An attorney for Trevor Bauer Monday tried to persuade a federal judge in Santa Ana to change his mind about not dismissing a counterclaim against the pitcher alleging assault during rough sex between the two.

U.S. District Judge James Selna tentatively ruled against dismissing Lindsey Hill’s counterclaim filed against Bauer, who has sued her and others for defamation. Bauer’s attorneys argued that since Hill failed to win a restraining order against Bauer that she can no longer pursue assault claims against him.

The two met over social media early last year and then got together twice in person. Hill said during their first meeting at his home in Pasadena in April 2021 that he choked her unconscious with her hair during sex and then woke up to find him having “forceful and violent anal sex with her,” according to Selna’s summation of her claims in his tentative ruling.

The two met again the following month at Bauer’s home and he used her hair again to choke her into unconsciousness during sex, according to Hill’s claim. She said he also punched her in the face multiple times, again choked her into unconsciousness, punched her in the buttocks and as she was coming around again he punched her in the groin area until she used a “safe word” they agreed on, according to the counterclaim.

Hill sought treatment at a hospital for the injuries she suffered, she said.

Hill sought a restraining order in Los Angeles Superior Court in June 2021 and received a temporary one, but failed to persuade Judge Dianna Gould-Saltman to grant a permanent one.

The judge noted that Hill had said in text messages to the pitcher that she “wanted to be choked out” and that she “wanted all the pain,” Selna wrote.

“But Hill testified in the proceedings that she did not consent to being punched to the point of having black eyes and having to be hospitalized,” Selna wrote.

The family law judge concluded that there was no danger or risk that Bauer would contact her again, Selna wrote.

Bauer filed his lawsuit in April 2022 alleging defamation and tortious inference with his ability to work at his profession. Hill filed her counterclaims in July and August alleging battery and sexual assault.

Bauer’s attorneys pointed to a legal principle known as “collateral estoppel,” which prevents a legal claim when it has been settled in another court. At issue is whether the judge in the state court concluded there was no evidence of battery and sexual assault.

Attorney Blair Brown argued before Selna at Monday’s hearing that the judge got it wrong because, “The law’s clear… a court must grant a restraining order if there is a dating relationship and finds an act of abuse occurred — full stop.” So, because the restraining order was not granted that means the judge concluded there was no past act of abuse, Brown argued.

Judges in domestic violence cases have discretion in state law to grant restraining orders if there is a risk of future abuse, Brown said. But the judge concluded there was no risk of future abuse in this case, he added.

Hill’s attorney, Jesse Kaplan, said his client “did not consent to what happened when she was unconscious.” He argued the judge only found there was some level of consent in the rough sex agreement.

“If there’s any uncertainty, any doubt you cannot have collateral estoppel,” Kaplan said.

Brown was “turning the statute on its head” with his argument, Kaplan said.

Selna grilled Brown about the language in the legislation and asked him if a past case of abuse automatically triggers a restraining order. Brown cited an appellate court ruling, but then conceded there was nothing in the statute spelling out a mandated restraining order.

Gould-Saltman “made her finding there were no past acts of abuse,” Brown argued.

Selna said he would rule later whether or not to make his tentative ruling final.

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