Shaghoian v. Aghajani, CV 00-1141-RC.

• Decision Date: 17 October 2002
• Docket Number: No. CV 00-1141-RC.,CV 00-1141-RC.
• Citation: 228 F.Supp.2d 1107
• Court: U.S. District Court — Central District of California
• Parties: Vehanoush SHAGHOIAN, Plaintiff, v. Ardoush AGHAJANI aka Art Aghajani dba R.V.R., Kourosh Hakimpour dba Lincoln Auto Sales; and Western Surety Company, a South Dakota corporation, Defendants.

228 F.Supp.2d 1107

Vehanoush SHAGHOIAN, Plaintiff, v. Ardoush AGHAJANI aka Art Aghajani dba R.V.R., Kourosh Hakimpour dba Lincoln Auto Sales; and Western Surety Company, a South Dakota corporation, Defendants.

No. CV 00-1141-RC.

United States District Court, C.D. California.

October 17, 2002.

William J. Flanagan, El Monte, CA, for Plaintiff.

Ardoush Aghajani, pro se.

MEMORANDUM DECISION AND ORDER

CHAPMAN, United States Magistrate Judge.

On July 31, 2002, plaintiff filed a motion for summary judgment, a supporting memorandum of points and authorities, the supporting declaration of William J. Flanagan and exhibits, and a request for judicial notice. On August 13, 2002, defendant Aghajani filed a verified opposition to plaintiff's motion and a cross-motion for summary judgment, a supporting memorandum of points and authorities, declarations and exhibits.¹ On September 16, 2002, plaintiff filed an opposition to defendant's cross-motion for summary judgment.

Oral argument was held before Magistrate Judge Rosalyn M. Chapman on October1 17, 2002. William J. Flanagan, attorney-at-law, appeared on behalf of plaintiff and defendant Ardoush Aghajani appeared pro se.

BACKGROUND

I

On February 2, 2000, plaintiff Vehanoush Shaghoian filed her initial complaint, and on March 26, 2001, plaintiff filed her First Amended Complaint ("FAC") against defendants Ardoush Aghajani, aka Art Aghajani dba R.V.R., Kourosh Hakimpour dba Lincoln Auto Sales, and Western Surety Company alleging: (a) all defendants violated the Odometer Act, 49 U.S.C. §§ 32701, et seq., by altering the odometer of a vehicle plaintiff purchased; and (b) defendants Hakimpour and Western Surety fraudulently concealed from plaintiff the correct odometer reading of the vehicle.² Specifically, plaintiff alleges that on July 8, 1999, Jonathan Lee sold a 1994 BMW to defendant Aghajani,³ at which time the BMW's odometer read 150,247 miles. FAC, ¶¶ 7-8. On July 12, 1999, defendant Aghajani delivered the BMW to auction for resale, at which time the BMW's odometer read 43,274 miles. FAC, ¶ 9. Plaintiff alleges that "[s]ometime during the period from July 8, 1999 to July 12, 1999 defendant Aghajani altered or caused to be altered the odometer mileage on the [BMW]." FAC, ¶ 10. On July 19, 1999, plaintiff purchased the BMW from defendant Hakimpour dba Lincoln Auto Sales for $18,500.00, financing the purchase in the amount of $23,725.80. FAC, ¶ 9. At the time of purchase, the BMW's odometer read 43,000 miles. Id.

On March 28, 2000, defendant Aghajani answered the complaint; however, defendant Aghajani never answered the First Amended Complaint. This Court will, nevertheless, treat defendant's verified answer to the initial complaint as his answer to the First Amended Complaint. Fed. R.Civ.P. 15(a).

II

The summary judgment documents establish the following facts: On July 8, 1999, defendant Aghajani, using the fictitious business name R.V.R., was licensed as a motor vehicle dealer by the California Department of Motor Vehicles ("DMV").⁴ Plaintiff's Motion for Summary Judgment ("Plaintiff's Motion"), Exh. 1. As a motor vehicle dealer, defendant purchased a 1994 BMW, license plate no. 3GUR857, VIN WBABF4324REK11341 ("1994 BMW"), from "Mr. Lee." Declaration of Ardoush Aghajani ("Aghajani Decl."), ¶ 8; Plaintiff's Motion, Exh. 2. At the time of purchase, the 1994 BMW's odometer read 150,247 miles. Ibid. However, because the 1994 BMW's "odometer was broken and not working," defendant replaced the odometer with another one; but, since the replacement odometer was digital, defendant "could not return the odometer reading to the prior mileage reading [or] adjust the reading to zero." Aghajani Decl., ¶ 8.

On July 12, 1999, defendant consigned the 1994 BMW to the Los Angeles Auto Auction ("Auction") for resale, Verified Answer, ¶ 4, and on July 13, 1999, the 1994 BMW was sold to Hakimpour dba Lincoln Auto Sales for $13,900.00. Plaintiff's Motion, Exh. 3. At that time, defendant signed an Odometer Disclosure Statement stating: "I R.V.R. state that the odometer now reads 43274 miles (no tenths) and to the best of my knowledge that it reflects the actual mileage of the vehicle described above, unless one of the above statements is checked." Id.; Verified Answer, Exh. B. Neither of the "above statements" was checked.⁵ Ibid. The Odometer Disclosure Statement also had the notation "HI LINE DLR GUAR TMU." Ibid. "[I]n [the] trade of selling cars[] between [] dealers [the] use [of the] abbreviation "TMU" ... means "True Mileage Unknown." Aghajani Decl., ¶ 10. Defendant avers that he "disclosed the true mileage of the vehicle to the [Auction]."⁶ Aghajani Decl., ¶ 6; Verified Answer, ¶ 4, Exh. A. On July 19, 1999, plaintiff purchased the 1994 BMW from defendant Hakimpour dba Lincoln Auto Sales for $20,995.68 (including taxes and fees).⁷ Declaration of Vehanoush Shaghoian, ¶¶ 2-3, Exh. 6. At that time, the 1994 BMW's odometer read 43,274 miles. Shaghoian Decl., ¶ 2.

Defendant also has established that, after he replaced the 1994 BMW's odometer, he "attached a disclosure notice on the [BMW's] left door frame ... [stating] the date [he] changed the odometer, the new odometer start mileage, and the old odometer mileage[,] approximately 150,000." Aghajani Decl., ¶ 8; Declaration of Armen Grigorian, ¶¶ 3-4; Declaration of Ara Aghajani, ¶¶ 3-4; Declaration of Amin Aghajani, ¶¶ 3-4. The plaintiff states, however, that "[t]here [wa]s no written notice of any kind on the vehicle's left door frame [when she bought the 1994 BMW]." Shaghoian Decl., ¶ 4.

DISCUSSION

III

Federal Rule of Civil Procedure 56(c) authorizes the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Judgment must be entered "if ... there can be but one reasonable conclusion as to the verdict.... [However, i]f reasonable minds could differ," judgment should not be entered in favor of the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of identifying the elements of the claim in the pleadings, or other evidence which the moving party "believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1132-33 (9th Cir.1996) (per curiam). The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Gasaway v. Northwestern Mutual Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.1994). "[T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc).

IV

"As originally enacted in 1972, the Odometer Act was codified at 15 U.S.C. §§ 1981-1991. In 1994, Congress repealed these sections and recodified the Act at 49 U.S.C. §§ 32701-32711. Although the recodification included some changes to the statutory language, Congress did not intend to substantively change the law." Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1278 n. 1 (10th Cir.1998).

The Odometer Act requires the transferor⁸ of a motor vehicle to disclose in writing either "the cumulative mileage registered on the [vehicle's] odometer" or to "[d]isclose that the actual mileage is unknown, if the transferor knows the odometer reading is different from the number of miles the vehicle has actually traveled." 49 U.S.C. § 32705. This written disclosure must be signed by the transferor, and transferee,⁹ and must contain: (1) "[t]he odometer reading at the time of transfer (not to include tenths of miles)"; (2) "[t]he date of transfer"; (3) "[t]he transferor's name and current address"; (4) "[t]he transferee's name and current address"; and (5) "[t]he identity of the vehicle, including its make, model, year, and body type, and its vehicle identification number." 49 C.F.R. § 580.5(c), (f). Additionally, the written disclosure must include the transferor's certification that: (1) "to the best of his knowledge the odometer reading reflects the actual mileage"; (2) "the odometer reading reflects the amount of mileage in excess of the designated mechanical odometer limit"; or (3) "the odometer reading does not reflect the actual mileage, and should not be relied upon." 49 C.F.R. § 580.5(d)-(e).

If the transferor, with intent to defraud, fails to comply with these requirements, the transferor is subject to suit by the transferee and may be liable for treble damages or $1500, whichever is greater. Suiter, 151 F.3d at 1278 (citing 49 U.S.C. § 32710), see also 49 U.S.C. § 32709 (A transferor who violates the Odometer Act may be subject to both civil and criminal penalties.). "A transferor of a vehicle may be found to have intended to defraud if he had reason to know the mileage on the vehicle was more than was reflected by the odometer or certification of the previous owner and nevertheless failed to take reasonable steps to determine the actual mileage." Haynes v. Manning, 917 F.2d 450, 453 (10th Cir.1990) (per curiam). Thus,

[i]f a person violates an odometer disclosure requirement with actual knowledge that he is committing a violation, a fact finder can reasonably infer that the violation was committed with an intent to defraud a purchaser. Likewise, if a person lacks knowledge that an odometer disclosure statement is false only because he displays a reckless disregard for the truth, a fact...