California Court of Appeals, Third District, Sacramento
from a judgment of the Superior Court of Sacramento County
No. 34-2016-00190947-CU-NP-GDS Allen H. Sumner, Judge.
E. Carey for Plaintiff and Appellant.
Gavrilov & Brooks, Ognian A. Gavrilov and Michael Coleman
for Defendant and Respondent.
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. 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.
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.
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
AND PROCEDURAL BACKGROUND
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).
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.
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.
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.
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