2 total
Novel spoliation claim survives; evidentiary maxim need not be pleaded.
In a tobacco liability appeal, the estate challenged an order striking portions of a statement of claim alleging intentional spoliation of evidence by tobacco manufacturers.
The Court of Appeal held that the novel spoliation claim should not be struck on an interlocutory motion because it was not plain and obvious that it could not succeed, and questions about recognition of the tort should be determined at trial on a full record.
The court further held that omnia praesumuntur contra spoliatorem is a rule of evidence, not a point of law that must be pleaded, so that paragraph was properly struck.
The appeal was allowed in part, the cross-appeal was dismissed without costs, and the appellant received costs of the motion and appeal.
Appeal allowed; possession claim failed under both alleged lease theories.
In a commercial franchise and sublease dispute, the appellant challenged an order granting the respondents possession of premises.
The court held the respondents failed to establish any claim to possession under an alleged new lease because they were not parties to it and adduced no admissible evidence that it was entered into on their behalf.
The court also held the respondents failed to prove the factual foundation for any continuing month-to-month tenancy under the original lease, namely the absence of notice from the landlord.
The appeal was allowed, the judgment below set aside, and the application dismissed with costs to the appellant.
