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Court of Appeal, Third District, California.

Paul K. FORBERG, Plaintiff and Appellant, v. STUMBOS & MASON et al., Defendants and Respondents.

No. C003004.

Decided: February 07, 1990

Barr, Newlan & Sinclair, John D. Barr, and Lauren E. Leisz, Redding, for plaintiff and appellant. Musick, Peeler & Garrett, Harry W.R. Chamberlain, II, Gibson, Dunn & Crutcher, Richard Chernick, Leslie J. Eng, George H. Ellis, Los Angeles, Mackenroth, Seley & Anwyl, James T. Anwyl, Sacramento, for defendants and respondents.

Paul Forberg (plaintiff) appeals from a judgment of dismissal of his action for fraud, negligent misrepresentation, conspiracy, and intentional and negligent spoliation of evidence.   Forberg prevailed as plaintiff in an earlier personal injury action in which his damages were reduced upon a finding of contributory negligence.   In this action he alleges that the finding was caused by lies and the concealment of evidence by his opponents.   A demurrer was sustained without leave to amend on the ground that such conduct does not give rise to a civil cause of action for damages.   We will affirm the judgment on the ground that the gravamen of the alleged claims is the communication of injurious falsehoods to the jury which are privileged as occurring in a judicial proceeding.

Facts and Procedural Background

 Since this case arises on demurrer, the facts material to Forberg's claims are to be found in the allegations of his complaint.  “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules.  ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.  [Citation.]․’ ”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) 1

Forberg alleges in the count entitled fraud that on September 19, 1979, he was shopping at the Park Avenue Market in Chico.   He tripped and fell over a dark gray metal milk case that had been left in the aisle by an employee and sustained serious injuries.   He sued the proprietor, Dale Wahl, and after a trial in August 1983 recovered a verdict for $1,000,000 plus costs.   The jury found he had suffered $1,600,000 in damages but reduced the award upon a finding that he was 40 percent negligent.

In March 1981 Wahl's counsel, John Stumbos, had an investigator examine the scene of the accident.   The firm that did the investigation reported to Stumbos that at the time of Forberg's fall the floor at the market was dark in color but had been changed sometime thereafter to cream or tan in color.   The report contained copies of photographs depicting the tile at the time of the fall.

At a settlement conference in December 1982 Stumbos asserted that the floor was tan and that Forberg was at fault in a high degree because of the contrast between the color of the milk case and the floor.   Stumbos elicited testimony from Wahl at the trial that the floor was tan or light cream.   Stumbos asserted in closing argument to the jury that the floor was cream or light tan.   All of these statements were made with knowledge of their falsity.

The false statements were part of a concerted effort of Wahl, Stumbos, insurance companies and attorneys named as defendants, to misrepresent the color of the floor at the time of the accident.   Forberg and his counsel relied upon the truth of these statements.   The jury's assessment of Forberg's comparative fault at 40 percent was caused in part by this representation which enhanced the defense that the milk case was an obvious hazard which Forberg with due care could have avoided.

The second count of Forberg's complaint, entitled negligent misrepresentation, alternatively alleges that defendants made the misrepresentation negligently, carelessly and without any reasonable ground for belief in its truth.   The third count, entitled conspiracy to commit fraud, adds to all of the foregoing the allegation that in committing the wrongful acts defendants acted in concert, conspired, and aided and abetted one another.

The fourth count, entitled intentional spoliation of evidence, additionally alleges that the defendants knew that photographs of the tile constituted evidence in the prior action and intentionally or recklessly “concealed, lost, destroyed, and otherwise disposed of [them]․”  The fifth count, entitled negligent spoliation of evidence, alternatively alleges that defendants carelessly and negligently lost, destroyed, or otherwise disposed of the photographs.



 However styled, plaintiff's claims are founded upon the utterance of injurious falsehoods in or in connection with his prior action.   The circumstances of their utterance gives rise, according to defendants, to an absolute privilege which applies, as this court has said, “to defeat tort actions which, however labeled and whatever the theory of liability, are predicated upon the publication in protected proceedings of an injurious falsehood.”  (Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390–391, 182 Cal.Rptr. 438;  fns. omitted;  also see, e.g., Ribas v. Clark (1985) 38 Cal.3d 355, 363–365, 212 Cal.Rptr. 143, 696 P.2d 637;  Rest.2d Torts, §§ 586–588, 635.)

The privilege is often associated with the statutory privilege of Civil Code section 47, subdivision 2.  (See Block, supra, 131 Cal.App.3d at pp. 389–390, 182 Cal.Rptr. 438.)   It provides inter alia that “[a] privilegedpublication ․ is one made ․ [¶] 2.   In any ․ (2) judicial proceeding․”  That statutory provision, however, is limited to actions for libel or defamation.  (Cf. Civ.Code, §§ 45 and 46.)   As to actions predicated upon injurious falsehoods other than libel or defamation the privilege is rooted in the common law.  (See Block, supra, at pp. 389–391, 182 Cal.Rptr. 438.)   As provided in the Restatement Second of Torts, section 635, comment a:  “The circumstances under which there is an absolute privilege to publish an injurious falsehood are in all respects the same as those under which there is an absolute privilege to publish matter that is personally defamatory.”  (Ibid.)  For reasons which we next assess, Forberg argues that the privilege has no application to the facts as he has alleged them.


 Forberg argues that we should fashion an exception to the doctrine that injurious falsehoods uttered in the course of litigation are not actionable.   He notes that the doctrine does not bar an action for malicious prosecution and suggests that an analogous exception should be fashioned for a “malicious defense.”   He reasons that since both kinds of conduct cause damage to opposing litigants and to society they should be treated as equivalent.   This appeal to symmetry might have more appeal if there were a tort for “malicious defense.”   But there is none.

 The tort of malicious prosecution protects an interest in freedom from unwarranted involvement in litigation with its attendant costs.  (See Rest.2d Torts, § 586.)   Forberg has no similar interest for it is he who commenced the prior action and he does not seek damages in this case measured by the costs of meeting the unwarranted defense in the prior action.   (See Eastin v. Bank of Stockton (1884) 66 Cal. 123, 127, 4 P. 1106.)   Thus his appeal to symmetrical treatment relies upon a false analogy.

The symmetry fails for another reason.   A malicious prosecution action is disfavored.  (See e.g., Babb v. Superior Court (1971) 3 Cal.3d 841, 847, 92 Cal.Rptr. 179, 479 P.2d 379.)   It is cognizable inter alia because it is conditioned by the requirement that the earlier action be terminated on its merits.   The limiting safeguard of a final determination is unavailable for a theory of malicious defense.   The gravamen of the claim is that the prior action was wrongly terminated as to the issue of Forberg's contributory negligence by virtue of the defendants' malicious defense.   But the very nature of this action belies a final determination of that issue for the reason that Forberg's theory requires that he relitigate the matter in this action.


 Forberg next argues that the privilege only applies to litigation contemplated in good faith.   He acknowledges that the privilege is absolute but in the same breath would transform it into a conditional privilege.   His authority is Carden v. Getzoff (1987) 190 Cal.App.3d 907, 235 Cal.Rptr. 698, Herzog v. “A” Company, Inc. (1982) 138 Cal.App.3d 656, 188 Cal.Rptr. 155, and Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal.App.3d 319, 213 Cal.Rptr. 168.   The authority is inapposite to the proffered distinction.

Carden averts to statements of this court in Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 231 Cal.Rptr. 113.   In that case we explained that Herzog pertains only to the scope of the privilege with respect to “prelitigation communications.”  (Id. at p. 421, 231 Cal.Rptr. 113.)   We noted that Herzog follows the Restatement of Torts in declining to apply the privilege to such a communication where there is only a “hollow threat[ ] of litigation.”  (Id. at p. 422, fn. 5, 231 Cal.Rptr. 113.)   That is manifestly not the case with the utterances which Forberg's action seeks to reach for they occurred after the commencement of and in the course of litigation.

Barbary Coast Furniture Co., supra, concerns the allied question whether the publication was “[i]n [a] judicial proceeding․”  In that case the defendant, an attorney, had represented a corporation in a bankruptcy proceeding.   Plaintiffs alleged that in the course of this representation the attorney induced them to purchase two-thirds of the stock of the corporation by misrepresenting its financial health and by lying about the plan of the attorney and the former owner to launch a competitive venture.  (167 Cal.App.3d at pp. 322–324, 213 Cal.Rptr. 168.)   The trial court granted summary judgment finding that the attorney could be liable for such fraudulent conduct but that there was no showing that it occurred.  (Id. at p. 330, 213 Cal.Rptr. 168.)   On appeal the attorney conceded there were disputed issues of fact concerning the utterances but claimed the judgment should be upheld on the ground that his statements “were made in the context of a judicial proceeding and are therefore absolutely privileged under section 47, subdivision 2, of the Civil Code.”  (Id. at p. 331, 213 Cal.Rptr. 168.)   The court disagreed, holding that the absolute privilege did not apply because the misrepresentations had not been made in furtherance of the bankruptcy proceedings.

 Barbary Coast Furniture Co. shows that the relationship between utterance and judicial proceeding is not infinitely elastic.   The privilege does not apply to utterances concerning matters which are collateral to the proceeding.   For example, suppose counsel represents a debtor in a collection action.   If he lies to a bank to obtain a loan which his client uses to pay the debt and secure settlement of the lawsuit his deceit lies outside the ambit of the privilege.   The reason has nothing to do with bad faith;  it is hard to imagine uttering an injurious falsehood in good faith.   Rather the privilege does not apply because the lies are wholly collateral to the collection action.   They do not occur during the course of and as a part of the judicial proceeding.


 Forberg argues that an exception to the privilege should be fashioned because the alleged conduct involves an attorney who intentionally misleads the court in violation of his professional obligations as an officer of the court.   He notes that such conduct is explicitly prohibited by Business and Professions Code 6068, subdivision (d).   Forberg here mistakes the remedy.   All perjury is a fraud on the court.   Yet it has long been the rule that a criminal law sanction is a sufficient deterrent to perjury and that the privilege should not be breached to provide a civil remedy in aid of its detection or prevention.  (E.g., Taylor v. Bidwell (1884) 65 Cal. 489, 4 P. 491.)   The fact that an attorney is alleged to be involved does not require a different rule.

The perpetration of the fraud on the court, as alleged, arguably brings counsel within the criminal sanction for subornation of perjury and the licensing sanction for professional misconduct.   We are given no persuasive reasons for concluding that these remedies are insufficient to safeguard the integrity of the judicial system.   For reason of the latter remedy Restatement Second of Torts separately treats the case of an attorney noting that the privilege is absolute and protects the attorney irrespective of his purpose, his belief, or even knowledge of the falsity of his utterance.  (Rest.2d Torts, § 586, com. a.)  “These matters are of importance only in determining the amenability of the attorney to the disciplinary power of the court of which he is an officer.”  (Ibid.)


 Forberg's remaining substantial argument is that he has alleged a cause of action not subject to the privilege, the concealment or “spoliation” of evidence.   He argues that his allegations that photographs showing the true color of the floor were concealed by defendants take the case outside the rule.   The argument is unpersuasive.   Viewing the allegations of the complaint favorably to Forberg, the facts alleged show that the means of concealment were false statements made in defense of the litigation.   That circumstance brings his theory of recovery within the bounds of the privilege.

Forberg's claim relies on two recent cases, Smith v. Superior Court (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829 and Velasco v. Commercial Bldg. Maintenance Co. (1985) 169 Cal.App.3d 874, 215 Cal.Rptr. 504, which have recognized a cause of action for spoliation of evidence.   In Smith the defendant automobile dealer promised plaintiff's counsel that it would preserve parts of an automobile that had been in an accident causing personal injury.   Smith holds that plaintiff's allegations that the dealer thereafter intentionally destroyed the parts prejudicing plaintiff's chances of recovery state a cause of action which it calls intentional spoliation of evidence.   In Velasco plaintiffs sued a janitor who threw out a paper bag containing remnants of a bottle that had exploded causing personal injuries.   The bag was unmarked and had been left on the desk of their attorney.   The Velasco opinion says that a cause of action may be stated for negligent destruction of evidence needed for prospective civil litigation, although it found no negligence as a matter of law in the facts of the case.

Forberg claims that he fits within these paradigms;  that the privilege has no application to wrongful conduct, here the concealment of the photographs, which does not encompass the publication of an injurious falsehood.  (See Carden, supra, 190 Cal.App.3d at p. 914, 235 Cal.Rptr. 698;  the rule of Civ.Code, § 47, subd. 2 “still does concern ‘publications,’ not present in the destruction of evidence․”)  We assume for the sake of the argument that in some circumstances concealment of evidence could be tortious conduct independent of an injurious falsehood.2  Here, however, that is not the case.

We addressed a similar claim in Block, supra.   In that case a district attorney filed criminal charges against the plaintiff predicated upon an autopsy which showed that her infant daughter had died from a potentially toxic overdose of aspirin and upon a toxicology report by defendant, secured for purposes of the criminal investigation, mistakenly overstated the number of aspirin necessary to cause the fatality.   The error was discovered at a preliminary hearing and the charges were dismissed.   The plaintiff sued the toxicologist for damages forseeably caused by the report.  (131 Cal.App.3d at pp. 387–388, 182 Cal.Rptr. 438.)   We held that the action was a species of injurious falsehood subject to the privilege.  “Plaintiff's theory of liability places [the] communication of the report to the district attorney and, later, [the toxicologist's] testimony in the criminal proceeding, at the heart of the claim of liability.   The publication of [the] report for purposes of the criminal proceeding is made the actionable wrong.”  (Id. at p. 392, 182 Cal.Rptr. 438;  orig. emphasis.)

In seeking to evade the privilege the plaintiff argued that her cause of action was grounded upon the negligent calculation of the number of aspirin rather than upon the communication of the report to the district attorney for purposes of the criminal action, conduct other than an utterance.   We answered as follows.  “We do not determine whether this formulation of the action escapes the privilege by limiting the actionable wrong to negligent conduct thus relegating the communication to the proximate cause element in the tort.   The plaintiff here relies upon a traditional theory of negligence which requires the establishment of a duty arising out of the relationship between [the toxicologist] and plaintiff․  Plaintiff has not explained the basis upon which such a duty arises and we decline to do so.  [Citation.]  On any cognizable theory of duty, the negligent calculation formed the basis of [the toxicologist's] communication and was privileged.  [Citation.]”  (Block, 131 Cal.App.3d at p. 393, fn. 10, 182 Cal.Rptr. 438.)

In this case the harm which Forberg alleges caused the reduction in damages for his comparative negligence was not the destruction of evidence.   The various counts of the complaint, which inconsistently agglutinate the allegations of the earlier counts, each depend upon the embedded allegation that the cause of plaintiff's harm was defendants' lies about the color of the floor.   The publication of these injurious falsehoods both to the plaintiff and to the jury for purposes of the defense in the civil proceeding, as in Block, is made the actionable wrong, which brings the action within the scope of the privilege.

 Nor does Forberg assert that the complaint could be amended to state a claim not subject to the privilege, a prerequisite to relief by way of an amended complaint.   A conclusionary allegation that defendants concealed evidence, to wit the photographs, would not be sufficient for a legally viable claim.   Forberg would have to allege some concealment other than the lies of defendants alleged in the present complaint, and that this concealment prevented him from acquiring the photographs which would have revealed the lies.   The only means of concealment of the photographs that he has suggested also involves falsehoods uttered in pursuit of the litigation.   At the hearing on the demurrer Forberg's counsel argued that the defendants had concealed the evidence because, although they had before and after photographs of the floor, “In response to a demand they produced the set showing only the floor afterward and failed to produce the other set, although proper demands had been made.”   But such a concealment by failure to produce is itself effected by an injurious falsehood.   That is the gravamen of the action.3

Since there is no claim of spoliation of evidence tendered that is not predicated upon a falsehood uttered in pursuit of the litigation there is no claim which is outside the ambit of the privilege.

The judgment is affirmed.


1.   “ ‘We also consider matters which may be judicially noticed.’   (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].)   Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.   (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 [172 P.2d 867].)   When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  (See Hill v. Miller (1966) 64 Cal.2d 757, 759 [51 Cal.Rptr. 689, 415 P.2d 33].)   And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment:  if it can be, the trial court has abused its discretion and we reverse;  if not, there has been no abuse of discretion and we affirm.  (Kilgore v. Younger (1982) 30 Cal.3d 770, 781 [180 Cal.Rptr. 657, 640 P.2d 793];  Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406].)   The burden of proving such reasonable possibility is squarely on the plaintiff.  (Cooper, Leslie Salt Co., supra, at p. 636 [75 Cal.Rptr. 766, 451 P.2d 406].)”  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

2.   We note that one court has applied the privilege to a claim of concealment of evidence on the theory that it extends to any conduct constituting an offense partaking of the common law crime of obstruction of justice.  (See Agnew v. Parks (1959) 172 Cal.App.2d 756, 765–766, 343 P.2d 118;  contra, Smith, supra, 151 Cal.App.3d at pp. 497–499, 198 Cal.Rptr. 829.)   This logic would bar the sort of intentional spoliation of evidence claim tendered here.

3.   When there is a proper request for production of evidence the party upon whom the request is served must respond.   The response must identify under oath the “photographs ․ falling within the category specified in the request which are in the possession, custody, or control of the responding party․”  (E.g., former Code Civ.Proc., § 2031, subd. (b);  Stats.1980, ch. 23, § 1.)   Failure to identify the photographs in issue is the means of concealment.   That failure is a statement (see Evid.Code, § 225) that such photographs are not in the possession of the responding party.   If the statement is false and caused plaintiff to fail to discover the truth about the color of the floor it is a species of injurious falsehood.

BLEASE, Acting Presiding Justice.

CARR and SPARKS, JJ., concur.