Opinion
B317499
09-30-2024
B.P., Plaintiff and Respondent, v. ANDRES GUTIERREZ, Defendant and Appellant.
Andres Gutierrez, self-represented litigant, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles, No. 21STRO04635 Doreen Boxer, Judge. Affirmed.
Andres Gutierrez, self-represented litigant, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendant Andres Gutierrez appeals from the trial court's restraining order after hearing pursuant to Code of Civil Procedure section 527.6 (section 527.6) prohibiting him from having contact of any kind with plaintiff B.P. for a period of three years. We affirm.
II. BACKGROUND
A. TRO and Request for Civil Harassment Restraining Order
On August 30, 2021, plaintiff filed requests for: (1) a temporary restraining order (TRO) and (2) a civil harassment restraining order (restraining order). In support of her requests, plaintiff provided her sworn written description of the alleged harassment by defendant, eight exhibits, including copies of messages and photos she received from defendant on Instagram and Twitter, and declarations from a coworker, and an investigating police officer, Peter Doomanis. The trial court issued the TRO that day and set the request for a restraining order for September 22, 2021.
Though Twitter has since been renamed "X," we refer to the platform as "Twitter," the name of the platform at the time this action was filed.
B. Hearing and Order
1. Plaintiffs Testimony
At the September 22, 2021, hearing on the request for a restraining order, plaintiff, then a professional dancer for the Los Angeles Clippers, testified as follows: In addition to her employment with the Clippers, plaintiff had "a social media presence as a social media manager and an ambassador influencer." She acted as a social media ambassador for the Clippers organization and also for a local gym. In that capacity, she would "post and tag them for promotion." As a result, her social media profiles were open to the public such that anyone could view, comment, or message her in response to one of her posts. She would not respond to comments or messages, except in rare cases, such as, for example, if someone commented or messaged during the playoffs, "'Go, Clippers,'" she might reply, "'Go, Clips.'"
Plaintiff first became aware of defendant when he tagged some tweets on her Twitter profile. She became more aware of him when his tags and "likes" of her social media profiles became increasingly frequent. Plaintiff then became "alarmed" when one of the Twitter messages stated that defendant was attending Clipper games and another said that he had left a note and flowers at her gym. The message included a photo of the items he left. Plaintiff felt uncomfortable and blocked defendant's access to her social media accounts.
Plaintiff authenticated an exhibit containing copies of tweets she received from defendant, including one stating, "Definitely tryin to go to a couple games this season. I have a good feeling about this . .[ . .]"
Plaintiff testified about an exhibit containing copies of photographs defendant tagged to her Twitter account, including photos of the flowers, message, and boxes of Oreos that he left at her gym.
Plaintiff's sister then informed plaintiff that defendant had "tweeted at [plaintiff] that he still love[d plaintiff] and that he believe[d she was] still watching ...." The following day, defendant "tweeted at [her] again." Plaintiff authenticated a copy of defendant's tweet, which stated, "I love spending time with ya .... Still waitin to see why the Lord has blessed me so . . [. .] Go Clips!!" This tweet made plaintiff feel as if defendant was following her.
The next day, immediately after she had returned home from the gym, she received a call from one of the gym trainers informing her that defendant had appeared at one of the two gym locations she frequented.
Plaintiff then went to the police station to file a report. After she returned home, plaintiff received a text message from defendant telling her that he loved her and asking her not to file for a restraining order against him.
Plaintiff authenticated a copy of the text stating, "I love you. It was worth the shot. I believe there's still hope for our love. But this may be a little too much trouble for the both of us right now. I'm gonna keep doin my thing and see if anything changes. Please don't get a restraining order on me. I never meant any harm, for real. It's a dream of mine to see the Clippers win the big one in person. I hope you understand. Thanks for the love."
At that point, the Clippers organization put plaintiff in contact with Detective Doomanis.
At the time of the hearing, plaintiff was "really scared" that someone she did not know was "showing up [at] places looking for [her]." Given the nature of her Clippers job, which included, not only performing at games, but also appearing at special events, plaintiff felt "kind of that paranoia" that defendant "might be there." Because of defendant's actions, plaintiff had stopped living at her apartment, posting online, and going to rehearsals.
2. Detective Doomanis's Testimony
Detective Doomanis testified that he first spoke to defendant's brother who explained that defendant had been involved in similar instances in the past. When the detective then interviewed defendant, he admitted that he had sent all of the electronic communications as described by plaintiff and had gone to both of her gym locations. The detective also discovered two previous restraining orders against defendant during his routine threat assessment.
3. Defendant's Testimony
Defendant testified as follows: He was a "huge Clipper fan", had been a season ticket holder in the past, and dreamed of seeing them win a championship.
He did not intend to harm plaintiff and apologized for any pain he may have caused her. He "was trying [to] woo her, court her, flirt with her, try[ing] to win her affection, stuff like that . . . [,] things of a romantic nature. But [he] guess[ed his] awkward delivery didn't do it."
He denied sending any messages to plaintiff's sister.
He explained that the two prior restraining orders against him-one by a college counselor for a term of three years and the other by a former girlfriend for a term of 50 years-were the result of misunderstandings. Due to his interactions with the college counselor, he was "placed on a 5150 hold for a week."
Welfare and Institutions Code section 5150 authorizes a 72-hour commitment to a mental health facility of a person who, "as a result of a mental health disorder, is a danger to others, or to themselves ...."
4. Ruling
Following the close of evidence, the trial court found: "[Plaintiff] has proven by clear and convincing evidence that [defendant] has engaged in a knowing and willful course of conduct that is directed at [plaintiff] that seriously alarms, annoys, and harasses [plaintiff], and serves no legitimate purpose. [¶] I also find that without a restraining order, that this behavior would continue into the future."
Based on its findings, the trial court entered a civil harassment restraining order against defendant prohibiting him for a period of three years from, among other things, harassing or contacting plaintiff, in any way, and requiring him to stay at least 100 yards away from her.
Defendant filed a timely notice of appeal.
III. DISCUSSION
A. Appointment of Counsel
Defendant contends that the trial court erred by not appointing a public defender to represent him at the restraining order hearing. The record, however, does not reflect that he requested appointment of counsel, and he concedes that he is not entitled to such an appointment as a matter of right in a civil case. Nevertheless, he urges us to reverse on this basis because he believes he was treated like "a hardened criminal" during the hearing and therefore, in the interest of fairness, he should have had the assistance of counsel.
We decline defendant's invitation to extend the constitutional right to counsel in criminal proceedings to civil cases such as this one. "'California has recognized a number of situations in which an indigent litigant will be entitled to have counsel appointed. The most obvious example is that of an indigent criminal defendant.... In other cases the entitlement has been declared as a matter of procedural due process . . ., or established by statute, or both.' [Citation.] As a general rule, however, there is no due process right to counsel in civil cases. [Citation.]" (People v. Madeyski (2001) 94 Cal.App.4th 659, 662.)
B. Restraining Order
1. Legal Standards
Section 527.6, subdivision (a)(1) provides that a "person who has suffered harassment . . . may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section." If the trial court makes a finding "by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).)
"The elements of unlawful harassment, as defined . . . in section 527.6, are as follows: (1) 'a knowing and willful course of conduct' entailing a 'pattern' of 'a series of acts over a period of time, however short, evidencing a continuity of purpose'; (2) 'directed at a specific person'; (3) 'which seriously alarms, annoys, or harasses the person'; (4) 'which serves no legitimate purpose'; (5) which 'would cause a reasonable person to suffer substantial emotional distress' and 'actually cause[s] substantial emotional distress to the plaintiff'; and (6) which is not a '[c]onstitutionally protected activity.'" (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
A course of conduct under section 527.6 includes "following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or e[-]mail." (§ 527.6, subd. (b)(1).)
When a defendant appeals from an order granting a civil harassment restraining order, we review the trial court's findings for substantial evidence and the court's ultimate ruling for abuse of discretion. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, abrogated on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) "[W]hen presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the [reviewing] court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B., supra, 9 Cal.5th at p. 1004, fn. omitted.) We "'resolve all conflicts in the evidence in favor of . . . the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings.'" (Parisi v. Mazzaferro, supra, 5 Cal.App.5th at p. 1226.)
2. Analysis
Defendant raises several arguments on appeal, each of which is premised on the assertion that the trial court misunderstood, misinterpreted, or disregarded certain evidence.We disagree.
Defendant contends that the restraining order should be vacated because the trial court was, among other things, "inexperienced," "negligen[t]," "stifling," and "bias[ed]." Defendant's characterizations are unsupported by the record. In any event, at bottom, defendant's challenges are premised on whether sufficient evidence supported the restraining order.
As explained, our review of a trial court's ruling on a restraining order under section 527.6 is limited to determining whether there was sufficient evidence in support of the court's findings by clear and convincing evidence. We conclude that the court's findings were well supported. Plaintiff testified about defendant's disturbing messages, tweets, and photos supported by documentary exhibits. She also testified that defendant visited both of the gyms that she frequented and that he persisted in contacting her directly by text and indirectly through her sister even after she had blocked him from access to all of her social media accounts and gone to the police department to file a report about his conduct. Moreover, Detective Doomanis confirmed that defendant admitted sending all of the electronic communications and visiting plaintiff's gym locations. That testimony supported a finding that defendant had engaged in a knowing and willful course of conduct which seriously alarmed, annoyed, or harassed plaintiff.
Plaintiff also testified that defendant's conduct caused her to feel uncomfortable, alarmed, and paranoid to the point where she stopped living in her apartment, posting online, or attending rehearsals. That evidence supported a further inference that plaintiff suffered substantial emotional distress as a result of defendant's conduct toward her.
Although defendant testified that he did not intend to harm plaintiff and was sorry if he caused her pain, he admitted to the detective that he knowingly engaged in all of the conduct described by plaintiff and, other than denying that he contacted plaintiff's sister, he did not attempt to deny those other admissions during his hearing testimony. Thus, plaintiff's testimony was largely uncontroverted and constituted clear and convincing evidence of each element necessary for the issuance of the challenged restraining order.
IV. DISPOSITION
The restraining order is affirmed. No costs are awarded on appeal.
WE CONCUR: MOOR, ACTING P. J., DAVIS, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.