casey
35
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Lisa A. Novak
Counsel:
Law Office of Joe Goethals, Joseph Michael Goethals; Moskovitz Appellate
Team, Myron Moskovitz for Plaintiff and Respondent.
Thompson, Welch, Soroko & Gilbert, Eric D. McFarland for Defendant and
Appellant.
36