Davis v. Ross
Annotate this CaseIn a dispute between the parties that started over a disabled parking space, Dennis Ross filed a complaint with police stating that plaintiff Diann Davis vandalized his car. Davis entered a plea of no contest to misdemeanor vandalism in 2016. She then the underlying complaint here 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, section 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. Before the Court of Appeal Davis again attempted to press the spoliation exception to the litigation privilege. After preliminary review of the briefing, the Court 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. The Court of Appeal affirmed: the underlying suit was 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." The Court found the spoliation exception to the litigation privilege did not have any application to Davis' action.
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