Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC 046145, Dan Thomas Oki, Judge.
Dumbeck & Dumbeck, Jason D. Dumbeck and Curtis M. King for Plaintiff and Appellant.
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, Ronald Gold and Justin B. Gold for Defendants and Respondents.
FLIER, J.
Tarek Bourgi appeals from a judgment in favor of respondent entered by the superior court after a bench trial. The parties previously were before this court in Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649 (Bourgi I). Stated succinctly, after learning that a Hummer vehicle he had purchased as new had sustained prior damage in an eco-terrorist attack on the respondent’s dealership, appellant sued alleging numerous causes of action, claiming respondent’s employees had represented the vehicle was original or new when it in fact was not. In Bourgi I, we reversed a judgment for appellant following a jury trial, and we remanded the matter to the trial court for retrial. Upon remand and reassignment to another department, respondent prevailed leading to this appeal.
For purposes of discussion, we will refer to West Covina Motors, Inc., as “respondent, ” as Chase Bank, N.A., merely financed the vehicle’s purchase and is not directly involved in this appeal.
In the present appeal, appellant contends the trial court erred in finding (1) respondent adequately repaired the Hummer so that disclosure was not required under Vehicle Code section 9992; (2) under code provisions, respondent made no misrepresentation; (3) there was no violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA); and (4) appellant was not entitled to rescission. We disagree with appellant and affirm.
All further statutory references are to the Vehicle Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
Following the remittitur in Bourgi I, the parties waived a jury trial, and a bench trial commenced on March 9, 2010. Portions of the testimony from the first trial were admitted into evidence by stipulation, followed by additional live testimony. At the trial’s conclusion, the parties submitted written closing arguments, and the matter was submitted to the court for decision.
After considering the stipulations of the parties, the prior testimony at trial, the oral and documentary evidence presented, the parties’ written briefs and the prior opinion issued by this court in Bourgi I, the trial court issued a statement of decision making certain findings of fact, as follows.
No party objected to the statement of decision.
1. Background Facts
At trial, the evidence established the following.
A. Appellant’s Purchase of Vehicle
On January 25, 2004, appellant purchased a new 2003 Hummer H2, manufactured by General Motors Corporation (GMC or General Motors), from respondent. The manufacturer’s suggested retail price (MSRP) of the vehicle was $54,180, but with accessories, tax and license the total cash purchase price amounted to $69,587.21. Appellant paid respondent $15,000 as a down payment and financed the balance of the purchase price with Chase Bank, N.A. as lender. Appellant made 31 monthly payments totaling $45,969 to Chase.
B. Prior Damage to Vehicle
The Hummer was advertised and sold as “new, ” but in fact had been one of about 100 sport utility vehicles on the dealer’s lot previously vandalized and damaged by the Earth Liberation Front. The damage to appellant’s Hummer necessitated repainting the hood and right side of the vehicle and replacing the right rear passenger window. The damage had been repaired by respondent prior to selling the Hummer to appellant. The fact of prior damage and repair was not disclosed to appellant by respondent’s employees during the negotiation and sale of the vehicle.
C. Appellant’s Discovery of Prior Damage
On June 23, 2004, after having possession of the Hummer for approximately five months, appellant returned to respondent for repair of the Hummer, complaining of wind noise in the passenger cabin. During that visit, a service representative of respondent told appellant he could tell that the Hummer had been previously repainted. He printed the vehicle’s history for appellant, and the history disclosed it had been vandalized before it was purchased by appellant. Appellant demanded that respondent exchange his Hummer for a new one that had not been damaged previously, but respondent refused.
D. Surrender of Vehicle
Appellant retained possession of the Hummer and continued making monthly loan payments until August 25, 2007, following the first trial of this action, at which point it was voluntarily repossessed by respondent. At the time of repossession, the Hummer had 19, 752 miles on it.
2. First Amended Complaint
A. Appellant’s Claims
In his first amended complaint, appellant sought relief and damages for concealment, violation of the CLRA, unjust enrichment and false advertising under the unfair competition law (Bus. & Prof. Code, § 17200, et seq.).
B. Affirmative Defense
Respondent raised an affirmative defense under the “safe harbor” provisions of sections 9990 and 9991. Respondent asserted that because there was no “material” damage to the Hummer, no disclosure of prior damage and repair was required notwithstanding any provisions of the CLRA.
Civil Code section 1770, subdivision (a)(6) prohibits unfair competition and deceptive acts or practices in “[r]epresenting that goods are original or new if they have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.”
As this court previously held in Bourgi I, in context of a new motor vehicle, the CLRA is trumped by the more recently enacted provisions of sections 9990 and 9991 when repairs fall within the safe harbor for minor repaired damage. (Bourgi I, supra, 166 Cal.App.4th at pp. 1660-1661.)
3. Evidence at Trial
Appellant’s expert, Lance Coren, testified that the quality of the workmanship of the Hummer’s repainting was below industry standards. Coren testified his inspection of the vehicle disclosed: peeling paint on a hood rest pad under the hood in the engine compartment, a paint drip in the clear coat, overspray along the roof rail onto the molding, a paint line at the mounting area of the door mirror, excessive paint or “orange peel” on the right rear quarter panel, a residue of polishing compound and fragments of masking tape, a non-OEM (original equipment manufacturer) replacement window without a GMC “bug” on it, a deformed glass “rub strip” where the window was replaced, and a visible “fish eye” or crater in the paint. He testified these defects reduced the value of the Hummer by 20 percent. According to Coren, the retail cost of repainting was approximately $2,000, and the dealer’s cost would be half that amount, or $1,000.
On cross-examination, Coren admitted it was not uncommon for a new vehicle to receive scratches or “dings” during transit that require repair and repainting, but not damage that required approximately half of the vehicle to be repainted.
In the initial trial, respondent offered the testimony of Michael Parker, portions of which were admitted in the retrial pursuant to stipulation. Parker was an ASE (Automotive Service Excellence) master certified technician. He had been employed by General Motors for about 18 years and had inspected and evaluated some 500 vehicles in his career. For General Motors, he was a district sales and service manager whose responsibilities included product problems, customer satisfaction issues, and warranty administration. Although he was then employed by GMC’s Saturn brand, he had previously worked for Hummer.
Parker inspected the Hummer at issue both prior to and during the initial trial of this action. His initial evaluation of the Hummer was that it was a “gorgeous vehicle.” He testified that he “like[d] the condition of the vehicle, ” noting, “It met my... personal standards.” After inspecting the Hummer during the initial jury trial, the only problem Parker noticed was a “sag” in the paint very low on the quarter panel of the fender. Nevertheless, regarding the Hummer he stated that “overall, ... it shines.” Parker testified he did not see “excessive” signs of overspray as pointed out by Coren. In defining “excessive, ” Parker explained that the Hummer was a mass-produced vehicle rather than a show car; in painting a vehicle under warranty, the exterior components would be taped, so that it would not be unusual to see minimal signs of overspray, which could be wiped off with some type of solvent.
Parker further testified that the deformed weather strip where the window was replaced could be corrected by pulling it out with a fingernail, and that “orange peel” is common in all mass-produced vehicles. Regarding the replacement window, Parker testified, “you might not be able to get glass from the factory, so we allow dealerships to buy glass from local sources.” He testified that using the replacement window was acceptable, and it would not affect the structural integrity of the Hummer. In any case, the replacement window was under a warranty by the glass manufacturer administered by the dealer.
In Parker’s opinion, none of the items that Coren referred to had an effect on the Hummer’s value. He stated the vehicle was “showroom ready, ” except for two door dents not the subject of this action. Parker testified he had no doubt that the vehicle sold to appellant was a “new vehicle.”
Bruce Thorpe, respondent’s director of fixed operations who oversaw the repair of all the damaged vehicles, testified that the dealer incurred a cost of $639.71 to repaint the vehicle and it would cost the dealer less than $500 to correct any defects in the paint. Thorpe also indicated the dealer’s cost to replace the right rear window with a GMC OEM part was $326.31.
During the retrial, the court personally inspected the Hummer. To the court, the Hummer appeared to be in a new condition. Upon a closeup inspection while looking for the issues Coren testified to, the court found signs of overspray and other cosmetic defects, which it observed was correctible by a minor repair. Had Coren not specifically pointed them out, however, the court very likely would not have found any of the cited defects. The court observed that appellant himself had failed to notice the claimed defects for a period of five months before he took the Hummer into the dealership complaining of wind noise in June 2004.
4. Additional Findings and Conclusions
The trial court made additional findings and reached certain conclusions in its statement of decision.
A. Adequacy of Repair
The trial court found that although reasonable minds might differ on the quality of the repairs made by respondent, it was the court’s own opinion that respondent adequately repaired the Hummer to restore it to its new vehicle predamaged condition. The court thus found respondent had no duty to disclose unrepaired damage to appellant pursuant to section 9992.
B. Failure to Disclose
The trial court further found that appellant’s alleged dissatisfaction with the quality of the repairs was not the true motivation for his desire to rescind the purchase, but simply rather his current knowledge that the Hummer had been previously repainted. The court concluded under the facts as found that respondent had no legal obligation to disclose the prior repairs, and it was not obligated to rescind the sale based upon any alleged concealment.
C. Failure to Equip
Addressing a contention newly raised by appellant, the trial court found that although the evidence showed the replacement window was purchased at a lower cost than a factory OEM window, there was no evidence to support a finding that the installed window was of lesser value. The court thus found no violation of section 11713.16, subdivision (h) as claimed by appellant. Indeed, the court found from the evidence that the replacement window met all factory and Department of Transportation standards. Moreover, because appellant’s first amended complaint failed to allege a violation of section 11713.16, the court concluded that to the extent appellant placed reliance upon this statute to support a claim for false advertising under the unfair competition law, the statute provided no such support. The court was also persuaded by the evidence that the replacement window was covered by a warranty from the glass manufacturer, even if not by GMC. It found Parker’s testimony from the initial trial credible on this point.
Section 11713.16, subdivision (h) prohibits a dealer from advertising the price of a new vehicle unless the vehicle has all of the equipment listed as standard by the manufacturer “or the dealer has replaced the standard equipment with equipment of higher value.”
D. Rescission
The trial court further concluded from the evidence that appellant had no cause for rescission. Respondent would have caused any defects in the Hummer to be repaired at no cost to appellant. Respondent would have replaced the window with an OEM product or arranged for the glass manufacturer to honor its warranty. Respondent would also have corrected the repainting, probably at the same local body shop that it would have used had any painting defects been caused at the GMC factory.
That the window and repainted areas were not covered by a GMC warranty, the court concluded, was not of sufficient materiality to justify rescission because they in fact were covered by a warranty by either the glass manufacturer or by respondent itself. Moreover, under the facts as found by the court, respondent did not violate Civil Code section 1770, subdivision (a)(14).
That section prohibits a seller of goods or services to a consumer from “[r]epresenting that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.” (Civ. Code, § 1770, subd. (a)(14).)
E. Safe Harbor
Pursuant to our prior opinion in Bourgi I, the court determined respondent qualified to take advantage of the provision for a safe harbor afforded under section 9990, subdivision (a) and, contrary to appellant’s contentions, respondent was not required to disclose the vehicle damage and repairs under the CLRA, including Civil Code section 1770, subdivision (a)(6). The trial court further determined that respondent did not conceal a material fact from appellant when it sold him the Hummer, nor did it engage in false advertising or unfair business practices under the unfair competition law. (See Bus. & Prof. Code, § 17200, et seq.) Consequently, the court also found that respondent had not been unjustly enriched. In light of its findings, the court concluded it was unnecessary to make findings on appellant’s alleged damages.
5. Judgment
The trial court entered a judgment in favor of respondent and against appellant on all causes of action, and it awarded respondent the costs of suit. Appellant timely appealed the judgment.
STANDARD OF REVIEW
Appellant asserts that the issues he presents in this appeal are pure questions of law and thus subject to this court’s independent review, because they involve the interpretation of statutes. Appellant further asserts that the de novo standard of review also applies because the issues involve the application of law to undisputed facts, a matter also subject to the appellate court’s independent review.
Respondent rejoins that because the trial court expressly found the Hummer was restored to its predamaged condition, the window actually installed was not of a lesser value and its replacement was immaterial, this case must be reviewed under the substantial evidence standard of review. We agree with respondent.
It is manifest that under the substantial evidence standard, “the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [finder of fact].” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) “The substantial evidence standard applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial.” (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.) Because appellant did not raise any objections to the trial court’s statement of decision in the court below, we must presume the court made all factual findings necessary to support the judgment if such findings are supported by substantial evidence. (Ibid.)
To the extent our opinion calls for the interpretation of statute, our review is de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
DISCUSSION
1. Disclosure Under Vehicle Code
Pursuant to section 9991, “Every dealer shall disclose in writing to the purchaser of a new or previously unregistered motor vehicle, prior to entering into a contract for the vehicle or, if unknown at that time, prior to delivery of the vehicle, any material damage known by the dealer to have been sustained by the vehicle and subsequently repaired.” (Italics added.) “Material damage” is defined by section 9990, subdivision (a) as including damage requiring repairs: “having a value, including parts and labor calculated at the repairer’s cost, exceeding 3 percent of the manufacturer’s suggested retail price of the vehicle or five hundred dollars ($500), whichever is greater.” However, “[t]he replacement of damaged or stolen components, excluding the cost of repainting or refinishing those components, if replaced by the installation of new original manufacturer’s equipment, parts, or accessories that are bolted or otherwise attached as a unit to the vehicle, including, but not limited to, the hood, bumpers, fenders, mechanical parts, instrument panels, moldings, glass, tires, wheels, and electronic instruments, shall be excluded from the damage calculation, except that any damage having a cumulative repair or replacement value which exceeds 10 percent of the manufacturer’s suggested retail price of the vehicle shall be deemed material.” (§ 9990, subd. (a).)
“Material damage” is also defined to include: (1) damage to the frame or drive train of the vehicle (§ 9990, subd. (b)); (2) damage occurring in connection with theft of the entire vehicle (§ 9990, subd. (c)); or (3) damage to the suspension of the vehicle requiring repairs other than wheel balancing or alignment (§ 9990, subd. (d)). None of these categories of damage are involved here.
In Bourgi I, we held that “[t]he Legislature... has declared that damage that has been repaired at a cost at or below the threshold is not ‘material’ and need not be disclosed. By allowing dealers to repair minor damage below the 3 percent threshold and sell a vehicle as new without further disclosure of the damage, the damage disclosure law provides a safe harbor for such conduct.” (Bourgi I, supra, 166 Cal.App.4th at p. 1659.) We further held that “[t]he purpose of providing this safe harbor is to allow a dealer such as [respondent], in the proper factual situation, to do exactly what it did in this case: repair minor damage and still lawfully be entitled to treat the car as new.” (Id. at p. 1661.) Finally, we noted, “Whether damage to the Hummer met the statutory materiality threshold present[s] a question of fact under the particular circumstances of this case. It [is] for the trier of fact to determine whether the repairs actually restored the car to its predamaged condition, whether replacement parts and equipment used were original manufacturer’s, and the true ‘repairer’s’ costs.” (Id. at p. 1662.)
Appellant contends that respondent did not adequately repair the Hummer because it used a non-OEM part for the repair. He asserts that such a repair, by definition, would not restore the vehicle to its original, new car condition, requiring disclosure under section 9992.
In support of his contention, appellant points to Coren’s testimony that the dealership repairs did not restore the vehicle to its predamaged condition in part because of the non-OEM replacement window. Appellant asserts it was necessary for all of the windows on the vehicle to “match” with the GMC “bug” insignia in order to restore the vehicle to its predamaged condition. However, appellant admits that the trial court was persuaded by the testimony of respondent’s expert, Parker, who testified the replacement glass was acceptable to General Motors. Appellant claims Parker never testified that it would be acceptable to install the non-OEM window in the Hummer without telling the customer and explaining the change in warranty rights.
Parker testified, “you might not be able to get glass from the factory, so we allow dealerships to buy glass from local sources. Not a big deal. They all have to meet certain standards by the Department of Transportation and the CFR’s. The Code of Federal Regulations require[s] those types of certifications. [¶] That glass has a DOT certification number on it. In my opinion, it was acceptable.”
The trial court specifically found that although the replacement window met GMC specifications, a GMC factory replacement window was not available at the time of the repairs; in any case, had appellant requested it after the dispute arose, a GMC factory window would have been installed by respondent at no cost to appellant. The evidence at trial was that the replacement window was in all respects identical to the OEM window with the exception of the GMC “bug” on the glass. As our prior detailed recitation of the trial court’s comprehensive discussion of the evidence, and its findings based on the evidence, make abundantly clear, substantial evidence supports the trial court’s findings.
In any event, the trial court properly found that, even if the replacement glass might not be acceptable as a non-OEM part, the $326.31 dealer’s cost of the replacement window added to the cost of repainting did not exceed three percent of the MSRP.
Respondent provided evidence at trial that the total cost of all repairs of all vandalism damage to the Hummer was $2,343.02, and all repairs were made by respondent. Of the $2,343.02 in repairs, $1,693.61 represented bolted-on items that were expressly excludable under section 9990. The difference between the two figures is $717, or $717.62 to be exact. The MSRP of the Hummer was $54,180. Three percent of $54,180 is $1,625. The $717.00 difference between the total repairs and the bolted-on items divided by $54,180 is about one percent. Even if the cost of the replacement glass, $326.31, plus respondent’s cost to repaint the vehicle, $500, are added to the $717 figure and then divided by the $54,180 MSRP of the Hummer, the resulting percentage amounts to 2.84848 percent of MSRP, i.e., less than the three percent allowable under the safe harbor provision of section 9990, subdivision (a).
Appellant argues that the trial court erred in ruling that if the damage could be repaired after the sale for less than three percent of MSRP, then the dealer is not required to disclose “unrepaired” damage at the time of sale. Appellant contends that in order to be exempted from the disclosure requirement the dealer must have “completely and adequately” repaired the vehicle before its sale. We reject this contention if by it appellant means that the repair has to be “perfect” and never in need of further work. As respondent points out, this interpretation would effectively void section 9990 if any repair needs a touchup in the future. Statutorily “immaterial” damage at the time of sale somehow would transform into “material” damage simply by virtue of a needed postpurchase touchup. Such an interpretation of that statute would render section 9990 impossible to comply with because a dealer cannot know if a repair of immaterial damage will ever need to be “touched up” after the purchase.
Importantly, the damage complained of in this case was not even noticed by appellant, and the trial court expressly found that the purported damage was not the reason why appellant wanted to rescind the purchase contract. To hold that the damage would suddenly, after the fact, become “material” simply because appellant believed minor paint touchup was needed and all windows should bear a “matching” insignia would be an unjust and harsh interpretation of section 9990. The cardinal rule of statutory construction is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1271; Code Civ. Proc., § 1859 [intention of the Legislature is to be pursued, if possible].) As we have noted, our prior opinion in Bourgi I establishes that “[t]he purpose of providing [the] safe harbor is to allow a dealer [to] repair minor damage and still lawfully be entitled to treat the car as new.” (Bourgi I, supra, 166 Cal.App.4th at p. 1661.) The safe harbor would be undermined if a simple, curable mistake should become reason to render section 9990 inapplicable months or conceivably years after the fact.
The trial court properly found that respondent adequately repaired the Hummer to restore it to its new vehicle predamaged condition for section 9990 purposes. This finding is supported by an abundance of evidence, including the testimony of Parker and the court’s own personal inspection of the Hummer during the retrial.
2. Misrepresentation
For the same reasons, substantial evidence supports the trial court’s finding that respondent and its employees did not misrepresent the vehicle’s condition in holding out the Hummer as “new” when appellant purchased the vehicle.
Appellant contends that the dealer misrepresented what “standard” equipment would be included with the Hummer, pointing specifically to the new vehicle label purportedly listing “solar ray tinted windows” as standard equipment. Appellant claims this was a misrepresentation, because the dealership admitted that it had replaced one of those factory windows with a “cheaper, non-OEM window.” He singles out the testimony of respondent’s director of operations Thorpe, asserting Thorpe testified that the company that made the replacement window was not an authorized OEM supplier for General Motors. He asserts instead of the “matching set” of the factory solar ray tinted windows that was advertised on the sticker he received a “mismatched set” that included a “cheaper, non-OEM” part.
As the arbiter of fact, however, the trial court gave credence to expert Parker’s testimony that the use of non-OEM glass in this instance was both standard in the industry and immaterial. Parker, a General Motors representative, testified that the dealership is permitted to use non-OEM glass. He stated that glass might not be available from the factory, “so we allow dealerships to buy glass from local sources.” He added that glass bearing the same specifications and certified by the Department of Transportation was “acceptable” in his opinion. Thorpe himself testified the only difference between the two was the GMC insignia placed on the OEM glass. Thorpe testified the dealer made every effort to purchase parts from the manufacturer, but sometimes, as here, it had to go to a different supplier when an OEM part was not available from the factory.
In fact, appellant’s own expert admitted the GMC “bug” on the glass was the only difference between the OEM part and the non-OEM glass. Other than the tag, appellant’s expert never investigated whether any difference existed between the OEM window and the replacement window. Although the non-OEM glass was less expensive than the OEM part, the court found no evidence that the replacement window was of a lesser value. It was well within the court’s fact-finding province to find no material misrepresentation was made by respondent.
The trial court further determined that appellant’s failure to raise a claim for violation of section 11713.16, subdivision (h) in his first amended complaint or to move for leave to amend his pleading forfeited his claim. Whether the court was correct in doing so is of no consequence, as the court also found such a claim was not substantively supported in any case. Our examination of the record validates that finding.
3. Violations of CLRA and Unfair Competition Law
In the discussion above, we have explained that the trial court properly found on sufficient evidence that respondent adequately complied with the provisions of the damage disclosure law. When, as in the instant case, a new car dealer has complied with the damage disclosure law, the “Legislature has provided as a matter of policy that [such] new vehicle dealers are afforded a safe harbor....” (Bourgi I, supra, 166 Cal.App.4th at p. 1661.) A safe harbor is afforded the dealer irrespective of the provisions of the CLRA or even the unfair competition law. (Id. at pp. 1661, 1664[CLRA]; see Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827-828 [unfair competition law]; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182 [unfair competition law].)
We note that appellant finds comfort in section 9993, which states: “Nothing in this chapter permits any dealer to respond to the inquiry of a purchaser in any untrue or misleading manner.” (Italics added.) Even were section 9993 at issue in this case or raised by appellant in the trial court, nothing in the record suggests or supports a claim that respondent responded to a specific inquiry of appellant in any untrue or misleading manner. In truth, of course, this was not the theory upon which the case was tried.
The trial court’s finding that respondent was entitled to claim the benefits of the damage disclosure law precluded appellant’s CLRA and unfair competition claims.
4. Rescission
Appellant contends that the trial court erred in concluding that he was not entitled to rescission. Appellant asserts that he had the right to know before entering into the contract of sale that the Hummer did not have a “matched set” of factory windows and that neither the replacement window nor the re-painting was covered by a General Motors warranty.
This argument is disingenuous. In support of his contention, appellant cites a grab-bag of authorities. Quoting language from CACI No. 335, appellant states: “All Appellant was required to prove to avoid the contract was that he ‘would not have entered into the contract if he had known that the representation was not true.’” He also quotes from Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093, to the effect that “‘[o]ne need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.’” Appellant further quotes CACI No. 1907 regarding reliance, noting that “standard jury instructions” provide, “‘It is not necessary for [misrepresentation or concealment] to be the only reason for [the plaintiff’s] conduct. It is enough if a [misrepresentation or concealment] substantially influenced [plaintiff’s] choice, even if it was not the only reason for [his] conduct.’”
Appellant overlooks the one crucial factor these authorities have in common they all involve instances in which a party claims to have been induced to enter into a contract by the misrepresentation, fraud, concealment or deceit of the other party. Here, however, appellant never established there was any misrepresentation. In fact, the trial court expressly found there was no prior “material” damage to the Hummer, hence the prior damage and repairs were not required to be disclosed to appellant under the safe harbor provisions of section 9990, subdivision (a). The trial court also specifically determined that because respondent adequately repaired the Hummer to restore it to its new vehicle predamage condition, there was no duty to disclose “unrepaired” damage under section 9992.
Furthermore, the trial court determined it was not truly appellant’s dissatisfaction with the quality of the repairs that fueled his desire to rescind the purchase, but simply his current knowledge that the Hummer had been previously repaired. This was a credibility determination by the court, which we will not disturb. The court properly found that although the repairs were not subject to a General Motors warranty, that fact was not of sufficient materiality to justify rescission. It was undisputed that the repairs in fact were subject to a warranty by either respondent or the glass manufacturer. It was neither unjust nor unfair to appellant to hold the parties to their contract as, regardless of the responsible party, the Hummer was subject to warranty.
Appellant failed to make a proper showing he was entitled to rescission.
DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
We concur: RUBIN, Acting P.J., GRIMES, J.