## Facts

- Michael Gdowski (age 83) petitioned for an elder-abuse protective order against his adult daughter, Diana Gdowski (age 56), under Welfare and Institutions Code section 15657.03.
- Michael alleged Diana physically and emotionally abused him, including punching him multiple times and yelling in ways that upset his wife, Frances.
- Michael also alleged Diana interfered with caregivers for Frances, contributing to at least one caregiver quitting; his supporting materials included hearsay allegations about threats and intimidation.
- The trial court issued an ex parte temporary restraining order based on Michael’s declaration.
- At an evidentiary hearing, Michael testified consistently with his allegations; Diana denied abusing Michael or causing caregivers to quit.
- The trial court stated it had “no opinion” whether the alleged prior abuse occurred, but issued a longer-term protective order.
- The court explained it was “tipp[ed]” toward issuing the order by what it viewed as Diana’s counsel’s “aggressive and confrontational” cross-examination of Michael, which the court treated as reflecting Diana’s wishes and causing Michael emotional distress.
- Diana appealed the protective order.

## Issues

1. Whether a protective order under the Elder Abuse and Dependent Adult Civil Protection Act requires a showing of an immediate threat of future abuse, or may be issued based on evidence of past abuse alone.
2. Whether a court may base an elder-abuse protective order on the tone or style of the respondent’s attorney’s cross-examination as evidence of “abuse” attributable to the respondent.

## Decision

- The Court of Appeal held a protective order under the Elder Abuse Act may issue based on evidence of past abuse, without a particularized showing that abuse will be continued or repeated.
- The Court of Appeal held counsel’s tone or style of examination is not evidence and cannot support issuance of an elder-abuse protective order.
- The protective order was reversed because the trial court did not make a factual determination that Diana committed abuse and instead relied on counsel’s courtroom manner as the basis for relief.

## Legal Principles

- Welfare and Institutions Code section 15657.03 permits protective orders to prevent elder abuse and does not impose a separate statutory requirement of an immediate threat of future abuse.
- A protective order must rest on admissible evidence and factual findings that conduct meeting the statutory definition of elder abuse occurred.
- An attorney’s demeanor, tone, or advocacy tactics at a hearing are not evidence of elder abuse and cannot be imputed to the client as the evidentiary basis for a protective order.
- A trial court abuses its discretion when it issues an elder-abuse protective order without resolving the material factual dispute about whether abuse occurred and instead bases relief on non-evidentiary considerations.

## Conclusion

The appellate court reversed the elder-abuse protective order because, although past abuse can justify relief under the statute, the trial court expressly declined to determine whether abuse occurred and improperly relied on opposing counsel’s cross-examination style rather than evidence establishing statutory abuse.


Gdowski v. Gdowski, 175 Cal. App. 4th 128, 95 Cal. Rptr. 3d 799 (Cal. Ct. App. 2009)