Opinion
G053653
06-30-2017
GHODSI NAYERI, et al., Plaintiffs and Respondents, v. BEHZAD NAYERI, Defendant and Appellant.
Behzad Nayeri in pro. per., for Defendant and Appellant. No appearance for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00835802) OPINION Appeal from an order of the Superior Court of Orange County, Gerald G. Johnston, Judge. Affirmed. Behzad Nayeri in pro. per., for Defendant and Appellant. No appearance for Plaintiffs and Respondents.
* * *
Appellant Behzad Nayeri (Behzad) challenges a protective order (Welf. & Inst. Code, § 15657.03; all further undesignated statutory references are to this code), which prohibits him from abusing or contacting his elderly mother, and requires him to stay away from her residence. We perceive no error and affirm.
FACTS AND PROCEDURAL HISTORY
Behzad's brief does not provide a summary of significant facts limited to matters in the record, and it does not contain any citations to the record, (See Cal. Rules of Court, rule 8.204(a)(1) & (2).) Behzad also has not provided a reporter's transcript of the trial court proceedings. Consequently, the facts and procedural history set out here are based entirely upon our independent review of the clerk's transcript provided.
On February 18, 2016, then 54-year-old respondent Nika Houshmand (Nika) filed a request for a protective order under section 15657.03 against Behzad, who is her brother, on behalf of respondent Ghodsi Nayeri (Ghodsi), their then 85-year-old mother, herself, and her then 24-year-old mentally disabled son, respondent Ardalan Houshmand (Ardalan). Ghodsi, Nika and Ardaian all lived together in Ghodsi's home in Laguna Niguel. Ghodsi had been diagnosed with dementia and a host of other health problems, and Nika was her primary caregiver.
Because many of the parties share the same last name, we will refer to all of them by their first names only. We intend no disrespect. --------
In a declaration attached to her request, Nika claimed Behzad had physically, verbally and emotionally abused Ghodsi, Nika and Ardalan, on multiple occasions. Here is how Nika described two of those incidents:
"[O]n 1-23-16 Behzad . . . came to my mother's house . . . while [she] was still in bed[.] [M]y son called me and told me to come back home because Behzad is there and he is trying by pulling grandma's hand telling her shouting and screaming at her and wants to take her out of the house. [M]y son told me my mother was crying and begging him to leave her alone she doesn't want to go with him, meanwhile he was trying to put her medications prescribed by her doctor in a garbage bag . . . and my mother fell on the ground. . . . When I arrived he started to charge at me verbally abusing me calling me whore, bitch, stupid with your retard son, and calling my mother stupid old woman[.] [W]hen the police . . . arrived . . . he was cursing on the street . . . accusing me of stealing from my mother. She does not posses[s] anything to be stolen."
"On Feb[ruary] 14, 2016 Behzad . . . came to my mother's residence banging on the door and he was yelling and screaming to open the door and he was verbally abusive to me and my disable[d] son making t[h]reats that if you don't open the door I'm going to break it down. [M]eanwhile I was behind the close[d] door[.] [W]hen I told him to leave he said I will show you bitch, I will make your life miserable and I'll get back to you in a very treathening [sic] voice my mother woke up came behind the door, telling him to go away. I told him to go away, she is very agitated, she is going to have a heart[] attack, go away or I will call the police[.] [H]e said fuck you, call and I did. When the deput[ies] arrived they came inside, not letting him come inside, they looked around the apartment, . . . and . . . they asked him to leave."
Nika's declaration further explained:
"I am my mother['s] caretaker and her power of attorney. My 86 year old mother is suffering from dementia and she is suffering not only from disease, but she is also home bound because of several physical ailments including heart disease, thyroid cancer, diabetic, and etc.
"Behzad . . . has been extremely abusive to her verbally, physically, and mentally. He has a long history of untreated mental illness my mother refuses to see him, and or talk to him she always tells me to keep him away from me.
"[¶] . . . [¶]
"Behzad . . . has been very verbally abusive to me and my disable[d] son he told me on the phone at one of his angry fits that he would come and rape my son.
"My mother everytime [sic] he comes gets more scared and more disoriented than her usual days. She becomes very angry, disoriented and delusional, thinking he is still behind the door.
"About a year ago when he was threatening me and my son on the phone I was terrified and I called the police. When the police officers told me they would go to his place of residence and would give him a verbal warning.
"The situation has become now very chronic as on 1-23-2016 police officer was called to my mother[']s residence and not only he was threatening me and my mother and my son, but the situation escalated very quickly . . . the police officer asked me if I want him to be under an arrest while my mother standing outside and telling him to go away he was finally escorted out by the sherrif [sic] deputy (two police cars) were present because he was disturbing the peace.
"The cause of all this is because he is claiming that my late father who again I was his power of attorney till the time of his death has promised him to give him my now mothers condo to him, the claim has no validity not on paper work with attorney or even verbally.
"Now . . . he is trying to make my mother by force to sign the condo to him which she has the title in her own name and so as [sic] the mortgage, she however along with my father have their [e]state planning attorney, and he is well aware of this unsavory situation."
Based on Nika's declaration, a temporary restraining order was issued against Behzad, and an order to show cause hearing regarding elder abuse was scheduled. At an April 27 hearing on the order to show cause, Nika and Behzad both testified. The court then appointed a guardian ad litem for Ghodsi, reissued the temporary restraining order, and continued the order to show cause hearing to May 18.
On May 18, the order to show cause hearing began. Nika and Behzad both appeared in propria persona. Ghodsi's guardian ad litem gave an oral report and Nika started her testimony. The court then declared a recess, continued the order to show cause hearing to May 20, and reissued the temporary restraining order.
On May 20, the order to show cause hearing resumed. Nika concluded her testimony. Ardalan, Behzad, Fereydoun Farzineh, and Tloria Coderes also testified. The court then heard a final statement from Ghodsi's guardian ad litem, and entertained closing statements from both Nika and Behzad.
At the conclusion of the order to show cause hearing, the court issued a protective order against Behzad as requested by Nika. The court's minute order stated: "Based on the testimony regarding the temporary restraining order and review of [Behzad's] criminal record, the court finds by a preponderance of evidence that elder abuse has occurred in this matter; [Behzad] is the perpetrator and Ghodsi . . . is the victim, and the abuse did not occur in self-defense."
The protective order prohibits Behzad from abusing or contacting Ghodsi, Nika and Ardalan, and it requires him to stay at least 100 yards away from their home. But it also provides: "The Court allows Behzad . . . to visit with Ghodsi . . . as arranged in advance. A professional monitor must be present during visits. Financial arrangements for the monitor are to be made by Behzad . . . . Visits may be up to two hours. Nika . . . cannot be present at the home during visits. Behzad . . . may not discuss ownership of the home during visits. If the monitor perceives that Ghodsi . . . is distressed at any point they have the authority to terminate the visit immediately. Ardalan . . . may not be in the home during visits. Behzad . . . may contact Nika . . . by telephone only for the purpose of scheduling visits." The protective order expires by its own terms on May 20, 2021.
DISCUSSION
Behzad's brief is largely unintelligible and seriously deficient in virtually all respects. As noted, none of his factual assertions are supported by citation to the record as required by California Rules of Court, rule 8.204(a)(1)(C). It is not our task to search the record for evidence that supports the party's factual statements, and we may disregard statements not supported by proper citation. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.) Moreover, none of his ostensible legal arguments are supported by citation to authority, nor are they placed under discrete headings setting out the issues, all as required by California Rules of Court, rule 8.204(a)(1)(B).
When a party fails to cite proper legal authority to support his or her legal contentions, this court need not consider them. (In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510, 515; Regents of University of California v. Sheily, supra, 122 Cal.App.4th at p. 826, fn. 1.) In fact, we could consider the entire appeal forfeited for Behzad's failure to follow the rules of court. (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 53) And his decision to proceed in propria persona does not relieve him of the obligation to follow those rules. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [self-represented parties must meet same standards as lawyers].)
Nevertheless, we will endeavor to address Behzad's arguments on the merits. Here is his statement of the issues presented for our review:
"1) Is this restraining order justified, based on the truth or scam to deceive.
"2) Whether substantial evidence support the restraining order.
"3) Whether Guardian Ad Litem report is prepared based on fair, thorough investigation and as a result discovery of the truth, in order to make a correct and proper assessment concerning the false allegations stated in the restraining order.
"4) Whether this restraining order holds on the legal grounds Penal code section 368 under California law elder abuse and welfare and institutions code section 15610.07 penal codes 242 pc-261pc-187pc-192pc-422pc-401pc . . . .
"5) Whether destruction of relationship between mother and her only son, and son with his beloved mother, by issuance of false restraining order is beneficial and proper legally and morally, based on no finding of any wrong doing, facts, lack of any evidence, and no legal grounds." (Boldface omitted.)
From his statement of the issues it appears Behzad is challenging both the factual and legal basis for the protective order. We review the issuance of a protective order under section 15657.03 for abuse of discretion, and we review the factual findings necessary to support such a protective order under the substantial evidence test. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 (Bookout).)
"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. [Citation.] Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal. [Citation.]" (Bookout, supra, 155 Cal.App.4th at pp. 1137-1138.)
"In reviewing the issuance of a restraining order, we will only find an abuse of discretion when the trial court exceeds the bounds of reason or disregards the uncontradicted evidence. The party challenging the issuance of the order bears the burden of showing an abuse of discretion by the trial court. [Citations.]" (Bookout, supra, 155 Cal.App.4th at p. 1140.)
Applying these principles and standards of review to the record here leads us to conclude the court did not err. "Subdivision (c) of section 15657.03 permits a trial court to issue a protective order '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.'" (Bookout, supra, 155 Cal.App.4th at pp. 1140-1141.)
An "elder" is defined as a California resident, age 65 years or older. (§ 15610.27.) "'Abuse of an elder'" is defined as "[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering." (§ 15610.07, subd. (a).) "'Mental suffering'" is defined as "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, [or] harassment . . . ." (§ 15610.53.)
At the time of these incidents, Ghodsi was an 86-year-old California resident, and she therefore qualified for protection under section 15657.03.
Nika's declaration contained substantial evidence of Behzad's past acts toward Ghodsi, which can fairly be characterized as abusive, threatening and harassing behavior resulting in mental suffering and emotional harm. This evidence is set forth at length above. Standing alone it is sufficient to support the protective order.
Furthermore, while we do not have a reporter's transcript, we do know Nika and Behzad both testified at the order to show cause hearing. It is legitimate and reasonable for us to infer Nika testified along the lines of her declaration; and Behzad contradicted her testimony, blamed her for the problems they faced, or provided innocent explanations for his actions. Given the court's express factual findings that elder abuse had occurred and that Behzad was the perpetrator, it is apparent the court resolved all material factual conflicts in favor of Nika and against Behzad. This was entirely proper because it was for the trial court to weigh the evidence and consider the demeanor and credibility of the witnesses. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 182.)
In sum, substantial evidence supports the protective order. Moreover, nothing in the record suggests that in issuing the protective order the trial court exceeded the bounds of reason or disregarded any uncontradicted evidence. Therefore, Behzad has simply failed to meet his burden of showing the trial court abused its discretion.
DISPOSITION
The order is affirmed. Respondents have not filed a brief. There are thus no costs on appeal to allocate to it. In the interests of justice each side will bear its own costs, or lack thereof. (See Cal. Rules of Court, rule 8.278(a)(5).)
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.