Opinion
B202081
8-8-2008
GIUSEPPE M. FERNANDEZ, Plaintiff and Appellant, v. HERTZ CORPORATION, Defendant and Respondent.
Dominguez LLP, Aimee E. Dominguez and Stephen A. Bruce for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar and Maxine J. Lebowitz for Defendant and Respondent.
Not to be Published
Giuseppe Fernandez, while renting a car at the Hertz Corporations LAX facility, left his briefcase unattended and it was stolen by another patron whose identity was unknown to both Fernandez and Hertz. By the time Fernandez reported the theft to Hertz, the thief had left the premises. The issue posed is whether Hertz has a duty immediately to attempt to identify the thief (by viewing Hertzs surveillance tapes), to capture the thief (or to cause the police to capture him), and to attempt to recover the briefcase. We conclude that Hertz did not have such duties. Even if Hertz had such duties, no act or omission of Hertz caused Fernandez any damage. Accordingly, we affirm the summary judgment granted in favor of Hertz on Fernandezs negligence cause of action. We also affirm prior orders sustaining demurrers without leave to amend to causes of action for negligent and intentional misrepresentation, concealment, deceit, and violation of Penal Code section 135.
Penal Code section 135 provides: "Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor."
BACKGROUND
A. Complaint (Violation of Penal Code section 135)
About two months after the theft at Hertz, Fernandez filed a verified complaint against the thief (sued as Doe 1) for conversion and against Hertz for negligence and various other torts, including a claim for "intentional tort —violation of Penal Code § 135."
The complaint set out the following background facts: Fernandez, who had traveled to the United States from Brazil, was at the Hertzs LAX facility renting a car with one of his colleagues when he placed his briefcase on the floor in front of the counter. Inside the briefcase were his laptop computer, passports, cash, a cell phone, airline tickets, books and business documents. Fernandez left his briefcase on the floor by his colleague and went to use Hertzs in-house telephone to call Hertzs reservations office. Upon returning to the counter after his phone call, Fernandez noticed that his briefcase was missing. Fernandez told the Hertz employee helping him at the counter that his briefcase was missing, walked around the office asking people if they had seen his briefcase, and also checked in Hertzs "lost and found." Fernandez asked to speak with a Hertz manager to report his loss and was referred to Steve Almanza. Almanza spoke to Fernandez and then called other Hertz attendants on his radio asking if they had found Fernandezs briefcase and was told, "`No."
Fernandez then suggested that he be allowed to view the video tapes from the cameras that Hertz had posted throughout the facility, but Almanza told him that the security manager was not on the premises, and Almanza could not manage the equipment. Fernandez then asked another Hertz employee who had been assisting a couple at the counter next to Fernandez for the couples contact information, but was given only their Hertz contract number. Fernandez called Almanza with the contract number, but Almanza told him that he "could not point fingers and refused to cooperate."
Fernandez checked for his briefcase at the LAX "lost and found," where an airport police officer advised him to go to the Los Angeles Police Department to file a police report. Fernandez returned to Hertz, where Almanza told him that the security manager would not be at work until the next day and instructed Fernandez to return the next day. Fernandez then filed a report with the Los Angeles Police Department.
The day after the theft, Fernandez returned to Hertz and was informed by an employee, Lourdes, that she had seen videotapes showing a young man standing by Fernandez when Fernandez moved away from the counter to make a telephone call; the man picked up Fernandezs briefcase and left the building; Hertz was not able to match the thiefs photograph with a contract number. Fernandez asked to speak to Hertzs security manager, John Mattox, but he was unavailable, so Fernandez spoke with Mattoxs assistant, Manuel Guevara. Guevara told Fernandez that they were not yet able to match the thiefs face with a contract number, but that Fernandez should return later that day. When Fernandez did so, Guevara came out with Fernandezs briefcase. Guevara told him that they were able to identify the thief by viewing the "exit camera" showing the thief leaving the Hertz premises in a car rented by the thiefs grandmother. With that information, Mattox and Guevara had identified the grandmother and had gone to her home to interview the thief. The thief did not want to give up any of Fernandezs belongings, but at the insistence of Mattox and Guevara, the thief gave them the briefcase, which at that time contained only Fernandezs laptop computer and an empty carrying case which Fernandez had used to hold his money and business cards. Guevara also told Fernandez that a police officer had called him earlier that day and that Guevara was going to give the police officer the thiefs contact information. Guevara told Fernandez that the police were supposed to arrest the thief the following Monday, in about five days. Fernandez returned to Brazil. About two months after the theft, Fernandez learned that Hertz had neither turned over the videotapes nor communicated any information about the incident to the police, and that the thief had not yet been arrested.
In the cause of action labeled violation of Penal Code section 135, Fernandez alleged that Hertz refused, and continued to refuse, to turn over to the police the videotapes depicting the crime and to provide the police with the thiefs identity and contact information "in order to conceal criminal activity in its location."
Hertz demurred to the complaint, arguing that, notwithstanding the label of the cause of action as a violation of Penal Code section 135, the gravamen of the claim was spoliation of evidence, for which there is no civil cause of action. The court sustained the demurrer to that cause of action without leave to amend, stating, "There is no private right of action in a civil suit allowed under this statute."
B. First Amended Complaint (Causes of Action for Misrepresentation and Deceit)
Fernandez was afforded leave to amend to add other causes of action, so he filed a first amended complaint doing so. By that time (about five months after the theft), Fernandez knew the identity of the thief as Bryan M. Riley and that Riley had been arrested. In the first amended complaint, Fernandez also admitted that when the police arrested Riley, Fernandezs property, "or its financial equivalent, was confiscated from Riley at that time." Fernandez also alleged that at some point Hertz was contacted by a police officer and Hertz refused to turn over the surveillance videotapes to the officer. But after Fernandez hired counsel, filed this action against Hertz, and provided a copy of the complaint against Hertz to the police, the police called Hertz and Hertz gave the police Rileys address and agreed to turn over the videotapes.
According to Fernandezs opening brief, Riley was convicted of grand theft of Fernandezs property and sentenced to five years in state prison.
The first amended complaint asserted against Hertz causes of action for negligence as well as intentional and negligent misrepresentation and deceit. The latter three claims were based on allegations that Hertz falsely represented to Fernandez that Hertz had spoken to and otherwise cooperated with the police about the theft. Hertzs false representations allegedly caused Fernandez to delay in hiring counsel and caused the police to delay in arresting Riley. Had the police been informed of Rileys identity sooner, they would have been able to arrest him sooner and "would have recovered [Fernandezs] passport and other business documents in time to prevent the interruption to his business that ultimately occurred."
Hertz demurred to the misrepresentation and deceit claims, which demurrers were sustained without leave to amend. With respect to the causes of action for intentional misrepresentation and deceit, the court ruled that "the duty asserted [to disclose the thiefs identity to the police and Fernandez] is not supported by any cited authority and the court is aware of none. Further, even if some different disclosure had been made, plaintiff cannot show that his damages would have been any less; the assertion that plaintiff might have recovered his passport sooner is pure speculation, and there is no showing that he suffered some legally cognizable damage from that delay in any event. [I]n the absence of any law imposing a duty to disclose, these causes of action cannot be cured by amendment." The court sustained the demurrer without leave to amend as to the cause of action for negligent misrepresentation on the ground that Fernandez cited no authority to support a duty to disclose information about the thief to the police or to Fernandez, and the court "decline[d] to extend such a duty on the facts of this case." As Fernandez was afforded leave to amend his negligence claim, he filed a second amended complaint.
C. Second Amended Complaint (Negligence Cause of Action)
The only claim against Hertz in the second amended complaint was for negligence. Fernandez alleged that Hertz had a duty to protect him from criminal activity of third persons while he was conducting business at Hertz, including the duty to review its surveillance cameras "immediately upon learning of the theft of [his] property and questioning patrons as they exited the Hertz facility in order to prevent the theft from occurring." Hertz allegedly breached its duty by (1) failing to maintain security personnel on the premises on the day of the theft; (2) refusing to review the surveillance videotapes at the time Fernandez reported his property stolen; and (3) refusing to prevent Riley from leaving Hertzs premises with Fernandezs property. Fernandez maintained that if Hertz had used the foregoing security measures, it "could have easily prevented the theft of [Fernandezs] property . . . ."
Hertzs demurrer to the second amended complaint was overruled, but its motion to strike the request for attorneys fees was granted.
D. Hertzs Summary Judgment Motion
Hertz moved for summary judgment as to the negligence count on the grounds that Hertz did not breach any duty of reasonable care to Fernandez and that no act or omission of Hertz caused him any damages because Riley had already left the premises when Fernandez alerted Hertz to the theft. The motion was supported primarily by Fernandezs deposition testimony and Mattoxs declaration.
Mattox, Hertzs security manager, declared that the day after the incident he and security supervisor Guevara began reviewing the videotaped footage from the entrance and counter surveillance cameras. They were able to match a rental contract number with the Hertz renter (Corene Riley) who was with the individual who picked up Fernandezs briefcase. Mattox contacted Corene Riley, who indicated that her grandson, Bryan Riley, had picked it up by mistake. He and Guevara went to Ms. Rileys home and retrieved Fernandezs briefcase from Riley. The surveillance footage showed that Riley set his own bag down on the floor near Fernandezs briefcase while his grandmother, Corene Riley, conducted business with a Hertz employee. Fernandez was conducting business at the next workstation down the counter. During the time that the briefcase was on the floor, Fernandez left the counter area several times. The time codes on the surveillance video showed that Fernandezs briefcase was on the floor for over 30 minutes before Riley picked it up, in addition to Rileys own bag, and walked right by Fernandez and out the door. The time codes on the video showed Riley picking up Fernandezs briefcase at or about 14:26:31. Fernandez appeared to look for his briefcase and noticed that it was missing at or about 14:28:38. Riley left the Hertz parking lot at or about 14:31:43.
The parties and the trial court interpreted the time codes to indicate the hour, minute, and second.
According to Fernandezs deposition testimony, he assumed his friend, Mauricio, who stayed at the counter, was watching the briefcase each time Fernandez was out of its immediate presence. After asking various people if they had seen his briefcase and checking with Hertz lost and found to see if someone had turned in his briefcase, Fernandez spoke with the Hertz manager on duty, Almanza.
In his deposition, Fernandez at first testified that he estimated that two to three minutes elapsed from the time he noticed his briefcase was missing until he spoke with Almanza. But later in his deposition, Fernandez clarified that the amount of time that elapsed was more than five minutes.
Fernandez suggested to Almanza that they view film from security cameras on the premises, but Almanza told him that they could not view the tapes because the security manager was not there and Almanza was not authorized to operate the equipment. Fernandez was told that the security manager authorized to operate the cameras would be at Hertz the next day and that Fernandez should return at that time.
Hertz argued that its acts or omissions did not cause Fernandez any harm because the time codes on the surveillance video showed that by the time Fernandez notified Almanza about the missing briefcase, more than five minutes had elapsed, and Riley left the Hertz parking lot about five minutes after he took the briefcase.
In opposition to the motion, Fernandez submitted, among other evidence, portions of Guevaras testimony at Rileys criminal trial and a declaration of an expert in the loss prevention and asset protection business, John Nutt. Nutt reviewed the discovery produced in the case and expressed the opinions that "it had to have taken [the Rileys] in excess of 15 minutes to get through Hertzs security gates at the LAX Facility," and that "had Hertz reacted in a timely manner and employed the security measures at its disposal at the time, it could have prevented the crime against Plaintiff." Fernandez relied upon Guevaras testimony for the proposition that the times shown on the surveillance videotapes were not accurate because the cameras "skip time" and thus do not indicate real time. But Hertzs reply asserted that Fernandez misconstrued Guevaras testimony regarding the time codes on the videotapes and Guevara twice confirmed the accuracy of the dates and times shown on the surveillance videos.
Guevara testified as follows: "Q. . . And youre not responsible for maintaining the cameras; correct? [¶] A Its part of my duty to change the tapes every day and check if its something wrong, call service, for service. [¶] . . . [¶] Q. . . But you dont personally fix it, right? [¶] A No, I dont personally fix. [¶] . . . [¶] Q How about setting of the equipment, say, for example, we notice times and dates. You dont do that; right? [¶] A No, I dont. They are programmed into the VCR. [¶] Q Would it be an outside company that does the programming or maintenance? [¶] A Outside company. [¶] Q And do you know how often they check to make sure its accurate? [¶] A Well, every six months when the time changes, we adjust the time. [¶] Q You do that, or you call somebody in to do it? [¶] A No, we call lock security, somebody else. [¶] Q So there is a way to manipulate the date and the time thats shown on the screen; correct? [¶] A I will not say manipulate. You can change it. But you cannot change once its recorded. You cant change anything. [¶] . . . [¶] Q Now we watched it, and the numbers on the — as Im looking at it, the numbers on the far right seem to go quite fast. What does that represent? [¶] A It represents the playback, how fast you can view it. You can put it fast or slow. [¶] . . . [¶] Q So when we were looking at the tape, . . . that wasnt necessarily in real time; right? [¶] A No, nothing is real time. [¶] Q. . . Explain to the jury what real time is. [¶] A Well real time is what were living right now. But on a VCR, in order to record 24 hours in one tape, that is the frames are cut. And when you cut the frames, when youre looking at something, it looks like if youre walking over there, but then the next half a second, youre standing three feet away. [¶] . . . [¶] Q Now do these cameras record each and every moment? Or do they skip moments in time as they record? [¶] A I believe they skip a little bit."
At two other points in his testimony, Guevara was asked whether the dates and times on the videotapes were accurate, and he responded, "Yes they are," and "Correct."
After a hearing, the court granted the motion and issued a minute order stating the following: "[Hertz] successfully met its burden of showing that it did not breach a duty to Plaintiff up to and including the time that [Riley] left the premises. The undisputed facts show that Riley picked up the briefcase at 14:26:31; Plaintiff noticed that [the] briefcase was gone at 14:28:38; and Riley left the gate at 14:31:43. . . . Plaintiffs attempt to dispute this fact fails because he mischaracterizes the testimony of Guevara. The undisputed facts also show that it took more than five minutes for Plaintiff to speak with a Hertz employee about his missing bag. . . . Plaintiffs argument that he `sounded the alarm in 2 [to] 3 minutes is not supported by his testimony. In any event, Plaintiff admits that Hertz had sufficient security measures in place, but claims that because Hertz did not immediately review its tapes etc. it did not act reasonably to apprehend the thief. With respect to what Hertz did or should have done AFTER the crime of theft was committed — from the time Riley picked up the briefcase and afterwards — neither party has found or submitted any legal authorities which address whether such a duty exists and if so what the extent of that duty might be. The Court has found none, and finds that the extension of a duty to take reasonable measures to prevent foreseeable harm to now include a duty to take all steps necessary to catch the criminal is not reasonable here. Can airports be held liable in negligence if they do not shut down the airport or immediately review their security cameras after a thief steals another persons luggage, left unattended by that person? Should court personnel who perhaps witness someone in a court room taking another persons jacket be held liable because they do not act sufficiently quickly to apprehend the thief and retrieve the jacket? Where would this duty end? The Court does not find that current law supports the extension of the duty to act reasonably to protect persons from foreseeable physical injury to include a duty to take any specific actions to apprehend a property thief."
Fernandez appealed from the judgment.
DISCUSSION
A. Negligence Claim
1. Standard of Review
Because the negligence claim was resolved on a summary judgment motion, "we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In performing our de novo review, we view the evidence in the light most favorable to Fernandez as the losing party, liberally construing his evidence and strictly scrutinizing Hertzs own evidence "in order to resolve any evidentiary doubts or ambiguities in [Fernandezs] favor." (Ibid.)
"The existence and scope of a duty are questions of law for the courts determination, and foreseeability is a critical factor in the analysis. When foreseeability is analyzed to determine the existence or scope of a duty, foreseeability is also a question of law. [Citation.]" (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291, 1300.)
2. Liability for Third Party Criminal Acts
"A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a `special relationship with the other person. [Citations.] Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. Accordingly, in Ann M. [v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 (Ann M.)], we recognized as `well established the proposition that a proprietors `general duty of maintenance, which is owed to tenants and patrons, . . . include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. [Citations.]" (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).)
The analysis of the duty of a landlord to provide protection from foreseeable third party crime has been described as a "`sliding-scale balancing formula," pursuant to which the foreseeability of the harm is balanced against the burden of the duty to be imposed. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213-1214.) Thus, in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required; but in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. (Id. at p. 1213.) "The duty analysis we have developed requires the court in each case (whether trial or appellate) to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. `Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord." (Id. at p. 1214.)
In Delgado, our Supreme Court rejected the notion that a business proprietor who chooses to have a security program, including the provision of a roving security guard, has necessarily assumed a general duty to protect invitees from third party violence. (Delgado, supra, 36 Cal.4th at p. 249.) Rather, "a defendants undertaking will support the finding of a duty to another only if (a) the defendants action increased the risk of harm to another, or (b) the other person reasonably relied upon the undertaking to his or her detriment." (Id. at p. 250.)
In this case, Hertzs use of surveillance cameras and security personnel did not increase the risk of harm to Fernandez, and there is no evidence that Fernandez was aware of the cameras or security personnel or relied upon them for his protection. It was undisputed that there were no security personnel on the premises at the time of the incident. And Fernandez relied upon his friend, Mauricio, to watch the briefcase each time Fernandez was out of its immediate presence. Accordingly, that Hertz had a security program at its facility does not in itself establish that Hertz undertook to protect Fernandez from theft by third parties.
In his opening brief, Fernandez identifies several specific actions that he contends Hertz should have undertaken to protect him from theft. He argues that Hertz failed to employ the security measures it had in place in order to prevent the theft because by viewing the tapes, "Hertz could have immediately known Rileys whereabouts in its facilities and the car in which he (and his grandmother) were driving. With that information, its staff could have easily and immediately alerted its security gate and requested the guard therein to prevent Riley from exiting its facility with [Fernandezs] property."
Fernandez does not argue that Hertz had a duty to pursue Riley and to recover the briefcase and its contents once Riley and the briefcase left Hertzs premises.
But the undisputed facts do not support Fernandezs propositions. The undisputed evidence was that there was no staff person on the premises at the time of the theft authorized to operate the surveillance system so as to view the tapes in order to identify the thief. And, as we shall discuss, Fernandez fails to establish that Hertz had a duty to have such a person available at all times. Thus, there is no support for the claims that Hertz should have easily identified Riley and that Hertz should have notified its security gate to prevent Riley from leaving the premises.
In addition, the undisputed evidence showed that Riley had already left the premises when Fernandez spoke to a Hertz employee about his missing bag, establishing also that none of Hertzs acts or omissions was a cause of damage to Fernandez. Even if the thief had not yet departed, it is mere speculation that he would have still been there by the time the surveillance tapes were reviewed and the thiefs identity was ascertained. The declaration of Fernandezs expert, in which he expresses the opinion that it must have taken Riley at least 15 minutes to get through Hertzs security gate, is inadequate to create a dispute of fact because it is speculative and unsupported by any explanation or evidence. Nutts conclusory declaration therefore does not create a dispute of fact as to issues of duty or causation. (Cheviot Vista Homeowners Assn. v. State Farm Fire & Casualty Co. (2006) 143 Cal.App.4th 1486, 1499-1500.) Also inapposite are those cases addressing the issue of a business proprietors duty to protect invitees facing danger from imminent or ongoing criminal assaultive conduct occurring on the premises. (See, e.g., Morris v. De La Torre (2005) 36 Cal.4th 260, 264.)
Fernandez faults Hertz for failing to have security personnel on duty so as to be able to view the tapes immediately, to identify Riley, and to thwart or capture him before he left the premises. We conclude that imposition of such duties places an onerous burden on business proprietors in a situation where there is a low degree of foreseeability of harm. As reasoned by the Supreme Court in Ann M., "[w]hile there may be circumstances where the hiring of security guards will be required to satisfy a landowners duty of care, such action will rarely, if ever, be found to be a `minimal burden. The monetary costs of security guards is not insignificant. Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined. `No one really knows why people commit crime, hence no one really knows what is `adequate deterrence in any given situation. [Citation.] Finally, the social costs of imposing a duty on landowners to hire private police forces are also not insignificant. [Citation.] For these reasons, we conclude that a high degree of foreseeability is required in order to find that the scope of a landlords duty of care includes the hiring of security guards. . . . To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well-established policy in this state." (Ann M., supra, 6 Cal.4th at p. 679.)
In two cases (one predating Ann M. and the other not citing Ann M.), Courts of Appeal have held that a landlord has no duty to prevent its tenants property from being stolen. In Royal Neckware Co. v. Century City, Inc. (1988) 205 Cal.App.3d 1146, a tenant in a shopping center sued his landlord after the tenant had lost merchandise in two burglaries. The court of appeal held that the trial court correctly refused to instruct the jury that a commercial landlord has a duty to safeguard its tenants property from reasonably foreseeable criminal activity by third parties because there was no such duty. (Id. at p. 1151.) The court explained: "We cannot find such a duty exists because it is the tenant that is in the best position to take steps to protect the safety of its own property; there is no moral blame to be ascribed to a failure to prevent anothers property from being stolen; it would place an onerous financial burden on a landlord — which eventually would be passed on to all of its tenants — to hold it responsible for the loss of its tenants property; and a tenant can easily obtain insurance to cover any such loss." (Id. at p. 1152.)
The court in Rotman v. Maclin Markets, Inc. (1994) 24 Cal.App.4th 1709 (Rotman) relied upon Royal Neckware in upholding the trial courts directed verdict in favor of the defendant, landlord of an open air market, and against the plaintiff, a tenant whose jewelry business was the subject of a theft. The court in Rotman also determined that the tenant could not avoid the effect of Royal Neckware by asserting that the landlord had voluntarily assumed a duty to protect the tenants property from theft because there was no substantial evidence of such an assumption. (Rotman, supra, 24 Cal.App.4th at pp. 1715-1716.)
Although the analysis in Rotman and Royal Neckware predated the articulation of the "sliding-scale balancing formula" as described in Castaneda v. Olsher, supra, 41 Cal.4th 1205, Rotman and Royal Neckware address some of the factors of that formula and support our conclusion that Hertz had no duty immediately to view its surveillance tapes and to attempt to apprehend Riley before he left Hertzs premises with the stolen property. There was only a low degree of foreseeability that anyone, including Riley, would steal Fernandezs briefcase; on the other hand, Hertz would be subject to an unfair financial burden if it were required to maintain a security staff on the premises at all times to view the surveillance tapes and to attempt to apprehend thieves before they leave Hertzs premises. We also conclude that even if Hertz had the duties as posited by Fernandez, any breach of such duties was not a cause of harm because there was no dispute that Riley had left the Hertz premises before Hertz would have been able to ascertain his identity and to act to prevent him from absconding with the briefcase. Summary judgment was properly granted on the negligence claim.
B. Intentional and Negligent Misrepresentation, Deceit, Concealment, and False Promise
Fernandezs entire argument in his opening brief as to the intentional and negligent misrepresentation, deceit, concealment, and false promise causes of action is as follows:
"[The trial court] struck Appellants causes of action for intentional and negligent misrepresentation, deceit/concealment and false promise on the grounds that Hertz owed no duty to Appellant to assist him in the recovery of his property. For all of the reasons set out above [dealing with the claim for spoliation of evidence], Appellant strongly believes that Hertz did, in fact, owe him a legal duty in that regard and Hertz breached that duty by failing: (1) to prevent Riley from completing the crime and/or (2) to contact or cooperate with the Police, or to otherwise assist Appellant in the investigation of the crime and the recovery of his property. [¶] Applicable law does, and should, impose such a legal duty of due care on all business owners, Hertz included."
In his reply brief, Fernandez argues, without citation of any legal authority, that Hertz had duty immediately to call the police and otherwise assist him in recovering his property, and that Hertz falsely promised him that Hertz would call the police and that Riley would be arrested the following Monday.
Fernandez fails to support his claims for intentional and negligent misrepresentation, deceit, concealment, and false promise with pertinent legal authority establishing that Hertz breached a duty by failing to investigate the crime and to assist in recovering stolen property, and on that basis we conclude that the contentions are without merit. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [to demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and to facts in the record].)
C. Spoliation of Evidence
Fernandez contends that the trial court erred in sustaining the demurrer to the spoliation of evidence cause of action in the complaint. But the complaint fails to allege any facts bringing this case within the provisions of Penal Code section 135 (see fn. 1, ante), because Hertz is not alleged to have destroyed or concealed any evidence about to be produced in any "trial, inquiry, or investigation." The complaint does not allege that there was any police investigation at the time Hertz refused to turn over the surveillance videotapes to the police. Rather, as alleged in the complaint, Hertz allegedly failed to investigate the theft in a timely manner and to turn over to the police or to Fernandez the surveillance videotapes in order to ascertain the thiefs identity. But it is undisputed that Fernandez himself filed a police report of the crime on the day it occurred and Hertz ascertained Rileys identity the day after the crime. And it is also undisputed that the videotapes eventually were turned over to the police and used in Rileys criminal prosecution. Thus, the gravamen of this cause of action is not that evidence was destroyed or concealed, but that Hertz failed to immediately investigate the crime and to turn over the videotapes to the police at a time when there was no police investigation of the crime. For the reasons set out in part A. of this discussion, we conclude that Hertz had no duty to immediately ascertain the thiefs identity and to attempt to recover the stolen property.
Even if the allegations of the complaint fall within the provisions of Penal Code section 135, we are bound by our Supreme Courts decision in Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 466, holding that "no tort cause of action will lie for intentional third party spoliation of evidence." Temple Community Hospital involved the allegations that a hospital lost or concealed records pertaining to a medical device that injured a patient and that the patient was deprived of an opportunity to pursue a personal injury action against the manufacturer of the device.
Fernandez maintains that Temple Community Hospital is inapplicable because it involved "litigation-related misconduct," which is not at issue here. Fernandez nevertheless asks us to recognize a derivative tort based on Penal Code section 135 when our Supreme Court has declined to do so. As explained by the Supreme Court: "We do not believe that the distinction between the sanctions available to victims of first party and third party spoliation should lead us to employ the burdensome and inaccurate instrument of derivative tort litigation in the case of third party spoliation. We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations of that duty. . . . Criminal sanctions [under Penal Code section 135], of course, also remain available. [¶] If existing remedies appear limited, that may well be because third party spoliation has not appeared to be a significant problem in our courts." (Temple Community Hospital v. Superior Court, supra, 20 Cal.4th at p. 477.)
The demurrer was properly sustained to the claim for spoliation of evidence in the complaint.
Because Fernandez has no viable cause of action against Hertz, we need not address the ruling striking Fernandezs request for attorneys fees.
DISPOSITION
The judgment is affirmed. Respondent Hertz Corporation is entitled to its costs on appeal.
We concur:
ROTHSCHILD, J.
NEIDORF, J.