B.P. is a professional dancer employed by the Los Angeles Clippers basketball team. The defendant, Andres Gutierrez, had been harassing her and sending her disturbing messages, photos, and gifts. She was scared, so she sought and received a restraining order in 2021. The trial court issued a temporary civil restraining order (TRO) on Gutierrez that banned him from further contact and required him to stay at least 100 yards away from her for three years. He appealed, but he lost.
Los Angeles Superior Court Judge Doreen Boxer issued the restraining order in September 2021, relying on California’s Code of Civil Procedure section 527.6 (a) (1), which under Section 653m of the State Penal Code, permits a court to issue temporary restraining orders to enjoin parties from such behaviors as “harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing or telephoning” a petitioner.
In her TRO request, B.P. provided her sworn, written descriptions of Gutierrez’s actions, which included eight exhibits, copies of messages and photos, and declarations from one of her co-workers and a police officer who had investigated her case. The plaintiff was also a social media “influencer” on sites such as Twitter (now X) and a Clippers ambassador who frequently made appearances at sites such as local gyms. She acknowledged that she is therefore a “public” person whose posts could be viewed by anyone, although she said she rarely responded to comments from viewers.
B.P. testified that she first became aware of Gutierrez when he posted on Twitter that he attended Clipper games in order to see her. He also sent her flowers. She responded by blocking the defendant's access to all her social media accounts. The following day, a trainer at her gym called her to report that the defendant had come to the gym. She went to the police station to report his actions, but when she got home, she received another text message that said he loved her, and he asked her to not file a TRO.
The Clippers then put B.P. in touch with Los Angeles Police Detective Peter Doomanias because she was “really scared,” as “he was showing up at places looking for her” including two gyms and at one of her special events. As a result, she stopped living at her apartment, posting on social media, and going to Clippers’ dance rehearsals.
Detective Doomanias then interviewed Gutierrez who admitted he had sent messages to B.P. and gone to her gyms. The police officer also learned that the defendant had two previous restraining orders issued against him for harassing a college counselor and a former girlfriend. Gutierrez told the detective both previous TROs “were a result of misunderstandings.”
Gutierrez insisted that did not intend to harm B.P., and he apologized for any pain he may have inflicted. He said he “was trying guess awkward delivery didn’t do it.”
Gutierrez’s appeal from the TRO issued by Judge Boxer was heard by a panel of three appellate judges, including Justice Dorothy Kim, who authored the unanimous, unpublished opinion in B.P. v. Andres Gutierrez on September 30. Gutierrez argued that a public defender (PD) should have been appointed to represent him at the hearing where the TRO was issued by Boxer. He also said he had not requested one and admitted that he knew a PD is not available in a civil hearing. Kim saw no reason to “extend the constitutional right to counsel in criminal proceedings to civil cases such as this one.”
Kim then turned to the legal standard for harassment, as explained in Section 527.6, subdivision (a) (1). She explained that there are six requirements for harassment, including: a “knowing and willful course of conduct entailing a pattern of…acts evidencing a continuity of purpose”; proof that the acts are “directed at a specific person, that person “is seriously alarm(ed), annoy(ed) or harass(ed)”; there is no legitimate purpose for the conduct; the actions of the harasser; the behavior “would cause a reasonable person to suffer substantial emotional distress”; that it “actually cause substantial emotional distress to the plaintiff; and that it is not a ‘constitutionally protected activity.’”
Using this definition, Kim reviewed Boxer’s TRO ruling, which she noted was “limited to determining whether there was sufficient evidence in support of the court’s findings by clear and convincing evidence.” She reviewed both the plaintiff and Detective Doomanias’ testimony and determined that “the evidence supported a further inference that plaintiff suffered substantial emotional distress as a result of defendant’s conduct toward her.”
She also said that the defendant’s arguments that he had intended B.P. no harm were unpersuasive, because he had admitted to the detective that “he knowingly engaged in all the conduct the plaintiff described.” Therefore, she concluded that “plaintiff’s testimony was largely uncontroverted and constituted clear and convincing evidence of each element necessary for the issuance of the challenged restraining order.” The order was therefore affirmed. And hopefully it will be followed so B.P. can resume her life without fear.
