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Davis v. Ross

California Court of Appeals, Third District, Sacramento

September 3, 2019

DIANN MARIE DAVIS, Plaintiff and Appellant,
DENNIS ROSS, Individually and as Trustee, etc., Defendant and Respondent.

          APPEAL from a judgment of the Superior Court of Sacramento County No. 34-2016-00190947-CU-NP-GDS Allen H. Sumner, Judge. Affirmed.

          Philip E. Carey for Plaintiff and Appellant.

          Gavrilov & Brooks, Ognian A. Gavrilov and Michael Coleman for Defendant and Respondent.

          BUTZ, J.

         In 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.


         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 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.


         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 ...

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