Trusts and Estates

White v. Wear

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Cite as E076352
Filed March 8, 2022, Fourth District, Div. Two

By Michelle Barnett Batista
Aaron, Riechert, Carpol & Riffle, APC

Headnote: Elder Abuse Restraining Order – Permissible Relief

Summary: Where a petition for elder abuse restraining order is not answered, the court can clarify allegations in the petition but cannot expand the relief requested.

Laura petitioned for an elder abuse restraining order (EARO) against Debra based on her efforts to unduly influence Thomas, Laura’s father, including the procurement of a trust amendment disinheriting Thomas’s biological children. In requesting the EARO, Laura indicated the abuse was “solely financial” while also asserting that the harm to Thomas included “confusion and distress.” Debra was personally served with the petition but did not file a response or appear at the hearing. In granting the EARO, the court modified the petition to include claims of mental suffering, harassment, and intimidation and added an order prohibiting Debra from possessing firearms. Following the hearing on the EARO, Debra filed a peremptory challenge to the judge under Code of Civil Procedure section 170.6, which the court granted. Debra then appealed the EARO. 

The court of appeal reversed in part. The trial court correctly clarified the form allegations to include mental suffering, harassment, and intimidation, but erred in prohibiting Debra from possessing firearms and ammunition. The firearms restriction is exempted if the protective order is made solely on the basis of financial abuse unaccompanied by force, threat, harassment, intimidation, or any other form of abuse. Laura did not allege or provide evidence that Debra used force, threats, harassment, intimidation, or any other form of abuse. Rather, the allegations of mental suffering, harassment, and intimidation involved nonphysical abuse designed to manipulate Thomas’s affection toward his daughters. Thus, the firearm restriction exceeded Laura’s allegations and was outside of the superior court’s jurisdiction. Debra’s post hoc peremptory challenge did not void the EARO. Finally, Debra’s assistance in the procurement of the purported trust amendment supported a claim for elder financial abuse sufficient to warrant a restraining order.

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