Filed 7/10/13 Olvera v. Giles CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                   DIVISION ONE

                                           STATE OF CALIFORNIA



CHERI OLVERA,                                                        D060323

         Plaintiff and Appellant,

         v.                                                          (Super. Ct. No. 37-2008-00096893-
                                                                     CU-CO-CTL)
BRIAN GILES,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B.

Barton, Judge. Affirmed.



         Herronlaw, Matthew V. Herron; Stephen M. Hogan; BarryFiske and Su L. Barry

for Plaintiff and Appellant.

         Law Office of James D. Scott and James D. Scott; McKenna Long & Aldridge and

Charles A. Bird for Defendant and Respondent.

         Appellant Cheri Olvera and respondent Brian Giles lived together from April 2003

to June 2008. When the relationship ended, Olvera sued Giles for breach of contract,
seeking $10 million in damages, and for domestic violence, among other tort theories.

Giles cross-complained for damages for domestic violence, for return of a diamond

engagement ring he alleged was valued at almost $108,000 and for conversion of

personal property.

       After several days of trial, the jury returned a verdict awarding Giles the

engagement ring and denying both parties all other relief. In so doing, the jury found that

both Olvera and Giles "intentionally or recklessly" caused or attempted to cause bodily

injury to each other, or to place the other "in reasonable apprehension of imminent

serious bodily injury," but that neither Giles's nor Olvera's actions or conduct caused the

other "to suffer injury, damage, loss or harm."

       Olvera does not challenge, at least directly, any of the jury's findings. Instead, she

attacks a single evidentiary ruling of the trial court, contending the court erred when,

pursuant to Evidence Code1 section 352, it excluded evidence regarding the source of a

surveillance video played in part for the jury concerning an alleged domestic violence

incident captured on the video involving her and Giles that took place in 2006 in a bar in

Phoenix.

       According to Olvera, because witnesses called by Giles testified that Olvera

previously had told them she had a copy of a video that, if necessary, she would use

against Giles, Olvera contends she should have been allowed to testify that she received a

copy of the video from Arizona prosecutors with whom she refused to cooperate, who


1      All statutory references are to the Evidence Code unless otherwise noted.
                                              2
had charged Giles with misdemeanor domestic violence arising from the 2006 bar

incident. Olvera further contends that if this evidence had been admitted, it would have

rebutted Giles's argument that Olvera possessed the video in order to get money from him

and would have led to a contrary finding that she was in fact harmed by Giles's acts of

domestic violence.

       As we explain, we reject Olvera's contentions and affirm the judgment.

       A. Brief Overview

       Giles was a professional baseball player. Giles and Olvera met in October 2001.

At some point after they began dating, Olvera moved in with Giles while he played for

the Pittsburgh Pirates. They lived together, including while Giles played in San Diego

for the San Diego Padres, until June 2008 when Olvera moved back to Houston, Texas.

       The record shows that Olvera and Giles accused each other of engaging in acts of

domestic violence against the other. Olvera proffered testimony that during the course of

their six-year relationship, Giles was abusive and controlling and would hit, grab, push

and kick her. Olvera admitted that many times she and Giles would argue while they

were drinking alcohol. Giles disputed this testimony and proffered his own testimony

that particularly after she had been drinking, Olvera often started vulgar arguments with

him in the presence of others and that Olvera hit, or threatened to hit, Giles and his

friends and also threatened to end prematurely his professional baseball career by poking

out his eye with the spike of her high heel shoe.




                                              3
       B. The Bar Incident

       Of significance in this proceeding, in 2006 an incident occurred between Olvera

and Giles in a bar in Phoenix, Arizona (the bar incident). Olvera testified the incident

occurred on August 27 after Giles had played a day baseball game in Colorado. Olvera

did not attend that game but instead met Giles in Phoenix where Giles was scheduled to

play next. Olvera had a "few" alcoholic beverages while on the flight to Phoenix and

another alcoholic beverage at the hotel bar while she waited for Giles to arrive. After

dinner, they went to the bar where the incident occurred. The parties agree they argued

while at the bar and were not getting along. Giles testified Olvera seemed a "little drunk"

at the bar. Olvera instead claimed she was merely "tipsy."

       At some point, Giles insisted they leave the bar. He paid the bill and turned to

walk out. Olvera testified she believed they both needed some time to cool off and thus

she decided to remain at the bar. Olvera testified Giles returned to the bar, grabbed her

by the back of the neck and demanded she leave with him. At that point, Olvera got up

and walked in front of Giles to leave the bar.

       The parties dispute what happened next. Olvera testified that once they walked

past some curtains toward the exit of the bar, Giles again grabbed her by the neck and

pushed her to the ground. Giles, however, testified that when they went down a dark

hallway and through the curtains to leave the bar, a stranger approached Giles and told

him not to talk to the "lady" like that and that shortly thereafter Olvera fell to the ground

because she was intoxicated and was wearing very high heels. The bar incident was


                                              4
recorded by the bar's video surveillance camera, and a portion of it was admitted into

evidence and played for the jury.

       The Phoenix police investigated the bar incident, interviewed eyewitnesses and

obtained the video surveillance of the incident. As a result of that investigation, Giles

was charged with misdemeanor battery. Giles subsequently entered a plea of nolo

contendere, or no contest, to the charge subject to his successfully completing an anger

management course and his attending Alcoholics Anonymous (AA) meetings. When

Giles completed these requirements, the case was dismissed.

                                       DISCUSSION

       A. Brief Additional Background

       Giles pretrial moved to exclude evidence of his nolo contendere plea arising from

the bar incident, the police report of that incident and the video surveillance tape from the

bar.2 The court ruled to exclude under Penal Code section 1016, subdivision (3) any

evidence of Giles's nolo contendere plea.3 The court also conditionally ruled to exclude



2      The record does not include Giles's motion in limine to exclude the surveillance
video.

3         Penal Code section 1016 provides in part: "There are six kinds of pleas to an
indictment or an information, or to a complaint charging a misdemeanor or infraction:
[¶] . . . [¶] 3. Nolo contendere, subject to the approval of the court. The court shall
ascertain whether the defendant completely understands that a plea of nolo contendere
shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere,
the court shall find the defendant guilty. The legal effect of such a plea, to a crime
punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In
cases other than those punishable as felonies, the plea and any admissions required by
the court during any inquiry it makes as to the voluntariness of, and factual basis for, the
                                              5
any reference to the anger management classes and AA meetings Giles attended and,

unless Olvera could lay a foundation for its admission, to exclude the police report of the

bar incident. However, as to the surveillance video, the court ruled it would conduct an

Evidence Code section 402 hearing to determine whether Olvera also could lay a

foundation for its admission into evidence.4

        The record shows Olvera authenticated the surveillance video through the

deposition testimony of a Phoenix city attorney who had been subpoenaed to testify.

Olvera also testified regarding the events depicted on a portion of the surveillance video.

The court ruled that three "clips" of the tape could be played at trial.

        Immediately after Olvera finished testifying regarding the bar incident, the jury

was shown the portion of the surveillance tape ruled admissible by the trial court. Using

a "pointer," Olvera described for the jury what she believed the tape showed, including

Giles pushing her to the ground after they had walked through the curtains toward the

exit.

        Giles subsequently called Denise Vierra as a witness. Vierra testified she and

Giles's sister, Kamila Fraser, were best friends. Vierra testified that one evening in

December 2006, she and her husband went to the home where Giles and Olvera were

living and, at some point that night, Olvera got mad and threw an iPod and docking


plea may not be used against the defendant as an admission in any civil suit based upon
or growing out of the act upon which the criminal prosecution is based." (Italics added.)

4      Section 402 provides in part: "(a) When the existence of a preliminary fact is
disputed, its existence or nonexistence shall be determined as provided in this article."
                                               6
station that were playing music in the front of the house. When Giles responded that

Olvera should leave, Vierra testified that Olvera "went after" Giles. Vierra intervened

and grabbed Olvera's arm to keep her from Giles. Later that same evening, Vierra

testified Olvera, who was still angry at Giles, claimed she had "something" on Giles "and

that he [Giles] better not mess with her." Vierra testified that it was not until later that

she actually saw the video of the bar incident.

       Fraser also testified regarding this incident in December 2006. Fraser said Olvera

became enraged because a "playlist" created by a friend of Giles allegedly had made

Olvera jealous. When Olvera "went after" Giles, Fraser testified she and Vierra

intervened, pulled Olvera aside and took her into the office area of the home. At that

point, Olvera was "very upset" and "intoxicated" and started "badmouthing" Giles, saying

she "hated him." It was during this "rant[]," according to Fraser, that Olvera said she

"had a tape somewhere hidden in the home that if he [Giles] pushed her if she needed to

she'd [Olvera] use it against him, and it would ruin him [Giles]." When Fraser asked

Olvera to elaborate, Olvera declined other than to say there was an "incident" in Phoenix.

Fraser testified this was the first time she had heard about a tape or an "incident" in

Phoenix.

       At the conclusion of Fraser's testimony, at a sidebar, Olvera asked the court to

conduct a section 402 hearing on the issue of whether Olvera should be allowed to

examine Fraser regarding her knowledge of the bar incident and, specifically, whether

she then knew her brother had been charged for misdemeanor battery as a result.


                                               7
Although the trial court had ruled to exclude evidence of Giles's criminal prosecution

stemming from the bar incident, Olvera argued the court should revisit that ruling, given

Fraser's testimony regarding Olvera's statements about the tape during the December

2006 incident, and allow her "to admit a portion of the criminal case as part of [her]

case."

         In the section 402 hearing, Fraser testified that at the time of the incident in

December 2006 when Olvera during her "rant" mentioned a tape, Fraser did not know

about the bar incident or that a misdemeanor complaint dated November 1, 2006—or any

"official proceedings"—had been filed against her brother. Moreover, Fraser testified

that when Olvera mentioned the tape that evening, Fraser did not even know what Olvera

was talking about, and the only information she then had was the information provided

by Olvera. Fraser stated that Olvera never said where she got the tape and, in fact, Fraser

at that time was unsure whether the "tape" Olvera was talking about was an audiotape or

a videotape.

         Fraser testified she approached her brother about a week later, told him what

Olvera had said the night they had all been together and asked him if any of it was true.

According to Fraser, Giles then explained to her what had happened in Phoenix.

         At the conclusion of the hearing, Olvera asked the court to admit into evidence the

one-page misdemeanor complaint against Giles. The court denied that request, and

Olvera excused Fraser as a witness.




                                                8
       Olvera subsequently revisited the issue of admitting the one-page misdemeanor

complaint when she notified the trial court that she had used the wrong exhibit number in

referring to the document. In response, the court stated it had not admitted the document,

although it had taken judicial notice of it and had ruled to exclude the plea of nolo

contendere pursuant to Penal Code section 1016, subdivision (3).

       The record shows Olvera next asked the trial court to admit the one-page

misdemeanor complaint to impeach Fraser's testimony regarding her lack of knowledge

of the August 2006 bar incident at the time of the December 2006 incident, when Olvera

first mentioned the tape and the "incident" in Phoenix:

       "[Olvera's counsel]: Your Honor, and just -- we sort of did this in a rush yesterday

with the witness [i.e., Fraser] and the [section] 402 [hearing], but what I -- I didn't say it

then. [¶] What I meant to say was Ms. Fraser's testimony about the video discussion that

occurred at Christmastime at that point in time when she testified she didn't know about

this complaint against her brother is -- should -- that this document is now -- just the

complaint, not [the] plea, but just the one-page complaint should be admitted for that

purpose, and we should be able to argue that that testimony is not believable, given the

fact that this case had been filed against her brother by then. [¶] . . . [¶]

       "THE COURT: Okay. I think the [section] 402 hearing that we held regarding

her testimony did allow the plaintiff to explore the issue. And I think her testimony that

she was not aware of that until after Ms. Olvera made the statement and she talked to her

brother right after or days after -- I can't remember exactly what she said -- would obviate


                                               9
the need for the admission of that conviction record. It would also constitute

impeachment on a collateral issue. [¶] So I think we'll leave it at that, unless there's

something else.

       "[Olvera's counsel]: Just on this topic, if we have a moment. It would be our

intent with Ms. Olvera on rebuttal to ask her about this video, where it came from, when

she got it, and for what purpose. And the testimony, the tenor of the testimony would be

is that the prosecutor contacted her, provided the video, asked her to look at it, because

she was reluctant in terms of cooperating as a witness in that proceeding. [¶]

. . . Plaintiff believes . . . that Ms. Olvera should be able to explain what the video was

and how she got it.

       "THE COURT: Okay. Why doesn't each side give that some thought, and we'll

show up at 8:45 on Monday, and we'll argue that further."

       The record shows that when trial reconvened, Olvera argued she should be able to

testify she received the video of the bar incident from a prosecutor because otherwise,

"the jury's given a completely false impression about what this video was and that

somehow Ms. Olvera had obtained something, maybe directly from the bar, to be used to

attempt to extort Mr. Giles." In response, Giles argued the fact Olvera obtained the video

from the prosecutor was "just remotely probative and certainly outweighed by the

prejudicial effect." The trial court subsequently ruled during a sidebar conference that

Olvera could not testify that she obtained the tape of the bar incident from a prosecutor at

the same time it denied Giles's request to examine Olvera regarding a $1,500 check she


                                              10
had written from Giles's bank account to a friend of hers that Giles claims was to

purchase Vicodin.

       B. Governing Law and Standard of Review

       As noted ante, Olvera contends the trial court erred in excluding evidence

regarding how she came into possession of the surveillance video from the bar. The

record shows the court excluded this evidence under section 352, which in part states:

"The 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, of confusing the issues, or of misleading the jury."

       We review the trial court's decision to exclude evidence under section 352 under

the abuse of discretion standard. (Thompson v. County of Los Angeles (2006) 142

Cal.App.4th 154, 168 (Thompson).) "Under this standard, the 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. [Citation.]" (Ibid.)

       "'If a proper objection under section 352 is raised, the record must affirmatively

demonstrate that the trial court did in fact weigh prejudice against probative value. The

trial court need not make findings or expressly recite its weighing process, or even

expressly recite that it has weighed the factors, so long as the record as a whole shows the

court understood and undertook its obligation to perform the weighing function.




                                             11
[Citations.]' [Citation.]" (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640,

1685.)

         A trial court has broad discretion to exclude under section 352 otherwise relevant

evidence where its probative value is substantially outweighed by the probability that its

introduction will create a substantial danger of undue prejudice. (§ 352; Thompson,

supra, 142 Cal.App.4th at p. 171.) "[E]vidence should be excluded as unduly prejudicial

when it is of such nature as to inflame the emotions of the jury, motivating them to use

the information, not to logically evaluate the point upon which it is relevant, but to

reward or punish one side because of the jurors' emotional reaction. In such a

circumstance, the evidence is unduly prejudicial because of the substantial likelihood the

jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998,

1009.) In other words, evidence is unduly prejudicial where it has very little effect on the

issues but uniquely tends to evoke an emotional bias against one party and thus poses an

intolerable risk to the fairness of the proceedings. (Ajaxo Inc. v. E*Trade Group Inc.

(2005) 135 Cal.App.4th 21, 45; Piscitelli v. Salesian Society (2008) 166 Cal.App.4th 1,

11.)

         C. Analysis

         Although Olvera does not challenge directly the rulings of the trial court excluding

from evidence Giles's nolo contendere plea to the misdemeanor battery charge arising

from the bar incident, or the police report and one-page misdemeanor complaint filed

against Giles in that incident, her contention the court erred when it refused to allow her


                                              12
to testify she obtained the video of the bar incident from a prosecutor is tantamount to a

challenge to those very rulings.

       Indeed, the record shows that after Vierra and Fraser testified regarding the

statements made by Olvera during her "rant" in December 2006 when Olvera threw the

iPod and docking station, Olvera initially sought to introduce into evidence the one-page

November 1, 2006 complaint charging Giles with misdemeanor battery. It was only after

the trial court denied Olvera's multiple requests to admit the complaint that she sought to

introduce her own testimony that the prosecutor in the bar incident gave her the

surveillance video.

       Assuming arguendo the source of the video was relevant evidence (Evid. Code,

§ 350), we conclude the trial court properly exercised its discretion under Evidence Code

section 352 when it excluded Olvera's testimony about the source of the video, Giles's

nolo contendere plea, the police report regarding the bar incident and the one-page

complaint charging Giles with the misdemeanor crime, given the language of Penal Code

section 1016, subdivision (3) and given the finding of the trial court—which we conclude

is supported by substantial evidence—that the probative value of such evidence was

substantially outweighed by the danger of undue prejudice. (See Evid. Code, § 352,

subd. (b).)

       Moreover, we separately conclude the trial court properly exercised its discretion

in excluding this evidence as its admission likely would have necessitated an "undue

consumption of time" as provided in section 352, subdivision (a), embroiling the jury in a


                                            13
mini-trial on what was then a five-year-old misdemeanor matter. Our conclusion is

buttressed by the fact that at the time of the bar incident, Olvera refused to cooperate with

law enforcement, a fact that gave rise to multiple inferences both favorable and

unfavorable to Olvera, as noted by Giles, and by the fact that both parties engaged in

myriad acts of domestic violence against each other—as found by the jury—throughout

the course of their relationship. (See People v. Hamilton (2009) 45 Cal.4th 863, 946

[noting that a trial court does not abuse its discretion in excluding under section 352

marginally relevant evidence in order "'to prevent . . . trials from degenerating into

nitpicking wars of attrition over collateral . . . issues'"].)

       In addition, we note that it was Olvera—and not Giles—who played portions of

the video for the jury and extensively relied on the video to support her domestic violence

cause of action against Giles. We further note Giles did not argue for any inference about

how Olvera obtained the video and, in fact, the record shows Giles moved in limine to

exclude altogether evidence of the video. We thus conclude that when Olvera played

portions of the video to the jury over the objection of Giles, she herself opened the door

to the limited testimony of Vierra and Fraser regarding Olvera's statements in December

2006 about having "something" she could use against Giles if he displeased her.

       We also reject Olvera's contention that evidence regarding the source of the video

was admissible under section 356.5 This section provides: "Where part of an act,

5      It does not appear from our independent review of the record that Olvera
specifically raised this argument below, including when she moved for a new trial,
judgment notwithstanding the verdict and/or an order setting aside the judgment. (See
generally Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226, fn. 13;
                                                14
declaration, conversation, or writing is given in evidence by one party, the whole on the

same subject may be inquired into by an adverse party; when a letter is read, the answer

may be given; and when a detached act, declaration, conversation, or writing is given in

evidence, any other act, declaration, conversation, or writing which is necessary to make

it understood may also be given in evidence."

       Courts have qualified Evidence Code section 356, and its precursor, Code of Civil

Procedure section 1854, "to the extent that the court may in its discretion exclude those

portions of a statement which in no way tend to explain the inconsistency between the

admission of a party and [the proffered] testimony." (Berg v. Sonen (1964) 230

Cal.App.2d 434, 441 (Berg).)

       Here, the testimony Olvera was not allowed to introduce—regarding the source of

the video—did not explain any inconsistency involving the video evidence already

admitted (see Berg, supra, 230 Cal.App.2d at p. 441); nor was it necessary to make her

statements from the December 2006 incident "understood" for purposes of section 356.

       The same is true with respect to the testimony of Vierra and Fraser. As to Vierra,

she did not even mention the video in her testimony, instead stating that Olvera made

statements in December 2006 that she had "something" on Giles and that he better not

"mess" with her, or words to that effect.

and Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn.
(2008) 163 Cal.App.4th 550, 564 [noting the failure to raise specific challenges in the
trial court results in a forfeiture of the claim on appeal].) In any event, despite submitting
lengthy briefing on a variety of other issues, Giles did not raise forfeiture as an issue on
appeal and thus we will address the merits of whether the trial court should have admitted
evidence of the source of the video pursuant to section 356.
                                             15
       As to Fraser, the record shows the court conducted a hearing pursuant to section

402 and, based on Fraser's testimony, was satisfied that when Olvera told Fraser in

December 2006 that she had some sort of tape and would use it if necessary against her

brother, Giles, Fraser then did not know about the bar incident or the surveillance video.

We thus conclude there was no error under section 356 when Olvera was precluded from

giving testimony regarding the source of the video of the bar incident. (See Sprague v.

Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1035 [noting that the remainder of an item of

evidence is admissible under § 356 "'if it has "'some bearing upon, or connection with,

the admission or declaration in evidence,'"'" but also noting that in such circumstances,

"admission of the rest of a statement is limited to those parts relevant to or necessary for

an understanding of the part already admitted"].)

       Finally, for the reasons given ante, we reject Olvera's contention that even without

section 356 she should have been able to testify regarding the source of the video of the

bar incident to explain her "own conduct" concerning the video. In support of her

contention, Olvera relies on Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d

669 (Brooks).

       Briefly, in Brooks, the court ruled the trial court did not err when it instructed the

jury that an employee's decision to drive away from the scene of an accident might be

considered as a circumstance showing "consciousness of responsibility" on the

employee's part for the accident and death of a pedestrian. (Brooks, supra, 40 Cal.2d at

p. 676.) In affirming this instruction, the court noted that the failure to stop and render


                                              16
aid supported an inference of responsibility and noted this inference "of course, may be

refuted, and a defendant is entitled to explain his [or her] conduct." (Ibid.) The court

further noted that the trial court had erred when it refused to allow the employee to

explain why he did not stop and render aid after he hit the victim but that no prejudice

resulted from the error because that evidence was developed elsewhere and because the

defendant employer's own attorney acquiesced in the trial court's ruling. (Ibid.)

       Here, Olvera does not challenge any of the jury instructions or the inferences to be

drawn from those instructions, unlike the defendant in Brooks. For this reason alone, we

find Brooks inapposite. Moreover, unlike the employee in Brooks who was erroneously

precluded by the trial court from explaining why he did what he did, in the instant case

Olvera was not precluded from testifying regarding the statements she made to Vierra

and Fraser during her "rant" in December 2006, including, by way of example only, that

she did not make those statements, or if she did, what she meant by them.6

       Because, as noted ante, the trial court properly exercised its discretion in

excluding Olvera's testimony regarding the source of the video of the bar incident

6       Olvera also briefly cites to People v. Yeaton (1888) 75 Cal. 415 to support her
contention she should have been allowed to testify to the source of the bar incident video
in order to explain her own conduct in connection with that incident. In Yeaton, a letter
written by a 15-year-old defendant admitting guilt was introduced, but neither she nor
other witnesses, including her mother, were allowed to give testimony concerning the
defendant's jailhouse statements she was innocent at the time she was induced to write
the letter. The court held that this was error. Clearly, Yeaton is factually distinguishable
from the instant case. In any event, unlike the situation in Yeaton, here the trial court
properly ruled to exclude what was otherwise inadmissible evidence—the source of the
video of the bar incident—as discussed, ante. We thus conclude Yeaton in no way
supports Olvera's position on this issue.

                                             17
pursuant to section 352, and because Olvera in any event was not prohibited from

testifying concerning the December 2006 incident and the various statements attributed to

her stemming from that incident, we conclude for these separate reasons that Brooks does

not apply here.7

                                      DISPOSITION

       The judgment is affirmed. Costs on appeal are awarded to Giles.




                                                                                 BENKE, J.

WE CONCUR:


              McCONNELL, P. J.


                   McDONALD, J.




7       Given our decision, we deem it unnecessary to reach Giles's contention that even if
the trial court erred in excluding the evidence regarding the source of the video, that error
was harmless as its exclusion had no bearing on the finding of the jury that Olvera
suffered no "injury, damage, loss or harm" in connection with her domestic violence
cause of action.
                                             18
