Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC426572. William Burby, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Yahya Dastmalchian, in pro. per., for Defendant, Cross-complainant and Appellant.
Ives & Associates and Robert N. Ives for Plaintiff, Cross-defendant and Respondent.
OPINION
MILLER J.
Plaintiff, Ehteram Zafari, filed a civil complaint for breach of contract, fraud, and intentional misrepresentation against defendant, Yahya Dastmalchian. After a bench trial, the court ruled in Zafari’s favor, awarding $79,299 in damages. On appeal, Dastmalchian contends the judgment must be reversed because he was prejudiced by the material variance between the damages alleged in the complaint and those proven at and awarded after trial. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In her complaint, Zafari alleged that she (a dealer licensed to purchase cars at auction for resell) and Dastmalchian entered into an oral agreement whereby Dastmalchian would purchase cars utilizing Zafari’s license and pay Zafari $300 for every vehicle he sold. Zafari believed that Dastmalchian had bought and sold 45 vehicles using her dealer’s license. She alleged that Dastmalchian failed to forward any sales tax generated by his sales as required by law. As a result, Zafari averred that she had “incurred significant damages and has been required to pay the sales tax” for Dastmalchian’s sales under her auspices. Zafari prayed “for general, special, consequential and incidental damages according to proof at the time of trial.” After arbitration, Zafari was awarded $104,993.97 in damages. Dastmalchian filed a request for trial de novo.
The evidence adduced at trial established that in 2003, Zafari had a business in which, as a licensed dealer, she would purchase cars at auction and resell them. She and Dastmalchian entered into an oral agreement in late 2003 pursuant to which Dastmalchian would purchase cars using Zafari’s dealer license, pay Zafari $300 for every vehicle he sold, and pay the sales tax generated from those sales. Zafari testified that the agreement required Dastmalchian purchase and sell between two and four cars per month so that she could afford to pay her overhead costs. Dastmalchian would purchase a number of vehicles at auction using Zafari’s dealer license, but not invoice them or give Zafari the transactional documentation. Thus, while Dastmalchian reported and paid her for some vehicles he purchased, he was not reporting or paying her for all of his sales.
Zafari had a shop with a lot that could store up to 10 cars. Although disputed by Dastmalchian, Zafari testified that Dastmalchian was the only other person purchasing cars using Zafari’s dealer license for the duration of their business relationship. Dastmalchian continuously stored multiple vehicles that he had purchased using Zafari’s dealer license on the lot, and employed a mechanic who would work on the vehicles at that location. Department of Motor Vehicles regulations require that all cars purchased at auction be kept on the dealer’s lot until sale. However, Dastmalchian would take some vehicles he had purchased at auction home. Dastmalchian disputed that their agreement required that he purchase and sell a minimum number of vehicles.
It was not undisputed at trial that purchase of vehicles at auction requires a dealer’s license. Zafari had such a license; Dastmalchian did not. A total of 49 vehicles had been purchased using Zafari’s dealer license for the duration of their business relationship. Four of those vehicles were purchased by Zafari. The remaining 45 vehicles were purchased by Dastmalchian.
Because Dastmalchian’s unreported sales were conducted using Zafari’s dealer license, Zafari was required to pay sales tax regardless of whether she received sales tax payments from Dastmalchian. Zafari had been notified that failure to produce sales tax returns would result in suspension of her dealer license and a tax audit. Zafari’s accountant was forced to estimate the amount of taxes to be paid because Zafari did not have documentation from Dastmalchian regarding the exact amounts. Zafari paid the estimated sales tax; however, she was forced to pay tax penalties, assessed unpaid taxes, and had a tax lien entered against her. Additionally, because Dastmalchian was not reporting and paying Zafari for sufficient sales of cars pursuant to their agreement, Zafari was unable to make sufficient income to pay her overhead expenses. As a result, she asked that Dastmalchian pay her rent for his use of the lot; Dastmalchian agreed.
Occasionally, Zafari would provide purchase money with which Dastmalchian would buy vehicles at auction; Dastmalchian would repair the vehicles, and they would split the profits upon resale. However, Dastmalchian never repaid the purchase price of those automobiles. Zafari incurred additional damages from Dastmalchian including a repair bill she paid Dastmalchian for work that was not completed, payments for parts and repairs to vehicles purchased and sold by Dastmalchian that were not reimbursed, payment for registration of Dastmalchian’s vehicles, charges for Dastmalchian’s telephone calls, Dastmalchian’s removal of tools and a sign board belonging to Zafari, a bounced check fee, replacement costs for a mailbox key taken by Dastmalchian, and the cost to change the locks on the lot.
Dastmalchian disputed most of the additional alleged damages at trial.
At the termination of their business relationship in September of 2004, Dastmalchian removed the remaining vehicles he had purchased using Zafari’s dealer license from her lot. Dastmalchian sold those vehicles through another dealer.
DISCUSSION
Dastmalchian contends that because the damages claimed in the complaint were limited to $300 per vehicle for a total number of 45 vehicles sold plus taxes, Dastmalchian was only prepared at trial to defend against damages in a much more limited amount than those actually adduced at and awarded after trial. Thus, Dastmalchian avers that he was prejudiced by the variance between the damages alleged in the complaint and those actually tried and awarded. We hold that Dastmalchian forfeited the issue by failing to object below. Moreover, to the extent the issues have not been forfeited, Dastmalchian had ample opportunity to litigate the damages and suffered no prejudice.
Code of Civil Procedure section 469 provides that “No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the Court may order the pleading to be amended upon such terms as may be just.” It has long been settled that a failure to object to an alleged variance between the pleading and proof at trial forfeits the issue on appeal. (Dikeman v. Norrie (1868) 36 Cal. 94, 103; Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 16; In re David H. (2008) 165 Cal.App.4th 1626, 1640.)
Here, Dastmalchian failed to object to any alleged variance between the pleading and proof adduced at trial. Consequently, he has forfeited the issue because upon such an objection the court below could have permitted amendment of the pleadings to conform to the proof at trial.
“‘It has long been settled law that where (1) a case is tried on the merits, (2) the issues are thoroughly explored during the course of the trial and (3) the theory of the trial is well known to court and counsel, the fact that the issues were not pleaded does not preclude an adjudication of such litigated issues.... [Citations.]’ [Citation.]” (Frank Pisano & Associates v. Taggart, supra, 29 Cal.App.3d at p. 16.) Dastmalchian was aware of the additional damages above and beyond those relating to the parties’ oral contract before trial commenced, and had ample opportunity to litigate those issues during trial. First, the arbitrator’s award of $104,993.97 ($25,000 more than that awarded by the trial court) certainly suggests that the issues Dastmalchian complains about were addressed in those proceedings. Thus, Dastmalchian could hardly be prejudicially surprised by Zafari’s proof of those damages at trial even if they were not explicitly reflected in her pleadings. Indeed, if anything, Dastmalchian appears to have garnered additional time to prepare a defense to those allegations by virtue of the arbitration proceedings; time which he apparently utilized to good measure to the extent he was able to obtain a reduction in the final damage award by more than $25,000.
Second, Dastmalchian fully litigated the issue of the additional damages at trial. He extensively cross-examined Zafari and recalled her to the stand in his case during which he focused much of his attention on those additional damages. Dastmalchian himself extensively testified that he was not responsible for those additional damages: He testified that he never used Zafari’s telephone, Zafari never paid for parts for cars he purchased, he did not recall ever bouncing a check, he did not take tools belonging to Zafari, he did not take the mailbox key, and he did not recall Zafari paying for the registration on any of his cars. Dastmalchian’s mechanic testified that he had completed all work on Zafari’s vehicle for which she was billed and that only his own toolbox, not Zafari’s, was taken from the lot. Accordingly, Dastmalchian had more than sufficient opportunity to litigate the issues pertaining to additional damages during trial such that he suffered no prejudice by any alleged deficiency in the pleadings.
The cases cited by Dastmalchian in support of his position are distinguishable. In Pulse v. Hill (1963) 217 Cal.App.2d 301, the plaintiff pled and tried the matter on proof of a written contract for the lease and purchase of real property. Only after trial did the plaintiff submit a brief to the court urging it to rule in his favor on the basis of an oral contract. (Id. at pp. 303-304.) The court ruled in the plaintiff’s favor directing specific performance of an oral option to purchase real property. (Id. at p. 301.) On appeal, the court ruled in the defendant’s favor because he had no notice until after trial of the basis upon which the plaintiff was relying for recovery. (Id. at pp. 303-304.) Thus, the defendant was prejudiced because he had no opportunity to litigate the issue during trial.
In Garcia v. Roberts (2009) 173 Cal.App.4th 900, the plaintiff’s complaint alleged breach of an oral contract. (Id. at p. 907.) During discovery, the plaintiff denied the existence of any written contract. (Id. at p. 910.) Trial commenced; during discussion of several motions in limine, the plaintiff announced an intention to amend the complaint to allege breach of a written contract. (Id. at p. 907.) “[P]laintiff’s counsel admitted... that plaintiff had previously known about the written contract but refused to allow plaintiff’s counsel to refer to it in the lawsuit.” (Id. at p. 908.) “Defendants’ counsel, while acknowledging that defendants were aware of the existence of the written contract, objected that it was prejudicial to allow plaintiff to make the proposed amendment during trial since plaintiff previously denied there was any agreement other than the alleged oral loan agreement and, in reliance on plaintiff’s claims, defendants only prepared to defend the alleged oral agreement.” (Ibid.) The issue was reserved until later in the proceedings when the trial court granted the motion to amend. The jury found for the plaintiff. (Ibid.)
The appellate court reversed, holding that the trial court had abused its discretion in permitting the amendment because it had unfairly prejudiced the defendants in that the defendants had severely limited the focus of their discovery efforts in the manner prescribed by the plaintiff’s pleading and deposition testimony. (Garcia v. Roberts, supra, 173 Cal.App.4th at pp. 912-913.) “In view of these circumstances and the crucial fact that at the time of trial plaintiff was deceased and so could not be questioned further on any issues relevant to the lease-option agreement, we conclude that defendants were unfairly prejudiced....” (Id. at p. 913, italics added.) Thus, the fact that the defendants had no opportunity to litigate the issue was “crucial” to the appellate court’s reversal of the trial court’s permitted amendment of the complaint.
In Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, the court specifically held that it was of no consequence that the plaintiff did not seek to amend the complaint to conform to proof because the defendants were well aware of the conduct upon which they were found liable. (Id. at p. 1572.) Likewise, in Castaic Clay Manufacturing Co. v. Dedes (1987) 195 Cal.App.3d 444, the court held that the trial court’s award of damages in an amount above that set forth in the pleadings was not prejudicial to the defendant because the related issues could not have come as any surprise to defendant and no additional time or effort was required of him to address them. (Id. at p. 450.) Here, as noted above, Dastmalchian had ample notice both before and during trial of the damages Zafari alleged she had sustained. Dastmalchian had ample opportunity to address those issues and suffered no prejudice.
DISPOSITION
The judgment is affirmed. Zafari is awarded her costs on appeal.
We concur RAMIREZ P. J., KING J.