Can Trevor Bauer’s accuser sue him? He says no, but a judge has yet to decide

Fifteen months ago, a Los Angeles Superior Court judge declined to grant a restraining order to the San Diego woman who accused Dodgers pitcher Trevor Bauer of sexual assault. Does that ruling mean the judge determined Bauer did not commit an assault?

Yes, Bauer and his attorneys say.

No, a U.S. District Court judge says.

If Judge James Selna sticks to the tentative ruling he issued last week, Bauer would lose his bid to get the civil suit the accuser has filed against him thrown out of court.

Selna held a hearing on the matter Monday but did not issue a final ruling.

Bauer has sued six parties for defamation, including the woman who accused him. She countersued, alleging Bauer had committed sexual assault and battery in the two sexual encounters last year. In a court filing, Bauer’s attorneys claimed the woman was “dragging Mr. Bauer into further needless litigation in an improper attempt to relitigate the same issues to a different conclusion.�

In his tentative ruling, Selna did not determine whether Bauer had committed assault or battery — that would be at issue in a potential trial — but whether Los Angeles Superior Court Judge Dianna Gould-Saltman had made such a determination in denying the restraining order. Bauer argued she had, and so the accuser should be barred from raising the issue again.

Selna was blunt: “Judge Gould-Saltman made no findings as to whether Bauer battered or sexually assaulted [the woman].� Selna said Gould-Saltman’s explanation of her decision showed she had denied the restraining order “based on a failure to show a likelihood of future harm, rather than a finding that Bauer did not commit acts of abuse.�

In Monday’s hearing, Bauer attorney Blair Brown contended the denial of the restraining order necessarily meant that Gould-Saltman had found Bauer had committed no act of abuse. When Selna asked for the law that said an act of nonconsensual abuse mandates the issuance of a restraining order, Brown cited several cases he said were consistent with that notion. When Selna pressed, Brown acknowledged he could not find such a law.

In court papers, Bauer’s attorneys argued in particular that Gould-Saltman found the encounters were “entirely consensual,� with evidence including a text message to Bauer in which the woman wrote, “Gimme all the pain.�

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Selna said the issue of consent was relevant in the context of whether a restraining order was warranted — that is, in part, because Bauer respected the boundaries the woman set “when she could make them,� the order was not necessary.

“Notwithstanding [her] consent to some form of rough sex, Bauer engaged in acts while [she] was unconscious, when she was physically and legally unable to give consent,� Selna wrote in his tentative ruling. He added that the woman “could not consent, at least to these sexual acts — even if [she] did ‘want all the pain.’ �

To this point, Bauer has asked for the case to be thrown out based on the restraining order proceedings alone. Selna thus did not discuss a subsequently obtained video that Bauer’s attorneys say shows the woman “smirking and uninjured� after the encounter that prompted her to visit a hospital. She was diagnosed there with “acute head injury� and “assault by manual strangulation.�

Bauer is appealing his two-year suspension for violating baseball’s policy on sexual assault and domestic violence, with an arbitrator expected to rule no earlier than next month. Neither Bauer nor Major League Baseball has said what evidence commissioner Rob Manfred cited in defending the suspension.

Bauer has consistently denied he violated either the league policy or the law in the two evenings of what his representatives have characterized as unconventional but consensual sex, and the Los Angeles County district attorney declined to file criminal charges against him.

In September, Selna issued a tentative ruling to dismiss Bauer’s defamation suit against one of the accuser’s attorneys. Selna held a subsequent hearing on that issue and has yet to make a final ruling.