Opinion
B286681
03-16-2020
CRANEVEYOR CORP., Plaintiff and Appellant, v. EUROPEAN COLLISION CENTER, INC., Defendant and Respondent.
Law Offices of Randall S. Guritzky and Randall S. Guritzky for Plaintiff and Appellant. The Phillips Firm, Thomas Miles Phillips; Veatch Carlson and Serena L. Nervez for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC587157) APPEAL from a judgment of the Superior Court of Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed. Law Offices of Randall S. Guritzky and Randall S. Guritzky for Plaintiff and Appellant. The Phillips Firm, Thomas Miles Phillips; Veatch Carlson and Serena L. Nervez for Defendant and Respondent.
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Craneveyor Corp. sued European Collision Center, Inc. for breach of contract, fraud and several other causes of action arising from European Collision's alleged substandard repair of a luxury vehicle leased by Craneveyor. After a three-day bench trial the trial court entered judgment in favor of European Collision on all causes of action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Accident and Repairs
On December 21, 2013 Craneveyor entered into a three-year lease with BMW/Mini of Monrovia for a new 2014 model year BMW M6 Gran Coupe valued at a little over $120,000. The lease obligated Craneveyor to make a $22,550 down payment and monthly payments of $1,497.32. Although Craneveyor was the lessee, the vehicle was intended for the exclusive use of Craneveyor's president, Gregory Bischoff.
On February 7, 2014 Bischoff was involved in a single vehicle accident when, as he was leaving a parking space, his foot slipped off the brake pedal and onto the accelerator and became wedged underneath the brake pedal. The vehicle rapidly accelerated toward a telephone pole. Bischoff turned the vehicle into a skid so that the rear of the car hit the pole.
The vehicle, which had been driven less than 3,000 miles, was towed to European Collision, a certified BMW repair facility. European Collision performed repairs on the vehicle. Bill Price, an estimator at European Collision, was responsible for overseeing the repairs. Other than a $1,000 deductible, Craneveyor's insurance carrier paid for the repairs. The carrier had Kirk's Appraisal Service visit European Collision to prepare the initial repair estimate (dated February 27, 2014) and two supplemental estimates (dated April 24, 2014 and June 18, 2014).
While the vehicle was being repaired, Craneveyor on April 26, 2014 entered into a lease for another 2014 BMW M6 Gran Coupe (the second vehicle), but this time with Irvine BMW.
On Friday, May 2, 2014 the repaired vehicle was returned to Craneveyor. Although the vehicle was initially scheduled for an earlier return, during a test drive a rear axle bolt broke, delaying the final delivery date. That same day Craneveyor's attorney, Randall Guritzky, sent European Collision a letter identifying various deficiencies in the paint work done by European Collision, as well as front bumper scratches. The letter also expressed concern about the rear axle bolt breaking during the test drive.
On May 12, 2014 Price, on behalf of European Collision, responded to Guritzky's letter. European Collision stated its intent to "do whatever it takes to make [Bischoff's] vehicle the way he wants it" and offered to respond to all of Bischoff's concerns.
After the vehicle was returned to Craneveyor on May 2, 2014, it was driven only a few times and stored indoors from May 8, 2014 to March 23, 2017. Craneveyor finally returned the vehicle to BMW/Mini of Monrovia on March 23, 2017, three months after the December 20, 2016 lease maturity date. Craneveyor was charged $605 in "Wear Charges" for "Exterior Damages or Excess Wear" by BMW Financial Services NA, LLC (BMW/Mini of Monrovia's assignee responsible for lease administration).
2. The Third Amended Complaint
On July 15, 2015 Craneveyor sued European Collision and BMW of North America, Inc. The operative third amended complaint, which added BMW/Mini of Monrovia as a defendant, alleged the BMW defendants were liable for BMW of North America's installation of an incorrect brake pedal (specifically, what was ultimately determined to be a clutch pedal), causing the accident. It also alleged seven causes of action against European Collision: breach of contract; breach of warranty; breach of implied covenant of good faith and fair dealing; fraud by intentional misrepresentation; negligence; negligent misrepresentation; and unfair business practices in violation of Business and Professions Code section 17200 et seq.
The day before commencement of trial Craneveyor settled with BMW/Mini of Monrovia and BMW of North America.
For the breach of contract cause of action, the third amended complaint alleged Craneveyor and European Collision, on or about February 12, 2014, entered into a partially oral, partially written agreement to repair the vehicle. According to the pleading, European Collision orally agreed to repair the vehicle to its "pre-damage condition" and represented, "[Y]ou will not even be able to tell that it had been in an accident." The written terms of the agreement were set forth in a document entitled "Repair Authorization," signed by Bischoff on February 21, 2014, which attached a "Vehicle Pre-Repair Inspection Form" dated February 12, 2014. European Collision allegedly breached the agreement by failing to repair the vehicle to the industry standard and to its pre-damage condition.
The repair authorization and vehicle pre-repair inspection form contained no representations regarding the quality of repairs to be performed and did not indicate an estimated time for the repairs to be completed. In fact, the authorization contained Bischoff's acknowledgment he "understand[s] that estimated delivery date is not guaranteed and subject to change."
The fraud cause of action included allegations European Collision falsely promised it would repair the vehicle to its pre-damage condition, in accordance with the standard of care in the industry and pursuant to BMW of North America's specifications, and misrepresented it would, and did, replace, not repair, the right rear quarter panel of the vehicle. Although European Collision only repaired the panel, it included in its final invoice a charge for a new right quarter panel. The third amended complaint further alleged, after Craneveyor had submitted a complaint to the California Bureau of Automotive Repairs (Bureau), European Collision agreed to write a "negative supplement," deducting labor and materials charges billed for work that had not been performed.
The negligence cause of action alleged European Collision owed Craneveyor a duty of care to repair the vehicle to its pre-damage condition but failed to do so despite European Collision's promises otherwise.
The remaining causes of action against European Collision essentially repeated or incorporated allegations regarding European Collision's conduct set forth elsewhere in the third amended complaint.
3. The Trial
a. Bischoff's testimony
The three-day bench trial commenced on April 24, 2017. Bischoff testified that on February 21, 2014, when he was at European Collision's facility and signed the repair authorization, he spoke with Price. Frank Trimboli (Craneveyor's chief executive officer) and either Bob Noland (Craneveyor's vice president for its crane division) or Guritzky were also present. Bischoff described the accident and said he did not understand why the vehicle had such a small brake pedal. Price discussed the repairs, explaining European Collision would obtain the tools necessary to straighten the vehicle's structural metal frame to factory tolerances and would replace the right rear door's quarter panel; he further stated, "You are not going to know the car was ever in an accident." In response to Bischoff's inquiry as to how long the repair process would take, Price replied it would take four to six weeks pending parts.
Price testified there was a delay in receiving some of the necessary parts for the vehicle, something within BMW's control, not European Collision's.
On March 20 or 21, 2014 Bischoff visited the repair facility and saw automotive body filler used near the gas tank and the lower wheel well. Bischoff told Price he did not want filler used. Price told Bischoff filler would no longer be on the vehicle. He agreed with Bischoff the entire right rear quarter panel should be replaced and said a new panel was already at the facility. During the visit Bischoff also noticed problems with the new paint on the vehicle.
Bischoff again came to the facility a week or two after that March visit, and the right rear panel was painted. In April 2014, in response to Bischoff's questioning, Price told Bischoff the quarter panel had been completely replaced. On April 28, 2014, after a new axle had been installed and the car detailed, Bischoff, Yesai Safein (the owner of a non-BMW-certified repair center used for several of Craneveyor's other vehicles) and Trimboli visited the facility and walked around the vehicle with Price. All the paint defects were now visible in the sunlight. Price offered to color sand the entire vehicle to give a glassy appearance, but Bischoff declined because color sanding would remove the original orange-peel-like texture from the factory. Price then said it would take 45 to 60 days for the paint to dry before he could repaint the vehicle. Because he would otherwise be approaching five months without a car, Bischoff leased another BMW M6 Gran Coupe so European Collision could continue with the repair of the first vehicle. The second vehicle lease recited it was signed on April 26, 2014.
Bischoff also testified he first became aware the rear quarter panel had not been replaced after Daniel Hegybeli of the Bureau, who conducted an inspection of the vehicle, told him the panel had been repaired. The next day on rebuttal Bischoff testified he first suspected on or about April 28 that the right rear quarter panel had been repaired not replaced.
Hegybeli testified he conducted a vehicle inspection in response to a complaint and authenticated an investigative report dated August 14, 2014 he had prepared, which indicated he inspected the vehicle on June 25, 2014. That report stated Bischoff had concerns regarding European Collision's repairs to the vehicle, including that the right quarter panel was repaired, not replaced; and Hegybeli testified he was aware of Bischoff's concerns before he inspected the vehicle.
Bischoff further testified regarding Guritzky's May 2, 2014 letter to European Collision alleging defects and Price's May 12, 2014 response conveying European Collision's offer to repair the vehicle to Craneveyor's satisfaction. After receiving Price's May 12 letter, Bischoff telephoned Price and left a message referring to the letter and requesting Price return his call. Although he left the message, he never spoke to Price after the vehicle was returned to Craneveyor on May 2, 2014.
b. Price's testimony
Price testified he spoke with Bischoff during Bischoff's initial visit to the repair facility. He told Bischoff he thought the entire right rear quarter panel should be replaced; but Bischoff told Price, rather than replacing the quarter panel, he wanted European Collision to only repair the taillight pocket. Price explained to Bischoff a new taillight pocket can be obtained only by buying the entire quarter panel. Bischoff responded he wanted to keep the repairs as small as possible, which Price understood to mean as minimally invasive as possible. Price explained that, in fact, European Collision had to order a new quarter panel to obtain the part (the taillight pocket) that was eventually replaced. Although the partial replacement of the taillight pocket of the right rear quarter panel was not a procedure approved by BMW, European Collision nonetheless performed the repair in that manner. Price had tried on numerous occasions to convince Bischoff not to repair just the taillight pocket and instead replace the entire quarter panel.
Price also testified European Collision made no attempt to hide the use of the automotive filler; in fact, Bischoff had taken pictures of the filler on the vehicle. He never told Bischoff the quarter panel had been replaced.
Price further testified he never heard from Bischoff or anyone else at Craneveyor regarding his May 12 offer in response to Guritzky's May 2, 2014 letter identifying European Collision's substandard work and did not receive any request to do further work on the vehicle.
c. Other witnesses
Trimboli, Safein, Hegybeli and European Collision's owner Paul Taylor also testified at trial. Juan Martinez of AW Collision, a company engaged in the business of repairing automobiles, testified as a percipient witness regarding his test drive of the vehicle. Craneveyor's expert witness Rocco Avellini, among other matters, testified regarding the vehicle's alleged paint and body, structural and safety issues.
d. Craneveyor's closing argument regarding damages
Craneveyor asserted in closing argument it had suffered $182,050 in damages: (a) $78,389.03 in vehicle lease payments (the downpayment and three years of monthly payments, plus an additional two months of payments to account for return of the vehicle past the lease maturity date to allow for an inspection by BMW); (b) $102,050 in storage fees; (c) $1,000 paid to European Collision for repairs (the insurance deductible); and (d) $605 for an assessment by BMW Financial Services.
4. The Statement of Decision
On May 30, 2017 the trial court issued a tentative statement of decision determining all causes of action in favor of European Collision. Under the heading "Re paint and body issues," the court found European Collision had performed substandard paint and body repairs to the vehicle, ranging from "minor to significant aesthetic problems." The court also found, although European Collision in its May 12, 2014 letter had offered to repair all identified flaws and defects until Craneveyor was satisfied, Craneveyor "unreasonably opted not to avail itself of that opportunity." The trial court stated, "In the court's view, the most reasonable explanation for this is that [Craneveyor] decided to go in a different direction," having already leased the second vehicle when European Collision made its offer and having already decided "there was a more serious problem with the vehicle besides these aesthetic issues which it wanted to blame on BMW (the pedal defect)." The court continued, "[e]ven if [Craneveyor] had a viable claim for any damage regarding paint and body repair issues," Craneveyor, as a lessee, could only recover, at most, for loss of use for a reasonable period, its collision deductible and the unitemized $605 charge imposed at the end of the lease by BMW, all of which the trial court rejected for various reasons. As for Craneveyor's misrepresentation claims, the trial court found "the evidence weighs equally in favor of either party" and Craneveyor thus had not met its burden of proving any misrepresentation had been made. The court explained, in any event, it would find against a damages award for the reasons it had previously discussed.
Under the heading "Re alleged safety issues due to repairs," the trial court in its tentative statement of decision found the evidence of Craneveyor's perceived safety issues to be "not persuasive." The court found the axle bolt problem was a late-arising issue that was later repaired, and there was no subsequent forensic investigation or inspection by a qualified expert of that problem. The court mentioned Bischoff's likely reluctance to drive the vehicle in light of the "serious (and eventually unproven) claim" against BMW of a pedal design defect as an alleged factor contributing to the accident. According to the court, there was no evidence BMW found any structural damage when it conducted its own inspection and essentially confirmed it found no such damage when it accepted the car after imposing only a $605 charge. Only at very high speeds did Juan Martinez's test drive show some pulling, and there was no "solid or credible evidence of any causal link with any structural or axle issues." Observing Rocco Avellini never test drove the vehicle or conducted any other investigation, the trial court stated it placed "little weight" on Avellini's expert testimony regarding structural or safety issues attributable to European Collision's repairs, finding not credible his opinion regarding the vehicle having a "compromised crumple zone" in the event of a rear-end collision.
Finally, under the heading "Plaintiff's failure to mitigate," the trial court in its tentative statement of decision found, "[e]ven if [European Collision] breached its oral or written agreements and warranties regarding the paint and body repairs," Craneveyor had not been reasonable in avoiding its claimed damages.
Craneveyor filed a request for a statement of decision on June 15, 2017 to have the court address seven questions (not including subparts), only four of which did not expressly pertain to damages. Those four questions (or categories of questions) essentially challenged the court's determinations of the unreasonableness of Craneveyor's decision not to return the vehicle to European Collision for further repairs; the significance to be accorded to Craneveyor's lease of the second vehicle; and the absence of liability of European Collision for any misrepresentation.
For example, in question number 3, Craneveyor asked how the court determined Craneveyor was required or obligated to allow European Collision another opportunity to perform repairs on the vehicle "when the numerous substandard repair issues were reported to the [Bureau], who investigated the matter and inspected the vehicle and found that the issues of which Craneveyor complained were, indeed, true, as well as that [European Collision] committed fraud and made misrepresentations that the vehicle had received a new right rear quarter panel, when it had not, and admitted to same and agreed to write a 'negative supplement' and reimburse monies to the insurance company who paid for the parts and labor."
For its question number 2, after briefly summarizing selective trial testimony regarding the lease of the second vehicle that was favorable to it, Craneveyor, in subparts, listed a series of questions regarding the trial court's second vehicle lease findings, such as asking how Craneveyor's lease of the second vehicle had "somehow create[d] an inference to the Court that Craneveyor had decided there was a more serious problem with the vehicle which it wanted to blame on BMW (the pedal defect)" when the Bureau's August 14, 2014 report "confirm[ed] that Craneveyor leased another identical vehicle and asked that BMW take back the original vehicle and cancel the lease, since Craneveyor took its vehicle to [European Collision] for the repairs as instructed since [European Collision] is stated to be a certified BMW repair facility, but BMW refused to inspect the vehicle during the repair process, despite repeated requests."
In question number 4, after summarizing its arguments as to the alleged lack of credibility of Price's trial testimony and making the conclusory statement there was no contrary evidence presented to contradict its evidence as to European Collision's misrepresentations, Craneveyor asked, "How did the evidence not support a finding of liability against [European Collision] for Craneveyor's cause of action for misrepresentation?"
On July 21, 2017 the trial court issued its statement of decision, which set forth verbatim relevant portions of its tentative decision.
Craneveyor subsequently filed objections to the court's statement of decision. Craneveyor repeated each question from its request for a statement of decision and asserted the trial court had failed to respond to, or address the facts set forth in, the question; it also re-argued the evidence pertaining to each question. In its conclusion it requested the court sustain its objections, find European Collision liable under its breach of contract and negligence theories and its misrepresentation cause of action and find Craneveyor had been damaged.
DISCUSSION
1. Standard of Review
Although "'[w]e generally apply the familiar substantial evidence test when the sufficiency of the evidence is at issue on appeal,'" "'[i]n the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465; accord, Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978.) "'Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (Juen, at pp. 978-979; accord, Glovis America, Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71; Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734.) "The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment." (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838; see People v. Tully (2012) 54 Cal.4th 952, 979 ["the reviewing court 'must accept the trial court's resolution of disputed facts and its assessment of credibility'"]; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 ["on factual questions, [the reviewing court's] task 'is not to weigh conflicting evidence and determine who has the better argument'"].) "'[W]here, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor.'" (Atkins, at p. 734.)
Questions of law, however, are reviewed de novo. (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.)
2. Craneveyor Failed To Establish European Collision Was Liable for Any Damages
Craneveyor asserts on appeal the trial court properly determined European Collision was liable to it for performing substandard paint and body repairs on the vehicle, but erred in finding it was not obligated for any damages suffered by Craneveyor despite having returned the vehicle in a defective and unsafe condition. Craneveyor also argues the court erred in determining the evidence weighed equally in favor of each party with respect to European Collision's alleged misrepresentations. Craneveyor misreads the trial court's decision and fundamentally misapprehends how the standard of review applies in this appeal.
a. Craneveyor forfeited any argument the vehicle had safety issues after European Collision's repairs
Contrary to Craneveyor's argument on appeal, the trial court did not find in its favor on the existence of any vehicle safety issues attributable to European Collision's substandard repair work. Rather, the court expressly stated, "The evidence regarding perceived safety issues is not persuasive," and proceeded to explain in a lengthy paragraph why it found Craneveyor's attempt to prove safety issues due to European Collision's repairs to be insufficient.
Moreover, by stating in a wholly conclusory manner, with no argument or citations to legal authority, that European Collision had returned the vehicle to Craneveyor in an unsafe condition, Craneveyor forfeited any challenge to the trial court's finding against it on this issue. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["[a]n appellant must provide an argument and legal authority to support his contentions"; "[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"]; see Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [appellate court's review limited to issues that have been adequately raised and supported in appellant's brief].)
To be sure, Craneveyor referred to vehicle safety issues in its opening brief's statement of facts, which contained a section regarding vehicle inspections and road-testing. However, Craneveyor failed to include all relevant evidence, including evidence unfavorable to it, and did not even attempt to demonstrate that the evidence in its favor was uncontradicted and unimpeached, as required for us to reverse the trial court's finding that Craneveyor had failed to carry its burden of proof. (See Juen v. Alain Pinel Realtors, Inc., supra, 32 Cal.App.5th at pp. 978-979; see also Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 ["[a] party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable"].)
For example, Craneveyor omitted Price's testimony that, after the rear axle bolt broke during the test drive, European Collision performed a more extensive repair, including replacing the axle, and did two more test drives, neither of which indicated any problem with the vehicle. It discussed a vehicle inspection by Hegybeli; but it failed to mention Hegybeli had described the inspection as a "very informal" one "done out in the parking lot," and had also testified, "The Bureau cannot make a determination as to the safety of a vehicle unless there is something so egregious, you know; but that part had already been replaced. Because that part broke does not mean the complete vehicle is unsafe. I cannot make that determination." Craneveyor's statement of facts further referred to the testimony of Martinez—a nonexpert percipient witness who drove the vehicle at different speeds and up to 100 miles an hour on public roads—that the vehicle, at very high speeds, pulled upon braking; but ignored Taylor's testimony that at high speeds in excess of 60 miles per hour various factors can cause the vehicle to pull, including a difference in tire pressure among the tires and the condition of the road. It described Avellini's testimony regarding the vehicle having a structural misalignment and safety issues regarding the axle, but did not discuss the trial court's decision to accord little weight to his testimony regarding structural or safety issues, given that Avellini did not test drive the vehicle or conduct any other investigation.
Craneveyor's statement of facts also included discussion of the substantive contents of a vehicle inspection report (the Alley 19 Appraisals report) that, other than a few of its photographs (comprising trial exhibit 21), was not admitted into evidence.
b. Craneveyor failed to establish the elements of its causes of action for breach of contract, negligence and fraud regarding paint and body repairs
Craneveyor similarly misreads the trial court's decision as determining European Collision was liable to it for performing substandard paint and body repairs to the vehicle, a finding necessary for Craneveyor to prove its causes of action for breach of contract, negligence and fraud.
Craneveyor forfeited any arguments regarding its other causes of action by failing to address them on appeal.
i. Breach of contract: no breach
"[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; accord, Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690.) "'[A] contracting party's unjustified failure or refusal to perform is a breach of contract.'" (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 54; accord, JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 181-182.)
Here, the trial court essentially found Craneveyor prevented European Collision from restoring the vehicle to its pre-damage condition by failing to accept European Collision's May 12, 2014 offer to make all necessary additional repairs and to repaint the vehicle: "[A]lthough [European Collision] did offer to fix these issues in their letter of 5/12/14 until [Craneveyor] was satisfied, the court finds that [Craneveyor], who had no ownership interest in the vehicle, unreasonably opted not to avail itself of that opportunity." (See Civ. Code, § 1511, subd. 1; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1184-1185 [effect of the rule "that a party's prevention of performance by another party excuses the nonperformance" is "that the nonperformance does not constitute a breach of contract and does not give rise to a remedy for breach of contract"]; see also Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387 ["'[p]revention of performance by one party to a contract excuses performance by the other [party]'"].)
Craneveyor disputes the court's conclusion on this point and contends European Collision failed to honor its May 12, 2014 offer despite Craneveyor's attempt to accept it. Relying on Bischoff's testimony, Craneveyor argues Bischoff tried to contact Price by telephone after receiving the May 12, 2014 letter and left a voicemail message; but Price never responded to that message. Price, however, testified that, after he sent the May 12 letter, Bischoff never contacted him. Craneveyor's challenge to the credibility of Price's testimony is not a proper basis for reversal on appeal. (See, e.g., People v. Gomez (2018) 6 Cal.5th 243, 309 ["'[i]n deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts'"]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 ["[a]ll issues of credibility are likewise within the province of the trier of fact"].) Craneveyor failed to establish the uncontradicted and unimpeached evidence compelled a finding in its favor on the issue of breach.
ii. Negligence: no duty
"A plaintiff in a negligence suit must demonstrate '"a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury."'" (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.) Craneveyor in its appellate briefing—despite setting forth the elements of a negligence cause of action and making the unsupported, inaccurate statement the trial court found European Collision breached its duty of care—provided no reasoned argument or legal authority to support its contention that European Collision had a duty under tort law to repair the vehicle to its pre-damage condition. By failing to argue the point, it has forfeited the issue. (See Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 352 [appellant forfeits an argument by failing to raise it until the reply brief].)
That the trial court's statement of decision does not address whether Craneveyor proved the existence of a legal duty does not mean, as Craneveyor suggests, that the court ruled in its favor on the issue. "It is axiomatic that a statement of decision is required only as to issues of fact decided by the trial court ([Code Civ. Proc.,] § 632: 'upon trial of a question of fact by the court'), not as to issues of law." (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1291-1292; accord, Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192; Southern Cal. Gas Co. v. City of Vernon (1995) 41 Cal.App.4th 209, 220-221.) The existence of a legal duty is an issue of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477 ["[t]he existence and scope of duty are legal questions for the court"]; accord, O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 363-364 ["the existence of duty is a pure question of law"].)
In its third amended complaint Craneveyor characterized the relevant duty of care for its negligence cause of action as the "standard duty of care in the industry to repair the vehicle to its pre-damage condition," and alleged, "[D]espite repeated promises by [European Collision] to repair the vehicle to its pre-damage condition, Defendant . . . failed and continues to fail [to] meet the standard of care in the industry to repair the vehicle to its pre-damage condition." Craneveyor has simply repackaged its breach of contract claim as a negligence cause of action. (See Aas v. Superior Court (2000) 24 Cal.4th 627, 643 ["[a] person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations"], superseded by statute on other grounds as stated in Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1079-1080; State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1232 [same].)
iii. Fraud: no misrepresentation
"The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage." (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) As discussed, Craneveyor's fraud cause of action included allegations European Collision made false promises to repair the vehicle to its pre-damage condition, in accordance with industry standards and BMW North America's specifications. Craneveyor also alleged European Collision misrepresented it would, and did, replace the entire right rear quarter panel of the vehicle, although it had only repaired it.
With regard to the false promise prong of the fraud cause of action, although Bischoff testified that Price made oral representations regarding the quality of repairs to be performed and European Collision returned the vehicle on May 2, 2014 with aesthetic defects inconsistent with those representations, European Collision offered in the May 12, 2014 letter to address and resolve all of Craneveyor's concerns. The parties presented conflicting testimony as to whether European Collision actually intended to honor its May 12 offer. Weighing the credibility of that evidence, the trial court concluded Craneveyor had not carried its burden of proving European Collision did not intend to repair the vehicle to Craneveyor's satisfaction. As discussed, it is not our role on appeal to reevaluate this question of credibility. The evidence simply does not compel a judgment in Craneveyor's favor on its false promise claim.
As for the claim European Collision misrepresented it had replaced the right rear quarter panel, by failing to address all relevant evidence, Craneveyor forfeited its challenge to the trial court's finding that no misrepresentation had been made. Even were the issue not forfeited, Craneveyor failed to establish the evidence compelled a finding in its favor.
The parties presented different versions of the relevant events. Bischoff and Safein testified that Price stated he had replaced, not repaired, the quarter panel. Craneveyor also relied on Avellini's expert opinion testimony, as well as Hegybeli's report and testimony, that the right rear quarter panel had not been replaced; and on Kirk's Appraisal Service's April 24, 2014 supplemental estimate, which appeared to indicate a parts charge by European Collision of $969.01 for the right rear quarter panel and a labor charge for 16 hours to remove and replace the panel.
Price, in contrast, testified he never told Bischoff the quarter panel was replaced and explained it was Bischoff who had insisted on replacing only the taillight pocket despite Price's attempts to persuade him otherwise. Thus, European Collision at trial did not dispute the right rear quarter panel had not been replaced.
As for Kirk's Appraisal Service's April 24, 2014 supplemental estimate, Taylor's testimony supported European Collision's explanation Craneveyor had been properly charged for replacement of the taillight housing, not improperly overcharged for work (replacement of the entire right rear quarter panel) that was not performed. Taylor explained a quarter panel had to be purchased to obtain the taillight housing because the housing alone is not otherwise available. To order the new quarter panel, the line "Remove/Replace R Quarter Outer Panel" must be entered to generate the part number for the panel and the price for that part.
According to Taylor's testimony, viewed in conjunction with the April 24 supplemental estimate, when the order is entered, a series of line entries are automatically generated, which state, "Auto." In the same row as the line "Remove/Replace R Quarter Outer Panel," in the column titled "Labor Units," is an entry, "16.0*." The asterisk next to the 16 hours indicates the labor time has been changed. Immediately underneath the "Auto" lines is a line that does not state "Auto" and states, "Section in Tail Lamp Housing." This line is (manually) put in "so we know what we're doing." The line stating "Section in Tail Lamp Housing" leaves blank the entry for the "Labor Units" column, thus indicating the 16 hours listed on the line for removal and replacement of the rear quarter outer panel in fact pertains to the amount of labor to section in the taillight housing. The "normal" amount of time would otherwise be 24 hours.
Based on this record, even if Craneveyor had not forfeited the issue, it failed to establish its uncontradicted and unimpeached evidence was of such a character and weight as to leave no room for a judicial determination that the evidence was insufficient to support a finding of any misrepresentations by European Collision.
Because Craneveyor failed to establish any error in the trial court's finding of no liability, we need not address the parties' damages arguments.
DISPOSITION
The judgment is affirmed. European Collision is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.