Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCSS03142, J Michael Welch, Judge. Affirmed.
Law Offices of Daun De Vore and Daun De Vore; Law Offices of Christopher C. Carter and Christopher C. Carter; William Horspool, in pro. per., for Objector and Appellant.
Fullerton, Lemann, Schaefer & Dominick and Thomas W. Dominick for Petitioner and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
This case represents yet another skirmish in a long series of intrafamilial squabbles about caring for Raymond P. Horspool, Sr., (the conservatee), who is the subject of a conservatorship. The conservatee has nine children; his daughter, respondent Margaret Updike (Updike), was appointed conservator over the objection of some other siblings. Updike obtained a protective order against her brother, appellant William F. Horspool (Horspool), and Horspool appeals from that order, which prohibits him from, among other things, having unsupervised contact with the conservatee.
As the trial court aptly stated following the trial on competing petitions for appointment of the conservator, “I was able to picture a strong family unit now broken down by this litigation. I saw the father, the Conservatee, failing as he testified opposing the Conservatorship. I saw the need for his children to rise up and help him. However, the children can’t decide who will lead that effort so I will.”
Horspool’s contentions on appeal, as best we understand them are as follows: (1) the trial court deprived him of due process by denying him an evidentiary hearing before issuing a permanent injunction; (2) he was a care custodian of the conservatee when he reported neglect of the conservatee, and as a care custodian, his actions were privileged under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act); (3) the trial court did not have jurisdiction to proceed under the Elder Abuse Act because his actions did not fall within the provisions of that act; (4) even if the Elder Abuse Act applied, the wrong standard of proof was used; and (5) the matter is quasi-criminal in nature. On close examination, we determine that most of those issues are red herrings. In essence, the case boils down to whether the trial court abused its discretion in issuing a permanent restraining order on the basis of undisputed facts. We find no abuse of discretion. In his reply brief, Horspool adds the contentions that (1) the trial court should not have issued a permanent restraining order without expressly finding a likelihood of repeated or future harm, and (2) the trial court erred in failing to issue a statement of decision. We decline to address issues raised for the first time in the reply brief. Finding no error, we affirm.
Although Horspool’s brief identifies certain “issues” under separate headings, some of those issues are unsupported by any relevant legal analysis; other apparent contentions are argued in the text of the briefs without separate headings as required by California Rules of Court, rule 8.204(a)(1)(B). In addition, Horspool makes various argumentative assertions, which appear to be challenges to the appointment and retention of Updike as conservator. Those assertions are irrelevant to the order appealed from.
All further statutory references are to the Welfare & Institutions Code unless otherwise noted.
II. FACTS AND PROCEDURAL BACKGROUND
On July 24, 2006, Updike filed a petition for her appointment as conservator of the person and estate of the conservatee. The trial court appointed Updike as temporary conservator and appointed attorney James B. Church to represent the conservatee.
On August 16, 2006, Updike filed a petition for a protective order against Horspool under the Elder Abuse Act on the ground he had twice interfered with her efforts to obtain medical care for the conservatee. Updike filed declarations in support of her petition, stating the conservatee had been suffering from severe short-term memory loss and other physical ailments. On August 17, the trial court issued an order to show cause and a temporary restraining order prohibiting Horspool from, among other things, (1) interfering with the conservatee’s medical appointments, (2) interfering with Updike’s provision of medical care and treatment for the conservatee, and (3) discussing the conservatorship proceedings with the conservatee. A hearing to make the restraining order permanent was set for September 12, 2006.
On August 28, 2006, Updike filed a second petition for a protective order, alleging that Horspool had taken the conservatee to Hoag Memorial Hospital in Newport Beach on August 16 without notifying Updike or Church, and had refused to reveal the conservatee’s whereabouts. The conservatee was discharged from the hospital on August 19 and returned to his home.
Horspool filed a declaration in opposition to Updike’s petition, confirming he had taken the conservatee to Hoag Memorial Hospital on August 16, 2006; he stated the conservatee had appeared to be disoriented and in need of medical care. Horspool denied knowing at the time about the restraining order that had been issued against him and claimed he had complied with the order since he had learned of it. Horspool did not deny the allegation that he had failed to inform Updike of the conservatee’s whereabouts.
The parties later agreed to keep the August 17, 2006, temporary restraining order in effect until September 12, and the second petition was withdrawn. On November 20, the trial court issued a minute order stating that the temporary restraining order was “dissolved/exceeds statutory timeline.” Meanwhile, in September, Diane Fewkes, Updike and Horspool’s sister, filed a competing petition for appointment as conservator.
On December 4, 2006, the court issued a new restraining order effective as to all of the conservatee’s family members, enjoining them from (1) making disparaging remarks about any family members to the conservatee; (2) discussing the conservatorship proceedings with the conservatee and his wife; (3) making any medical decisions or interfering with Updike’s care of the conservatee; and (4) transporting the conservatee without notification to Updike.
On March 1, 2007, a trial began on the cross-petitions for appointment of a conservator. The conservatee was called and examined by his own counsel, and the court determined that a conservatorship was necessary. The trial on the cross-petitions resumed in April and concluded on May 29. The court determined it was in the conservatee’s best interest to appoint Updike as permanent conservator. The court denied Fewkes’s cross-petition because, among other reasons, she had assisted in hiding the conservatee at Hoag Memorial Hospital. The court entered a formal order on July 30 appointing Updike as conservator.
On November 9, 2007, Horspool filed petitions seeking Updike’s removal as conservator on the ground she was not properly caring for the conservatee. To support the petitions, Horspool filed photographs he had taken of the conservatee’s genital and anal areas, which purportedly showed that conservatee had a rash.
On November 15, 2007, Updike filed a third petition for a protective order under the Elder Abuse Act. The petition alleged that, without her permission or consent or that of the conservatee’s counsel, Horspool “took photographs of the genital and anus area of the [conservatee] in a misguided attempt to show that he was being neglected. These photographs have already been filed with the Court.” The petition further alleged resulting harm to the conservatee in the form of “a gross violation of his privacy rights.”
The trial court issued a temporary restraining order enjoining Horspool from, among other things, visiting the conservatee without an adult monitor, and set the matter for a hearing on a permanent protective order. Meanwhile, the conservatee’s counsel filed a motion to remove the photographs from the court’s file.
Horspool’s petition and Updike’s request for a protective order came on for hearing on January 7, 2008. That same day, Updike filed formal objections to Horspool’s petition seeking her removal. At the request of Horspool’s counsel, the trial court continued the proceeding to February 25. The trial court invited the parties to file declarations and arguments and indicated it would entertain additional argument at the continued hearing. The trial court stated its preference that this procedure be followed in lieu of live testimony. Horspool’s counsel stated she was “fine with that, ” although she continued, “The only objection I have is multiple layers of hearsay. Counsel says he has police reports attached. As long as they’re, of course, subject to motions to strike, ... I think that would be fine.” Horspool’s counsel stated her belief that the application for restraining order would require live testimony. The trial court stated, “I think I could do it in such a way I wouldn’t need live testimony.” Horspool’s counsel did not respond to that statement by an objection or offer of proof.
On February 8, 2008, Horspool filed a formal response to the request for protective order, supported by declarations with exhibits and points and authorities. Horspool denied he had ever abused the conservatee and attempted to justify taking the photographs. Horspool stated his belief that he was a “‘mandatory reporter’” who had a duty to report the conservatee’s condition to law enforcement and adult protective services, and he had made reports to the San Bernardino Sheriff’s Department and the Adult Protective Service Unit.
On February 20, 2008, Updike filed declarations in support of issuance of a permanent restraining order and in opposition to her removal as conservator. Updike declared that a court investigator had visited the conservatee at his home on August 20, 2007, in response to Horspool’s report that Updike had been neglecting the conservator, but the investigator had found the allegations unfounded. Updike stated a court investigator had also visited the conservatee at his home on January 25, 2008, and did not report any evidence of abuse or neglect. The conservatee’s physician provided a declaration stating he had not observed any signs of abuse or neglect of the conservatee. A deputy sheriff provided a declaration stating he had visited the conservatee and his wife at their residence on November 8, 2007, in response to Horspool’s report that the conservatee was the victim of abuse and neglect. The deputy declared he “did not observe any signs of neglect, abuse or mistreatment. Their housing arrangement appeared appropriate, and they both appear to be aging gracefully.”
On February 25, 2008, Horspool filed additional declarations and objections to Updike’s declarations. Horspool apparently issued a subpoena for the appearance of witnesses and production of documents from the San Bernardino Department of Aging and Adult Services (DAAS). The DAAS opposed the subpoena on the ground that the records sought were confidential under section 15633.
On February 25, 2008, the trial court denied Horspool’s petitions to remove Updike as conservator and to conduct a medical examination of the conservatee. The trial court encouraged the parties to resolve the issue of the protective order without further litigation and suggested that the matter be continued. Horspool’s counsel, claiming the matter was “quasi-criminal” in nature, stated Horspool would not “waive any further time” and demanded a hearing that day. The trial court again stated it could rule on the matter based on the affidavits and took the matter under submission. Horspool’s counsel objected, but again made no offer of proof.
The following day, the trial court, having considered the affidavits in support of and in opposition to the petition and having taken judicial notice of its file in the underlying case, granted the request for protective order. The formal order was entered on March 10, 2008. The order provided, among other things, that Horspool could not visit the conservatee without an adult monitor, to be selected by the conservatee’s attorney. The order stated it would remain in effect for three years. The trial court also granted the unopposed motion of the conservatee’s counsel to remove the photographs from the court file.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Motions to Correct Record and to Submit and Seal Documents to Be Included in Record
Horspool has filed motions to correct the record and to submit and seal documents to be included in the record, and Updike has filed oppositions to the motions. We reserved ruling on the motions for consideration with the merits of the appeal.
In his motion to correct the record, Horspool sought to include in the record a complete copy of an article that appeared in the Los Angeles Times concerning the conservatorship. Horspool contends the article supports his contention that he was a care custodian of the conservatee under the Elder Abuse Act. Because, as we discuss below, we will assume for purposes of argument that Horspool was a care custodian, the article is irrelevant to any dispositive issue on appeal, and we therefore deny the request.
In his motion to submit and seal documents, Horspool sought to include in the record copies of photographs he took and filed with the trial court to support his allegations that the conservatee was not being cared for properly. As we discuss at greater length below, Horspool does not dispute that he took the photographs and filed them in the trial court, nor does he dispute that the photographs include depictions of the conservatee’s genitals. We conclude that determination of the issues presented on appeal in no way requires our consideration of the photographs themselves, and we therefore deny Horspool’s request that they be included in the record on appeal under seal.
B. Standard of Review
We review the trial court’s issuance of a protective order under the Elder Abuse Act for abuse of discretion, and we review the trial court’s underlying factual findings under the substantial evidence test. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 (Bookout).)
C. Statutory Background
The overarching goal of the Elder Abuse Act, as articulated by the Legislature, is to protect vulnerable elderly adults from abuse and neglect. (§ 15600; Bookout, supra, 155 Cal.App.4th at p. 1139.) Section 15657.03 governs the issuance of protective orders under the Elder Abuse Act. For purposes of the Elder Abuse Act, an “elder” is a California resident, 65 years of age or older. (§ 15610.27.) “Abuse of an elder” is defined as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (§ 15610.07, subd. (a).) “Mental suffering” includes “fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, [or] harassment....” (§ 15610.53.)
“(a) An elder or dependent adult who has suffered abuse as defined in Section 15610.07 may seek protective orders as provided in this section.
D. Were Horspool’s Actions Privileged?
Horspool contends the trial court issued the restraining order solely on the basis of “[w]hether or not the taking of the photographs was appropriate or not.” He further contends that his actions in taking the photographs of the conservatee’s genital area were privileged under the Elder Abuse Act. Specifically, he asserts he was a care custodian of the conservatee for purposes of the Elder Abuse Act, and as such was required to report physical abuse of the conservatee.
The Elder Abuse Act defines a “care custodian” as a “person[] providing care or services for elders or dependent adults.” (§ 15610.17.) A care custodian is a mandated reporter, required by statute to report suspected abuse of an elder in his or her care. (§ 15630.) The term “care custodian” is broadly construed for purposes of the Elder Abuse Act (see Bernard v. Foley (2006) 39 Cal.4th 794, 808), and we will assume for purposes of argument that Horspool was a care custodian, and as such, was a mandatory reporter of elder abuse. Nonetheless, that determination is not critical to our analysis-the Elder Abuse Act also provides for reporting by persons who are not mandated reporters but who suspect abuse. (§ 15631, subd. (b).)
We next turn to whether Horspool’s actions were privileged under the Elder Abuse Act. To support his assertion of privilege, Horspool quotes selectively from section 15634, subdivision (a), as follows: “No person required to make a report pursuant to [the Elder Abuse Act], or any person taking photographs at his or her discretion, shall incur any civil or criminal liability for taking photographs of a suspected victim of elder... abuse or causing photographs to be taken of such a suspected victim or for disseminating the photographs with the reports required by this article.” His quotation omits the next sentence, which states, “However, this section shall not be construed to grant immunity from this liability with respect to any other use of the photographs.” (§ 15634, subd. (a).)
Reports by mandated and nonmandated reporters must be confidential and may be disclosed only under specified circumstances and to specified persons and agencies. (§ 15633, subd. (a).) We agree that Horspool could not be subjected to civil or criminal liability for taking photographs of the conservatee or “for disseminating the photographs with the reports required by this article.” (§ 15634, subd. (a); italics added.) However, the protective order was not issued because Horspool disseminated the photographs with the reports required by the article, i.e., reports to an adult protective services agency or to a local law enforcement agency. (§ 15633, subds. (a), (b).) Rather, he filed them in court without seeking that they be sealed or otherwise kept confidential. Thus, his actions were not protected by the statutes on which he relies.
E. Standard of Proof Required for Protective Order
Horspool next contends that under Code of Civil Procedure section 527.6, subdivision (d), clear and convincing evidence was required for the issuance of a permanent injunction. Courts have held, however, that the level of proof required for a protective order under the Elder Abuse Act is a preponderance of the evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; Bookout, supra, 155 Cal.App.4th at p. 1138; see also Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [construing similar protective order provision of Domestic Violence Prevention Act].)
Here, nonetheless, as with most of the other purported issues Horspool has raised, the standard of proof ultimately is unimportant because the relevant facts-Horspool’s conduct in connection with the photographs of the conservatee-were undisputed. The dispositive issue, therefore, is whether the trial court abused its discretion in basing the protective order on Horspool’s filing the photographs in the trial court.
F. Failure to Hold an Evidentiary Hearing
Horspool next contends the trial court deprived him of due process by failing to hold an evidentiary hearing on the application for protective order. Again, we need not reach that issue; the denial of an evidentiary hearing is reversible error only when the facts are disputed. (See, e.g., (See In re Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309-1310.) Here, it was undisputed that Horspool filed with the court the photographs of his father’s genital area. Such an action was not, as a matter of law, protected under the Elder Abuse Act, as discussed above. Horspool concedes that taking and filing the photographs was the sole basis for the issuance of the protective order. While taking the photographs might have been a privileged act, the Elder Abuse Act permitted their use only for reporting to the social services agency or law enforcement entity. (§ 15633, subds. (a), (b).) As we have concluded, filing them in the trial court was not a protected use. (§ 15634, subd. (a).)
G. Did the Trial Court Abuse Its Discretion in Issuing a Permanent Protective Order?
The crux of this appeal is whether the trial court abused its discretion in issuing a permanent protective order. For purposes of argument, we have accepted Horspool’s contentions that he was a care custodian and mandated reporter under the Elder Abuse Act, and that his taking the photographs and filing them in court was the sole basis for the third petition and the resulting protective order. We will also assume that Horspool’s purpose in taking the photographs and filing them in court was to document his assertion that Updike was not providing proper care for the conservatee.
The relevant facts are undisputed: Horspool admits he took photographs of his father’s genital area and filed them in the trial court. We will accept Horspool’s representation that the photographs document the conservatee was suffering from a rash. However, the cause of the rash and Updike’s alleged neglect of the conservatee were not issues with respect to the proceedings on the protective order. Moreover, Horspool’s motivation for taking the photographs, even if sincere, is irrelevant.
The test for abuse of discretion is whether the trial court’s decision was arbitrary, capricious, or lacking a basis in reason. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067.) We conclude the trial court’s decision here was not an abuse of discretion. Horspool’s act of filing photographs of the conservatee’s private parts in the trial court, without seeking that the photographs be placed under seal, was a gross invasion of the conservatee’s privacy. As noted, the overarching concern of the Elder Abuse Act is protection of vulnerable elderly adults. The trial court’s order manifestly served that purpose.
We further observe that the same trial judge had presided over the seven-day trial on the conservatorship petitions only a few months before the current petition was filed. While it is true the trial court did not make factual findings in connection with the earlier petitions for protective orders, the same matters raised in those petitions were before the court in connection with the conservatorship trial. Significantly, the trial court impliedly found in ruling on those petitions that Fewkes had acted improperly in hiding the conservatee at Hoag Memorial Hospital. Horspool never disputed that he was the one who had taken the conservatee to that hospital. Moreover, in his declaration in opposition to the petition, Horspool never denied that he had failed to inform Updike of the conservatee’s whereabouts.
H. Quasi-criminal Nature of Proceedings Under the Elder Abuse Act
In the argument section of his opening brief, Horspool included a separate heading stating that the matter was quasi-criminal in nature. Although he has cited statutory and case law to establish that the Elder Abuse Act provides for both criminal and private civil enforcement, he has failed to explain any consequences of that fact as they relate to his appeal. We therefore deem his argument forfeited. (See Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 [stating that an issue is waived when a party fails to make any coherent argument to support its contention].)
I. Issues Raised in Reply Brief
In his reply brief, Horspool raised several new contentions. He asserted the trial court erred in issuing a restraining order to prevent a past action, i.e., the taking of the photographs. He also asserted the sole basis for the issuance of the protective order was that he had taken photographs of the conservatee, and he contended the trial court erred in issuing a permanent protective order without making any express finding of a likelihood of future or repeated harm to the conservatee. He further contended the trial court abused its discretion by failing to issue a statement of decision. In a related argument, Horspool contended that under section 15657.03, subdivision (b)(3), the trial court was required to identify the specific conduct that fell within section 15657.03, subdivision (b)(1) to support the granting of the protective order. Finally, he contended in his reply brief that the protective order was overbroad and excessive. Again, we decline to address an issue that was raised for the first time in the reply brief.
Although Horspool’s reply brief actually cites section 15610.03, it is clear from the context that the intended reference was to section 15657.03.
We ordinarily do not consider points raised for the first time in a reply brief. Medill v. Westport Ins. Corp. (2006) 143 Cal.App.4th 819, 836, fn 3.) Updike was not given any opportunity to respond to Horspool’s contentions, and Horspool has shown no good cause for failure to present them before. We therefore decline to address his contentions. (See Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
IV. DISPOSITION
The order appealed from is affirmed. Costs shall be awarded to petitioner and respondent.
We concur: MCKINSTER J. RICHLI J.
“(b) For the purposes of this section, ‘protective order’ means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment:
“(1) An order enjoining a party from abusing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, 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.
“(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.
“(3) An order enjoining a party from specified behavior that the court determines is necessary to effectuate orders described in paragraph (1) or (2).
“(c) 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 an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.
“(d)(1) Upon filing a petition for protective orders under this section, the petitioner may obtain a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure, except to the extent this section provides a rule that is inconsistent. The temporary restraining order may include any of the protective orders described in subdivision (b).... [¶]... [¶]
“(2) If a temporary restraining order is granted without notice, the matter shall be made returnable on an order requiring cause to be shown why a permanent order should not be granted, on the earliest day that the business of the court will permit, but not later than 20 days or, if good cause appears to the court, 25 days from the date the temporary restraining order is granted, unless the order is otherwise modified or terminated by the court.
“(e) The court may issue, upon notice and a hearing, any of the orders set forth in subdivision (b). The court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.
“(f) 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 three years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed upon the request of a party, either for three years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. 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.” (§ 15657.03, subds. (a)-(f).)