From Casetext: Smarter Legal Research

Williams v. Bentley Motors, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 3, 2012
B217997 (Cal. Ct. App. Feb. 3, 2012)

Opinion

B217997

02-03-2012

ALVIN E. WILLIAMS et al., Plaintiffs and Appellants, v. BENTLEY MOTORS, INC., et al., Defendants and Respondents.

Alvin E. Williams and Judith M. Brown-Williams, in pro. per., for Plaintiffs and Appellants. Kaplan Lee, Jonathon Kaplan, Yitz E. Weiss; Carroll, Burdick & McDonough, Sean P. Conboy and Gonzalo C. Martinez for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC342574)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge. Affirmed.

Alvin E. Williams and Judith M. Brown-Williams, in pro. per., for Plaintiffs and Appellants.

Kaplan Lee, Jonathon Kaplan, Yitz E. Weiss; Carroll, Burdick & McDonough, Sean P. Conboy and Gonzalo C. Martinez for Defendants and Respondents.

Alvin E. Williams and Judith M. Brown-Williams appeal from the judgment in their "lemon law" action under the Song-Beverly Consumer Warranty Act (Civil Code, § 1790 et seq.) against respondents Bentley Motors, Inc. and Rusnak/Pasadena. We affirm.

FACTS AND PROCEEDINGS

Appellants Alvin E. Williams and Judith M. Brown-Williams bought a new 2004 Bentley Arnage from respondents Bentley Motors, Inc. and Rusnak/Pasadena in February 2004. Because of defects in the car, appellants in May 2004 returned the car to respondents in exchange for a replacement 2004 Bentley Arnage. The replacement car suffered from a host of defects, including, among other problems, unexplained accelerating and stalling, and occasions when the car's doors would not unlock, trapping passengers inside. According to appellants, they took the replacement car to respondents for repairs 17 times, with the car spending a total of 126 days in the repair shop between June 2004 and July 2005. Despite the replacement car's multiple visits to the repair shop, respondents refused to exchange it for a third Bentley Arnage. Because appellants deemed the replacement Bentley Arnage too dangerous to drive, appellants hired a chauffer to be available 24-hours a day, seven days a week to drive appellants and their three minor children in the family's limousine.

In November 2005, appellants filed their complaint against respondents alleging causes of action for breach of express warranty, breach of the implied warranty of merchantability, and violation of the Song-Beverly Consumer Warranty Act. The complaint alleged the Bentley Arnage suffered from recurring defects that required appellants to return it to respondents for repeated repairs. Appellants sought as damages recovery of the Bentley Arnage's purchase price, the finance charges they paid, the revenue they lost from using the limousine for personal transportation instead of the limousine's intended business use, the expense of renting a replacement car, the cost of storing the Bentley Arnage, and civil penalties.

At this point in our recitation of this case's procedural history, we note that a trial court's judgment is presumed correct, and appellants carry the burden of overcoming that presumption. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) To overcome the presumption of correctness, appellants must present reasoned arguments, not bare assertions. "One cannot simply say the court erred, and leave it up to the appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) To meet this burden, appellants must show how the court misapplied the law to the facts established at trial. Appellants can satisfy this burden only by submitting a record and filing appellate briefs which identify pertinent procedural events and analyze relevant facts and legal authorities. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [appellate review is confined to those facts which were established at trial and contained in the record].) We do not as an appellate court develop appellants' arguments for them, nor do we comb the record searching for facts to support their contentions; instead, appellants must present a coherent narrative supported by cogent arguments, and direct us to those places in the record that prove their points are grounded in fact. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [appellate court need not furnish argument or search the record to ascertain whether there is support for appellant's contentions].) Appellants have not met their burden. The record contains a 1,477-page clerk's transcript augmented by more than 2,700 pages of appellants' additions to the appellate record, a 1,680-page respondents' appendix, 12 volumes of reporter's transcripts, and 60 trial exhibits, but appellants' briefing is an unhelpful map to the proceedings below, which we have reviewed endeavoring to make heads or tails of appellants' assertions. Instead of, however, reinventing the wheel by attempting our own distillation of that record, we elect to quote extensively from the court's judgment and postjudgment ruling on fees and costs, which contain concise descriptions of the trial court proceedings. To wit, in the trial court's own words, which we italicize for the reader's convenience:

"This action came on regularly for trial on June 18, 2007, with the jury being sworn on June 25, 2007. . . . [¶] A jury. . . was . . . impaneled and sworn to try the issue of breach of express warranty in [appellants'] complaint. Witnesses were sworn and testified. After hearing the evidence and arguments of counsel, the jury was duly instructed by the Court and the cause was submitted to the jury with instructions to return a verdict on the special verdict form. The jury deliberated and thereafter, on July 2, 2007, returned the following verdict:

'"We, the jury, answer the questions submitted to us as follows:

"1. Did [appellants] buy a new motor vehicle distributed by Bentley Motors, Inc. and sold by Rusnak/Pasadena? [Yes] [¶] . . . [¶]

"2. Did Bentley Motors, Inc. give [appellants] a written warranty? [¶] [Yes] [¶] . . . [¶]

"3. Did the vehicle have a defect covered by the warranty that substantially impaired the vehicle's use, value, or safety to a reasonable buyer in [appellants'] situation? [¶] [Yes] [¶] . . . [¶]

"4. Did Bentley Motors, Inc. or its authorized repair facility fail to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so? [] [Yes] [¶] . . . [¶]

"6. Did Bentley Motors, Inc. fail to promptly replace or repurchase the vehicle? [] [Yes] [¶] . . . [¶]

"7. What are [appellants'] damages? . . . [¶] . . . [¶]

"a. The purchase price of the vehicle itself: $213,579

"b. Charges for transportation and manufacturer-installed options: $13,579

"c. Finance charges actually paid by [appellants]: $213,179

"d. Sales tax, license fees, registration fees, and other official fees: $19,117

"e. Incidental and consequential damages: $0.00

"SUBTOTAL: . . . $459,454.00

"Calculate the value of the use of the vehicle before it was submitted for repair as follows: [¶] . . . [¶]

"VALUE [to appellants] OF USE [of vehicle]: $1,531.00

"Subtract the VALUE OF USE from the SUBTOTAL above and insert result in TOTAL DAMAGES below:

"TOTAL DAMAGES: $457,923.00 [¶] . . . [¶]

"The Parties stipulated to a determination by the Court of [appellants'] second cause of action for breach of implied warranty. After considering the Court file, the evidence presented by the parties in the jury trial, and the bench briefs submitted by each party, the Court found in favor of [respondents] Bentley Motors, Inc. and Rusnak/Pasadena on [appellants'] second cause of action for breach of implied warranty.

"Upon motion of [respondent] Bentley Motors, Inc., a new trial was ordered on the issue and amount of monetary damages due and owing [appellants].

"On September 22, 2008 the parties stipulated that the total amount [appellants] paid on the loan for the Subject Vehicle . . . was $168,879.43 and the payoff amount was then currently $56,559.48. On September 25, 2008, the parties stipulated that the amount [appellants] paid as and for a down payment on the purchase of the Subject Vehicle was $19,579.98.

"On September 23, 2008 a jury. . . was regularly impaneled and sworn to try the issue of monetary damages due and owing [appellants] under the first, and only remaining, cause of action for breach of express warranty in [appellants'] complaint. Witnesses were sworn and testified. After hearing the evidence and arguments of

counsel, the jury was duly instructed by the Court and the cause was submitted to the jury with instructions to return a verdict on the special verdict form. The jury deliberated and thereafter, on September 25, 2008, returned the following verdict:

" 'We, the jury, answer the questions submitted to us as follows: "1. Was Bentley Motors, Inc.'s breach of express warranty obligations under the Song-Beverly Consumer Warranty Act a substantial factor in causing damages to [appellants]? [¶] . . . No. [¶] . . . [¶]

"On February 2, 2009 [respondent] Bentley Motors, Inc. made full and complete payoff of the then remaining loan balance on the Subject Vehicle to the lien holder [auto loan lender]. On February 3, 2009 [respondent] Bentley Motors, Inc. reimbursed [appellants] all down and monthly payments made for purchase of the Subject Vehicle as of that date,

"NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that Judgment is entered in favor of [appellants] and against [respondent] Bentley Motors, Inc. as follows:

"1) In the exercise of its equitable powers, the Court declares that [appellants] are entitled to reimbursement of their down and monthly payments made on the Subject Vehicle in the sum of $201,754.77. Upon a finding that [respondent] Bentley Motors, Inc. made such reimbursement on February 3, 2009, the Court declares this relief having been satisfied in full.

"2) In the exercise of its equitable powers the Court declares [respondent] Bentley Motors, Inc. is required to pay the remaining loan balance on the Subject Vehicle as of February 2, 2009 in the sum of $42,388.23 by means of direct payment to [the auto loan lender]. Upon a finding that [respondent] Bentley Motors, Inc. has effectuated such payoff on February 2, 2009, the Court declares this relief having been satisfied in full.

"3) [Appellants] shall pay [respondent] Bentley Motors, Inc. the amount directly attributable to use by [appellants] prior to the time [appellants] first delivered the subject vehicle to [respondent] or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity, in the sum of $1,440.00.

"4) [Appellants] shall surrender the Subject Vehicle to Bentley Motors, Inc.

"5) [Appellants] shall transfer free and clear title of the subject vehicle to Bentley Motors, Inc. and shall execute all documents necessary to effectuate such transfer. In the event [appellants] fail to execute such documents, the Clerk of Court is hereby empowered to sign [appellants'] name on any and all transfer and title documents upon ex parte application.

"6) In the event [appellants] fail to surrender and transfer free and clear title of the Subject Vehicle to [respondent] Bentley Motors, Inc., [appellants] are to pay [respondent] Bentley Motors, Inc. the sum of $244,143.00.

"Prevailing party status, the right to, and amount of, attorney's fees and costs of suit, are to be determined upon post-judgment motions." (Italics added.)

Appellants appealed from the judgment.

DISCUSSION

1. Respondent Bentley's Code of Civil Procedure Section 998 Statutory Offer to Settle

To settle appellants' complaint, respondent Bentley made an offer to appellants under Code of Civil Procedure section 998 (section 998), which appellants rejected. Again, we find the trial court's description of the proceedings a reliable roadmap: "On November 6, 2006, [respondent] Bentley Motors served upon [appellants] a statutory offer to compromise pursuant to Code of Civil Procedure section 998. The salient provisions of the offer to compromise were that Bentley Motors would reimburse [appellants] for 'the sum of the purchase price paid for the vehicle ($232,696.38) and any other amounts actually paid by [appellants] for tax, title and registration of the vehicle.' [Appellants] would then surrender the vehicle to Bentley Motors. Bentley Motors also agreed to pay [appellants] an additional sum of $2,500 and pay [appellants'] attorney fees and cost[s] (to be determined by subsequent motion and memorandum of costs). In return, [appellants] were to dismiss the action and enter a general release of all claims, and a Civil Code section 1542 waiver. [¶] [Appellants] did not respond to [Bentley Motors'] section 998 offer and it was therefore rejected by operation of law. [¶] The matter proceeded to jury trial against Bentley Motors on the first cause of action. The jury returned a verdict in favor of [appellants] on July 2, 2007, but did not find that [Bentley Motors] willfully failed to repair or repurchase the vehicle. The jury also found that the [appellants] were not entitled to any damage award for incidental or consequential damages. [¶] . . . [¶] On April 27, 2009, the Court entered Judgment in this action finding that [appellants] are entitled to reimbursement of their down and monthly payments in the sum of $201,754.77 and that such reimbursement was made of February 3, 2009. The Court declared that this relief was satisfied in full. The Court also found that [respondent] Bentley was to pay the remaining loan balance on the subject vehicle to [auto loan lender] in the sum of $42,388.23. The Court found that this payment had been made this relief was satisfied in full. The Court awarded an offset in the amount of $1440.00. [Appellants] were to surrender the subject vehicle and transfer title to Bentley Motors, Inc."

Following the trial, respondent Bentley moved for recovery of the costs it incurred after appellants rejected Bentley's settlement offer. Appellants opposed Bentley's motion to recover costs. Appellants argued Bentley was not entitled to recover its costs under section 998 because appellants were the prevailing party, having obtained a monetary judgment in their favor. The court found otherwise, declaring that appellants' rejection of the settlement offer and decision to go to trial had not resulted in appellants' achieving a better outcome than Bentley's settlement offer. As the court explained in awarding Bentley its postoffer costs: "Both parties claim to be prevailing parties in this litigation. [Appellants] make their claim by virtue of the juries' finding that Bentley was in breach of the express warranty as alleged in the first cause of action. [¶] . . . [¶] It cannot be said that subsequent to the rejection of [respondent Bentley's] . . . section 998 offer that [appellants] achieved any of their litigation objectives. [Bentley] offered to purchase the subject vehicle, pay [appellants'] cost and attorney fees, and pay [appellants] an additional $2500. [Appellants] refused this offer. This litigation was driven by [appellants'] insistence that they be reimbursed for a full time chauffer to drive them in their limousine, and to seek lost profits for when their limousine was unavailable to be hired. Indeed, the amount outstanding to repurchase the vehicle was not even an issue in the final trial as that sum was stipulated to by the parties. The only issue that remained for the jury to determine at the final trial was whether [appellants] were entitled for their chauffer cost. Damages ultimately [appellants] did not recover. [¶] Under the judgment entered in this case, [Bentley] repurchased the vehicle from [appellants], just as [respondent] had offered in its 998 offer. [Appellants] did not however receive the $2500 they would have received under the 998. [Appellants have] failed to establish how they are in any better position for having gone through two jury trials and one court trial in this matter, than they would have been had they accepted the . . . 998 offer. It appears to the Court that they are in fact in a worse position. [Appellants'] litigation objectives were not achieved."

Appellants contend the court erred in awarding Bentley its postoffer costs. Appellants are mistaken. A trial court applies a pragmatic test in deciding whether the result a plaintiff achieved at trial was better than the section 998 offer. (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 179.) We review the trial court's determination for abuse of discretion. (Ibid.) Here, appellants would have received without going to trial the purchase price of the Bentley Arnage (consisting of the down payment and all monthly payments), license and registration fees, the interest they paid in financing charges, and a $2,500 cash "sweetener." But that was not good enough for appellants. They also demanded damages for the cost of hiring a chauffer for round-the-clock availability and for recovery of profits lost from using their limousine for personal rather than business use. Appellants achieved none of these additional objectives at trial.

"It is the very essence of [Code of Civil Procedure] section 998 that, to encourage both the making and the acceptance of reasonable settlement offers, a losing defendant whose settlement offer exceeds the judgment is treated for purposes of postoffer costs as if it were the prevailing party." (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1114; One Star, Inc. v. STAAR Surgical Co. (2009) 179 Cal.App.4th 1082, 1089.) Under section 998, "a losing defendant can recover its costs. When a defendant's settlement offer is not accepted and the plaintiff fails to obtain a more favorable judgment, the defendant is entitled to its costs. . . . Thus, even a defendant against whom a money judgment is entered can recover costs under section 998." (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 803.) Hence, the court did not err in finding the outcome appellants achieved by going to trial was no better than what they could have collected from Bentley's 998 offer to settle, and consequently did not abuse its discretion by awarding Bentley its postoffer costs.

Appellants contend the court used incorrect dollar amounts in comparing the value of the settlement offer to the monetary judgment they won at trial. In particular, appellants contend the settlement offer was insufficient to pay off the Bentley Arnages's purchase price and the interest they had paid on their auto loan. In asserting the settlement offer's inadequacy compared to the judgment after trial, appellants appear to include among their damages recovery of interest that accrued on the car loan after Bentley tendered its offer. Appellants do not, however, analyze those numbers, instead asserting the court erred and leaving to this court the task of figuring out the mathematical accuracy of appellants' assertion. To reiterate, "One cannot simply say the court erred, and leave it up to the appellate court to figure out why." (Niko v. Foreman, supra, 144 Cal.App.4th at p. 368.) Appellants also ignore the rule that one purpose of a section 998 settlement is to avoid the accrual of ongoing damages, such as future interest, which end with a settlement. (Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 713 [postoffer damages excluded from calculation comparing offer to judgment because "it discourages litigation aimed solely at insuring an award greater than a statutory offer"]; see also Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1520-1522.) As Witkin explains, "Where the plaintiff refuses an offer of compromise by the defendant, costs incurred by the plaintiff before the time of the offer are added to the award of damages for purposes of determining whether the judgment is 'more favorable' than the offer, but costs incurred after the offer are excluded from the calculation." (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 101, p. 534.) Given appellants' failure to meaningfully discuss the facts and the law, we reject appellants' contention that the court used the wrong dollar amounts when comparing the settlement offer to the judgment.

Appellants also contend that Bentley's section 998 offer was invalid because it misidentified appellants. Their contention is not well taken. In the middle of one paragraph in Bentley's multi-page offer, the document mistakenly referred to appellants as "August B. Doppes." Apart from that one erroneous reference, the offer named appellants correctly in the caption and eight other times in the document. Each of those correct references was in uppercase bold font, in contrast to one mistaken reference to August B. Doppes, which was in an ordinary case and font and was in all likelihood simply a proofreading error by respondents or their counsel. "[T]he offer must be sufficiently specific to permit the recipient meaningfully to evaluate it and make a reasoned decision whether to accept it, or reject it and bear the risk he may have to shoulder his opponent's litigation costs and expenses. [Citation.] Thus, the offeree must be able to clearly evaluate the worth of the extended offer." (Berg v. Darden (2004) 120 Cal.App.4th 721, 727.) We cannot conceive that Bentley's typographic error confused appellants into thinking Bentley's offer to settle, which correctly identified appellants nine times, was for "August B. Doppes" instead of appellants. Hence, Bentley's one-time misidentification of appellants did not prevent appellants from assessing the value of the settlement offer and did not render Bentley's offer invalid.

2. Three Postjudgment Motions

After filing their notice of appeal from the judgment, appellants filed a motion for summary judgment, to vacate the judgment, and to set aside the judgment. The trial court denied each motion on the ground the court lacked jurisdiction to rule on them because appellants' notice of appeal divested the trial court of jurisdiction. Under Code of Civil Procedure section 916, a notice of appeal divests, with limited exceptions not pertinent here, a trial court of jurisdiction to take further action in a matter, the statute stating "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby." The automatic stay of further proceedings in the trial court ensures appellate review does not become meaningless. "The purpose of the automatic stay rule is 'to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.]' [Citation.]" (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1428.) Appellants do not discuss these foregoing principles. "When 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." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Accordingly, appellants' contention fails.

3. Prejudgment Interest

Appellants moved for prejudgment interest. Civil Code section 3287 permits a prevailing plaintiff to recover prejudgment interest when the plaintiff's damages are certain or capable of being made certain by calculation. The trial court denied appellants' motion for prejudgment interest because it found appellants' damages were uncertain and incapable of being made certain by calculation. Appellants do not discuss the factual underpinnings of the court's finding, hence waiving the point on appeal. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)

To the extent appellants' briefs mention other issues, such as the trial court's evidentiary ruling in limine directing counsel not to disclose to the second jury details about the first jury's findings; the purported failure of appellants' trial counsel to obtain appellants' consent to counsel's stipulation to a bench trial on damages; and, collusion of appellants' trial attorneys with respondents, appellants' failure to discuss these issues with cogent arguments supported by citations to the record and legal authorities, waives the issues on appeal. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)

4. Civil Penalty

Appellants contend Bentley's breach of its express warranty was willful, entitling appellants to civil penalties under the Song-Beverly Consumer Warranty Act. The jury expressly found, however, that the breach was not willful. Appellants' discussion of the reasons they believe the jury erred does not contain a single citation to the record. Their contention thus fails. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Cosenza v. Kramer, supra, 152 Cal.App.3d at p. 1102; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.)

DISPOSITION

The judgment is affirmed. Respondents to recover their costs on appeal.

RUBIN, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.


Summaries of

Williams v. Bentley Motors, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 3, 2012
B217997 (Cal. Ct. App. Feb. 3, 2012)
Case details for

Williams v. Bentley Motors, Inc.

Case Details

Full title:ALVIN E. WILLIAMS et al., Plaintiffs and Appellants, v. BENTLEY MOTORS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Feb 3, 2012

Citations

B217997 (Cal. Ct. App. Feb. 3, 2012)