Opinion
G062693 G062745
11-06-2024
MICHELE LEANNE ALLISON, Plaintiff and Appellant, v. JBT AEROTECH CORPORATION et al., Defendants and Respondents.
Mardirossian Akaragian, Garo Mardirossian, Armen Akaragian and Adam Feit for Plaintiff and Appellant. Cunningham Swaim, Michael J. Terhar, Jonathan E. Hembree and Steven D. Sanfelippo for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 30-2022-01251041, Craig L. Griffin, Judge.
Mardirossian Akaragian, Garo Mardirossian, Armen Akaragian and Adam Feit for Plaintiff and Appellant.
Cunningham Swaim, Michael J. Terhar, Jonathan E. Hembree and Steven D. Sanfelippo for Defendants and Respondents.
OPINION
SANCHEZ, J.
INTRODUCTION
Plaintiff Michele Leanne Allison sought to recover damages from defendants John Bean Technologies Corporation (John Bean) and JBT AeroTech Corporation (JBT) for loss or destruction of evidence under a claim for promissory estoppel. The issue presented by this appeal is whether Plaintiff pleaded facts sufficient to constitute a clear and unambiguous promise necessary to support a promissory estoppel claim. The trial court concluded Plaintiff had not pleaded such a promise and sustained without leave to amend demurrers brought by Defendants to the first amended complaint.
We refer to John Bean and JBT together as Defendants.
We affirm the judgments of dismissal. Plaintiff alleged that Defendants had promised to preserve as evidence a tire and related components that had caused the death of her husband, who was killed in a tragic accident in the course of his employment with Defendants. That promise had been created, she alleged, by two letters, sent by her counsel to Defendants' counsel, demanding that Defendants preserve the tire and related components and by Defendants' response to a request for production made during Plaintiff's wrongful death lawsuit against the tire manufacturer. In the discovery response, Defendants stated they would make the tire and related components available for inspection.
Plaintiff alleged that Defendants later acknowledged they had not saved the tire and related components, and, as a consequence, she felt compelled to dismiss her lawsuit against the tire manufacturer. Faced with an absolute bar against tort recovery for spoliation of evidence, Plaintiff instead sought recovery against Defendants under a claim of promissory estoppel.
We conclude the two letters cannot constitute a promise because Plaintiff did not allege Defendants ever responded to them, and silence alone does not create a promise. Defendants' response to the request for production was a representation that Defendants would comply with their discovery obligations and did not create a promise, independent of the obligations imposed by the discovery statutes, to preserve and maintain. In addition, Defendants' discovery response falls within the litigation privilege of Civil Code section 47, subdivision (b), and applying the privilege here would further its underlying purposes.
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
I. THE FATAL INCIDENT
Defendants inspect and maintain passenger boarding bridges and related equipment, including tires, at John Wayne Airport. In order to replace a tire on a passenger boarding bridge, the entire wheel assembly, which includes the rim and tire, must be removed from the passenger boarding bridge. Once the wheel assembly is removed, the pressurized air inside the tire must be completely released from the tire, inner liner, and tube before the tire can safely be removed from the wheel assembly. If the air is not completely released from the tire, the pressure remaining can unexpectedly cause the rim to fly off and hit the person trying to remove the tire from the rim.
The first amended complaint alleges that John Bean assigned all assets and liabilities relating to its aerotech business at John Wayne Airport to its wholly-owned subsidiary JBT and that JBT is the legal continuation of and successor-in-interest to John Bean.
On February 19, 2019, Brandon Allison (Decedent), an employee of John Bean, was in the process of replacing a passenger boarding bridge tire from the rim at John Bean's workshop at John Wayne Airport. He believed all of the pressurized air in the tire had been released by the person responsible for that task. As Decedent unscrewed the eleventh bolt from the rim assembly, a rapid release of air pressure from the tire caused the rim to fly off with great force and strike Decedent, killing him. Decedent was 37 years old.
Emergency personnel took photographs of the area where the fatal incident occurred and of the rim that killed the Decedent. Defendants took exclusive possession, custody and control of the tire, rim, and related components involved in the accident.
II. PLAINTIFF'S LETTERS DEMANDING DEFENDANTS PRESERVE THE TIRE AND RELATED COMPONENTS
Plaintiff believed it was critical to preserve all components of the wheel assembly, and in particular the tire and its valve stem, for a potential product liability lawsuit against Goodyear Tire &Rubber Company (Goodyear) for defective design of the tire, valve stem and needle, and tube. On March 8, 2019, Plaintiff's counsel sent Defendants' legal department a letter requesting it preserve evidence including "'the tire . . . involved in the accident; the rim involved in the accident; anything attached to the rim/wheel/tire or part thereof; all equipment in use at the location of and at the time of the accident.'"
On May 13, 2019, Allision's counsel sent Defendants a second letter demanding they "'take all necessary steps to preserve any and all evidence concerning [the accident]' including the subject jetway/bridge in its immediate post-incident condition; the subject tire in its immediate postincident condition; the subject rim in its immediate post-incident condition; and any and all attachments to the subject rim/wheel/tire in their immediate post-incident condition." We refer to the March 8, 2019 letter and the May 13, 2019 letter together as the Evidence Preservation Letters.
Plaintiff does not allege that Defendants ever replied to either letter.
III. DEFENDANTS' RESPONSE TO GOODYEAR'S REQUEST FOR PRODUCTION
In May 2020 Plaintiff filed a wrongful death lawsuit against Goodyear and others based on strict liability and negligence. When she filed her lawsuit, Plaintiff believed that "[JBT] had preserved all of the evidence, including the tire and its related parts." Plaintiff later added John Bean and JBT as DOE defendants.
In the wrongful death lawsuit, Goodyear noticed the deposition of Defendants' "person most qualified" (Code Civ. Proc., § 2025.230) which included a request for production of "the subject tire and wheel assembly, any passenger boarding bridge tires and wheel assemblies in the immediate vicinity of the subject tire and wheel assembly and all documents referring or relating to the subject tire and wheel assembly."
In December 2020, Defendants responded to the deposition notice and document production request. In response to the request for production of the subject tire and related components, Defendants stated: "The tire inner liner, the tube, tire, hand wrench and impact wrench and any nuts and bolts left behind were kept and stored in a locked area by JBT. Please see two previously produced photos of what is being held at the airport and which we will make available for your informal inspection on a mutually available date...."
In February 2021, Defendants informed the parties: "Upon further inspection it is now apparent that the wrong tire was preserved from the accident and that Responding Defendant does not currently have the subject tire that was involved in the accident. It appears a Bridgestone tire was retained when the subject tire involved in the accident was a Goodyear brand tire.... Responding Defendant does not currently have or cannot locate any tires or wheel assemblies that were in the immediate vicinity of the incident or that were worked on or to be worked on by [Decedent] at or near the time of the incident."
Plaintiff believed that inspection of the passenger boarding bridge tire and its related components would have shown a defect in the tire's manufacture or design which prevented its complete deflation and thereby caused pressure to remain unnoticed. Such a defect would explain the sudden and unexpected release of air pressure that resulted in Decedent's death. However, because her experts and consultants would not be able to inspect the subject tire, valve stem, needle and other components, Plaintiff believed that under Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, she would not be able to prove causation against Goodyear and would lose a motion for summary judgment. She felt compelled to dismiss Goodyear without prejudice in order to avoid an adverse judgment that would be preclusive in the event the tire and related components were to be found. Thus, she alleged, as a result of Defendant's conduct she lost the opportunity to recover damages from Goodyear.
In the wrongful death lawsuit, John Bean and JBT brought successful motions for summary judgment. The trial court granted JBT's motion for summary judgment on the grounds the Decedent was not an employee of JBT and JBT and had not assumed liability for the Decedent's death when it acquired John Bean. The court granted John Bean's motion on the ground of workers' compensation exclusivity. Judgments in favor of John Bean and JBT were entered in May 2022.
PROCEDURAL HISTORY
Plaintiff initiated this lawsuit in March 2022. Her single cause of action, for promissory estoppel and/or voluntary undertaking, was based on allegations that the May 13, 2019 letter sent by her counsel and Defendants' course of conduct constituted a promise to preserve the tire and its components. The trial court sustained, with leave to amend, demurrers brought by Defendants. The court concluded the letter by itself did not constitute a promise and the complaint did not plead facts describing the conduct undertaken by Defendants that allegedly created a promise.
Plaintiff filed a first amended complaint, which added allegations that the March 8, 2019 letter and Defendants' response to the request for production were part of the promise to preserve the subject tire and related components. The trial court sustained without leave to amend demurrers brought by Defendants to the first amended complaint. The court concluded: "[t]he letters requesting that the defendants preserve evidence did not create a clear and unambiguous promise by the defendants to preserve evidence for the plaintiff" and the response to the request for production could not be construed as a promise to preserve evidence.
Defendants have filed a motion to augment the record with (1) the reporter's transcript of the hearing conducted February 1, 2023 on their demurrers to the first amended complaint and (2) the Notice of Ruling on the Demurrer to the First Amended Complaint. The motion is denied. The transcript of the February 1, 2023 hearing is already part of the reporter's transcript and the notice of ruling is included in the respondent's appendix.
Separate judgments of dismissal were entered for John Bean and JBT in March 2023. Plaintiff filed a notice of appeal from the judgment in favor of JBT, which is case No. G062693, and a notice of appeal from the judgment in favor of John Bean, which is Case No. G062745. We granted the parties' stipulated motion to consolidate the two cases for all purposes.
DISCUSSION
I. STANDARD OF REVIEW
An appellate court independently reviews a ruling on a demurrer and determines de novo whether the pleading alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) The court construes the allegations in a reasonable manner and assumes the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice can and has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The appellate court may affirm the judgment "'if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons.'" (Santa Ana Police Officers Assn. v. City of Santa Ana (2017) 13 Cal.App.5th 317, 324.)
Although the appellate court's review of an order sustaining a demurrer is de novo, review is limited to issues that have been adequately raised and supported in the plaintiff's appellate briefs. (Center for Biological Diversity v. Department of Conservation, Etc. (2019) 36 Cal.App.5th 210, 226.)
II. LEGAL BACKGROUND: NO TORT RECOVERY FOR SPOLIATION OF EVIDENCE
Defendants' conduct in losing or failing to keep the subject tire and wheel assembly would appear to constitute spoliation of evidence.
"'Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" (Victor Valley Union High School Dist. v. Superior Court (2023) 91 Cal.App.5th 1121, 1143, italics omitted, (Victor Valley.)
However, the California Supreme Court has held there is no tort remedy for intentional spoliation of evidence. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 466 (Temple) [third party spoliation]; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4 (Cedars-Sinai) [first party spoliation].) Court of Appeal decisions have declined to recognize a cause of action for either first-party or third-party negligent spoliation of evidence. (See, e.g., Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 460-463; Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1288, 1294-1296; Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1089-1090; Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400, 1404.)
First party spoliation is spoliation by a party to the underlying cause of action to which the evidence is relevant. (Cedars-Sinai, supra, 18 Cal.4th at p. 5.) Third party spoliation is spoliation by a party who is not a party to the lawsuit in which the evidence is relevant. (Temple, supra, 18 Cal.4th at p. 466.) The present case bears hallmarks of both first party and third party spoliation: Defendants were parties to Plaintiff's wrongful death lawsuit but the subject tire appears to have been relevant more to Plaintiff's claims against Goodyear. And, in effect, Defendants became third parties once their motions for summary judgment were granted.
The California Supreme Court declined to recognize a tort cause of action for first-party intentional spoliation of evidence based on (1) "the strong policy favoring use of nontort remedies rather than derivative tort causes of action to punish and correct litigation misconduct" (Cedars-Sinai, supra, 18 Cal.4th at p. 11), (2) "the uncertainty of the fact of harm in spoliation cases" (id. at p. 13), and (3) "[t]he costs that a tort remedy would impose" (id. at p. 15). Those nontort remedies include adverse evidentiary inferences and sanctions for misuse of the discovery process afforded by the discovery laws. (Id. at pp. 11, 12.) We recognize these remedies were not available to Plaintiff.
The California Supreme Court declined to recognize a tort cause of action for third-party intentional spoliation of evidence because "the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies." (Temple, supra, 20 Cal.4th at p. 478.)
Recovery in damages for destruction or loss of evidence has been recognized under a theory of promissory estoppel-provided a plaintiff can satisfy the elements of that claim. (Cooper v. State Farm Mutual Automobile Ins. Co. (2009) 177 Cal.App.4th 876, 880 (Cooper).) "[W]hile there may be no general tort duty to preserve evidence, this 'does not preclude the existence of a duty based on contract.' [Citation.] The general tort duty 'policy considerations do not negate the existence of a contractual obligation created by mutual agreement or promissory estoppel.'" (Id. at p. 894.) Plaintiff sought recovery for loss or destruction of the subject tire and related components by means of a promissory estoppel claim, and it is the legal sufficiency of that claim to which we now turn.
Plaintiff does not address her theory of voluntary undertaking. We consider any issue regarding voluntary undertaking, to the extent distinct from promissory estoppel, to be abandoned or forfeited. (Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72.)
III. PLAINTIFF DID NOT PLEAD A CLEAR AND UNAMBIGUOUS PROMISE NECESSARY FOR A PROMISSORY ESTOPPEL CLAIM
A. Elements of a Promissory Estoppel Claim
"In California, under the doctrine of promissory estoppel, 'A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'" (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310.) The elements of a claim for promissory estoppel are: (1) a clear and unambiguous promise; (2) reasonable and foreseeable reliance on the promise by the party to whom the promise was made, (3) injury caused by reliance on the promise. (Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 225.)
"'[A] promise is an indispensable element of the doctrine of promissory estoppel.'" (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044.) To support a claim of promissory estoppel, the promise must be "'clear and unambiguous in its terms.'" (Ibid.) "'A "promise" is an assurance that a person will or will not do something.'" (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1244.)
B. The Evidence Preservation Letters and Defendants' Response to the Request for Production Did Not Create a Clear and Unambiguous Promise
1. The Evidence Preservation Letters
Plaintiff alleged a promise to maintain and preserve the tire and related components was created by the Evidence Preservation Letters. Plaintiff did not allege Defendants ever replied to the Evidence Preservation Letters or gave her any assurances that it would preserve the subject tire and related components. Defendants said nothing in response to the letters, and "[u]nsaid words cannot create a clear and unambiguous promise." (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1187.) "'"[S]ilence in the face of an offer is not an acceptance, unless there is a relationship between the parties or a previous course of dealing pursuant to which silence would be understood as acceptance."'" (C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1500; see Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1385-1386 ["As a general rule, silence or inaction does not constitute acceptance of an offer"].)
Plaintiff does not allege, but suggests that the employment relationship between Defendants and the Decedent created a duty to preserve the subject tire and related components. She asserts in her opening brief that "[u]nder these factual circumstances, where an employer lost critical evidence following an employee's death that Defendant had expressly promised would be preserved, Defendants do properly bear the consequences of their misfeasance in losing the subject tire." (Italics added.) Plaintiff does not, however, develop this assertion or support it with reasoned argument and citation to authority. We therefore consider the point, if made, to be forfeited. (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956 ["'We are not bound to develop appellants' arguments for them'"].)
The Evidence Preservation Letters by themselves would not have created a duty to preserve that would give rise to tort damages. In Temple, the Supreme Court held that a badly burned patient could not assert a claim for third-party spoliation of evidence against a hospital that had lost a piece of surgical equipment and other evidence claimed to have been responsible for the patient's injuries. (Temple, supra, 20 Cal.4th at p. 469.) The hospital's loss of the evidence effectively eliminated the patient's ability to bring a product liability action against the manufacturer. (Id. at p. 474.) Although the plaintiff's counsel had sent the hospital a demand to preserve the surgical equipment and other evidence, the California Supreme Court held the hospital could not be liable in tort. (Id. at pp. 467.)
A duty to preserve evidence may exist independently of tort law (Temple, supra, 20 Cal.4th at p. 477) and arise once litigation becomes reasonably foreseeable (Victor Valley, supra, 91 Cal.App.5th at p. 1144). As remedies for breach, spoliation of evidence is considered "an abuse of the discovery process" under Code of Civil Procedure section 2023.030 and subjects the party which destroyed the evidence to discovery or evidence sanctions and, potentially, criminal penalties. (Temple, supra, 20 Cal.4th at pp. 476-477; Cedars-Sinai, supra, 18 Cal.4th at p. 12; Victor Valley, supra, 91 Cal.App.5th at pp. 1138-1140, 1142-1143, 1147-1148; Lueter, supra, 94 Cal.App.4th at p. 1300.) A duty to preserve evidence can be imposed by a specific statute or regulation, and "the Legislature or the regulatory body that has imposed this duty will possess the authority to devise an effective sanction for violations of that duty." (Temple, supra, at p. 477.)
A demand to preserve evidence, such as the Evidence Preservation Letters, serves the purpose of placing the receiving party on notice that (1) it is in possession of evidence that is potentially material to reasonably foreseeable litigation and (2) failure to preserve the evidence might subject the receiving party to discovery or evidence sanctions, criminal penalties, or sanctions imposed by statute or regulation. But when, as in the present case, the party receiving the demand letter does not respond to it with a clear and unambiguous promise to preserve the evidence, the demand letter standing alone does not constitute a promise satisfying the requirements for recovery under a theory of promissory estoppel.
Another means was potentially available to Plaintiff to preserve the tire and related components. A party seeking to preserve evidence in anticipation of a future lawsuit may file a verified petition pursuant to Code of Civil Procedure sections 2035.010 and 2035.030 for an order authorizing the petitioning party to engage in discovery for the purpose of "preserving evidence for use in the event an action is subsequently filed." (§§ 2035.010, subd. (a), 2035.030.) "The petition shall request the court to enter an order authorizing the petitioner to engage in discovery by the described methods for the purpose of perpetuating the described testimony or preserving the described evidence." (§ 2035.030, subd. (c).)
2. Defendants' Discovery Response
Plaintiff also alleged a promise to maintain and preserve the tire and related components was created by Defendants' response to Goodyear's request for production served with the notice of deposition of JBT's most qualified person. In that response, Defendants stated, "[t]he tire inner liner, the tube, tire, hand wrench and impact wrench and any nuts and bolts left behind were kept and stored in a locked area by JBT." We conclude, as did the trial court, that use of the past tense indicates this sentence was intended as a statement of what had been done with the items in the past and as an inventory of items to be produced in connection with the deposition of Defendants' person most qualified.
Defendants' response to the request for production also stated, "Attached are two photos of what is being held at the airport and which we will make available for your informal inspection on a mutually available date." Plaintiff argues that sentence was a promise. We disagree. The sentence was a representation that Defendants would comply with their obligations under the discovery statutes to make the identified items available for inspection. Defendants, upon properly being served with the deposition notice and request for production, were obliged to comply by producing "any document, electronically stored information, or tangible thing for inspection and copying." (Code Civ. Proc., § 2025.280, subd. (a).) Defendants' representation that they would "make available for your informal inspection" the subject tire and related components did not create a promise, independent of the obligations imposed by the discovery statutes, to preserve and maintain the items described.
In addition, the litigation privilege of Civil Code section 47, subdivision (b) protects Defendants from liability based on their response to the request for production. "A plaintiff cannot establish a prima facie case if litigation privilege precludes a defendant's liability on the claim." (Timothy W. v. Julie W. (2022) 85 Cal.App.5th 648, 661). Discovery responses are communications protected by the litigation privilege. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 242243; see Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 788 (Crossroads) [applying privilege to interrogatory response].)
Whether the litigation privilege applies to a nontort cause of action depends on whether application of the privilege would further its underlying policies. (Vivian v. Labrucherie (2013) 214 Cal.App.4th 267, 276-277 (Vivian); Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492.)"'The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.'" (Flatley v. Mauro (2006) 39 Cal.4th 299, 321.)
Vivian added as an additional requirement "the agreement on which plaintiff relies does not clearly prohibit the conduct that plaintiff challenges." (Vivian, supra, 214 Cal.App.4th at p. 276.) This requirement, if valid, is not relevant here. The phrase "conduct that plaintiff challenges" refers to the conduct claimed to constitute the breach of contract. (Id. at pp. 276-277 [an agreement did not expressly prohibit the communication claimed to be privileged]; see Crossroads, supra, 13 Cal.App.5th at p. 788 ["If one expressly contracts not to engage in certain speech or petition activity and then does so, applying the privilege would frustrate the very purpose of the contract if there was a privilege to breach it"].) Defendants' discovery response is alleged to constitute the promise itself, not "the conduct that [P]laintiff challenges" as reneging on that promise. (Vivian at p. 276.)
Application of the litigation privilege to Plaintiff's promissory estoppel cause of action fully advances those policies. Defendants' response to the request for production was a communication made during litigation and was an integral part of the litigation process. Litigants have a statutory obligation to respond to discovery requests and should be able to do so fully and candidly without fear their responses will constitute independent promises subjecting them to derivative actions for promissory estoppel or breach of contract. The California Supreme Court held there is no tort cause of action for spoliation of evidence precisely to avoid such derivative tort causes of action to remedy litigation-related misconduct. (Cedars-Sinai, supra, 18 Cal.4th at pp. 9-11) C. The Cooper Case
Plaintiff argues Cooper, supra, 177 Cal.App.4th at p. 876, is "illustrative and controlling"; we conclude that case underscores the defect in her promissory estoppel claim. In Cooper, the plaintiff, who was an insured of the defendant insurer, was involved in a single-car accident allegedly caused by tread separation of the right rear tire. (Id. at p. 879.) As part of a collision damage settlement with the plaintiff, the defendant took possession of the car, including the tire. The defendant's expert examined the tire and concluded it was defectively manufactured. (Ibid.) After the defendant notified the plaintiff of its expert's opinion, the plaintiff sued the tire manufacturer. (Ibid.) Plaintiff's counsel informed the defendant of the importance of the tire to the plaintiff's case against the manufacturer, and three times, twice in writing, the defendant affirmatively stated it would retain and preserve the tire. (Id. at pp. 880, 883-884.) After so assuring the plaintiff, the defendant destroyed the car and the tire. (Id. at p. 880.)
The plaintiff sued the defendant for destroying the tire and claimed that as a result of its destruction, he was unable to prove his product defect case against the manufacturer. (Cooper, supra, 177 Cal.App.4th at p. 880.) Relying on Cedars-Sinai and Temple, the trial court ruled the plaintiffs were legally precluded from recovering damages for the destruction of the tire and granted the defendant's motion for nonsuit after plaintiff's counsel made an opening statement. (Ibid.)
The Court of Appeal, reversing the judgment, concluded Cedars-Sinai and Temple were "not on all fours to the present case" because there the plaintiff had set forth a prima facie case that he had relied to his detriment on the defendant's promise to preserve the tire. (Cooper, supra, 177 Cal.App.4th at p. 880.) The plaintiff had not tried to impose a general tort duty on the defendant to preserve evidence, as was the case in Cedars-Sinai and Temple, but rather asserted the defendant owed him a duty based upon its promise to retain the tire and he reasonably relied on that promise. (Id. at p 894.) "[N]o such promise and reliance were present in Cedars-Sinai and Temple." (Id. at p. 880.) The court noted too that the plaintiff had alleged the defendant had breached its fiduciary duties as an insurer by destroying the tire. (Id. at p. 904.)
Here, no such promise to preserve and maintain the tire and related components was alleged by Plaintiff. As we have explained, Defendants did not respond to the Evidence Preservation Letters, and the Defendants' response to the request for production did not constitute a promise and was protected by the litigation privilege. Plaintiff did not allege Defendants breached any fiduciary duties.
DISPOSITION
The judgments are affirmed. Defendants may recover costs on appeal.
WE CONCUR: O'LEARY, P. J. DELANEY, J.