Filed 12/24/19 Baca v. Sukert CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FRANCES DARLENE BACA,

Plaintiff and Appellant,

v.

CORY SUKERT,

Defendant and Respondent.

D074512

(Super. Ct. No. 37-2018-00014605- CU-PT-NC)

APPEAL from a judgment and an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed.

Frances Darlene Baca, in pro. per., for Plaintiff and Appellant.

Dowdall Law Offices, Terry R. Dowdall, and Robin G. Eifler for Defendant and Respondent.

Frances Darlene Baca (Baca) appeals from a judgment denying her petition for an elder abuse restraining order against Cory Sukert (Sukert), the President and CEO of the property management company for Crestview Estates Mobile Home Park (Crestview), where Baca resided.

Baca asserts the superior court erred by classifying the case as limited, by failing to consolidate the case with a pending petition for injunctive relief filed by Crestview, by allowing Sukert to file a response to the request for restraining order that included assertions also made by Crestview in a separately filed petition for injunctive relief, and by refusing to grant the requested retraining order. In addition, she asserts the superior court erred by awarding Sukert attorney’s fees and costs.

For the reasons set forth herein, we find no error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of a long-standing dispute between Baca and Crestview. We have set forth the facts regarding that dispute in detail in our opinion in Crestview v. Baca, D074222 [nonpub. opn.], filed concurrently with this opinion. Accordingly, we will provide only a brief summary of the larger dispute and will focus our discussion on the facts directly related to the petition for an elder abuse restraining order at issue here.

When Baca first began living at Crestview, the park provided gas and electric to the residents through its own private utility system (legacy system). In 2015, Crestview informed the residents, including Baca, that it had entered into a pilot program (the Pilot Program) under which the local public utility, San Diego Gas & Electric Company (SDG&E), would replace Crestview’s legacy system with a new, publicly maintained utility system. Baca refused to consent to the replacement of the utility meters at her space and objected to anyone entering her space to perform work related to the Pilot Program. Eventually the legacy system was replaced at every space in the park except Baca’s.

In October 2017, SDG&E discovered a gas leak in the legacy system and shut off all regulators in the park. SDG&E requested access to Baca’s meter—the only active meter in the park at that time—to perform additional testing, but Baca refused to grant SDG&E access to her space. Unable to isolate the leak, SDG&E left the regulators off to ensure the safety of the park residents. On October 25, Crestview informed Baca that the legacy system posed an unacceptable risk to the safety of the park residents and needed to be removed but Baca continued to refuse access and informed Crestview any further attempt to enter her space would “be resisted by my placing a 911 call to the Fallbrook Sheriff Department for assistance.”

In February 2018, Crestview filed a petition for injunctive relief against Baca, seeking a court order requiring her to comply with the removal of the legacy system and installation of the new utility system.

Elder Abuse Petition

On March 23, 2018, while the petition for injunction was pending, Baca filed a Request for Elder or Dependent Adult Abuse Retraining Orders against Sukert. Baca had originally typed “Crestview Estates Mobile Home Park” as the respondent on the form but crossed Crestview out and wrote “Cory Sukert” before filing. On the form, Baca alleged Crestview had caused the gas to be disconnected from her unit and had informed her that it planned to disconnect the electrical as well, causing her physical harm, pain, and mental suffering. In an attached declaration, she asserted Sukert was responsible because he hired the attorney representing Crestview, hired a security guard who called the police when she refused to allow entry onto her space, and served her with certain notices regarding the utilities and her tenancy.

The request for restraining order was assigned to department N-24. The court issued a temporary restraining order against Sukert, precluding him from abusing, harassing, or otherwise disturbing Baca, but struck her request for an order requiring Sukert to turn the gas back on. The court noted that it did not have authority to make such an order in the context of an elder abuse protective order. The court scheduled a hearing for April 13, 2018.

Sukert filed a response to the request for restraining order using the form provided by the court. As permitted by the form, he attached an explanation for his reasons for disagreeing with Baca’s statement. Therein, he explained the history of the dispute over the utilities and the events leading up to the disconnection of the legacy system. He also included a personal declaration and documentation to support his assertions. In the declaration, he stated he had no recollection of ever meeting or personally interacting with Baca.

The superior court held a hearing on the request for elder abuse protective order on April 13, 2018. Baca did not appear. The court dissolved the temporary restraining order and dismissed the request with prejudice.

Request for Costs and Fees

Sukert filed a motion for attorney’s fees and costs seeking $14,699.25 in fees and $40 in costs. Therein, Sukert asserted the request for a restraining order was frivolous and intended only to interfere with Crestview’s efforts to abate the dangerous condition caused by Baca’s refusal to permit work on the utility systems. Sukert’s counsel provided a declaration and billing records establishing his rate and the time he spent working on the matter. Baca did not file a response or appear at the hearing. The court granted the motion and awarded the full amount requested.

Baca appeals.

DISCUSSION

I. Appellant’s Burden
II.
As an initial matter, we note that many of the arguments set forth in Baca’s opening brief lack clarity and are not adequately supported by citation to the record or legal authority. It is the appellant’s burden to establish reversible error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach) [appellant bears the burden to provide legal authority and court may treat unsupported contentions as waived].) A litigant, such as Baca, that is “appearing in propria persona, . . . is entitled to the same, but no greater, consideration than other litigants and attorneys.” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638 (Nelson).) We address the arguments raised by Baca with these principles in mind.

III. Procedural Issues
IV.
A. “Unlimited” Designation
B.
Baca asserts the superior court erred by failing to designate the case “unlimited.” In response, Crestview contends the case was initiated and proceeded as an “unlimited” civil matter. To support this assertion, Crestview asks us to take judicial notice of the Registrar of Actions for the case. The Registrar lists the “Case Category” as “Civil – Unlimited” and does not contain any entry suggesting the designation changed at any point during the case. Baca offers no evidence to the contrary. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Brewer v. Murphy (2008) 161 Cal.App.4th 928, 936, fn. 4 [appellant must support factual assertions with citation to the record].) In addition, Crestview points out that this court would not have jurisdiction to hear the present appeal if the case were limited. We grant Crestview’s request, take judicial notice of the Registrar of Actions printout, and conclude Baca’s assertion that the superior court improperly designated the case as “limited” lacks evidentiary support. (See Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.252.)

C. Related Case Designation
D.
Next, Baca asserts the superior court failed to comply with California Rules of Court, rule 3.300 regarding related cases.

Rule 3.300 defines “related cases” and sets forth the procedure for designating cases as related. “Whenever a party in a civil action knows or learns that the action or proceeding is related to another action or proceeding pending, dismissed, or disposed of by judgment in any state or federal court in California, the party must serve and file a Notice of Related Case.” (Cal. Rules of Court, rule 3.300(b).) The other party may then file a response, either supporting or opposing the notice, within five days. (Id., rule 3.300(g).) The court may then designate the cases as related and assign them to a single judge. (Id., rule 3.300(h).) “[T]he judge who has the earliest filed unlimited civil case must determine whether the cases should be ordered related and assigned to his or her department.” (Id., rule 3.300(h)(1)(A), (B).) If the judge decides not to issue an order relating the cases, each remains in the department where it was originally assigned. (Id., rule 3.300(j).)

Crestview filed its petition for injunction on February 14, 2018, and was assigned to department N-26 and then reassigned to N-27 a couple of days later. Baca filed her Request for an Elder Abuse Restraining Order on March 23, 2018, and was assigned to department N-24. On March 26, 2018, Crestview filed a notice of related cases in its petition for injunction case in department N-27. On March 28, 2018, Sukert filed a notice of related cases in the restraining order case in department N-24. There is no indication in the record that Baca filed a response to either of the notices, made any other request to relate the cases, or objected to either case proceeding separately. Accordingly, Baca forfeited this argument on appeal. (See Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 265–266 (Keener) [general rule is that arguments not raised in the trial court are forfeited or waived]; Wiley v. S. Pac. Trans. Co. (1990) 220 Cal.App.3d 177, 188 (Wiley) [appellate court will not consider procedural defect where no objection was made in the lower court].)

Regardless, though, even if we were to consider the merits of Baca’s assertion, we would not find any error. Baca argues the superior court in this matter proceeded without notice to the court handling the petition for injunction but, as stated, Crestview filed a notice of related cases in its petition for injunction case, and the court in that case took no action. In the absence of any evidence to the contrary, we presume the superior court in department N-27 considered the notice and decided not to relate the cases. (See Evid. Code, § 664; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9.) Similarly, we presume the superior court in department N-24 also decided not to act, either because it recognized the court in N-27 had jurisdiction or because it did not believe the two cases should be related. (Cal. Rules of Court, rule 3.300(h)(1)(A), (B).) As the two matters involve different parties and substantially different legal issues, neither court abused its discretion in making that decision. (See Id., rule 3.300(a).)

Finally, Baca asserts the failure to relate the cases violated the doctrine of collateral estoppel. Baca forfeited this argument as well by failing to raise it in the superior court. (See Keener, supra, 46 Cal.4th at pp. 265–266.) In any event, the two matters implicate different areas of law and Baca does not identify any common issue conclusively decided in both cases. (See Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828–829 (Vandernberg) [collateral estoppel precludes re-litigation of common issue conclusively decided against a party in a previous matter].) Therefore, even if Baca had not forfeited the argument, we would not find any error.

E. Sukert’s Response
F.
Similarly, Baca asserts the superior court here superseded the authority of the court in department N-27 and violated the doctrine of collateral estoppel by allowing Sukert to enter claims in his response to the request for restraining order that were similar to the claims set forth in Crestview’s petition for injunctive relief. Again, Baca forfeited these arguments by failing to raise them in the superior court. (See Keener, supra, 46 Cal.4th at pp. 265–266.) Regardless, though, we do not find them persuasive for essentially the same reasons discussed ante.

Baca alleges Sukert’s response included “similar claims involving the same parties” but she does not specifically identify any overlapping claims or legal issues. To the contrary, Sukert and Crestview are not the same party and Sukert did not assert any causes of action or otherwise ask the court to decide any overlapping issues. He simply responded to the allegations made by Baca in her request for a restraining order. Although some of the same factual history was relevant in both cases, the legal issues to be decided were substantially different. (See Vandenberg, supra, 21 Cal.4th at pp. 828–829.) Moreover, the superior court here had already noted that it did not have the authority to issue an order regarding the utilities, the primary area of overlap between the two cases.

In addition, Baca contends the superior court erred by allowing Sukert to assert a “Litigation Abuse” cross-claim. Baca does not identify where, precisely, Sukert raised a claim for “litigation abuse.” (See California Rules of Court, rule 8.204(a)(1)(C).) Sukert did allege Baca’s request for a restraining order was frivolous but did not raise any separate cause of action for litigation abuse or any other tort and, accordingly, the superior court could not have erred by allowing such a claim. To the extent Baca is referring to Sukert’s subsequent request for attorney’s fees and costs, we address that post in section IV.

V. Refusal to Grant Restraining Order
VI.
Baca contends the superior court erred by denying her request for an elder abuse restraining order in violation of Welfare and Institutions Code section 15610.07.

“An elder or dependent adult who has suffered abuse, as defined in [Welfare and Institutions Code] Section 15610.07, may seek protective orders as provided in this section.” (Welf. & Inst. Code, § 15657.03, subd. (a)(1).) Section 15610.07 in turn defines abuse of an elder to include any of the following: “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶] (3) Financial abuse, as defined in Section 15610.30.” We review the superior court’s decision to deny a request for an elder abuse protective order for an abuse of discretion and review the factual findings necessary to support that decision under the substantial evidence test. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137 (Bookout).)

Here, the superior court initially issued a temporary restraining order against Sukert based on the allegations set forth in Baca’s request and the declaration Baca submitted therewith. Sukert disputed those allegations in his response and provided his own declaration, along with documentary evidence, to support his position. Thereafter, Baca failed to appear at the hearing and, in her absence, the court dissolved the temporary restraining order and dismissed the case with prejudice. As Baca presented no evidence at the hearing, and neither the court nor Sukert had an opportunity to cross-examine her regarding the statements made in her petition and declaration, the court acted well within its discretion by denying the request and dismissing the case. (See Bookout, supra, 155 Cal.App.4th at p. 1137; Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735 [“Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witness’s testimony.”].)

Moreover, even if Baca had appeared, the court would not have erred by denying her request for a restraining order. Baca alleges Sukert was the owner of the gas and utility system at Crestview and was therefore a care custodian that deprived her of services necessary to avoid physical harm or mental suffering within the meaning of Welfare and Institutions Code section 15610.07, subdivision (a)(1). To the contrary, Sukert presented evidence that it was SDG&E that shut off the utility regulators after determining the legacy system was unsafe. Moreover, Sukert submitted a sworn declaration stating that he did not personally know and had never had any direct personal contact with Baca. Thus, substantial evidence did not support the issuance of a restraining order and the superior court did not abuse its discretion by denying the request. (See Bookout, supra, 155 Cal.App.4th at p. 1137.)

VII. Attorney’s Fees
VIII.
Finally, Baca contends the superior court erred in awarding Sukert attorney’s fees. We disagree. “The prevailing party in an action brought under [Welfare and Institutions Code section 15657.03] may be awarded court costs and attorney’s fees, if any.” (Welf. & Inst. Code, § 15657.03, subd. (t).) There is no dispute that Sukert was the prevailing party in this matter. Accordingly, he was entitled to his costs and fees.

Baca asserts the superior court erred in the amount of attorney’s fees awarded, particularly since Crestview was also awarded attorney’s fees with respect to its petition for injunction. However, Sukert submitted a motion and supporting documentation for his request and Baca did not file any opposition or otherwise object his request. Baca therefore forfeited any arguments regarding the amount of the fee award. (See Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 769 [party forfeits arguments not raised in opposition to motion for attorney’s fees].)

Even if we were to consider Baca’s arguments, though, we would not find any error. We review the amount of an attorney’s fee award for an abuse of discretion. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213.) Sukert submitted a declaration from his counsel and detailed billing records sufficient to support the requested amount. (See Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) Baca argues Crestview was awarded attorney’s fees and costs in the petition for injunction matter “for [the] same claims involving the same parties” and was therefore “sued twice in two Courts for the same claims.” To the contrary, Sukert and Crestview are not the same party and there was no overlap in claims between the two matters. Moreover, it was Baca who chose to sue Sukert. Thereafter, Sukert was entitled to choose his own defense counsel and to seek reimbursement for the associated fees. Although the fee award was substantial for the defense of a request for restraining order, the history between the parties was also substantial and the amount requested was supported by the declaration and billing records.

 

DISPOSITION

The judgment and order awarding attorney’s fees are affirmed. In the interest of justice, the parties will bear their respective costs on appeal.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.