Court of Appeals finds Bradford Thomas Bradley guilty of fraud And orders them out of the Hunters’ home

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THOMAS J. HUNTER et al., Petitioners, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; BRADFORD THOMAS ROMANO et al., Real Parties in Interest. B306539 (Los Angeles County Super. Ct. No. 20SMCV00723) (Mark Young, Judge) ORDER and ALTERNATIVE WRIT of MANDATE TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES: We have read and considered the petition for writ of mandate filed on July 9, 2020, the preliminary opposition filed on July 15, 2020, the reply filed on July 20, 2020, and the requests for judicial notice filed on July 20 and July 22, 2020.1 Good cause appearing, you are commanded, immediately upon receipt of this writ, either to: 1 Both requests for judicial notice are granted. &28572)$33($/²6(&21”,67 DANIEL P. POTTER, Clerk Deputy Clerk Jul 24, 2020 Richard Cardenas  (a)(1) vacate your order of July 1, 2020 denying petitioners’ request for a preliminary injunction; and instead (2) issue a new order granting a preliminary injunction excluding and removing all the real parties from petitioners’ residence, and specifying that: (i) real parties’ removal is to prevent ongoing elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (the Act); and if real parties do not immediately comply with the new order, the court will either (ii) issue a writ of possession which authorizes the Los Angeles County Sheriff’s Department to remove real parties from petitioners’ residence, or (iii) issue an order to show cause re contempt, because – • The Act authorizes preliminary injunctions. (See Welf. & Inst. Code, § 15657.03.)2 “An elder or dependent adult who has suffered abuse, as defined in Section 15610.07 [which includes financial abuse as defined in section 15610.30], may seek protective orders as provided in this section.” (§ 15657.03, subd. (a)(1).) This section defines a protective order to include “[a]n order excluding a party from the petitioner’s residence or dwelling, except that this order shall not be issued if legal or equitable title to, or lease of, the residence or dwelling is in the sole name of the party to be excluded, or is in the sole name of the party to be excluded and any other party besides the petitioner.” (§ 15657.03, subd. (b)(4)(B).) 2 All further statutory references are to the Welfare and Institutions Code unless otherwise specified.  • Upon notice and a hearing, a court may issue an order removing a party from a residence or dwelling “if the court finds that physical or emotional harm would otherwise result to the petitioner. . . . .” (§ 15657.03, subd. (h).) • A court also may grant a request for a temporary restraining order without notice under section 15657.03. The section authorizes “a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure. . . .” (Id., subd. (d).) An order to exclude a party from the petitioner’s residence or dwelling on an ex parte basis requires a showing of facts as described in section 15657.03, subdivision (d). • Although petitioners initially filed an ex parte application, both parties briefed the matter and you held a hearing on the availability of a preliminary injunction. • “ ‘Financial abuse’ of an elder or dependent adult occurs when a person . . . . [¶] . . . [t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (§ 15610.30, subd. (a)(1).) • “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to  be harmful to the elder or dependent adult.” (§ 15610.30, subd. (b).) • “For the purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement. . . .” (§ 15610.30, subd. (c).) • Petitioners have evidenced the following: o Mr. Hunter is 87 years old and was hospitalized in February 2020 for kidney stones, which required surgery, as well as pneumonia and heart failure. After surgery, Mr. Hunter was admitted to a rehabilitation facility. He also suffers from other serious medical conditions; o In light of Mr. Hunter’s hospitalization, petitioners advertised a short-term rental of their house and the parties agreed that real parties would rent petitioners’ house for three weeks for $750 per night; o Real parties were aware from the first week of March at the latest of Mr. Hunter’s advanced age and medically vulnerable state. The parties agreed that the arrangement would be temporary and Ms. Hunter explained that petitioners would need to return home when Mr. Hunter was able to do so; o Part of the parties’ agreement was that Ms. Hunter could enter the house to access and use petitioners’ personal property, which they had left there. After refusing to move  out in early May 2020, real parties began precluding Ms. Hunter from accessing her real and personal property; o Petitioners did not request that real parties extend the lodging agreement.3 Every extension was at real parties’ request and each time they claimed they needed more time due to issues with their own house; o When Ms. Hunter went to petitioners’ house on May 10, 2020, met by counsel and the police, real parties agreed to move out by June 1, 2020. They also agreed to pay the amounts they owed to petitioners. They made these representations after their April 30, 2020 notice that they purportedly lack the ability to pay rent due to COVID-19; and o Because they cannot return home, petitioners are living in a small rented room in a residence. Mr. Hunter does not have room to walk and cannot use his wheelchair in the space. His doctors explain that his inability to move and his placement out of his normal environment are causing his physical and cognitive health to deteriorate. Due to his age and extremely frail health, he should not be in public places due to the Coronavirus. A skilled nursing facility would put Mr. Hunter at great risk of death. He instead needs to be in his home with physical and occupational therapy and nursing. 3 Petitioners may be contesting whether their agreements to allow real parties to stay in their house after the initial three-week period constituted extensions of the initial agreement or new, separate agreements. Although we refer to these as “extensions,” we express no opinion as to this dispute.  • In denying the request for a preliminary injunction, you held that petitioners did not present legal authority that the court “can summarily evict individuals through a preliminary injunction hearing without going through unlawful detainer procedures.” (Petitioners’ exhibits at p. 126.) As set forth above, the Act provides such authority. • Real parties wrongly contend the court may not issue a protective order under section 15657.03, subdivision (b)(4)(B) because it does not apply to tenants. Petitioners have demonstrated real parties are not tenants, and therefore, you are authorized under the Act to order them to leave petitioners’ residence. Petitioners are not required to obtain an unlawful detainer judgment before real parties are ordered to vacate petitioners’ residence. Under the Act, an order to exclude real parties from petitioners’ residence may issue in this case because real parties do not have legal or equitable title to, or sole lease of, the residence. • This is not an arrangement where the party to be removed has sole possession and sole right of access to the property and the elder or dependent adult lives exclusively at a different location. The parties’ agreement included, from its inception, Ms. Hunter’s right to have access to the house. Petitioners left their personal property at the house and Ms. Hunter took only one suitcase of clothing with her. Real parties have attempted to bar her from accessing her house and her personal property and have behaved in a threatening and intimidating manner when she has tried to  exercise that right. Whether petitioners can access their real and personal property, and their physical and emotional safety when they do so, are directly at issue. Real parties’ continued presence in petitioners’ house and their exclusion of petitioners from the property is itself elder abuse and is harming Mr. Hunter and putting him at serious risk. A protective order to remove real parties is available. • Petitioners have shown a likelihood of establishing at trial that real parties induced them to grant extensions of their initial three-week stay by fraud. (See, e.g., Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294-295 [fraud renders contract voidable].) If petitioners prove real parties’ fraud at trial, petitioners will be entitled to recover punitive damages and attorney fees. • Petitioners have submitted evidence of the requirements for a preliminary injunction to remove real parties from petitioners’ house. Petitioners’ evidence of Mr. Hunter’s declining physical and cognitive health and of the ways in which his continued placement out of his home is causing further decline are unrebutted. Petitioners have shown physical or emotional harm would result to petitioners absent a preliminary injunction. • On a request for a preliminary injunction, you incorrectly stated real parties have a fundamental right to a trial to determine if they are tenants. That is not the law. On a request for a preliminary injunction, the court must analyze “the likelihood  that the plaintiff will prevail on the merits of its case at trial,” as well as balance the harms the parties will suffer if the court grants or denies the injunction. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) Deciding whether the plaintiff has shown a likelihood of prevailing at trial on any given issue does not usurp the role of the fact-finder at trial. • We understand that, on July 21, 2020, the Superior Court in case No. 20SMCV00934 granted petitioners’ application for issuance of an unlawful detainer summons, finding “on the record that the action is necessary to protect public health and safety . . . .” Nonetheless, petitioners are pursuing relief on two parallel tracks. They are entitled to relief under the Act regardless whether they alternatively may obtain relief pursuant to unlawful detainer procedures. OR (b) in the alternative, SHOW CAUSE before this court, in its courtroom at 300 South Spring Street, Los Angeles, California, when the matter is ordered on the court’s calendar, why you have not done so and why a peremptory writ of mandate requiring you to do so should not issue.  Upon choosing alternative (a), the superior court is directed to issue an order informing this court that it has or will forthwith comply with alternative (a), and transmit such order by email or facsimile to this court on or before August 7, 2020. In the event you fail to comply with alternative (a), a formal return to the writ is unnecessary. But real parties in interest may, if necessary, file a supplemental response to the petition on or before August 14, 2020. Any reply shall be served on or before August 21, 2020. BY ORDER OF THE COURT. ATTEST my hand and the seal of this court this ___ day of July 2020. DANIEL P. POTTER, Clerk By __________________ Deputy Clerk GRIMES, Acting P.J. STRATTON, J. WILEY, J. 24 _______________ D t Cl k STRATTON, J. WILEY, J.