Filed 1/22/20 Massey v. Munlin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CHARLIE ANN MASSEY,

Plaintiff and Respondent,

v.

JOYCE MUNLIN,

Defendant and Appellant.

A155486

(Alameda County

Super. Ct. No. HF18917608)

MEMORANDUM OPINION

This is an appeal from a protective order issued pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”). (Welf. & Inst. Code, § 15600 et seq.). The conduct giving rise to the challenged order occurred during the course of a dispute over the ownership of a small dog. “We review the issuance of a protective order under the Elder Abuse Act for abuse of discretion, and we review the factual findings necessary to support the protective order for substantial evidence.” (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 135 (Gdowski).)

Briefly, plaintiff acquired a small dog after her therapist at the Veterans Administration told her about a pet adoption service through which she could acquire a dog without cost. After the events in question, the therapist stated in a letter that the dog was a service animal.

A year after obtaining the dog, plaintiff had two knee surgeries. Prior to the first surgery, plaintiff gave the dog to defendant, who was then a friend. The parties hotly dispute whether this was temporary custody of the dog until plaintiff recovered from her surgeries, or whether this was a transfer of ownership of the dog. During plaintiff’s extended recuperation, defendant was her primary care giver, and over the course of that time, their friendship became a romantic relationship. Plaintiff testified that during her recuperation, she repeatedly asked to see the dog, but defendant brought the dog to see her only once. Defendant testified plaintiff rarely asked about the dog and never claimed the dog was still hers.

By the following summer, the parties’ romantic relationship had gotten fairly choppy. Defendant testified plaintiff had become suspicious defendant was interested in someone else. She (defendant) finally could not handle the emotional stress caused by plaintiff’s accusations and therefore ended the relationship and refused to communicate with plaintiff.

In mid-summer, plaintiff appeared at defendant’s home (which defendant shared with her husband and a former partner) and asked to take the dog for a walk. According to defendant, plaintiff promised to return the dog after the outing. Plaintiff did not return with the dog. Plaintiff testified she had feared for her safety in retrieving the dog because defendant had said on prior occasions that if anyone tried to take anything from her property, “ ‘the guns come out.’ ” Defendant was a former Naval officer and readily admitted owning several guns. Plaintiff acknowledged defendant had never threatened her (plaintiff) and that defendant had made the guns would “ ‘come out’ ” comment while complaining about federal marijuana policy and stating she (defendant) intended to protect her marijuana.

Defendant testified that several hours after plaintiff left with the dog, she became concerned that something had happened to plaintiff, and she and her husband went to plaintiff’s apartment and asked the manager to contact plaintiff to make sure she was all right. Plaintiff answered the manager’s call and screamed he was not to let defendant through the access gate. Defendant and her husband then called the police to report that the dog had been stolen and ultimately went to the local police station. Both testified an officer told them the police would not get involved in the dispute over the dog and they should try to get the dog back, defendant recalling the officer told them “possession was nine tenths of the law.”

Claiming she was heeding the officer’s advice, defendant parked outside plaintiff’s apartment over the next several days, waiting for plaintiff to appear so she (defendant) could try to get the dog back. She finally spotted plaintiff, who had put the dog in the front seat of her car and was either putting something in, or getting something out, of the trunk. Defendant ran over to take the dog out of the car and succeeded in doing so. Plaintiff testified defendant pushed her out of the way; defendant testified she only blocked plaintiff with her (defendant’s) body, sheltering the dog, and that plaintiff hit her in her back, showing the court a cell phone photo of sizeable bruises. Defendant succeeded in the tussle and ran to her car with the dog. Plaintiff ran after her and got into the front passenger seat. It is unclear whether defendant had already started to move from the parking space, or whether she put the car into gear while plaintiff was in the front seat with the door still open. In any case, plaintiff jumped out. Defendant continued driving away with the dog.

Several weeks after this incident, plaintiff applied for a protective order, and the court issued a temporary order requiring, inter alia, that defendant return the dog to plaintiff. Defendant did not do so.

After hearing testimony from both parties, and from defendant’s husband and former partner, the court found plaintiff had carried her burden and issued a two-year protective order. The court stated: “[I]t was clear to me that there was a court order, a temporary restraining order, that was very obviously, deliberately, and with thought, violated by the [defendant], and I told you in the beginning before we started that whenever there’s a violation of a temporary order, it inure[s] to the detriment of the person who violated the order. [¶] I also was very troubled and concerned by the testimony regarding what the [defendant] did in order to stake out the [plaintiff’s] home by being in a car for at least three days . . . for hours at a time, in order to take the dog back. I know that the [defendant] says she didn’t use force, but my interpretation of the testimony is that force was used, that it was without permission. The door was open and that she physically used her body to block the [plaintiff] from getting to the dog, which was in her car. Based on all of that, I find sufficient evidence to issue the restraining order.”

On appeal, defendant maintains that because she believed in good faith that she had been given the dog outright, she did not have any criminal intent and was exercising reasonable force in reclaiming her property. This assertion is misdirected, as this is not a criminal case. (See Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 526 (Tanguilig).)

The issue, rather, is whether the trial court’s findings are supported by any substantial evidence. And they are. A protective order under the Elder Abuse Act can issue on a showing of past conduct “with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, §§ 15610.07, 156757.03, subd. (a)(1); Gdowski, supra, 175 Cal.App.4th at p. 137.) “ ‘Mental suffering’ ” for purposes of this law 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. . . .” (Welf. & Inst. Code, § 15610.53; Tanguilig, supra, 36 Cal.App.5th at pp. 525–527.) The trial court clearly credited plaintiff’s version of the tussle over the dog (see Bookout, supra, 155 Cal.App.4th at p. 1141), and that conduct, alone, was sufficient to support a finding that defendant engaged in “intimidating behavior” which caused plaintiff to experience “agitation.” (Welf. & Inst. Code, § 15610.53.) The court also commented on defendant’s flagrant violation of the temporary restraining order and her “stak[ing] out” plaintiff’s apartment to seize the dog—additional evidence the court could reasonably view as supporting its conclusion that plaintiff sufficiently established intimidating conduct that caused her emotional upset and agitation.

DISPOSITION

The protective order is AFFIRMED. Plaintiff to recover costs on appeal.

 

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Sanchez, J.

A155486, Massey v. Munlin