Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG 05220296
Swager, J.
In these consolidated appeals, Ramiro Garcia Sanchez and Federico Garcia Sanchez (the Sanchezes) appeal from the trial court’s order granting summary judgment in favor of Ben A. Begier Co. (Begier) and General Motors Acceptance Corporation (GMAC). Begier appeals the denial of attorney fees. We affirm the trial court’s rulings with respect to both appeals.
We consolidated the appeals after providing the parties notice and an opportunity to object.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Sanchezes are two brothers who own a business that distributes Mexican sweets to Bay Area businesses. On January 24, 2004, they purchased a used 2001 Isuzu FTR truck from Begier.
Seventeen months later, on June 29, 2005, the Sanchezes filed a complaint alleging causes of action against Begier for fraud, negligent misrepresentation, violation of Civil Code section 1632, declaratory relief, and breach of contract. GMAC was named as a defendant with respect to the claim for declaratory relief only.
The Sanchezes filed the lawsuit after they tried to trade in the Isuzu for another vehicle and were told that the Isuzu had no resale value.
On February 6, 2006, Begier filed a motion for summary judgment and/or summary adjudication of issues. The Sanchezes filed their opposition on May 16, 2006.
On February 14, 2006, GMAC filed its motion for summary judgment. The Sanchezes filed their opposition on April 18, 2006.
On June 2, 2006, the trial court granted Begier’s and GMAC’s motions for summary judgment. The court denied the Sanchezes leave to amend their complaint. They filed a timely appeal on August 2, 2006.
Judgment was entered in favor of Begier and GMAC on July 13, 2006. Begier’s motion for attorney fees was denied on August 22, 2006. Begier filed a notice of appeal on October 2, 2006.
DISCUSSION
I. Standard of Review
We review the granting of a summary judgment motion de novo. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860; Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.) We consider all the admissible evidence the parties offered in connection with the motion and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
We note that Begier’s opening briefs frequently make assertions regarding the proceedings that occurred in the trial court without providing citations to the record on appeal. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) As such, we could elect to strike Begier’s briefs in their entirety. However, in fairness to the parties and in hopes of ending this litigation, we decline to do so and decide the case on its merits.
“In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]’ [Citations.] We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
“On appeal this court reviews a determination of the legal basis for an award of attorney fees de novo as a question of law.” (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677.)
II. The Motions for Summary Judgment
“A ‘party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law.’ [Citation.] A defendant satisfies this burden by showing ‘ “one or more elements of” the “cause of action” in question “cannot be established,” or that “there is a complete defense” ’ to that cause of action. [Citation.] If the defendant meets his or her initial burden, ‘the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact.’ [Citation.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 737; Code Civ. Proc. § 437c, subd. (o)(1).)
A. The Complaint
The Sanchezes allege five causes of action in their complaint. All of the causes of action center on their purchase of the used Isuzu truck. GMAC is named as a defendant with respect to the fourth cause of action only.
The first cause of action is for fraud. The Sanchezes alleged that Begier knowingly made false representations to them with the intent to induce them to purchase the vehicle. Among the claimed misrepresentations, the Sanchezes asserted that Begier failed to disclose that the vehicle “was repurchased by its manufacturer due to a defect in the vehicle and the title to the vehicle has been permanently branded with the notation ‘Lemon Law Buyback.’ ”
The second cause of action is for negligent misrepresentation. The Sanchezes claimed that Begier made false representations “without any reasonable grounds for believing the representations were true.”
The third cause of action alleges a violation of Civil Code section 1632 (section 1632). The Sanchezes alleged that Begier “failed to provide a Spanish version of the sales contract prior to the execution of the Sales Agreement, thereby violating [section 1632] and entitling plaintiffs to rescind the vehicle purchase contract.”
The fourth cause of action is for declaratory relief. Here, the Sanchezes claimed that the vehicle purchase contract was subject to the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) (ASFA) and was thereby subject to rescission pursuant to Civil Code section 2983.5, subdivision (a).
Civil Code section 2983.5, subdivision (a), provides: “An assignee of the seller’s right is subject to all equities and defenses of the buyer against the seller, notwithstanding an agreement to the contrary, but the assignee’s liability may not exceed the amount of the debt owing to the assignee at the time of the assignment.”
The fifth cause of action is for breach of contract. It alleges that Begier breached the contract “by failing to disclose to plaintiffs the actual [DMV] license fee costs and by not refunding the overpayment of the registration fees.”
B. Begier’s Motion for Summary Judgment
In its motion, Begier requested summary judgment on numerous grounds. With respect to the first and second causes of action, Begier claimed that there was no competent or admissible evidence of any material misrepresentation. As to the third cause of action, Begier asserted that there was no violation of section 1632 because all negotiations were conducted in English and the Sanchezes had provided their own translator. Regarding the fourth cause of action, Begier claimed that there was no legal or factual basis to support a claim for rescission. Finally, as to the fifth cause of action, Begier claimed that it had already mailed a refund check for the overpayment of license fees, rendering the claim moot.
Begier’s motion included a statement of 22 undisputed material facts. Among these facts, Begier asserted that at the time of sale the Sanchezes signed a document indicating that they were aware that the vehicle was a “lemon law buyback.” They also signed a document entitled “GM Resale Disclosure Notice of Nonconformity.” Begier also stated that the Sanchezes had conducted the negotiations for the vehicle through their own translator, and that Begier’s employee did not speak Spanish during the negotiations. Begier asserted that the Sanchezes operate a business and that they purchased the vehicle primarily for business purposes. Begier also stated that the interest rate charged was the best available interest rate. Additionally, Begier claimed that it had previously attempted to refund the excess DMV fees, but that the check had inadvertently been sent to the wrong address. The refund was reissued after the lawsuit was filed.
In their opposition to Begier’s motion, the Sanchezes attempted to dispute several of Begier’s factual statements. With respect to the documents that they signed, they asserted that they do not read English and were not provided copies of the documents in Spanish. They did not dispute that they had brought their own translator and that Begier’s employee never spoke Spanish during the negotiations. They also acknowledged that they purchased the vehicle “with the intent that it would be used in their business, but not exclusively so.” In disputing the interest rate, the Sanchezes stated that the rate was not the best available rate because it included a “kickback” from GMAC to Begier. They did not offer any direct evidence regarding the availability of a lower interest rate. They also disputed the manner in which Begier had transmitted the refund of the DMV fees.
C. GMAC’s Motion for Summary Judgment
In its summary judgment motion, GMAC alleged the ASFA did not apply because the facts showed that the Sanchezes had purchased the vehicle for a commercial or business purpose, and not for personal use. GMAC’s motion included a statement of 22 undisputed material facts.
In opposition, the Sanchezes disputed some of GMAC’s facts but did not set forth any direct evidence in support of their assertions.
III. Begier’s Reliance on Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282 (Hunter)
The Sanchezes first claim that, in its motion for summary judgment, Begier erroneously relied on cases preceding the Supreme Court’s decision in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 (Aguilar), particularly the case of Hunter, which was overruled, in part, by Aguilar. The Sanchezes fault Begier for failing to “address whether or not evidence could reasonably be obtained” to prove their case.
In a footnote in Aguilar, the Supreme Court stated: “Language in certain decisions purportedly allowing a defendant moving for summary judgment simply to ‘point[]’ out ‘an absence of evidence to support’ an element of the plaintiff’s cause of action (e.g., [Hunter, supra, 37 Cal.App.4th 1282,] 1288, italics in original) does not reflect summary judgment law as it has ever stood, and is accordingly disapproved.” (Aguilar, supra, 25 Cal.4th 826, 855, fn. 23.)
We have examined the record in the present case and find no indication that the Sanchezes raised this argument in the trial court. We are not obligated to review issues not raised below. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872.) In any event, under Aguilar, a defendant is not required to prove that evidence cannot reasonably be obtained by the plaintiff if the defendant affirmatively disproves an essential element of the plaintiff’s claim. (See Aguilar, supra, 25 Cal.4th 826, 854–855.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, italics added.) Accordingly, we find no merit in the Sanchezes’ argument.
IV. No Evidence Supports the Claims of Misrepresentation
Claims for fraud and negligent misrepresentation include the element that the defendant misrepresented a material fact. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407–408 [negligent misrepresentation]; Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381 [fraud].)
Again attacking the content of Begier’s summary judgment motion, the Sanchezes claim that it failed to specify which type of fraud could not be established. They fault Begier for not specifying whether they failed to establish misrepresentation by either false representation, concealment, or nondisclosure. They concede, however, that Begier indicated that “some form of misrepresentation would be needed” to successfully prove a fraud claim.
We fail to see the point of this argument. Begier demonstrated the complete absence of any misrepresentation by introducing evidence that the Sanchezes signed documents indicating that the vehicle had been repurchased by the manufacturer as a lemon. The signatures acknowledge that the Sanchezes received copies of the Buyer’s Guide (explicitly stating that the vehicle was a “lemon law buyback”) as well as the GM Resale Disclosure Notice of Nonconformity (stating that the vehicle had been repurchased because the engine had overheated), and that they had read these documents or had the documents read to them. The fact that Begier did not specifically identify the sub-species of misrepresentation involved is not relevant as the Sanchezes offered nothing to challenge the evidence presented, apart from alleging that they are unable to read English.
While the Sanchezes note that it can be a question of fact as to whether a party has been wrongfully induced to sign a document, it is also true that issues of fact may be decided on summary judgment where the opposing party does not present sufficient evidence to counter the evidence offered by the moving party. (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1260–1261.)
The Sanchezes’ conclusory allegation on appeal that they raised a triable issue of material fact is not supported by their opposition papers below. The Sanchezes were obligated to present competent evidence to rebut Begier’s factual assertions and the legal implications arising therefrom. Moreover, on appeal, the Sanchezes rely on cases that apply only where a confidential relationship exists between the parties. (See, e.g., In re Marriage of Grissom (1994) 30 Cal.App.4th 40, 47.)
Here, it is undisputed that the Sanchezes acknowledged the receipt of documents pertaining to the lemon law status of the vehicle. It is also undisputed that they brought their own translator to Begier’s business for the purpose of conveying pertinent information contained in the documents to them in Spanish. One of the brothers testified that their interpreter relayed to them that the vehicle had been returned to the company “because it had a problem, and the company had fixed that problem.” Thus, there was corroborating evidence supporting Begier’s assertion that the Sanchezes were not misled as to the nature of the vehicle’s history.
The Sanchezes argue in their reply brief that there was a factual issue as to whether it was “prudent” for them to have signed documents that they could not read. We disagree. Begier plainly disclosed in writing that the vehicle was subject to California’s lemon law. Begier cannot be held liable for the fact that the Sanchezes’ own interpreter may not have properly translated the documents. The law in California is that a party, even an illiterate one, is presumed to have read a contract he or she signed. “Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to consent to all its terms, and cannot escape liability on the ground that he or she has not read it. If the person cannot read, he or she should have it read or explained.” (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 118, p. 157; see also Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.)
In sum, Begier demonstrated that the Sanchezes would be unable to prove that Begier’s employee misrepresented the fact that the vehicle was a lemon law buyback. This element of misrepresentation was essential to the claims for fraud and negligent misrepresentation. While the Sanchezes attempt to create a triable issue of fact by arguing that they did not understand the term “lemon,” the written documents introduced by Begier speak for themselves.
V. Begier did not Violate Section 1632
The Sanchezes claim that the trial court erred in granting summary judgment to Begier on their cause of action for violation of section 1632. They are mistaken.
Section 1632, subdivision (b), provides, in part: “Any person engaged in a trade or business who negotiates primarily in Spanish, . . . orally or in writing . . . shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, which includes a translation of every term and condition in that contract or agreement.” (Italics added.) Subdivision (h) provides, in part: “This section does not apply to any person engaged in a trade or business . . . as described by subdivision (b), if the party with whom he or she is negotiating is a buyer of goods or services . . . and the party negotiates the terms of the contract . . . through his or her own interpreter.” (Italics added.)
By its terms, the statute is meant to apply to businesses that actively conduct negotiations in Spanish. In its motion for summary judgment, Begier conclusively demonstrated that its employee does not speak Spanish and never spoke Spanish during the negotiations that occurred here. The interpreter who was present during the transaction was brought by the Sanchezes, not by Begier. There was no dispute that the negotiations in this case were conducted entirely in English between Begier’s employee and the Sanchezes’ interpreter. This case is thus distinguishable from cases such as Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 145, a case in which “all negotiations and discussions were conducted in Spanish.” Accordingly, the Sanchezes failed to demonstrate an essential factual predicate for maintaining a claim under section 1632.
VI. The Trial Court’s Failure to Consider Other Potential Theories of Recovery
The Sanchezes fault the trial court for not considering theories not involving section 1632 that could have supported rescission of the contract. Specifically, they claim that the court should have considered rescission under the theories of intentional misrepresentation, misrepresentation by suppression of fact, fraud, and unilateral mistake.
We have already determined that the claims for fraud and negligent misrepresentation must fail as the Sanchezes did not raise a triable issue of material fact as to the element of misrepresentation under any theory. Accordingly, we fail to see how the trial court can be faulted for failing to consider whether it would be appropriate to allow them to maintain a claim for rescission under any theory involving the element of misrepresentation.
As to the claim for rescission based on unilateral mistake, again we fail to see where this argument was raised in the trial court and we decline to consider it on appeal. Moreover, on appeal the Sanchezes do not specify which fact they claim they were mistaken about. As we have discussed above, the record shows that they were informed that the vehicle had been repurchased by the manufacturer because its engine had been overheating. The documentation, acknowledged by the brothers at the time of sale, clearly indicates that the vehicle had been identified as a “lemon law buyback.” Under the circumstances, we do not perceive any ground upon which the Sanchezes could prevail on a claim for rescission.
VII. The Cause of Action for Declaratory Relief
The Sanchezes also claim that the trial court erred in granting summary judgment as to the fourth cause of action because they raised triable issues concerning whether fraud was committed. For the reasons stated above, we find the court did not err.
VIII. The Cause of Action for Breach of Contract
The Sanchezes claim that the trial court erred in granting summary judgment as to their cause of action for breach of contract. To prove a breach of contract, a plaintiff must show: 1) the existence of a contract, 2) plaintiff’s performance or excuse for nonperformance, 3) defendant’s breach, and 4) damages. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
The Sanchezes claim the issuance of the DMV refund check would not constitute grounds for summary judgment “unless possibly it was negotiated” because the complaint also seeks prejudgment interest. We do not see how this vague argument and the lack of any specific claim of damages in opposition to the motion for summary judgment creates a triable issue of fact on the breach of contract claim.
It is true that apparently the DMV fees set forth in the contract were in excess of those actually owed and that Begier had an obligation to refund the excess pursuant to Vehicle Code section 11713.4. The sales contract, however, clearly states that the license fees are “ESTIMATED.” But it is undisputed that Begier paid the full balance owing on the DMV fees upon receipt of the complaint. The only disputed fact relates to the time when the excess fees were tendered to the Sanchezes in compliance with the provisions of Vehicle Code section 11713.4. Although Begier’s timely compliance may be in issue, we fail to see this as a breach of the sales contract. Thus, at the time the summary judgment motion was filed, the record does not establish that there was a triable issue of fact concerning damages associated with a breach of contract theory. Our inquiry is limited to the record before us. Although the complaint requests prejudgment interest, there was no judgment in plaintiffs’ favor upon which to base a claim for prejudgment interest. The trial court properly awarded summary judgment on this cause of action.
IX. Summary Adjudication of Issues
The Sanchezes object to Begier’s inclusion of three issues for summary adjudication that were included in its motion for summary judgment on the grounds that they do not completely dispose of any of the causes of action. Again, we do not see in the record where this argument was raised in the trial court. Accordingly, we decline to consider it.
X. Summary Judgment in Favor of GMAC
The Sanchezes claim that the court erred in awarding summary judgment to GMAC on the fourth cause of action. They acknowledge that this claim is based on the allegation that GMAC violated the ASFA. They claim a triable issue of material fact exists as to whether the vehicle was purchased primarily for personal or family purposes.
The ASFA does not apply to vehicles purchased for business purposes. Civil Code section 2981, subdivision (k), defines a “motor vehicle” as a “vehicle required to be registered under the Vehicle Code that is bought for use primarily for personal or family purposes, and does not mean any vehicle that is bought for use primarily for business or commercial purposes . . . .” (Italics added; see also J. T. Jenkins Co. v. Kennedy (1975) 45 Cal.App.3d 474, 476, fn. 2; San Jose Autocar White Co. v. Williamson (1967) 249 Cal.App.2d 619, 621–622.)
As evidence that the vehicle was not purchased for business purposes, the Sanchezes note that a box on the sales contract is checked, which states that the vehicle was being purchased for personal use. However, GMAC offered extensive evidence that the brothers intended that the vehicle would be used primarily for business purposes. For example, GMAC cited to portions of their depositions, wherein they state that they bought the vehicle for use in their business.
While the checked box serves as some evidence that the vehicle might be put to personal use, the Sanchezes themselves admitted in their depositions that they bought the vehicle for business purposes. They also did not introduce evidence as to who checked the box on the form. Thus, we do not believe the checked box is sufficient to raise a triable issue of material fact.
We also do not concur with the Sanchezes’ argument that the trial court should have considered other theories not raised in the complaint that could have supported rescission. We decline to consider this argument as the cases cited to are inapposite in that they apply only when a motion for summary judgment is used to test a complaint, in the manner of a demurrer. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) Accordingly, we conclude that summary judgment was properly awarded to GMAC. For the reasons stated, summary judgment on this cause of action was also properly awarded to Begier.
XI. Failure to Allow Leave to Amend
The Sanchezes claim that the trial court erred in failing to grant them leave to amend their complaint. We disagree.
“ ‘[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]’ [Citation.]” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) “The trial court, ‘in furtherance of justice,’ may allow amendment of a pleading. [Citation.] Although there is a strong policy in favor of liberal allowance of amendments, the trial court’s decision will not be disturbed on appeal unless it clearly has been abused.” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) There is no abuse of discretion in denying leave to amend when the amendment is sought in response to a defendant’s summary judgment motion and the proposed amendments are insufficient to overcome the defects shown in the motion. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 771, fn. 18.)
The Sanchezes offer no argument suggesting that the trial court abused its discretion in denying leave to amend. Based on the record before us, we perceive no error.
XII. Denial of Begier’s Motion for Attorney Fees
Begier claims that it is entitled to recover attorney fees under section 2983.4 of the ASFA. That section provides, in part: “Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a contract or purchase order subject to the provisions of this chapter regardless of whether the action is instituted by the seller, holder or buyer.” (Italics added.)
The trial court denied Begier’s motion for attorney fees, finding that the contract at issue was not subject to the ASFA. This finding appears to have been based on the court’s conclusion that the vehicle had been not been purchased for personal use, thereby rendering the ASFA inapplicable. The court’s order cites to Shapiro v. Ogle (1972) 28 Cal.App.3d 261, 267 (Shapiro). In Shapiro, the appellate court found that section 2983.4 did not apply because the action did not involve a conditional sales contract. (Shapiro, supra, at p. 267.)
We agree with the trial court that Begier is not entitled to its attorney fees under the ASFA. By its terms, the attorney fee statute applies to contracts that are subject to the ASFA’s provisions. While the complaint made reference to the ASFA, the contract at issue here was not subject to its provisions because the Sanchezes did not purchase the truck for personal use. The trial court thus did not err in denying Begier its attorney fees under section 2983.4.
Begier’s reliance on Brown v. West Covina Toyota (1994) 26 Cal.App.4th 555, 562, is unavailing. In Brown, the court held that a defendant who obtains a directed verdict is not entitled to attorney fees where, even though the plaintiff’s complaint alleges an automobile sale contract subject to the ASFA, the gravamen of the plaintiff’s action is an alleged breach of the defendant’s warranty that the automobile is not defective and the plaintiff has not asserted any breach of the defendant’s duty under the ASFA. (Id. at p. 563.)
In the present case, it appears that the Sanchezes did attempt to allege a cause of action for rescission based on the ASFA. However, as in Shapiro, the trial court determined, and we agree, that the ASFA does not apply. The fact that the Sanchezes erroneously alleged a cause of action based on the ASFA does not alter this conclusion.
At oral argument, counsel clarified that Begier was seeking attorney fees under the ASFA only. Accordingly, we need not consider its claim that the trial court erred in deciding that the Sanchezes were the prevailing parties with respect to the contract cause of action.
DISPOSITION
The judgment and order denying attorney fees are affirmed.
Each side is to bear its own costs and attorney fees on appeal.
We concur: Marchiano, P. J. Stein, J.