Filed 6/18/26 Baca v. Baha CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAMIE NICOLE BACA, B333334
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. EC069048)
v.
MUSTAPHA BAHA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank M. Tavelman, Judge. Affirmed.
Jamie Nicole Baca, in pro. per., for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt,
John J. Manier, and Jessica A. Gomez for Defendant and
Respondent.
______________________
Jamie Nicole Baca, whose legal name is now Jamie Nicole
Heitmeyer, appeals after the jury found in Mustapha Baha’s
favor on Heitmeyer’s causes of action for sexual battery and
intentional infliction of emotional distress. Heitmeyer argues the
judgment must be reversed because the verdicts were not
supported by substantial evidence, the trial court erred in not
excluding photographs showing her socializing and looking happy
after the alleged sexual battery, and defense counsel engaged in
prejudicial misconduct at trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence at Trial
1. Heitmeyer meets Baha through an investment pitch
Baha is a business investor and board member of Pasadena
Angels, a group that seeks early investments in promising
businesses. He first saw Heitmeyer in July 2016 when she made
a short virtual “pitch” to Pasadena Angels for investment in her
start-up cosmetics company. Pasadena Angels chose not to select
Heitmeyer to make an in-person pitch but invited her to a
breakfast in August 2016 to watch other presentations and meet
with potential investors. Baha first met Heitmeyer at this
breakfast. Another board member, Kristin Hiibner, was
Pasadena Angels’ “lead” contact with Heitmeyer and served as an
advisor and mentor.
A few weeks after the breakfast, Baha’s wife of more than
30 years was killed in a car accident. Baha and his daughter
were injured in the accident.
In November 2016, Baha, Hiibner, and other members of
Pasadena Angels met Heitmeyer to discuss a proposed $200,000
investment in her company. According to Baha, by late January
2
2017, he had decided against investing after seeing “a bunch of
red flags.” He found Heitmeyer had “really nothing to show” and
none of her proposed contracts had come through. He viewed her
as inexperienced and her chief financial officer as a “novice” who
“ha[d] no clue what he’s doing.”
Meanwhile, Hiibner invested $75,000 of her own money in
Heitmeyer’s company. Hiibner and Heitmeyer’s business
relationship soon deteriorated, however. Heitmeyer threatened a
lawsuit against Hiibner in October 2017. Hiibner accused
Heitmeyer of “fraudulent misrepresentations” of her company’s
finances and “misuse of corporate funds.”
More than nine months after their last contact, Heitmeyer
requested to join Baha’s LinkedIn network, and Baha accepted.
Heitmeyer testified that Baha called her a couple days later, and
she started to tell him about her conflict with Hiibner but said
she would feel more comfortable talking to him on the topic in
person. They agreed to meet at a coffee shop in Pasadena on
November 2, 2017.
2. November 2 meeting at the coffee shop
According to Heitmeyer, she and Baha met at a coffee shop
for about two hours. Baha apologized for Hiibner’s behavior and
stated he would help her by going back to Pasadena Angels to
“make this right with [her] as far as the investment was
concerned.” Heitmeyer understood this to mean Baha would help
her get $200,000 for her company. Baha told her he would take
over as her Pasadena Angels “lead” and in that capacity would
meet with her once a week “and do his due diligence of getting to
know the entrepreneur,” i.e., Heitmeyer. He asked if Heitmeyer
was okay with that, and “of course, [she] was.”
3
For about 75 percent of the time at the coffee shop, Baha
talked about how difficult his life had been since his wife had
died, growing teary-eyed a few times. He told her it had been
really hard finding adult companionship. During the meeting,
except for a hug when they first greeted each other, there was no
physical contact between them. At the conclusion of the meeting,
they left it that she would make changes to some of her business
documents and get back to him, and he would contact her to set
up another meeting.
Baha testified he had been lonely since witnessing his
wife’s death, and he was hoping to start dating again. He was
still uninterested in investing in Heitmeyer’s company,
particularly given its current financial state. Baha sought to
convey to Heitmeyer that he was interested in her personally and
interested in dating her, but not in investing in her business. He
did not offer her funding for her company.
3. November 7 meeting at a hotel and first visit to
Baha’s home
On November 6, Baha texted Heitmeyer he was “[l]ooking
forward to our get together tomorrow” and arranged to meet her
at a hotel bar. Heitmeyer testified she understood they would be
meeting for their regular weekly meeting.
The following evening, Baha and Heitmeyer met at the
hotel, where Heitmeyer had a drink and they walked around the
hotel garden and grounds. According to Heitmeyer, Baha “talked
a lot about how excited he was ... to work with me and how it was
... a great business.” He also vented about some business issues
he was having. Occasionally he would touch her shoulder or leg,
but she did not think too much of it because she thought maybe
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he was just a “close talker.” Baha also told her while they were
at the hotel that he found her very attractive.
Heitmeyer testified that she agreed to go to Baha’s house
with him to let his dog out and so he could show her his home
office where they would be having their other weekly meetings.
As he was showing her around his house, he kissed her on the
lips but Heitmeyer stopped him, saying, “ ‘No. This is not
appropriate. I’m here for business.’ ” Baha “apologized profusely
and said he wouldn’t do it again and he was sorry and he’s just
never been around an attractive woman like me before.”
Heitmeyer told him she wanted to go back to the hotel and get
back home to her family, and he said that was fine and then took
her back in his car. Then she left the hotel. Heitmeyer felt
“caught off guard,” “disrespected,” “confused,” and “a little
shocked” by Baha trying to kiss her. Baha said he would make it
up to her and asked if they could meet again, and Heitmeyer told
him she would think about it.
Baha testified that at the hotel, they talked about his life,
his loneliness, and some of his interesting investments. He did
not offer her funding for her company. At one point he put his
arm around Heitmeyer’s shoulder, they held hands, and he kissed
her. At no point did she say no or indicate she did not want him
to do that. About an hour later, Baha drove Heitmeyer to his
nearby home and showed her around. He kissed her again before
they returned to the hotel and separated. Heitmeyer did not
indicate his kiss was unwelcome.
A few hours later, Baha sent Heitmeyer a text stating,
“Thank you for the nice evening. Hope traffic was light and you
made it home safe.” At 7:16 a.m. the next morning, Heitmeyer
replied, “Yes, I made it home ok :) thank you.”
5
According to Heitmeyer, she was very angry when she
received the text asking if she made it home safe. She responded
to the text because she did not want him to be uncomfortable
about what had happened and she “felt sorry for him. And [she]
was trying to be professional, keep the business going.” She still
wanted him to invest $200,000.
4. November 14 meeting at Baha’s home
Baha invited Heitmeyer over to his house on November 10
for breakfast or lunch. She was unavailable that day but
accepted his invitation to come over on November 14.
a. Heitmeyer’s account
Heitmeyer testified she went to Baha’s house on November
14 for their “weekly meeting.” Baha had texted her, “Let’s work
together,” and she responded she would bring over her investor
pitch documents and financial documents. Although Baha had
tried to kiss her before, he had apologized, and she “figured he
was back on track with business.”
On November 14, she arrived shortly before 10:00 a.m. and
stayed for an hour and a half to two hours. She and Baha sat
together in the kitchen. She said she would have a mimosa, and
he “fumbl[ed] around” making one. Heitmeyer brought “her
papers,” but Baha said they could discuss them later—he wanted
to get to know her first. She told him her company was in a
really bad position and she needed to get the financials
straightened out. He put his hand on her leg and told her he
found her extremely attractive. He said, “Let’s go in the other
room and get to know each other better.” Heitmeyer responded,
“No. You know, I’m fine at the kitchen table just going over
everything.”
6
Baha looked over a copy of her litigation-threatening
correspondence with Hiibner and her “pitch deck” and said
everything looked good with it. He also told her, “ ‘We can work
this out, all the money will be fine. I will take care of it.’ ” He
asked again to go in the other room and talk and get to know
each other, and when she said no, he looked frustrated. He said
he had to go to the bathroom and then was gone for at least 10
minutes.
When Baha returned, Heitmeyer was standing in the
kitchen. He came up behind her and put his arms around her.
He moved his hands up her chest area and around her neck and
he was squeezing her tightly. His arm was around her front for
“enough time where he like said to [her] ‘I find you extremely
attractive.’ ” His arm brushed her breasts when he put his arm
around her, but he did not grope or try to grab her breasts, crotch
or buttocks. Baha was “moving around a little bit,” and she felt
his “hard-on on the back, [her] back and butt area.” Then he
flipped her around to face him, and she felt his erection on her
“front side,” “[l]ike the vagina.” He forcibly kissed her on the lips,
and she said no and “pulled away.”
Baha had her arms pinned down by her sides and said,
“ ‘Come on. I told you I’d fix the money. Let’s just go into the
other room. You’re here now. Let’s make the best of it.’ ” He
started kissing her again, and she pulled away and “yelled at his
face ‘no, no, no.’ ” “[H]e was just staring at [her],” and she “was
scared.” She “somehow got out or left” in her car, but she did not
remember how.
After this alleged incident, Heitmeyer was “[v]ery upset
and annoyed, disappointed, angry,” and “extremely frustrated
that … [Baha] would disrespect [her] like that because this is like
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a business and [she was] trying to … work with them and get this
all straightened out and it’s just extremely rude, demeaning ….”
b. Baha’s account
Baha testified that he invited Heitmeyer over to his house
for breakfast or lunch, believing at that point that they had “good
chemistry” and that she was interested in a personal
relationship. When she arrived at his home and they sat at the
kitchen table, Baha pushed away the papers that Heitmeyer had
brought and did not look at them for another 30 to 45 minutes.
During that time, they kissed once or twice.
At some point Baha went upstairs to use the master
bathroom. When he returned, Baha approached Heitmeyer from
behind and put his arms around her for a “very affectionate hug”
that lasted only “a few seconds.” Baha’s intent was to be
affectionate and romantic. He believed he had an erection, but it
was not pressing against her body. He did not try to grope or
touch her breasts or buttocks, force himself on her, rub his groin
up against her, turn her around, forcefully kiss her, or try to
restrain her. He neither intended to offend or harm Heitmeyer
nor believed he had done so. She did not say “no.”
Baha released Heitmeyer from the hug after a few seconds,
and they went back to sitting at the table, smiling and
socializing. He served Heitmeyer lunch, and she stayed at his
home for another 30 to 60 minutes. She maintained a friendly
demeanor and never indicated she was offended or upset with
him.
During this time, Baha read the correspondence Heitmeyer
had brought. He respected Hiibner, whose serious accusations
against Heitmeyer—suggesting she was a “cheat” and “liar” and
engaged in “extortion”—“grabbed [his] attention” and were
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“concerning” to him. Heitmeyer indicated she wanted Baha to
give her money for her company, which Baha thought was a
“crazy” and “absurd” request—given the company’s state—and
caused him to believe Heitmeyer was “not interested in a
personal relationship.”
According to Baha, at no time during their three November
2017 meetings did Heitmeyer say anything to reject his advances
or indicate that he had offended her.
5. Events after November 14 meeting
Heitmeyer testified she did not remember “getting in the
car and leaving or going home” on November 14. While driving
home, at 12:14 p.m., Heitmeyer tried calling her boyfriend.
Heitmeyer and her boyfriend eventually connected at 12:29 p.m.
and again at 1:16 p.m., but neither recalled what they talked
about. She then spoke on the phone with her website designer
from 1:25 to 3:38 p.m. but did not recall what they spoke about
either.
Heitmeyer testified she called her lawyer at some point,
who advised her to record Baha.1 In order to set up a possible
recording opportunity, Heitmeyer texted Baha at 4:04 p.m.,
asking if he knew another Pasadena Angels member, Roberto
Machado. An hour later, Baha replied that he did and offered to
make an introduction.
Heitmeyer’s boyfriend testified that when he returned
home from work that evening, he saw Heitmeyer standing in
their apartment, and she looked stunned and scared, but he did
1 This lawyer, Paul Levine, testified Heitmeyer told him
Baha had assaulted her; Levine advised Heitmeyer to have
another encounter with Baha and record him so she would have
proof.
9
not recall what she said. He was mad at her because she had
gone to Baha’s house after Baha had hit on her on a previous
occasion, so he did not want to hear what had happened.
Heitmeyer later told her psychologist that her boyfriend arrived
home that evening to find her lying in bed crying.
At 9:14 a.m. on November 15, Heitmeyer replied to Baha’s
text regarding Machado, stating she was LinkedIn friends with
Machado and that she “messaged him but maybe he doesn’t check
it. Can you reach out to him? I’m updating my stuff … when do
you want to look at it?!?!”—followed by a smiley-face emoji. Baha
reached out to Machado, and Heitmeyer communicated with
Machado for a few months.
On November 16, Heitmeyer texted Baha, “Breakfast
tomorrow?” She testified that this was another attempt to set up
a possible recording. Baha declined the proposal. He testified he
had lost interest in Heitmeyer and decided to “move on” after
learning about the seriousness of her conflict with Hiibner and
concluding from her requests for money that she was not
interested in a personal relationship.
Baha never again proposed to Heitmeyer that they get
together. He texted her a final message the night of January 1,
2018, wishing her a happy new year, as he did with many of his
contacts. At that time, Baha remained unaware that Heitmeyer
planned to sue him.
6. Evidence of Heitmeyer’s emotional distress
Heitmeyer testified that after the incident, she attempted
to carry on with her life, but what happened with Baha “just kept
eating [her] up.” She continued to try to move forward with her
business, but she had lost her drive to a large extent. She “just
kind of crawled like into a shell” and lost a lot of friends. She
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became less involved in her community and stopped calling her
parents. She did not want to be intimate with her boyfriend. She
had feelings of wanting to harm herself.
She tried going on antidepressants, but they did not work
for her, and she sought out counseling. Heitmeyer’s therapist,
Lois Johnson, provided sexual abuse trauma counseling over 32
sessions between August 2020 and August 2021. Johnson
testified that of the approximately 150 sexual abuse survivors
she had counseled, Heitmeyer was “one of the top three most
impacted.” Johnson noted that in response to her trauma from
the incident with Baha, “psychologically, emotionally,
[Heitmeyer] really retreated, and physically she was not as active
as she had been.” Johnson found Heitmeyer to be “[emotionally]
withdrawn and not as outgoing and happy,” “nervous,” “lack[ing]
self-confidence,” unable to “stay focused on thoughts,” and
“unsure of herself.”
Heitmeyer was also evaluated by a retained expert forensic
psychologist, Nancy Kaser-Boyd, who testified that Heitmeyer
qualified for diagnoses of major depressive episode and post-
traumatic stress disorder. Kaser-Boyd testified that Heitmeyer
showed no signs of malingering or faking a mental disorder
through her assessment using various diagnostic tests. Kaser-
Boyd opined that the incident “profoundly affected” Heitmeyer,
leaving her feeling “devalued” and shameful, “unable to
concentrate very well,” and “fearful [and] socially isolated
because of her fear.”
Heitmeyer testified that, even six years later, she still did
not feel like herself, she was just going through the motions, and
she lacked the passion she had for her company.
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B. The Lawsuit and Trial
In July 2018, Heitmeyer filed a lawsuit against Baha,
Pasadena Angels, and Hiibner. In the operative second amended
complaint, Heitmeyer alleged causes of action against Baha for
assault, battery, sexual assault and battery, gender violence
under Penal Code section 243.4, violation of the Unruh Civil
Rights Act under Civil Code section 52.1, intentional infliction of
emotional distress, negligent infliction of emotional distress,
negligence, invasion of privacy, fraud and deceit, breach of
contract, breach of the implied covenant of good faith and fair
dealing, and unfair business practices under the Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq.).2 She
sought punitive damages, among other relief.
In March 2023, Heitmeyer proceeded to trial on her causes
of action for sexual battery and intentional infliction of emotional
distress.3 After 10 days of testimony, the court granted Baha’s
motion for directed verdict as to punitive damages. The jury
returned a verdict in Baha’s favor on both causes of action.
Regarding the sexual battery cause of action, 10 of 12 members of
2 Heitmeyer also raised some of these and other claims
against Pasadena Angels and Hiibner, but each defendant was
later dismissed and neither is a party to this appeal.
3 A first trial was held in October 2021, at which the jury
found in Heitmeyer’s favor on her sexual battery cause of action
and Baha’s favor on her battery and intentional infliction of
emotional distress causes of action and claim for punitive
damages. Heitmeyer had previously dismissed her other causes
of action with prejudice. Heitmeyer did not appeal after the trial
court granted Baha’s motion for a new trial on the basis of a
prejudicial evidentiary error. She subsequently dismissed her
battery cause of action with prejudice as well.
12
the jury answered “no” on the first question on the special verdict
form, asking, “Did [Baha] intend to cause a harmful or offensive
contact with [Heitmeyer’s] sexual organ, groin, buttocks, or
breast, and a sexually offensive contact resulted either directly or
indirectly?” On the cause of action for intentional infliction of
emotional distress, 10 jurors answered in the negative to the
question, “Was [Baha’s] conduct outrageous?”
The court entered judgment for Baha, and Heitmeyer
moved for a new trial. The court denied the motion following a
hearing. Heitmeyer timely appealed from the judgment.
DISCUSSION
A. Insufficient Evidence
Heitmeyer argues the jury’s verdict is not supported by
sufficient evidence. “ ‘A party who challenges the sufficiency of
the evidence to support a finding must set forth, discuss, and
analyze all the evidence on that point, both favorable and
unfavorable.’ [Citation.] A reviewing court will not
independently review the record to make up for the appellant’s
failure to carry its burden on appeal. [Citation.] Failure to meet
this burden waives any claim that the … jury’s finding is not
supported by substantial evidence.” (E.I. v. El Segundo Unified
School Dist. (2025) 111 Cal.App.5th 1267, 1285 (E.I.).)
Heitmeyer did not carry this burden here. In her opening
brief, she notes there are “two conflicting accounts” of the alleged
sexual battery and provides a short narrative describing each
party’s view as to their relationship in November 2017. She then
summarizes only evidence corroborating her account. In so
doing, she omits large portions of the relevant trial record,
including any citation to or discussion of the parties’ testimony
13
regarding what happened at Baha’s home on November 14. She
also fails to describe any evidence favorable to Baha and the
judgment. As a result, Heitmeyer forfeited her claim of
insufficient evidence.4 (Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 881 [appellants must “ ‘set forth in their brief all
the material evidence on the point, and not merely their own
evidence’ ” and “ ‘[u]nless this is done the error is deemed to be
waived’ ”]; accord, E.I., supra, 111 Cal.App.5th at p. 1285.)
Moreover, even if we considered the challenge to the
sufficiency of the evidence, we would find Heitmeyer could not
meet her heavy burden on appeal. “Ordinarily, when an
appellant contends there is insufficient evidence to support a
finding of fact, we apply the substantial evidence standard of
review.” (Pruchnik v. JCCP4621 Common Benefit Committee
(2025) 116 Cal.App.5th 35, 47.) “But where ‘ “the trier of fact has
expressly or implicitly concluded that the party with the burden
of proof did not carry the burden and that party appeals, it is
misleading to characterize the failure-of-proof issue as whether
substantial evidence supports the judgment.” ’ ” (Id. at pp. 47-48;
accord, Sonic Manufacturing Technologies, Inc. v. AAE Systems,
Inc. (2011) 196 Cal.App.4th 456, 465.) “Instead, when an appeal
turns on the appellant’s failure of proof, ‘ “the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s
4 In her reply brief, Heitmeyer argues she did not forfeit her
challenge based on the mention in her opening brief of
“conflicting” accounts. But even in her reply brief, Heitmeyer
still presents an account of the alleged sexual battery based
solely on her own trial testimony.
14
evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’ ” ’ ”
(Pruchnik, at p. 48; accord, Sonic Manufacturing Technologies,
Inc., at p. 466.)
Heitmeyer had the burden at trial to prove Baha’s conduct
constituted sexual battery and intentional infliction of emotional
distress. Under Heitmeyer’s theory of the case, Baha committed
sexual battery by “act[ing] with the intent to cause a harmful or
offensive contact with an intimate part of another, and a sexually
offensive contact with that person directly or indirectly results.”
(Civ. Code, § 1708.5, subd. (a)(1); see Jacqueline R. v. Household
of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 208 [“ ‘A
cause of action for sexual battery under Civil Code section 1708.5
requires the batterer intend to cause a “harmful or offensive”
contact and the batteree suffer a “sexually offensive contact.” ’ ”].)
For purposes of the sexual battery statute, “ ‘[i]ntimate part’
means the sexual organ, anus, groin, or buttocks of any person, or
the breast of a female.” (Civ. Code, § 1708.5, subd. (d)(1).)
“ ‘Offensive contact’ means contact that offends a reasonable
sense of personal dignity.” (Id., subd. (d)(2).) The jury here
concluded Heitmeyer failed to meet her burden to show Baha
intended to cause a harmful or offensive contact with any of her
intimate parts, causing a sexually offensive contact.
To state a cause of action for intentional infliction of
emotional distress, the plaintiff must allege: “ ‘(1) extreme and
outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; (3) and actual and proximate causation of the
15
emotional distress by the defendant’s outrageous conduct.’ ”
(Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th
452, 473-474; accord, Sandoval v. Pali Institute, Inc. (2025)
113 Cal.App.5th 616, 629.) The jury was instructed with CACI
No. 1602 that “ ‘outrageous conduct’ is conduct so extreme that it
goes beyond all possible bounds of decency.” The jury determined
Heitmeyer did not meet her burden to show that Baha’s conduct
was outrageous.
Heitmeyer has not shown her evidence at trial supporting
the two causes of action was uncontradicted and left no room for
the jury’s findings; rather, Heitmeyer concedes the parties
presented conflicting accounts of what happened at Baha’s home
on November 14. Baha testified that he believed he and
Heitmeyer were at the beginning of a possible romantic
relationship; they had previously kissed and been affectionate
and Heitmeyer gave him no indication his advances were
unwelcome; when they were at his house on November 14, he
kissed her with no objection from her; when he hugged her from
behind, it was a brief hug intended to be romantic and
affectionate; he did not come in contact with any of her intimate
body parts; and afterwards they went back to socializing and
smiling.
Heitmeyer contends Baha “presented no documentary or
testimonial evidence to corroborate” his version, while she
“presented a myriad of corroborating evidence,” both
documentary and testimonial evidence from her attorney and a
psychologist, that her relationship with Baha was “exclusively
about business,” that Baha had showed interest in assisting her
with her business, and that Baha sexually battered her when she
went to his home with her business documents, ready for a
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weekly meeting. Heitmeyer contends “it is simply implausible”
that a reasonable person could believe Baha’s version, given the
absence of any “written gesture of affection” from Baha to her.
Heitmeyer essentially asks us to reweigh the evidence.
However, we may not do so. (DiPirro v. Bondo Corp. (2007)
153 Cal.App.4th 150, 195 [“on appeal we cannot reweigh the
evidence”].) “The testimony of witnesses who were apparently
believed by the trier of fact may be rejected on appeal only if that
testimony was physically impossible of belief or inherently
improbable without resort to inferences or deductions.” (Ibid.;
accord, People v. Cantrell (1992) 7 Cal.App.4th 523, 538
[“ ‘ “ ‘Although an appellate court will not uphold a judgment or
verdict based upon evidence inherently improbable, testimony
which merely discloses unusual circumstances does not come
within that category. [Citation.] To warrant the rejection of the
statements given by a witness who has been believed by the [trier
of fact], there must exist either a physical impossibility that they
are true, or their falsity must be apparent without resorting to
inferences or deductions. [Citations.] Conflicts and even
testimony which is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends.’ ” ’ ”].) The testimony of a single witness is sufficient to
support a jury’s findings, and no written corroboration is typically
required. (Evid. Code, § 411; Newman v. Casey (2024)
99 Cal.App.5th 359, 375; In re Marriage of F.M. & M.M. (2021)
65 Cal.App.5th 106, 119.) Baha’s testimony is not so inherently
improbable that we may disregard it.
17
The evidence does not compel a contrary verdict in
Heitmeyer’s favor as a matter of law. (See Pruchnik v.
JCCP4621 Common Benefit Committee, supra, 116 Cal.App.5th
at p. 48.)
B. Evidentiary Error
Heitmeyer argues the court erred in not excluding
photographs of her socializing and looking happy under Evidence
Code section 352 (section 352). She asserts the photos “were
taken in settings other than where the incident occurred, with
individuals other than [Baha], more than a week after the
incident” and “[i]n some instances, as far out as 2019.” She
contends that admission of the photos was unduly prejudicial
“because the way in which sexual assault victims process the
assault is still largely misunderstood.” She asserts that “[b]y
displaying these photographs as evidence to discredit the sexual
assault and the resulting emotional distress,” the court invited
the jury to not “tak[e] the sexual battery seriously” and to
“punish[] [her] for not responding or reacting to the assault in the
way a ‘true’ victim is ‘supposed to’ react.” Heitmeyer further
asserts that “[t]he concept that pictures taken for publicity for
[her] skincare company reveal the true emotional state of a
sexual battery victim at any point in time is discriminatory,
biased, outdated, and highly prejudicial.”
Section 352 provides that “[t]he court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will ... create
substantial danger of undue prejudice.” We review a trial court’s
decision to admit or exclude evidence, including under section
352, for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th
718, 743; Uspenskaya v. Meline (2015) 241 Cal.App.4th 996,
18
1000.) “ ‘ “Under this standard, a trial court’s ruling will not be
disturbed, and reversal of the judgment is not required, unless
the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (Qaadir v. Figueroa (2021)
67 Cal.App.5th 790, 803.)
Before trial, Heitmeyer filed a motion in limine seeking an
order prohibiting Baha from “entering photographs of [her] into
evidence to argue her emotional state around the time of the
assault.” Baha contended the photos were relevant to
Heitmeyer’s alleged emotional distress. The court denied the
motion, explaining it needed to see the individual photos and
their foundation before it could conduct a section 352 analysis.
During Heitmeyer’s cross-examination at trial, Baha
presented numerous photos of Heitmeyer that had been posted on
her social media account. Heitmeyer’s counsel objected to some of
the photos, sometimes citing section 352 as a basis for the
objection. The court indicated the photos were generally relevant
because “it came in that [Heitmeyer’s] in bed, she can’t get up”; in
other words, Heitmeyer put her emotional well-being at issue by
seeking damages for emotional distress, and the photos were
relevant to whether Heitmeyer experienced the severe and
ongoing emotional distress she alleged. However, the court
ultimately excluded some of the photos on section 352 grounds.
Social media posts with photos that were published to the
jury over a section 352 objection include a March 28, 2019 post
with a photo of Heitmeyer outside wearing a sunhat and
sunglasses, with a wide smile and holding a dog. Heitmeyer
testified the photo was taken at the flower fields in Carlsbad on a
day trip with her daughter and boyfriend. Another post dated
19
July 7, 2019, includes a photo showing Heitmeyer wearing a
bathing suit in a hot tub with another woman Heitmeyer
identified as a celebrity, bearing a caption, “Sunbaes are made for
sipping wine with besties.” A post dated October 1, 2019,
includes a photo of Heitmeyer striking a pose in high heels while
lounging in a chair, with a serious expression on her face, and
another dated October 27, 2019, includes a photo depicting
Heitmeyer on the hood of a car, with bare legs and wearing
heels.5 A December 31, 2019 post includes a photo showing her
kissing a man on the cheek in front of a Christmas tree, with
holiday greetings in the caption; Heitmeyer testified it was taken
at her parents’ house in Ohio.
These photos had some probative value to dispute
Heitmeyer’s testimony that she had withdrawn into a shell and
was suffering from emotional distress after the sexual battery by
Baha. Although Heitmeyer takes issue with the fact that some of
the photos were taken in 2019, two years after the incident,
Heitmeyer testified that she continued to experience emotional
distress up until the time of trial; thus, even photos from 2019
were relevant to the question whether she was experiencing such
distress. Of course, Heitmeyer is correct that photos posted on
social media feeds do not necessarily accurately reflect the well-
being of the person depicted. That Heitmeyer was smiling in a
5 In her reply brief, Heitmeyer contends for the first time
that the court improperly admitted these social media posts
because they showed Heitmeyer in a bathing suit or wearing high
heels. “We do not consider arguments made for the first time in a
reply brief, primarily because it denies respondent the
opportunity to counter the argument.” (LAOSD Asbestos Cases
(2026) 118 Cal.App.5th 1041, 1060.)
20
photo or on a trip to see flowers did not mean she was not
suffering. But the photos were not inherently embarrassing and
were not likely to cause jurors to be biased against Heitmeyer.
(See Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 150
[“ ‘ “ ‘The “prejudice” referred to in … section 352 applies to
evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on
the issues.’ ” ’ ”]; accord, People v. Tran (2011) 51 Cal.4th 1040,
1048.) The trial court did not abuse its discretion in determining
the probative value of the photos outweighed any prejudicial
effect.
C. Defense Counsel Misconduct
Heitmeyer argues the judgment must be reversed because
Baha’s counsel committed misconduct at trial.
1. Applicable law
Attorney misconduct is an “irregularity in the proceedings”
that may provide grounds for reversal of the judgment. (Garcia
v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148 (Garcia); see
Martinez v. Department of Transportation (2015) 238 Cal.App.4th
559, 566 (Martinez) [“The law, like boxing, prohibits hitting below
the belt. The basic rule forbids an attorney to pander to the
prejudice, passion or sympathy of the jury.”].) In addition to
showing misconduct, the party seeking such relief “must
demonstrate that the misconduct was prejudicial.” (Garcia, at
p. 149.) To do so, the party must show that, based on the entire
case, “it is reasonably probable [she] would have achieved a more
favorable result in the absence of that portion of [attorney
conduct] now challenged.” (Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 802 (Cassim).) A reviewing court makes “ ‘an
independent determination as to whether the error was
21
prejudicial’ ” and “must examine ‘the entire case, including the
evidence adduced, the instructions delivered to the jury, and the
entirety of [counsel’s] argument,’ in determining whether
misconduct occurred and whether it was sufficiently egregious to
cause prejudice.” (Garcia, at p. 149.)
“ ‘Generally, to preserve for appeal an instance of
misconduct of counsel in the presence of the jury, an objection
must have been lodged at trial.’ ” (Cassim, supra, 33 Cal.4th at
p. 794; accord, E.I., supra, 111 Cal.App.5th at p. 1290.) The party
raising the alleged misconduct must also have moved for a
mistrial or asked the court to admonish the jury. (Cassim, at
p. 794; E.I., at p. 1290.) “The failure to timely object and request
an admonition waives any claim of error unless the complaining
party can show that the misconduct was so prejudicial that it
could not be cured by an admonition, an objection or request for
admonition would have been futile, or the court promptly
overruled an objection and the objecting party had no opportunity
to request an admonition.” (E.I., at pp. 1290-1291; accord,
Cassim, at pp. 794-795.) “ ‘The purpose of the rule requiring the
making of timely objections is remedial in nature, and seeks to
give the court the opportunity to admonish the jury, instruct
counsel and forestall the accumulation of prejudice by repeating
improprieties, thus avoiding the necessity of a retrial.’ ”
(Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App.5th 586,
604.) “ ‘ “Attorney misconduct is incurable only in extreme
cases.” ’ ” (E.I., at p. 1291.)
2. Speaking objections
Heitmeyer first contends defense counsel engaged in
misconduct by twice making a meritless speaking objection to a
preapproved exhibit in violation of a court order. The first
22
objection was to the presentation of an exhibit in Heitmeyer’s
opening statement that showed a January 2017 text from
Heitmeyer to Baha. Defense counsel objected she had not
previously been shown the exhibit. The court admonished
defense counsel in the presence of the jury that speaking
objections were not proper. Defense counsel apologized before the
jury, and during a subsequent sidebar said her memory had been
faulty. The court then overruled the objection in open court, and
Heitmeyer’s counsel continued his opening statement.
Even assuming the objection constituted misconduct,
Heitmeyer has not shown such misconduct was so prejudicial as
to warrant reversal of the judgment. (See Garcia, supra,
204 Cal.App.4th at p. 149 [in addition to showing attorney
misconduct, a party “must demonstrate that the misconduct was
prejudicial”]; accord, Martinez, supra, 238 Cal.App.4th at p. 568
[“Obviously attorney misconduct is more common than reversal
for attorney misconduct. Prejudice must be shown.”].)
Defense counsel’s second speaking objection was to
Heitmeyer’s presentation of a portion of Baha’s taped deposition.
After defense counsel objected, stating, “[t]here was an order not
to play that,” the court indicated it would review the matter later
and instructed Heitmeyer’s counsel to continue playing the video.
When the matter was revisited after the jury was excused,
defense counsel withdrew the objection.
Heitmeyer did not object to defense counsel’s second
speaking objection or seek a curative admonition for the alleged
misconduct. Heitmeyer asserts she “was not required to preserve
the objection[] because the conduct complained of constituted [a]
23
fundamental error[].”6 She provides no authority or analysis to
support this assertion. Heitmeyer forfeited the misconduct claim.
(E.I., supra, 111 Cal.App.5th at p. 1290.)
3. Court order regarding Heitmeyer’s other litigation
Heitmeyer next argues defense counsel “impugn[ed]” her
character by violating the court’s in limine order excluding
evidence regarding her other litigation, including Heitmeyer’s
suit against Hiibner and a related malicious prosecution claim
brought by Hiibner against Heitmeyer and her counsel. Before
trial, the court ordered that defense counsel “was not precluded
entirely from mentioning [Heitmeyer’s] other litigation, but she
was precluded from delving into the details of those lawsuits.”
After defense counsel expressed confusion over the in limine
order at trial, the court indicated counsel was “allowed to go into
to some degree the other lawsuits that were going on, just not in
great detail.” The court added that evidence of the other lawsuits
was relevant to show that Heitmeyer’s emotional state may have
been attributable to the stressors from those other lawsuits, some
of which did not go well.
Heitmeyer argues defense counsel “over-stepped and
violated” this order during her cross-examination.
First, Heitmeyer contends defense counsel improperly used her
responses to interrogatories propounded by Hiibner as a trial
exhibit because the responses “discussed damages related to the
claim against Hiibner, including lost income, which was not part
of the case against [Baha].” However, Heitmeyer’s counsel did
6 Heitmeyer does not argue that objecting to the alleged
misconduct would have been futile or that she had no opportunity
to request an admonition. (See Hernandez v. First Student, Inc.
(2019) 37 Cal.App.5th 270, 286.)
24
not object to the introduction of the responses into evidence.
(E.I., supra, 111 Cal.App.5th at pp. 1290-1291.) Nor does
Heitmeyer provide any argument for why the information in the
responses was prejudicial. (Martinez, supra, 238 Cal.App.4th at
p. 568.)
Heitmeyer also argues defense counsel improperly asked if
Heitmeyer had ever represented herself in a lawsuit Hiibner filed
against Heitmeyer and her former attorney. Heitmeyer
answered (“Sort of”) and did not object to this question. Thus,
she forfeited any argument that this question was improper.
Heitmeyer further contends defense counsel improperly
sought to follow up on Heitmeyer’s testimony that the litigation
involving Hiibner had been a “win-win,” which counsel believed
to mean Heitmeyer’s former attorney had settled the lawsuit by
paying Hiibner and then gave Heitmeyer “a little money, too.”
The court acknowledged Heitmeyer had opened the door to such
inquiry but replied, “I wouldn’t say a little,” and later ordered
that questioning could not get into “dollar amount details.”
Defense counsel subsequently asked Heitmeyer to confirm that
her former attorney “paid money to Ms. Hiibner” and “a little
money to you.” Heitmeyer answered “yes” to both questions
without objection. The court intervened when defense counsel
next asked Heitmeyer if she was paid “significantly less” than
Hiibner, explaining it was not relevant. Defense counsel
withdrew the question. Defense counsel later asked Heitmeyer
whether her use of the phrase “win-win” referred to Hiibner
receiving money and Heitmeyer receiving “a little money” in
relation to the separate lawsuit. The court again intervened,
explaining Heitmeyer had used the phrase to refer to both
Hiibner and herself receiving money and that the amounts
25
received were not relevant. No further questions were asked on
the matter.
While Heitmeyer asserts defense counsel’s questions
violated the in limine order regarding her other litigation, she
forfeited any claim of prejudicial misconduct by not objecting to
the questions as alleged misconduct or seeking admonitions
beyond the trial court’s interventions. (E.I., supra,
111 Cal.App.5th at pp. 1290-1291.) Moreover, the record shows
any threat of prejudice from these questions was mitigated by the
court’s responsive interventions to sustain relevance objections
and prevent further questioning.7
7 Heitmeyer also complains defense counsel improperly
asked Heitmeyer if her former attorney withdrew from
representing her in the suit against Baha. While Heitmeyer did
not object to the question, the court sustained her relevance
objection to the next question: “And then you got a new lawyer;
correct?” Heitmeyer forfeited any claim of misconduct by not
additionally seeking a curative admonition in the trial court.
(E.I., supra, 111 Cal.App.5th at pp. 1290-1291.) Heitmeyer also
does not explain how she was prejudiced aside from asserting
defense counsel was “insinuating that [her] prior attorney must
have left because of the merits of her case.” This is insufficient to
demonstrate prejudice. (See Martinez, supra, 238 Cal.App.4th at
p. 568 [“Prejudice must be shown.”].)
In addition, Heitmeyer asserts defense counsel made
“unsupported” accusations in asking Heitmeyer whether Hiibner
said she did not invest “the last $25,000 of her $100,000
commitment” because “she thought [Heitmeyer] had
misrepresented [her] financials.” Heitmeyer answered yes,
without objection. Defense counsel next asked Heitmeyer
whether Hiibner said she was not going to invest the additional
$25,000 because Heitmeyer had “commingled” company money
26
4. Police report questions
Heitmeyer argues defense counsel improperly questioned
her about whether her attorney had advised her to file a police
report about the alleged sexual battery. The court sustained
Heitmeyer’s relevance objection. It then sustained its own
relevance objection when defense counsel asked Heitmeyer
whether she accompanied one of her attorney’s employees to the
police station. Despite these sustained objections, Heitmeyer at
no point sought a curative admonition for alleged misconduct and
thus forfeited the claim that defense counsel’s questions
constituted prejudicial misconduct. (E.I., supra, 111 Cal.App.5th
at pp. 1290-1291.) And despite claiming defense counsel’s
questions were “objectionable” and left “[b]ad insinuations,”
Heitmeyer also provides no prejudice analysis to support her
argument. (Martinez, supra, 238 Cal.App.4th at p. 568.)
5. Court order regarding legal funding
Heitmeyer argues defense counsel violated the court’s order
not to introduce, without prior leave of the court, evidence of any
funding Heitmeyer may have sought or received to support her
litigation against Baha. Defense counsel asked Heitmeyer’s
physician whether a “me too” notation in Heitmeyer’s medical
records referred to legal fees causing Heitmeyer to experience
stress and depression. Heitmeyer did not object to this
questioning or request a curative admonition and thus forfeited
with her own and used it for personal purposes. Heitmeyer
objected on hearsay and section 352 grounds, but the court
overruled Heitmeyer’s objection and Heitmeyer responded
Hiibner already knew the situation with the funds and that the
“funds had to be that way.” Heitmeyer has not demonstrated the
court improperly overruled the objections, and she has not
demonstrated how the questions were prejudicial.
27
the argument. (E.I., supra, 111 Cal.App.5th at pp. 1290-1291.)
In any event, the question about how Heitmeyer’s legal fee bills
were affecting her emotionally did not pertain to the source of the
funding for her fees. Heitmeyer has not shown misconduct.
6. Baha’s testimony regarding his wife and children
Heitmeyer contends defense counsel improperly elicited
testimony from Baha about his wife, daughter, and son. The
court sustained Heitmeyer’s section 352 objection during opening
statements when defense counsel described the car accident that
killed Baha’s wife. In so doing, the court stated, “the objection is
sustained for this part of the trial.”
During Baha’s direct examination, defense counsel
prompted Baha to share “what happened” on the date of the fatal
accident. The court sustained another section 352 objection, and
a lengthy sidebar ensued, in which the court explained the details
of the accident and its aftermath were substantially more
prejudicial to Heitmeyer than probative of Baha’s case. The court
ordered defense counsel not to go into details of the accident and
to ask Baha only questions regarding the effect the accident had
on him.
After the sidebar, and with the court’s permission, defense
counsel read Heitmeyer’s deposition testimony explaining Baha
had spent most of their first meeting at the coffee shop talking
about the personal difficulties he was experiencing since the
accident. Defense counsel then asked Baha why he discussed
these matters with Heitmeyer. The court sustained Heitmeyer’s
section 352 objection when Baha started to go into details about
his son’s mental health and its relation to his wife’s death.
Defense counsel moved on to a different line of questions.
28
Heitmeyer forfeited her challenge by not seeking a curative
admonition for the misconduct she now claims. (E.I., supra,
111 Cal.App.5th at pp. 1290-1291.) She also has not shown
defense counsel violated the court’s rulings by asking questions
during Baha’s testimony. And even if misconduct were shown,
Heitmeyer has not demonstrated she was prejudiced given the
court sustained her section 352 objection as soon as Baha’s
testimony verged into matters the court had ordered excluded.
7. Other “false assertions”
Finally, Heitmeyer asserts defense counsel confused or
misled the jury with numerous “false assertions in her
questioning.” The only record citations Heitmeyer provides for
these additional claims are to a colloquy outside the presence of
the jury that addressed defense counsel’s questions to Heitmeyer
that incorrectly suggested she saw a particular doctor the day
after the incident. While Heitmeyer’s counsel requested an
admonition be given, defense counsel explained that her
“recollection got confused” and that Heitmeyer’s deposition
testimony instead showed she called the doctor on the day of the
incident but made an appointment for the following week and
that she saw a different doctor the day after the incident.
Defense counsel offered to “clear it up,” which the court accepted
without further objection from Heitmeyer’s counsel. When
defense counsel later asked Heitmeyer questions to elicit
testimony confirming the correct information, counsel admitted
she was “wrong” in previously suggesting Heitmeyer had seen the
particular doctor the day after the incident.
Heitmeyer does not show she objected to or sought an
admonition for any of the other alleged instances of misconduct.
(E.I., supra, 111 Cal.App.5th at pp. 1290-1291; see also Meridian
29
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684
[“arguments that are not ... supported by adequate citations to
the record [may be deemed] waived”].) Nor does she make any
case of prejudice from any of the “false assertions” beyond
speculating that the “misconduct caused one or more jurors to
either rely on false information, or give up any effort to properly
and objectively listen to [her] case.” Heitmeyer therefore is not
entitled to her requested relief. (Martinez, supra,
238 Cal.App.4th at p. 568.)
DISPOSITION
The judgment is affirmed. Baha shall recover his costs on
appeal.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
30