Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CH000585
McAdams, J.
Samuel Lopez challenges an order granting his grandmother’s request for a restraining order against him under the elder abuse statute (Welf. & Inst. Code, § 15657.03) on the grounds that the court’s finding of a prior act of abuse is not supported by substantial evidence. We hold substantial evidence supports the finding and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
Background re Family Law Proceedings and Relationship of Parties
Susana Lopez (Susana) and her husband Vincente Lopez (Vincente) have been living apart for over nine years. On June 30, 2006, Susana filed a petition for legal separation (Santa Clara County Superior Court Case No. 1-06-FL-134417). Ten days later, Vincente filed a separate petition for legal separation (Santa Clara County Superior Court Case No. 1-06-FL-134513).
For ease of reference, we shall hereafter refer to members of the Lopez family by their first names.
In August 2006, Vincente, who was living in Ceres, California, gave his grandson, Samuel Lopez (Samuel), power of attorney to handle his business and personal affairs.
Susana and Vincente appeared for a pretrial hearing in the separation action on November 8, 2006. Their cases were consolidated and they resolved some of the issues. Their agreement was reduced to a court order that provided that Vincente would have “sole and exclusive possession, occupancy, custody and control” of their real property on East San Antonio Street in San Jose and that Susana would “continue in the sole use, occupancy, possession, custody and control” of their real property on Whitton Avenue in San Jose. The order also provided that Susana would give Vincente access to the Whitton Avenue property within seven days to inspect the property and inventory all the personal property. The inspection did not occur within seven days.
The incident facts are taken from the hearing on the petition for a restraining order.
In December 2006, Susana expected to have knee replacement surgery and was living with one of her daughters on Somersworth Drive in San Jose. On December 2, 2006, Susana and Roy Abbott, her daughter’s fiancé, went to Susana’s house on Whitton Avenue to retrieve some of her personal belongings. Susana went inside and Abbott remained outside near his pick-up truck. Abbott heard a ruckus inside the house. He heard Susana say, “Get out of my house; you’re not allowed to be here. Get your hands off me.” He saw Samuel come out of the house. Samuel took photographs of Abbott as Abbott put Susana’s things in the truck and said “You’re stealing. You’re going to jail.”
According to Susana, Samuel appeared all of a sudden and entered without her permission. She asked him to leave and he refused. He “ran around with a camera taking pictures of everything” and shouted, “ ‘You fucking bitch, you can’t take anything from this house! . . . Get out of my way, old lady.’ ” At one point, Samuel reached out and pushed Susana. She fell backward and hit herself on the entertainment center.
Samuel admits entering the house and photographing the property. However, he denies saying anything to Susana, swearing at her, or touching her.
As Susana and Abbott were leaving, three police cars pulled up. The officers said they were investigating a report of a robbery. They told Abbott to get out of his truck and handcuffed him. After the officers spoke with Susana and confirmed she had the right to be there, they let her and Abbott go.
Four days after the incident, Susana filed a police report claiming Samuel had assaulted and battered her.
PROCEDURAL HISTORY
On December 27, 2006, Susana filed a petition for a protective order against Samuel under the elder abuse statute. In addition to the incident set forth above, Susana alleged that Samuel had told her that she could not rent out her home, that if she did rent out the house, she would have to give him half the rent, and that if she did not give him half the rent she would “be sorry.” Susana also alleged that Samuel had threatened and harassed her tenants and that Samuel’s mother, who lives out of state, “is constantly filing false elder abuse reports against the daughter with whom [Susana was] staying.”
In his response to the petition, Samuel denied harassing Susana and alleged Susana had harassed and threatened him because he was helping Vincente “recover his rightful portion of the community property from” Susana.
On January 30, 2007, the court held a hearing on the request for a restraining order. Susana, Abbott, and Samuel testified as set forth above. The court found that Susan had met her burden of proving a past act of abuse and granted the restraining order, which will remain in effect for three years. Samuel appeals.
DISCUSSION
Standards for Issuance of Restraining Order
We begin by reviewing the standards for issuing an elder abuse restraining order. Section 15657.03 is part of the Elder Abuse and Dependant Adult Civil Protection Act (the Act) (§ 15600 et seq.). (Easton v. Sutter Coast Hospital (2000) 80 Cal.App.4th 485, 490.) Section 15657.03, subdivision (a) provides: “An elder or dependent adult who has suffered abuse as defined in Section 15610.07 may seek protective orders as provided in this section.” Subdivision (c) of section 15657.03 provides that “[a]n 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.” (Italics added.)
Samuel contends the court’s finding of a past act of abuse was not supported by substantial evidence.
Standard of Review
“ ‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination….’ ” (Jameson v. Five Feet Restaurant (2003) 107 Cal.App.4th 138, 143, citing Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) This standard applies to the review of any factual determination, whether the factual issue arises at trial or otherwise, whether the trial court’s findings are express or implied, or whether the issue is tried before a judge or a jury. (Jameson, at p. 143; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 8:43, p. 8-18, citing SFPP v. Burlington Northern & Santa Fe Ry Co. (2004) 121 Cal.App.4th 452, 462.) “ ‘[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.’ ” (Jameson, at p. 143.) As long as there is substantial evidence, the appellate court must affirm, even if the reviewing justices personally would have ruled differently if they had presided over the proceedings below and even if other substantial evidence supports a different result. (Bowers v. Bernards, at p. 874.)
“Substantial evidence is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.] Substantial evidence … is not synonymous with any evidence. Instead, it is substantial proof of the essentials which the law requires. [Citations.] The focus is on the quality, rather than the quantity, of the evidence. Very little solid evidence may be substantial, while a lot of extremely weak evidence might be insubstantial.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651, internal quotation marks omitted.)
Analysis
We begin by reviewing the statutory definition of “abuse.” Section 15610.07 provides in relevant part: “ ‘Abuse of an elder or a dependent adult’ means . . . Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” Section 15610.63 defines “physical abuse” for the purpose of the Act. Acts that constitute physical abuse include: “Assault, as defined in Section 240 of the Penal Code” and “Battery, as defined in Section 242 of the Penal Code.” (§ 15610.63, subds. (a), (b).)
“A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) “ ‘It has long been established, both in tort and criminal law, that “the least touching” may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’ [Citation.] [¶] ‘The “violent injury” here mentioned is not synonymous with “bodily harm,” but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.’ ” (People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12 (Rocha).)
Samuel argues Susana produced no evidence that supported her allegations of abuse. In her declaration in support of her petition, Susana stated that Samuel shouted obscenities at her and pushed her into an entertainment center. Under the legal standard set forth above, evidence that Samuel shoved Susana is sufficient to support a finding of a battery, which is a form of abuse. (§ 15610.63, subd. (b).)
Although Samuel states there was no evidence supporting Susana’s claim of abuse, his claim seems to be that there was no evidence that corroborated Susana’s declaration. The testimony of a single credible witness, even if that person is a party to the action, may constitute substantial evidence. (Marriage of Mix (1975) 14 Cal.3d 604, 614.) Thus, Susana’s declaration was sufficient. Moreover, Abbott testified that he heard Susana say “Get your hands off of me.” This corroborates Susana’s declaration and supports her claim of past abuse.
Samuel devotes much of his brief to rearguing the evidence presented at the hearing. He argues that the trial court failed to consider his alternative theory that Susana sought the restraining order for an improper motive: to prevent Samuel from using his power of attorney to help Vincente in the legal separation proceedings. He argues that his theory impeaches the credibility of the abuse accusation. He argues he could not have committed an assault because he did not carry a weapon and only had a camera. He challenges the finding of abuse, arguing that Abbott was outside and did not witness the alleged abuse.
Samuel argues there was no abuse because Susana was not injured. He relies on the statement in her declaration that she “did not bruise,” the police report, which notes that she did not have any “visible injury” four days later, and her statement that when she fell into the entertainment center, “the impact aggravated [her] already bad back and leg.” Samuel asserts that “this bad knee could have caused her to fall on her own, if she fell at all.” He also challenges the credibility of the abuse claim by arguing that neither Susana nor Abbott reported the abuse to the police when they encountered them on the date of the incident and Susana waited four days to report the abuse to the police. Samuel argues that Abbott’s testimony cannot be relied on because he was biased and that Susana had a motive for retaliating against him because of the allegedly false elder abuse claims filed by his mother.
While these points may have been appropriate argument in the trial court, arguing them on appeal suggests Samuel misunderstands our standard of review. It is not our role to reweigh the evidence or make findings regarding credibility. Those functions are within the exclusive province of the trier of fact, the trial court judge in this case. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544 [appellate court does “not reweigh the evidence but rather determine[s] whether, … there is substantial evidence to support the judgment”], overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009 [trier of fact is exclusive judge of witness credibility].)
In addition, the fact that Susana suffered no injury does not preclude a finding of abuse. As we have noted, the least touching may constitute a battery. Force against the person is enough, it need not be violent or severe and need not cause bodily harm or pain. (Rocha, supra, 3 Cal.3d at pp. 899-900, fn. 12.) Susana’s testimony that Samuel pushed her into the entertainment unit was substantial evidence that supported the trial court’s finding of a past act of abuse.
DISPOSITION
The order granting the restraining order is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.