Filed 1/3/18 Doe v. Braslaw CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


JANE DOE,
Plaintiff and Respondent,
v.
STEVEN BRASLAW,
Defendant and Appellant.

A147934

(Napa County
Super. Ct. No. 2659682)


Steven Braslaw appeals from a judgment entered after the court ordered summary adjudication of his liability for raping respondent Jane Doe and a jury determined her damages. He contends: the court erred in granting Doe’s summary adjudication motion because his criminal conviction for raping Doe did not preclude him from introducing evidence that he was not civilly liable; he demonstrated a triable issue of fact; summary adjudication cannot be obtained for liability only; and the order prejudiced his right to a fair trial. He further asserts that the court’s grant of Doe’s motions in limine prejudiced his ability to represent himself at the damages trial. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
On August 10, 2012, Doe filed a lawsuit against Braslaw for “sexual battery/rape,” intentional infliction of emotional distress, and negligent infliction of emotional distress. Each cause of action was based on the allegation that Braslaw provided Doe with alcohol at a party and then raped her, and that she suffered emotional distress and other harm as a result.

A. Doe’s Motion for Summary Adjudication as to Liability
In September 2015, Doe brought a motion for summary adjudication of the sexual assault and intentional infliction of emotional distress causes of action. In her separate statement of undisputed material facts, Doe asserted that the Contra Costa District Attorney’s Office had filed a criminal complaint and later an information charging Braslaw with the rape of Doe, a jury found Braslaw guilty of the charge, and Braslaw was sentenced to prison. The separate statement also alleged that Braslaw’s rape of Doe caused her severe emotional distress.
In support of her statement of undisputed facts, Doe submitted a declaration in which she averred that she was raped by Braslaw, as found by the jury in the criminal trial. She further alleged that the rape caused her “physical and severe emotional distress, which resulted in counseling and medical treatment and related emotional distress from January 2012 through [the] current date.”
Doe sought judicial notice of the criminal complaint, information, verdict, and order of sentence. Counsel’s declaration authenticated a copy of the criminal complaint, which charged Braslaw with rape by use of drugs (Pen. Code, § 261, subd. (a)(3)) and alleged that he committed “an act of sexual intercourse with a person, to wit [Doe] . . . where said person was prevented from resisting by an intoxicating, anesthetic, and controlled substance and this condition was known, and reasonably should have been known by [Braslaw].” The declaration also authenticated copies of the information against Braslaw for felony rape by use of drugs and attempted rape of an unconscious person; the jury verdict, convicting Braslaw of the “rape of an intoxicated woman” in violation of Penal Code section 261, subdivision (a)(3); and a minute order sentencing Braslaw to three years in state prison.
In his response to Doe’s separate statement of undisputed material facts, Braslaw admitted all of the facts except that Doe suffered severe emotional distress, contending that Doe had “yet to produce any discovery on this issue.” Braslaw asserted that he did “not dispute that he was convicted” or that the criminal conviction could be used at trial to prove liability, but he “should have the opportunity to argue.”
In his memorandum of points and authorities, Braslaw contended it would be premature to grant summary adjudication because discovery was ongoing, he had “unimpeached testimony, which [he] plans to prooffer at trial,” and “there is more that is necessary than relying solely on his criminal conviction” to prove the cause of action for intentional infliction of emotional distress. He added that the criminal conviction could not be “used with conclusive effect.”
In a declaration, Braslaw admitted that he was convicted of a violation of Penal Code section 261, subdivision (a)(3). He averred that he told his attorney in the criminal case that he wanted to testify, counsel coerced him not to testify, he would have decided to testify if he had known that he would not be able to defend himself at his civil trial, and at his arraignment the prosecutor made claims of vaginal tearing and bruising that were not supported by the evidence. He also averred that he had not received responses from Doe to his discovery requests, and the summary adjudication motion was premature until discovery issues were resolved.
After a hearing, the court issued a written order on December 1, 2015, granting Doe’s request for judicial notice and granting her motion for summary adjudication. The court specified that Doe had shown there was no defense to her causes of action and Braslaw failed to demonstrate a triable issue of material fact.
B. Trial on Damages and Motions in Limine
A jury trial was set for January 2016 to determine the amount of damages to which Doe was entitled.
Doe filed a motion in limine to preclude Braslaw from introducing evidence of her character at the damages trial, particularly with respect to any purported consumption of alcohol or drugs, attendance at strip clubs, or sexual activity. She brought the motion due to Braslaw’s requests for admission during discovery, which had asked her to admit the following: she had testified that she did not know what happened the night of her rape; she was questioned about consuming alcohol on campus; she consumed alcohol on school premises in violation of school policies; she previously smoked marijuana and consumed alcohol; she frequented strip clubs in the past; and during her “SART exam” she stated she had sexual relations with her partner three days or less before the rape. Doe contended the evidence was inadmissible under Evidence Code section 1101, subdivision (a), Code of Civil Procedure section 2017.220, and Evidence Code section 352.
In opposition to the motion in limine, Braslaw asserted he had “no intention” of questioning Doe on these matters, but he might want to impeach Doe’s statements at trial by asking her questions about her alleged drug and alcohol use.
Doe also brought a motion in limine to preclude Braslaw from introducing evidence of his alleged innocence during the damages trial. The motion explained that, during discovery, Braslaw had requested Doe to admit the following: she did not recall seeing Braslaw before the day of the rape at parties that took place where the rape later occurred; Braslaw stayed at Doe’s apartment in the prior summer, and he did not sexually assault her there; Braslaw’s DNA was not found during the SART exam; Doe and Braslaw had friendly discussions; and seeing Braslaw “very drunk” was “out of character.” The motion asserted that such evidence would be inadmissible under Evidence Code section 352, since Doe had already obtained summary adjudication with respect to Braslaw’s liability for the sexual battery and intentional infliction of emotional distress.
In opposition to this motion in limine, Braslaw contended he had a constitutional right to state his guilt or innocence and assert a defense, even though he “absolutely understands the implications of the Motion for Summary Adjudication and that he is not entitled to argue the liability [] portion of the case, nor was that his intent.”
Although the court’s orders on these motions are not in the appellate record, we are advised by the parties that the court granted them.
The parties also advise us in their briefs that they had stipulated to economic damages of $27,500, and, after a trial, the jury awarded Doe $250,000 in damages for emotional distress. Judgment was entered in the total amount of $277,500. Doe also filed a motion for attorney’s fees, which was apparently granted. The court’s order regarding attorney’s fees is not in the appellate record or material here.
Braslaw filed a notice of appeal from the judgment.
II. DISCUSSION
A. Summary Judgment
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We construe the moving party’s evidence strictly, and the non-moving party’s evidence liberally, in deciding if there is a triable issue. (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72.)
1. Sexual Battery Claim
Under Civil Code section 1708.5, sexual battery requires proof that Braslaw acted with the intent to cause a harmful or offensive contact with Doe, a sexually offensive contact with Doe resulted, Doe did not consent to the contact, and Doe was harmed or offended by the conduct. (Civ. Code, § 1708.5, subd. (a); § 3515; CACI 1306; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.) A person who commits a sexual battery is liable for damages and other relief. (Civ. Code, § 1708.5, subd. (b), (c).)
In support of her motion for summary adjudication, Doe submitted her declaration averring that she was raped by Braslaw and suffered severe emotional distress as a result. She also submitted evidence of Braslaw’s criminal conviction for raping her while she was intoxicated. A criminal conviction is admissible not only as proof of the conviction, but also as presumptive proof of the commission of the crime. (Principal Life Insurance Co. v. Peterson (2007) 156 Cal.App.4th 676, 696; see also Evid. Code, § 1300.)
The rape conviction and Doe’s declaration provided evidence from which the trier of fact could reasonably conclude that Braslaw intended to cause harmful contact with an intimate part of Doe, sexually offensive contact with Doe occurred, Doe did not consent to the contact, and Doe was harmed. Doe met her burden on summary adjudication to show that she was entitled to judgment, and the burden shifted to Braslaw to establish a triable issue of material fact.
2. Intentional Infliction of Emotional Distress Claim
Intentional infliction of emotional distress requires proof that Braslaw’s conduct was outrageous, Braslaw intended to cause Doe emotional distress or recklessly disregarded the probability of causing such distress, Doe suffered severe emotional distress, and Braslaw’s conduct was the actual and proximate cause of Doe’s emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Braslaw’s conduct was outrageous if it was so “ ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Ibid.) Doe’s emotional distress was severe if it was “ ‘ “of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” ’ ” (Id. at p. 1004.)
The rape conviction, along with Doe’s declaration that Braslaw raped her and caused “physical and severe emotional distress, which resulted in counseling and medical treatment and related emotional distress from January 2012 through [the] current date,” provided evidence from which the trier of fact could reasonably conclude that Braslaw committed outrageous conduct with the intent or with reckless disregard that Doe would suffer emotional distress, that Doe suffered severe emotional distress, and that Braslaw’s conduct was the actual and proximate cause of Doe’s severe emotional distress. Doe met her burden on summary adjudication, and the burden shifted to Braslaw on this cause of action as well.
3. Braslaw Did Not Establish a Triable Issue of Material Fact
In his opposition to the summary adjudication motion, Braslaw admitted his rape conviction. Moreover, he presented no admissible evidence that he did not rape Doe, or any admissible evidence that he did not perpetrate the alleged sexual battery or the alleged intentional infliction of emotional distress. Although Braslaw disputed Doe’s emotional distress, he did so on the ground that she had not produced discovery, and he failed to offer any evidence that she had not suffered emotional distress. Accordingly, Braslaw failed to establish a triable issue of material fact as to either the sexual battery cause of action or the cause of action for intentional infliction of emotional distress.
4. Braslaw’s Arguments
Braslaw argues that he was “precluded from arguing any factual information related to the offense, as the Judge ruled that the criminal conviction was sufficient to settle the issue of liability, despite the fact that there were issues raised in the Appellant[’s] opposition to the Motion (the fact that there were several reasons the Appellant did not testify at the criminal trial, such as the coercive nature of the criminal trial process, inferior attorney advice and the trial attorney having another trial in another matter hence counsel rushing through Appellant’s case).” He contends his rape conviction should not deprive him of the right to raise the issue of liability in his civil trial.
Braslaw’s argument is meritless. Braslaw did have the opportunity to present relevant admissible evidence in opposition to the summary adjudication motion. (Code Civ. Proc., § 437c, subd. (b)(2)–(3).)) He simply failed to do so. His statements blaming his attorney for his conviction did not constitute evidence that he did not commit the acts alleged in Doe’s complaint, and they did not create a triable issue of material fact.
Braslaw argues that his reference to his attorney’s purported ineffective assistance in the criminal case presented a triable issue because his conviction should bear less weight and he should be allowed to relitigate his liability at the civil trial. But the opportunity to litigate his civil liability was in responding to the summary adjudication motion with relevant admissible evidence, and he failed to take advantage of that opportunity.
Braslaw next contends that Doe “cannot, as a matter of law, succeed on a Motion for Summary Adjudication as to liability and at the same time leave the issues of damages to be determined at trial when damages are an element of the Cause of Action.” (Citing Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226 (Paramount Petroleum).) He argues that damages are an element of the causes of action for sexual battery and intentional infliction of emotional distress, and there cannot be summary adjudication of less than an entire cause of action. (See Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”].)
In Paramount Petroleum, the plaintiff sought summary adjudication on the defendant’s liability for breach of contract, but not on the element of damages. (Paramount Petroleum, supra, 227 Cal.App.4th at p. 234.) The defendant opposed the motion, contending both that the motion was improper because adjudication could not be sought on a portion of a cause of action, and that the evidence demonstrated a triable issue of fact. (Id. at p. 235.) The court ruled that “[a] plaintiff can obtain summary adjudication of a cause of action only by proving ‘each element of the cause of action entitling the party to judgment on that cause of action,’ ” “damages are an element of a breach of contract cause of action,” and “a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.” (Id. at p. 241.) In short, the court concluded, a “determination of liability alone does not completely dispose of the cause of action.” (Id. at p. 242.)
Doe distinguishes Paramount Petroleum on the ground that it involved a breach of contract claim, in which damages are an element of the cause of action. In this case, Doe urges, she proved each element of her causes of action for sexual battery and intentional infliction of emotional distress, including that she incurred physical and emotional harm caused by Braslaw’s rape. What was left for the jury was not an element of the causes of action, but merely the remedy for this harm. Remedies are not part of a cause of action. (People ex rel. Feuer v. Superior Court (2015) 234 Cal.App.4th 1360, 1378.) Therefore, Doe argues, the summary adjudication motion determined the entire cause of action.
We conclude there are other reasons Paramount Petroleum does not compel reversal in this case. In Paramount Petroleum, the defendant had objected to the summary adjudication motion in the trial court, specifically on the ground that it did not comply with statutory procedure. Here, Braslaw did not raise the issue in the trial court. To the contrary, he responded to the summary adjudication motion without mentioning the issue, stipulated that Doe had incurred economic damages in the amount of $27,000, and allowed the trial to proceed on non-economic damages without objection. A failure to assert error in the trial court ordinarily precludes an appellant from raising the issue in this court. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
Furthermore, the defendant in Paramount Petroleum provided a colorable argument that there was a triable issue of material fact. Here, Braslaw did not. He therefore cannot establish that he would obtain a more favorable result if we reversed the summary adjudication order and remanded to the trial court for either summary adjudication proceedings on liability and damages, or for trial on liability and damages. Indeed, even if the matter were remanded and proceeded to trial on both liability and damages, the court could grant a directed verdict as to liability based on the evidence, and allow the jury trial to proceed with the damages issue (Code Civ. Proc., § 630) – which is basically what happened here. Accordingly, Braslaw has not shown prejudicial error.
Lastly, Braslaw contends the summary adjudication order prejudiced his right to a fair trial because he was prevented from challenging his liability, the order left the issue of damages as the sole issue to be decided by the jury, and Doe did not produce medical or psychological reports during discovery. Since we have already concluded that these matters do not constitute error, they do not establish that Braslaw was deprived of a fair trial.
In his appellate reply brief, Braslaw adds that he was denied a fair trial because he was denied the right to “argue his civil case before a jury of his peers.” However, his failure to present any evidence of a triable issue of fact demonstrated there was nothing for the jury to decide with respect to the elements of Doe’s causes of action.
B. Motions in Limine
The clerk’s transcript does not contain a written order granting Doe’s motions in limine, and Braslaw has not cited to any part of the record in which an oral order or ruling appears. This itself precludes Braslaw from obtaining relief. (See Cal. Rules of Court, rules 8.122(b)(1)(C); 8.204(a)(1)(C).) Moreover, accepting the parties’ representations that the motions were granted, we conclude that Braslaw has not demonstrated error.
Evidence of a person’s character or past act is generally inadmissible to prove that the person acted in a similar manner on another occasion. (Evid. Code, § 1101, subd. (a); Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851.) Furthermore, evidence is inadmissible if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice, a confusion of the issues, or misleading the jury. (Evid. Code, § 352.)
Braslaw argues that Doe’s alleged past acts with respect to drug and alcohol use, attendance at strip clubs, and sexual activity with others was relevant to the amount of damages Doe should recover for being raped, because the evidence would affect the jury’s view of her credibility. He fails to show that the court abused its discretion in excluding this evidence.
Nor has Braslaw shown an abuse of discretion in the court’s exclusion of the evidence that Braslaw did not usually get drunk, his DNA was not found during the SART exam, and he did not rape Doe previously. The question of whether he committed the charged rape was already determined by the order of summary adjudication, and the evidence was not probative of the amount of damages to which Doe was entitled for that rape. Braslaw also fails to establish any reasonable probability that, if the evidence had been admitted, he would have obtained a more favorable outcome.
III. DISPOSITION
The judgment is affirmed.


NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.









(A147934)