Spoliation of evidence is the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation.” Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680, 80 Cal. Rptr. 2d 443 (Ct. App. 1998). The district court rests its holding on the fact that the tort is not recognized when “the spoliation was or should have been discovered before the conclusion of the litigation.” It held that, because the state trial and appellate courts found Defendants did not withhold evidence and Kearney could have discovered evidence during discovery or trial, Kearney had not showed a probability of prevailing on the merits.
Kearney argues that her spoliation claim was based on the evidence that Defendants told the testing company not to prepare a formal report, and notes that this evidence was not mentioned by either state court. Kearney’s allegations do not indicate when she discovered this evidence, only that she believed the event occurred in 2001, which was prior to the valuation trial. Because Kearney may be able to show a probability of prevailing on the merits here, (FN5) we vacate the district court’s holding on this issue and remand to determine whether she discovered or should have discovered the evidence prior to or during the valuation trial.
The district court found Kearney had not showed a probability of success on the merits here because it found the claim barred by both the Noerr-Pennington doctrine and California’s litigation privilege and because it was unpersuaded to apply the prima facie tort claim as had been done in the case law cited by Kearney.
As analyzed above, the Noerr-Pennington doctrine does not bar this suit because, even if the doctrine applied, the sham exception would also apply.
Nonetheless, we find that the district court did not err when it held that California’s litigation privilege would bar Kearney’s claims. Though Kearney argues that her claims are based on conduct prior to the litigation, the district court was correct that even allegations of such conduct may be privileged if reasonably related to the action. See People ex rel. Gallegos v. Pacific Lumber Co., 158 Cal. App. 4th 950, 958, 70 Cal. Rptr. 3d 501 (Ct. App. 2008) (“[T]he privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (internal quotation marks omitted)). Because the alleged misconduct is all reasonably related to the eminent domain proceeding, it is subject to the litigation privilege bar.
FN5: Spoliation claims are exempted from the litigation privilege. Cal. Civ. Code § 47(b)(2).
Kearney v. Foley & Lardner, LLP, 566 F.3d 826, 838-39 (9th Cir. Cal. 2009)