Davis v. Ross

Filed 9/3/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

DIANN MARIE DAVIS, C086291

Plaintiff and Appellant, (Super. Ct. No. 34-2016- 00190947-CU-NP-GDS) v.

DENNIS ROSS, Individually and as Trustee, etc.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sacramento County, Allen H. Sumner, Judge. Affirmed.

Philip E. Carey for Plaintiff and Appellant.

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

1

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.