Filed 9/26/16 Killion v. Agee CA3
                                           NOT TO BE PUBLISHED




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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                      (Calaveras)
                                                            ----




STANLEY J. KILLION,                                                                          C076816

                   Plaintiff and Respondent,                                    (Super. Ct. No. 14EA40046)

         v.

JOHN AGEE,

                   Defendant and Appellant.




         Defendant John Agee, proceeding in propria persona, appeals from the issuance of
a restraining order against him at the request of his girlfriend’s former landlord, plaintiff




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Stanley J. Killion,1 pursuant to the Elder Abuse and Dependent Adult Civil Protection
Act (the Elder Abuse Act). (Welf. & Inst. Code, § 15600 et seq.)2 We affirm.
                                     BACKGROUND
       On April 21, 2014, Stanley, age 76, filed a request for a restraining order against
Agee pursuant to section 15657.03. In a declaration attached to the request, Stanley
averred that Agee and his girlfriend, Isabelle Lacazotte, were former tenants, having
leased certain real property from him in Copperopolis. Stanley and Maxine also enjoyed
a social relationship with Agee and Lacazotte.
       Agee and Lacazotte visited the Killions at their home in Sonora on several
occasions. On one occasion, Lacazotte offered to “clean” the Killions computer. The
computer contained the Killions’ personal financial information. Lacazotte took the
computer and apparently never returned it. On another occasion, Agee and Lacazotte
borrowed a silver concho belt and sewing machine, together with other miscellaneous
items. These items were never returned. Later, the Killions discovered that documents
attesting to the registration and pedigree of certain livestock had been removed from a
file cabinet in their home. The declaration implies – but does not expressly state – that
Agee and Lacazotte used the stolen documents to facilitate the unauthorized sale of a
horse and two foals that belonged to Stanley, keeping the proceeds for themselves.
       The relationship between the two couples began to deteriorate in November 2013.
On November 14, 2013, Stanley visited the property and “noticed that many of the horse
panels, gates, feeders, lumber, sheet metal, and fencing were missing.” Stanley asked
Agee about the missing property, and Agee “became extremely volatile,” telling Stanley




1    We refer to Stanley Killion by his first name to distinguish him from his wife,
Maxine.
2      Undesignated statutory references are to the Welfare and Institutions Code.

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to “get the fuck off [my] property.” Agee also threatened to “blow [Stanley’s] head off”
and “burn the place to the ground.”
       This confrontation appears to have sparked a flurry of litigation between the two
couples. First, Lacazotte sought and obtained an emergency protective order against
Stanley.3 She also commenced a small claims action against Stanley and Maxine. Next,
Agee commenced a small claims action against Stanley and Maxine. Finally, Stanley and
Maxine filed counterclaims against Agee and Lacazotte, alleging elder abuse and
misappropriation of personal property.4 These pleadings are not part of the record on
appeal.
       On December 1, 2013, Lacazotte gave notice of her intention to vacate the
Copperopolis property within 30 days. Shortly thereafter, Stanley enlisted the help of a
“property manager,” Dana Hogencamp, to manage the Copperopolis property.
       On December 31, 2013, Stanley visited the Copperopolis property to do a walk
through and discovered that Agee and Lacazotte “completed their move by taking down a
wooden building on a cement foundation, using a jack hammer to break through cement
and remove hitching posts, and leaving rubbish, weeds, holes, and vacant space once
occupied by outbuildings and horse panels owned by [Stanley.]” The declaration also
avers that Lacazotte made false reports about Stanley to law enforcement and other
county officials, and interfered with his relationships with his insurance and mortgage
companies. Specifically, the declaration avers that Lacazotte contacted Stanley’s
mortgage lender and accused him of mortgage fraud.
       The declaration alleges that Agee and Lacazotte’s conduct caused Stanley and
Maxine to suffer “tremendous emotional, financial and mental strain.” According to


3      The emergency protective order appears to have been dismissed shortly thereafter.
4      The small claims court properly declined to exercise jurisdiction over Stanley’s
elder abuse claims.

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Stanley, “We have lost countless hours of sleep; these matters have put constant strain on
[our] marriage; it has caused me to get behind on my mortgage.”
       The request seeks orders directing Agee to stay away from Stanley and Maxine,
and barring Agee from “filing any more fraudulent actions against us.” The request also
seeks an order barring Agee from “contact[ing] . . . county officials; mortgage company;
insurance co; [and] law enforcement.” The trial court set the matter for hearing, without
issuing any temporary orders.
       An evidentiary hearing was held on May 8, 2014, and May 22, 2014. Both
couples attended the hearing. There is nothing in the record to suggest that anyone else
was present.
       On May 27, 2014, the trial court entered an order directing Agee to stay 150 yards
away from Stanley and Maxine and prohibiting him from having any contact with them.
The order also prohibits Agee from physically or financially abusing Stanley and Maxine,
harassing them, destroying their personal property, or disturbing their peace. The order
indicates that the case “involve[s] solely financial abuse, unaccompanied by force, threat,
harassment, intimidation, or any other form of abuse.”
       Agee filed a timely notice of appeal. In designating the record on appeal, Agee
elected to proceed without a record of the oral proceedings in the trial court. In so doing,
Agee affirmed that, “I understand that without a record of the oral proceedings in the
superior court, the Court of Appeal will not be able to consider what was said during
those proceedings in determining whether an error was made in the superior court
proceedings.”
                                      DISCUSSION
       On appeal, Agee contends the trial court erred in issuing the restraining order
against him because: (1) there was insufficient evidence of abuse; (2) the court failed to




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consider evidence of Stanley’s fraud;5 (3) the court deprived Agee of an opportunity to
complete his cross-examination of Stanley’s property manager, Hogencamp; and (4) the
court failed to state the reasons for its decision. Agee has failed to provide a record
sufficient for us to consider any of these claims.
       “ ‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.) “It is well settled,
of course, that a party challenging a judgment [or order] has the burden of showing
reversible error by an adequate record. [Citations.]” (Ballard v. Uribe (1986) 41 Cal.3d
564, 574.) “A necessary corollary to this rule is that if the record is inadequate for
meaningful review, the appellant defaults and the decision of the trial court should be
affirmed.” (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d
1043, 1051, fn. 9.)
       An adequate record includes a reporter’s transcript prepared at the appellant’s
expense if the appellant “intends to raise any issue that requires consideration of the oral
proceedings in the superior court . . . .” (Cal. Rules of Court, rules 8.120(b) & 8.130(b);
see Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186 (Foust).)
Where no reporter’s transcript is available, an appellant may submit an agreed statement
or a settled statement summarizing the bases on which the superior court decided the
points to be raised on appeal. (Foust, supra, at p. 186; Cal. Rules of Court, rules 8.134 &




5      Agee also argues the trial court failed to consider Stanley’s “demeanor and
credibility” in view of his ostensible career as “a long time swindler.” We view this
contention as a variation on the argument that the trial court failed to consider the
purported evidence of Stanley’s fraud.

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8.137.) “ ‘Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].’ ” (Foust, supra, at p. 187, quoting Hernandez v.
California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
       Because Agee has failed to provide an adequate record, he has forfeited his
challenge to the sufficiency of the evidence to prove elder financial abuse. (Estate of
Fain (1999) 75 Cal.App.4th 973, 992 [“Where no reporter’s transcript has been provided
and no error is apparent on the face of the existing appellate record, the judgment must be
conclusively presumed correct as to all evidentiary matters. To put it another way, it is
presumed that the unreported trial testimony would demonstrate the absence of error.
[Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies
no reporter’s transcript will be precluded from raising an argument as to the sufficiency
of the evidence,” original italics].) But even if we were to overlook the inadequacy of the
record, we would nonetheless affirm.
       The Elder Abuse Act was enacted to protect elders and dependent adults from
abuse, neglect, and abandonment. (§ 15600, subd. (a).) An “ ‘elder’ ” is any person 65
years of age or older. (§ 15610.27.) “ ‘Abuse of an elder or a dependent adult’ ” includes
“[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other
treatment with resulting physical harm or pain or mental suffering.” (§ 15610.07.)
Section 15610.30 provides in pertinent part: “(a) ‘Financial abuse’ of an elder . . . occurs
when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates,
obtains, or retains real or personal property of an elder . . . for a wrongful use or with
intent to defraud, or both[;] [¶] (2) Assists in taking, secreting, appropriating, obtaining,
or retaining real or personal property of an elder . . . for a wrongful use or with intent to
defraud, or both.” (§ 15610.30.)
       “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. [Citation.]” (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128,

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135 (Gdowski).) “We resolve all conflicts in the evidence in favor of respondent, the
prevailing party, and indulge all legitimate inferences in favor of upholding the trial
court’s findings. [Citation.] Declarations favoring the prevailing party’s contentions are
deemed to establish the facts stated in the declarations, as well as all facts which may
reasonably be inferred from the declarations, if there is a substantial conflict in the facts
included in the competing declarations, the trial court’s determination of the controverted
facts will not be disturbed on appeal. [Citation.]” (Bookout v. Nielsen (2007)
155 Cal.App.4th 1131, 1137-1138 (Bookout).)
       Despite the paucity of the record, substantial evidence supports the trial court’s
finding of elder financial abuse. As we have discussed, Stanley’s declaration avers that
Agee and Lacazotte appropriated numerous articles of personal property, including
livestock, “horse panels, gates, feeders, lumber, sheet metal, and fencing.” When
confronted, Agee “became extremely volatile,” threatening to “blow [Stanley’s] head off”
and “burn the place to the ground.” Agee’s conduct caused Stanley, age 76, to suffer
“tremendous emotional, financial and mental strain.” On this record, a rational trier of
fact could conclude that Agee appropriated Stanley’s personal property for a wrongful
use or with intent to defraud, in violation of the Elder Abuse Act.
       Agee argues the trial court failed to consider evidence of Stanley’s fraud. He
claims that Stanley committed mortgage fraud by claiming a homestead exemption on the
Copperopolis property. He claims that Stanley reneged on an agreement that Agee would
train Stanley’s horses, and provide for their care, until such time as they could be sold.
He claims Stanley failed to maintain the Copperopolis property in habitable condition,
and sought the restraining order to retaliate against Agee and Lacazotte for reporting him
to the Calaveras County Building Department. He claims that Stanley’s property
manager, Hogencamp, was an unreliable witness because she leased property from
Stanley that she could not afford, was not qualified to act as a property manager, and has
a history of drug addiction.

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       While these points may have been appropriate argument in the trial court, arguing
them on appeal suggests that Agee 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 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, 574; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009 [trier of fact is
exclusive judge of witness credibility].) We therefore reject Agee’s challenge to the
sufficiency of the evidence, and his related contention that the trial court failed to
consider evidence of Stanley’s fraud.
       Agee also argues that Stanley’s request for a restraining order “should have been
subject to a higher burden of proof because Mr. Agee and Mrs. Lacazotte’s individual
interests and rights were at stake.” As support for the foregoing proposition, Agee offers
a partial citation to a gang injunction case, People v. Englebrecht (2001) 88 Cal.App.4th
1236. However, the Court of Appeal, Fourth Appellate District, Division Three rejected
the exact same argument (also based on Englebrecht) in Bookout, supra, holding that “the
public policy interest as articulated by the Legislature [in enacting the Elder Abuse Act]
favors application of the preponderance of the evidence standard, not the clear and
convincing standard.” (Bookout, supra, 155 Cal.App.4th at p. 1139.) We therefore reject
Agee’s contention that Stanley’s request should have been subject to a higher standard of
proof. (See Gdowski, supra, 175 Cal.App.4th at p. 138 [petitioner bears the burden of
establishing his or her case by a preponderance of the evidence].)
       We also reject Agee’s contention that the trial court deprived him of an
opportunity to complete his cross-examination of Hogencamp. In the absence of a
reporter’s transcript (or a suitable substitute), we cannot verify Agee’s claim that he “was
allowed to ask only one question” on the first day of the evidentiary hearing. We cannot

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assess the trial court’s reasons for cutting Agee’s cross-examination short (assuming that
is what happened), and consequently have no way of knowing whether Agee was
deprived of due process or a fair hearing. Thus, Agee’s failure to provide an adequate
record is fatal to his contention that the trial court deprived him of an opportunity to
complete his cross-examination of Hogencamp.
       Finally, Agee contends the trial judge failed to “state the reasons for his
determination and did not indicate the evidence he relied on.”6 We understand Agee to
complain that the trial court failed to issue a statement of decision. However, the trial
court was not required to provide a statement of decision. (Code Civ. Proc., § 632;
People v. Landlords Professional Services, Inc. (1986) 178 Cal.App.3d 68, 70.)
Furthermore, in the absence of a reporter’s transcript (or suitable substitute), we have no
way of knowing whether Agee even requested a statement of decision.
       In reaching our conclusion, we are mindful that Agee represents himself on
appeal. We note, however, that “[a] party proceeding in propria persona ‘is to be treated
like any other party and is entitled to the same, but no greater[,] consideration than other
litigants and attorneys.’ [Citation.] Indeed, ‘ “the in propria persona litigant is held to
the same restrictive rules of procedure as an attorney.” ’ ” (First American Title Co. v.
Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; Leslie v. Board of Medical Quality
Assurance (1991) 234 Cal.App.3d 117, 121.) We therefore reject Agee’s claims of error.




6        Agee purports to find support for his claim that the trial court was required to
prepare a statement of decision in the Administrative Procedure Act, section 551 et seq.
of title 5 of the United States Code. The Administrative Procedure Act is inapplicable to
these proceedings.

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                                       DISPOSITION
       The order granting the restraining order is affirmed. Cost on appeal are awarded
to plaintiff. (Cal. Rules of Court, rule 8.278(a).)



                                                      NICHOLSON            , Acting P. J.



We concur:



      MURRAY                 , J.




      RENNER                 , J.




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