Eidsmore v. RBB, Inc.
Decision Date | 25 May 1994 |
Docket Number | No. H010484,H010484 |
Citation | 30 Cal.Rptr.2d 357,25 Cal.App.4th 189 |
Court | California Court of Appeals |
Parties | Paul EIDSMORE, Plaintiff, Cross-Defendant and Appellant, v. RBB, INC., Defendant, Cross-Complainant, and Respondent. |
Michele K. Trausch, Bronson, Bronson & McKinnon, San Francisco, for plaintiff/cross-defendant and appellant.
Randall B. Aiman-Smith, Aiman-Smith and Bauman, Berkeley, for defendant/cross-complainant and respondent.
In this action for recission of a contract to purchase an automobile, the trial court found in favor of respondentRBB, Inc., doing business as Ferrari of Los Gatos, on both appellant's complaint and respondent's cross-complaint for breach of contract.Appellant contends the trial court misinterpreted Vehicle Code section 11713, subdivision (p), which restricts a dealer's collection of deposits on vehicles which are not "available" to the dealer.Appellant further challenges the trial court's factual findings that delivery of appellant's vehicle occurred within a reasonable time and that respondent adequately mitigated its damages upon appellant's breach.We will affirm the judgment.
The subject of this controversy was a "unique and exotic" Ferrari called the "F-40."In September of 1987appellant learned that this new "super car" was to be introduced in limited numbers in Canada and the United States.Appellant gave respondent a refundable deposit for $25,000, which assured him of receiving the first F-40 that was delivered to respondent.He was not told when he could expect the F-40's to arrive.Appellant placed similar deposits at three other dealerships, with the hope that one would be able to obtain an F-40 for him when they were approved and released for sale.
In early 1990respondent's salesman, Jack Gordon, called appellant to tell him that the F-40 had passed federal requirements for sale in the United States, and the cars would begin arriving in "a couple of weeks," according to appellant.The parties agreed on a price of $1,325,000, and Gordon went to appellant's home with a written contract for him to sign.The contract contained a provision for a nonrefundable down payment of $100,000.Appellant objected to having to pay an additional $75,000, he said, but was told that if he did not, he would lose his priority status.Appellant gave Gordon the $75,000 and signed the contract on February 6, 1990.
The document listed the buyer as "Paul Eidsmore DBA Eidsmore Imports" and did not provide for payment of sales tax.Appellant testified that Gordon had suggested he be listed under his wholesale license so that if he acquired the F-40 from another dealer, he could buy one from respondent without paying sales tax and then resell it.Although appellant maintained that he wanted an F-40 for his own use, the trial court inferred from the absence of sales tax on the contract that appellant was engaged in a commercial transaction with the intention of reselling the car at a profit.
The contract also included a typewritten term providing for payment on March 23, 1990.Appellant testified that he asked Gordon whether he could delay payment until that date even though the car was to be delivered within two weeks; Gordon then realized he had made an error, and he crossed out the date and wrote in "On Delivery."
Appellant denied that he had insisted on locking in a price in February because the value of the car was increasing; instead, he stated, it was the dealer who wanted to lock in the price because the dealer knew the price was about to fall.
The F-40 did not arrive until August of 1990.During the intervening period the value of the F-40 decreased "drastically."Appellant became anxious to receive the car so that he could sell the car before it declined further.In April or May he asked for a refund of his down payment; respondent refused the request.On June 7, 1990, appellant sent a letter purporting to rescind the contract, 1 and on June 29, he filed a complaint for recission and declaratory relief in superior court.
Jack Gordon also testified at trial.He stated that when he discussed the delivery of the F-40 with appellant on the day they signed the contract, he told appellant that he"[wasn't] exactly sure when the car was going to come in."He did assure appellant, however, that the cars "were definitely coming and [appellant] was definitely getting the first car."When asked about the typewritten date of March 23, 1990, on the contract, he explained that the company's computer automatically generated a payment date 45 days from the date of the contract.Gordon crossed off the date, he said, because "there was no way to know exactly what date a Ferrari is going to come in."
Gordon denied that he had ever told appellant that the car would be delivered within a couple of weeks, or by March 23, or even in any particular month.In his 16 years at this Ferrari dealership he had learned to be "very careful not to say anything exact about when Ferrari cars are coming," because the manufacturer was a "small boutique company, and they do things their way."On cross-examination, however, he admitted that he"may have told [appellant][an] approximate time that [the car] might be there."Upon further questioning Gordon recalled that he
Appellant presented a rebuttal witness, Terry Buch, who was in the garage at appellant's home on February 6, 1990.Buch testified that after appellant and Gordon worked out the details of the contract they came into the garage.When asked "when he thought the car might be in," Gordon responded that it "should be in within the next few weeks."
Respondent's president was Brian Burnett.Burnett testified that in February 1990 when the contract was executed with appellant, the value of the F-40 was increasing daily.At that time, he said, the car was worth $1,500,000, but appellant had been on the waiting list for a long time and both parties were satisfied with the $1,325,000 price.During February or March, however, the value of the F-40--indeed, of all Ferraris--began to fall "fairly fast."By August 25, 1990, when he sold the first F-40 to another customer, the car brought in about $970,000.
As for delivery time, At that time, Not until July 13, 1990, did Burnett receive notice that delivery would "soon start."The first car arrived on August 8, 1990.
Appellant's complaint, as finally amended, asserted one cause of action for declaratory relief and four causes of action for recission, citing Civil Code sections 2982.9,1667, and1689.Respondent cross-complained for breach of contract, intentional misrepresentation, and negligent misrepresentation.
Appellant claimed, inter alia, that the contract between the parties was unlawful under Vehicle Code section 11713, subdivisions (b) and (p), and was therefore subject to recission.Appellant moved for summary judgment on this ground, arguing that respondent had illegally accepted his deposit because the vehicle was not "available to the dealer" within the meaning of Vehicle Code section 11713, subdivision (p).The court denied the motion, reasoning that "the evidence offered does not establish as a matter of law that the subject vehicle was not 'available' to Ferrari of Los Gatos at the time the parties entered into their February 6, 1990, agreement."
After a court trial, judgment was entered for respondent.The court specifically found that appellant had entered into a commercial transaction which did not violate Vehicle Code section 11713.Furthermore, because the contract did not specify a delivery date, only a reasonable time was required for delivery under Civil Code section 1657 and delivery of this vehicle was made within a reasonable time.On respondent's cross-complaint, the court found that respondent was entitled to retain the $100,000 deposit as damages, but the evidence of a greater amount was insufficient.
Appellant challenges three of the trial court's rulings below: (1) that no violation of Vehicle Code section 11713 occurred; (2) that the car appellant had ordered was delivered within a reasonable time; and (3) that respondent adequately mitigated its damages after appellant's breach.Appellant correctly observes that the first issue requires statutory interpretation, which is a matter for the reviewing court's independent determination.Appellant's second and third contentions, on the other hand, are questions of fact, which we review according to the substantial evidence rule.Thus, with regard to these issues, we examine the entire record to determine whether there is any substantial evidence, contradicted or uncontradicted, to support the court's factual findings.2Where the evidence conflicts or is capable of conflicting inferences, the appellate court will not substitute its deductions for those of the fact finder.(Bates v. John Deere Co.(1983)148 Cal.App.3d 40, 49, 195 Cal.Rptr. 637.)Further, although appellant repeatedly contests the weight and credibility of the testimony presented, this court will not reweigh evidence, reappraise the credibility of witnesses, or resolve factual conflicts contrary to the trial court's findings, but only decide whether there is substantial evidence to support these...
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