Parish v. The Ohio Cas. Ins. Co.

Decision Date06 May 2022
Docket NumberE075135
PartiesDON E. PARISH, Plaintiff and Appellant, v. THE OHIO CASUALTY INSURANCE COMPANY, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals


APPEAL from the Superior Court of San Bernardino County (Super.Ct.No. CIVDS1717151). John M. Pacheco, Judge. Affirmed.

Law Offices of Robert B. Mobasseri, Robert B. Mobasseri and David Alan Cooper for Plaintiff and Appellant.

Booth Mitchel & Strange and Stacie L. Brandt for Defendant and Respondent.




In 2016, Don E. Parish (plaintiff) purchased a used vehicle from a licensed vehicle dealer (dealer). He subsequently discovered defects in the vehicle and that the vehicle had an unreported prior accident history. Plaintiff eventually filed a civil action against the dealer alleging causes of action for (1) violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), (2) fraudulent concealment, and (3) violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.). Plaintiff also alleged a cause of action against the dealer's surety, Ohio Casualty Insurance Company (surety defendant) for liability on a surety bond pursuant to Vehicle Code[1] section 11711, subdivision (a).

The dealer moved to compel arbitration, the trial court granted the dealer's motion, and the litigation was stayed with respect to the cause of action between plaintiff and surety defendant. The arbitrator set the matter for an evidentiary hearing, held the hearing in the dealer's absence when the dealer failed to appear, and issued an award in favor of plaintiff. The remaining cause of action against surety defendant was tried in a court trial and resulted in a judgment in favor of surety defendant.

Plaintiff appeals from the judgment against him, arguing: (1) surety defendant should have been precluded from relitigating any issues decided in plaintiff's favor in the arbitration proceeding involving the dealer under the doctrine of collateral estoppel; (2) the trial court erred in "applying a common law fraud standard to his CLRA claim"; and (3) the trial court erred in determining that third-party vehicle history reports do not qualify as a "written instrument furnished by the licensee, containing stipulated provisions and guarantees which the person believes have been violated," within the meaning of section 11711, subdivision (a).

We conclude that plaintiff has forfeited any claims of error by failing to identify a standard of review or tailor any arguments to the appropriate standard of review on appeal. We further conclude that, even in the absence of forfeiture, the trial court did not err in declining to apply the doctrine of collateral estoppel against a surety and did not err in requiring plaintiff to prove actual fraud on the part of the dealer in order to recover against a surety under section 11711, subdivision (a). Finally, in light of these conclusions, we need not determine whether the trial court erred in its application of section 11711, subdivision (a)'s written instrument requirement because, even assuming the trial court erred, such error would not justify reversal of the judgment on appeal.


On September 5, 2017, plaintiff filed a civil complaint for damages arising out of the purchase of a used vehicle from the dealer. Plaintiff alleged three causes of action against the dealer, including (1) violation of the CLRA, (2) fraud, and (3) violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.). Plaintiff also alleged a cause of action against surety defendant for liability on its bond pursuant to Vehicle Code section 11711, subdivision (a). Surety defendant filed an answer to the complaint. However, the dealer filed a motion to compel arbitration of all claims against it.

On December 6, 2017, the trial court granted the dealer's motion to compel arbitration and stayed the litigation with respect to the remaining claim against surety defendant pending the arbitration proceedings.[2] The dealer failed to appear at the time set for the evidentiary hearing in the arbitration proceedings; the hearing was held without the dealer's participation; and the arbitrator issued an award in plaintiff's favor. The trial court confirmed the award against the dealer and entered judgment against the dealer on April 5, 2019.

The cause of action against surety defendant proceeded in the trial court, and the matter was set for trial. Surety defendant filed a motion in limine seeking to exclude evidence of the arbitration, arbitration award, and judgment against the dealer. In opposition to this motion and in his trial brief, plaintiff argued that surety defendant was barred by the doctrine of collateral estoppel from relitigating any issues already decided in arbitration. The trial court granted surety defendant's motion but held that evidence from the arbitration could be used for impeachment at trial.

Plaintiff was the only witness to testify in a one-day bench trial. Plaintiff testified that he purchased a vehicle from the dealer. Plaintiff testified that, in doing so, he relied on (1) oral assurances made by the dealer regarding the quality of the vehicle, (2) the dealer's internet advertisements that assured potential customers they could have "peace of mind" because all of the dealer's vehicles had been inspected, (3) and copies of two vehicle history reports generated by independent third parties provided by the dealer. He became dissatisfied with his purchase and believed the vehicle fell short of what the dealer represented. Plaintiff would not have purchased the vehicle if he had known its true condition.

On December 4, 2019, the trial court issued an intended statement of decision. With respect to the cause of action pursuant to section 11711, subdivision (a), against surety defendant, the trial court concluded that plaintiff met his burden to show loss or damage under the statute but failed to show fraud practiced on him by the dealer or that he was in possession of a written instrument from the dealer containing stipulations and guarantees within the meaning of the statute. The trial court's intended statement of decision became final and judgment was entered in favor of surety defendant on February 3, 2020. Plaintiff appeals from this judgment.

A. Plaintiff Has Forfeited His Claims on Appeal by Failing To Identify Or Tailor Arguments to Any Standard of Review

"' "Arguments should be tailored according to the applicable standard of appellate review." [Citation.] Failure to acknowledge the proper scope of review is a concession of a lack of merit.'" (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948, quoting Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)" 'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error.'" (People v. Foss (2007) 155 Cal.App.4th 113, 126.) Thus, "[w]hen an appellant fails to apply the appropriate standard of review, the argument lacks legal force" and "the appellant fails to show error in the judgment." (Ibid.)

Here, plaintiff's briefs on appeal fail to identify the standard of review applicable to any of his claims of error. Simply claiming error in the abstract without reference to any standard of review or any argument designed to explain why, under the appropriate standard of review, any such error requires reversal of the judgment, does not meet plaintiff's burden on appeal. For this reason alone, plaintiff's claims must be deemed forfeited on appeal, and the appeal must be resolved against plaintiff. Additionally, as explained post, even in the absence of forfeiture, we would find no error warranting reversal.

B. The Trial Court Did Not Err in Declining To Apply the Doctrine of Collateral Estoppel

Plaintiff contends the trial court erred in permitting surety defendant to relitigate issues already decided in plaintiff's favor in the arbitration proceeding between plaintiff and the dealer. According to plaintiff, it should have been permitted to apply the doctrine of collateral estoppel offensively to preclude surety defendant from litigating any issues the dealer could have litigated, but failed to, in arbitration. We disagree.

"The trial court's application of the doctrine of collateral estoppel or issue preclusion is a question of law subject to de novo review." (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507; see Roos v. Red (2005) 130 Cal.App.4th 870, 878; see also Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684.) Generally, the doctrine of collateral estoppel will bar relitigation of an issue where there has been (1) a final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit, and (4) the issue is asserted against one who was a party in the first suit or one in privity with that party. (Meridian Financial Services, at p. 686.)

With respect to matters litigated against a principal in arbitration, the Civil Code expressly provides that "[a]n arbitration award rendered against a principal alone shall not be, be deemed to be, or be utilized as, an award against his surety." (Civ. Code, § 2855.) The express purpose of this provision is to apply existing law applicable to prior judgments to arbitration awards. (Ibid.) Plaintiff acknowledges that this statute generally precludes a prior arbitration award against a principal from being directly enforced against a surety but claims that the statute is ambiguous as to "what additional steps must be taken by a...

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