Diann Marie Davis v. Dennis Ross, Individually and as Trustee, etc.

n a 2014 dispute between the parties over a disabled parking space, Dennis Ross

filed a complaint with police stating that plaintiff Diann Marie Davis had vandalized his

car afterward. Davis entered a plea of no contest to misdemeanor vandalism in 2016.

She then turned around and filed the present complaint against Dennis Ross both as an

individual and as a trustee of his revocable trust, alleging false imprisonment, fraud, libel,

slander, intentional infliction of emotional distress, and abuse of process.1

Twenty

months later, at the outset of trial, the court granted Ross’s motion for judgment on the

pleadings premised on the litigation privilege (Civ. Code, § 47), entering a judgment of

dismissal in October 2017. The court subsequently denied Davis’s motion for a new trial

premised on a spoliation exception to the litigation privilege that Davis had already

presented in opposition to the motion for judgment on the pleadings. Davis then filed

a notice of appeal in January 2018.

Davis again attempts on appeal to press the spoliation exception to the litigation

privilege. After preliminary review of the briefing, we solicited supplementary analysis

from the parties to account for the effect, if any, of Davis’s plea of no contest, and

whether sanctions for a frivolous appeal were warranted. We will affirm the judgment.

On the question of sanctions, our concerns about possible subjective bad faith in

bringing this appeal are not warranted any longer in light of Davis’s articulation of the

bases on which she proceeded with it. We accordingly do not find sanctions appropriate,

and will not address the issue further.

1

Davis also attempted to file a claim against the City of Sacramento and one of its

officers for false arrest. We affirmed the judgment dismissing her petition for leave to

file a late claim. (Davis v. City of Sacramento (Jan. 9, 2018, C082918) [nonpub. opn.].)

3

FACTUAL AND PROCEDURAL BACKGROUND

On appeal from a ruling sustaining a demurrer without leave to amend, we assume

the truth of well-pleaded factual allegations, shorn of any legal conclusions. (Fuller v.

First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 959.) We may also consider

facts that are properly subject to judicial notice. (Ellis v. County of Calaveras (2016) 245

Cal.App.4th 64, 70.) Since a motion for judgment on the pleadings (formerly

nonstatutory, now codified at Code Civ. Proc., § 438) is the equivalent of a demurrer with

the same purpose and effect, the same rules apply (People v. $20,000 U.S. Currency

(1991) 235 Cal.App.3d 682, 691).

In a nutshell, both Davis and Ross had valid disabled person placards for parking

in reserved spaces. In a dispute over a parking spot at the Arden Fair Mall, Davis did not

see Ross display his placard when he pulled into a space that she had wanted. He left his

car and apparently spoke with her before she parked elsewhere. She inspected his vehicle

after she parked, finally observing his placard hanging from his rear view mirror. As she

entered the mall, she noticed that Ross was filming her with his cell phone. He did not

say anything to her about vandalizing his car. However, he then went to mall security

and accused her of vandalizing the passenger side of his vehicle with a key. The next

day, he made an oral complaint at the public counter of a police station.

A police sergeant came to Davis’s El Dorado Hills home and told her that she

would be subject to criminal charges unless she paid for the damages to Ross’s vehicle.

She denied committing any intentional act of vandalism, although she admitted she may

have brushed up against the car as a result of her disability. Ross had presented police

with four estimates he had obtained to repair the scratches on his car. When Davis did

not offer to pay any of these estimates, the police sergeant obtained an arrest warrant for

felony vandalism. Davis was detained overnight in the county jail. Davis alleged that the

4

damage was in fact preexisting, which Ross aggravated so as to appear new, as well as

inflicting other new scratches.

In ruling on the motion for judgment on the pleadings, the trial court concluded

that a report of a crime is subject to the absolute litigation privilege (Hagberg v.

California Federal Bank (2004) 32 Cal.4th 350, 361), which bars all causes of action

save malicious prosecution. Davis could not allege malicious prosecution by virtue of

her plea of no contest. (Cote v. Henderson (1990) 218 Cal.App.3d 796, 803.) That this

might insulate alleged perjurers from liability is simply the price to be paid in furthering

the vital public policy of affording free access to the courts. (Ribas v. Clark (1985) 38

Cal.3d 355, 364-365; Doctors’ Co. Ins. Services v. Superior Court (1990) 225

Cal.App.3d 1284, 1300.) Davis’s effort to evade the litigation privilege through her

claim that her action was based on Ross’s conduct in creating the false evidence of new

scratches was a false dichotomy because such conduct is deemed communication that is

equivalent to the preparation and presentation of false testimony. (E.g., Pettitt v. Levy

(1972) 28 Cal.App.3d 484, 489.) The exception for non-communicative conduct (such as

the act of a wrongful citizen’s arrest or of illegally recording a phone conversation) did

not apply. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058, 1062-1063). In its ruling

denying the motion for a new trial, the trial court concluded that an exception in the

statute for a “communication made in furtherance of an act of intentional destruction or

alteration of physical evidence undertaken for the purpose of depriving a party . . . of

the use of that evidence,” even if “the content of the communication is . . . subsequent[ly]

publi[shed] or broadcast” in a privileged context (Civ. Code, § 47, subd. (b)(2), italics

added)--an act termed “spoliation” (see Hernandez v. Garcetti (1998) 68 Cal.App.4th

675, 680)--did not apply, because Ross’s communication to the police did not further the

alleged manufacture of evidence in support of his report.

5

DISCUSSION

The parties did not address the threshold issue of whether Davis’s plea of no

contest to misdemeanor vandalism has any preclusive effect in the present action. We

asked for supplementary briefing on this point. We agree with Davis that Leader v. State

of California (1986) 182 Cal.App.3d 1079, 1087-1088, is controlling. In order for

a misdemeanor conviction to have preclusive effect in a subsequent civil trial, the offense

must be “serious” (i.e., punishable by imprisonment) and the conviction must be the

result of a full and fair trial. (Ibid.) As Davis’s misdemeanor conviction was the result

of a plea of no contest, it does not have preclusive effect in the present proceeding.

Turning to the issue on appeal, Davis does not dispute the trial court’s reasoning in

its rulings except for its rejection of the spoliation exception to the litigation privilege.

As the express language of the statute provides, the spoliation exception to the litigation

privilege applies only where the alleged alteration or destruction is intended to deprive a

party of the use of the evidence (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 464

[forgery in document does not deprive other party of its use]), and where a

communication furthers the act of spoliation. Davis contends Ross’s report to the police

furthered his act of spoliation, because the entire point of the spoliation was

to manufacture a criminal claim against Davis. She points out cases in which the

manufacture of evidence for trial was considered to be a communicative act within the

privilege but do not address explicitly whether the act was nonetheless spoliation within

the meaning of the exception. Davis did not address in her opening brief the separate

question of whether she was deprived of the use of Ross’s car as evidence by its alleged

alteration. She does assert in her reply brief that she was deprived of the use of the car in

its unaltered state because it would be impossible to determine forensically whether the

scratches were added afterward, and otherwise the inclusion of “alteration” in the statute

would be without meaning (for which reason we should not find persuasive Laborde’s

6

abbreviated rejection of considering an alteration to a document to preclude use of the

evidence).

There is a paucity of precedent on this question. Given the obscure nature of the

provision, we have consulted the legislative history surrounding the enactment of this

exception to the litigation privilege. It demonstrates that the exception is essentially a

dead letter at present that does not have any application to the circumstances of this case.

In a 1990 case that was subsequently depublished,2

this court concluded that the

litigation privilege shielded a defendant from tort liability for, inter alia, intentional or

negligent spoliation of evidence where the defendant subsequently made false statements

during related litigation (premised on the absence of any evidence to refute a claim of

contributory negligence) that purportedly resulted in reduced damages. (We cite this

depublished case not for precedential value but for its role in the legislative response.)

The legislative history repeatedly identifies the California Trial Lawyers Association (as

the entity was then termed) as the sponsor of Assembly Bill No. 529 in order to preserve

the then extant tort of intentional spoliation of evidence3

from the application of

the litigation privilege where a communication related to the spoliation occurred during a

judicial proceeding. Thus, an April 1991 report of the Assembly Subcommittee on the

Administration of Justice explains that the bill was intended in response to the plaintiff

bar’s concern with the holding in our 1990 case to withhold the privilege for a

communication that is an element of liability in any action based on spoliation of

2

Forberg v. Stumbos & Mason (Feb. 7, 1990, C003004) review den. and ordered

nonpub. Apr. 26, 1990, S014680.

3

Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4, 17-18,

ultimately ruled that tort damages were not available for intentional spoliation of

evidence (in light of other nontort remedies) where the spoliation was or should have

been discovered before the conclusion of the underlying litigation.

7

evidence: “[I]f [Assembly Bill No.] 529 is enacted, the privilege will not extend to the

tort of malicious prosecution or the torts of intentional and negligent spoliation of

evidence.” (Assem. Subcom. on the Admin. of Justice, analysis of Assem. Bill No. 529

(1991-1992 Reg. Sess.) as amended Mar. 18, 1991, com. 3, p. 3, italics added.) On the

bill’s introduction in the Senate, the Senate Judiciary Committee noted in its report that

the key issue was whether the tort of spoliation should have statutory recognition and be

exempted from the reach of the litigation privilege because it posed the same threat to the

integrity of the civil justice system as the already exempted tort of malicious prosecution.

(Sen. Com. on Judiciary, Rep. on Assem. Bill No. 529 (1991-1992 Reg. Sess.) July 2,

1991, com. 3, p. 3.) In an August 1991 report of the Senate Rules Committee, the

exception had been limited to its present form (applying only to intentional spoliation), in

order to preserve a cause of action for spoliation. (Sen. Rules Com., Off. of Sen. Floor

Analyses, Rep. on Assem. Bill No. 529 (1991-1992 Reg. Sess.) as amended Aug. 22,

1991, pp. 1-2.) Finally, a September enrolled bill report echoed the sponsor’s concern

with the need “to expressly state in law that the litigation privilege[] do[es] not apply to

bar lawsuits based on the tort of intentional destruction or alteration of physical

evidence” simply because “the destruction of evidence may somehow be immunized by

[a] subsequent, false communication in a judicial forum.” (Off. of Criminal Justice

Planning, Enrolled Bill Rep. on Assem. Bill No. 529 (1991-1992 Reg. Sess.) Sept. 13,

1991, p. 2, italics added.) The Governor signed the bill into law on September 18, 1991.

The present action is not premised on the tort of intentional spoliation. At best,

Davis is contending that she was deprived of the use in evidence of Ross’s vehicle in an

unaltered state in defending against his criminal complaint against her. But it was

Davis’s choice to plead no contest to the vandalism charge against her rather than raise

her present claim of intentional spoliation of evidence in Ross’s exclusive control as

providing a reasonable doubt as to her guilt. In any event, as intentional spoliation does

8

not exist any longer as a tort, and the legislative history is devoid of any intention to

preserve tort liability for communications in furtherance of spoliation otherwise, the

exception to the litigation privilege does not have any application to Davis’s action. We

thus will affirm the trial court’s rulings.

The judgment is affirmed. Ross is awarded his costs on appeal. (Cal. Rules of

Court, rule 8.278(a)(1), (2).)