Zhadan v. Downtown Los Angeles Motor Distributors, Inc.

• Citation: 100 Cal.App.3d 821,161 Cal.Rptr. 225
• Parties: Zina ZHADAN, Plaintiff, Cross-Defendant and Respondent, v. DOWNTOWN LOS ANGELES MOTOR DISTRIBUTORS, INC., Defendant, Cross-Complainant and Appellant. Civ. 54960.
• Decision Date: 31 December 1979
• Court: California Court of Appeals

Page 225

161 Cal.Rptr. 225

100 Cal.App.3d 821

Zina ZHADAN, Plaintiff, Cross-Defendant and Respondent, v. DOWNTOWN LOS ANGELES MOTOR DISTRIBUTORS, INC., Defendant, Cross-Complainant and Appellant.

Civ. 54960.

Court of Appeal, Second District, Division 1, California.

Dec. 31, 1979.

Hertzberg, Koslow & Franzen and Harrison W. Hertzberg, Los Angeles, for defendant, cross-complainant and appellant

David R. Glickman, Beverly Hills and Ronald G. Rutiz, Los Angeles, for plaintiff, cross-defendant and respondent.

HANSON, Associate Justice.

Downtown Los Angeles Motor Distributors, Inc. (erroneously sued herein as Downtown L. A. Motors and hereinafter referred to as Motors) appeals a judgment in favor of plaintiff Zina Zhadan, entered pursuant to jury verdict, in this action to recover compensatory and punitive damages for the conversion of an automobile.

FACTS

Plaintiff sought compensatory and punitive damages for the seizure and retention by Motors of her 1967 Mercedes Benz 230 SL automobile after she failed to pay a $1,952.52 repair bill for work which she claimed she never authorized. She alleged that the defendant in the repair work failed to comply with the provisions of California Business and Professions Code section 9884.9 requiring a written estimate of charges and advance authorization; ¹ that some of the repairs were not necessary, were not done, or were done improperly; that defendant withheld the car from her for failure to pay; and that when she obtained possession defendant repossessed and converted the car. She claimed both actual damages and punitive damages based on defendant's malicious and oppressive conduct.

At the first trial in this litigation the jury returned a verdict against defendant Motors for $5,342 general and $175,000 punitive damages. The trial court concluded the punitive damages were excessive and ordered a new trial pursuant to defendant's motion unless plaintiff consented to a reduction of punitive damages to $50,000. Plaintiff would not consent and on appeal the court reversed (Zhadan v. Downtown L. A. Motors (1976) 66 Cal.App.3d 481, 136 Cal.Rptr. 132). At the second trial in December 1977 the jury returned a verdict of $5,260 general and $90,000 punitive damages. The trial court denied defendant's motions for judgment notwithstanding the verdict and for new trial, and defendant has appealed.

It was established at trial that Zina Zhadan was in May of 1973 the owner of a Mercedes Benz 230 SL automobile she had purchased from a private party for $3,500 in June 1972. Because there was no substantial variance in the facts introduced by plaintiff at the first and second trials, we reproduce herein with minor modifications those facts as ably summarized by this court in Zhadan v. Downtown L. A. Motors, supra, 66 Cal.App.3d 481, 136 Cal.Rptr. 132. The trial commenced with Ms. Zhadan's testimony.

"On three prior occasions plaintiff had the vehicle serviced in defendant's service department. On each occasion she was presented with a written estimate in advance which she signed before any work was undertaken. Plaintiff's place of employment was a few blocks from defendant's place of business.

"Plaintiff drove the car to work on Saturday, May 12, 1973, and parked it on the street. It operated normally on the trip downtown from Santa Monica where she lived. Plaintiff was preparing to leave Los Angeles to go to New York on business that afternoon; when she attempted to start the car, turning the ignition key merely produced a click. Thinking that the problem was a dead battery, plaintiff had the car pushed "On Monday, May 14, 1973, plaintiff called from New York and spoke to defendant's service manager, Jim Bodhaine. In the first call, Bodhaine advised that the keys had been brought in but that the car had not yet been picked up so plaintiff should call again in an hour. In a second call an hour later, Bodhaine advised that the car still had not arrived at the service department. Plaintiff asked Bodhaine to expedite picking up the car since it would interfere with the gas station's operation, and told him that the car would not start due to failure of the engine to turn over. She asked that Bodhaine give her an estimate. Plaintiff's third call produced Bodhaine's report that the car had been picked up but it still was not known what was wrong with it and that plaintiff should call back again. Plaintiff made a fourth call in which Bodhaine advised that he still didn't (know what was wrong). Plaintiff, by this time, was being criticized by her employer for taking so much time from her duties and she so advised Bodhaine and told him not to do anything with the car until she returned. Bodhaine did not give her any diagnosis of the problem with the car, nor did he state any estimated price for repairing it.

across the street to a closed gasoline station and it was left in the area of the pumps. She locked the car, left the keys with a girl friend, and departed for New York.

"When plaintiff returned to Los Angeles (in) June, she went to defendant's service department and spoke to Bodhaine. He directed her to a clerk who gave her an invoice to which were attached nine parts lists and which showed a total amount due of $1,957.22. The copy of the invoice given plaintiff was received in evidence; it had no entry in the blanks 'original estimate' and 'authorized addition' and bore no signature in the place provided for the owner's authorization. The description of the work comprised two items. The first was 'Tow-in (won't run).' The second item was 'Engine job replace short block grind valves.' There was no breakdown of the total labor charge of $630. Plaintiff expressed shock over being billed when she had never authorized any work and commenced to cry. She was referred by the clerk back to Bodhaine who stated that the invoice showed the work done 'and that was it.' When plaintiff asked how she was supposed to pay, Bodhaine directed her to the credit manager. Still crying, plaintiff went to the credit manager who simply handed her an application to fill out. Plaintiff asked where her car was and learned that it was in defendant's lot across the street.

"Believing that she had been cheated and had never authorized any work for her car, and wanting to have a mechanic check to see if any work in fact had been done, plaintiff, who had a separate set of keys, drove the car from the defendant's lot to her place of work a few blocks away, and from there to Santa Monica at the end of her work day. On the way to Santa Monica the car ran hot and when stopped emitted coolant, smoke and steam. Plaintiff took the car to a garage in Santa Monica which specialized in Mercedes automobile repair. Plaintiff arranged to have the overheating problem corrected and the engine condition checked. She was advised by the mechanic that in several respects the repair work done by the defendant had been improperly carried out. She paid a total of $87 for the corrective work and when it was completed the car ran (well).

"Plaintiff took the car home and parked it, locked, in the garage at her apartment. The following morning plaintiff found that her car had been taken. She later ascertained that it was repossessed by defendant. Plaintiff refused to pay defendant's bill and the car remained in defendant's possession." (Zhadan v. Downtown L. A. Motors, supra, 66 Cal.App.3d 481, 486-488, 136 Cal.Rptr. 132, 134-135.)

Mark Slotkin, owner of Carpet Bags of America and plaintiff's employer at the time of these events, corroborated that she went to New York with him and that while there he admonished her not to make any more phone calls concerning repairs for the Mercedes because their time was limited. Sometime after their return, in June of 1973, he said Ms. Zhadan came into his office crying and upset, carrying a sheaf of Mr. Adams, the owner of the Bon Voyage Garage, appeared as a witness on behalf of plaintiff and testified as he had at the first trial. "Anthony Adams, the mechanic who examined the car after defendant's purported repair, testified that, in his opinion, the work for which plaintiff had been charged was not satisfactorily done: (1) he compared the compression in each of the six cylinders and found variations up to 20 percent, which were inconsistent with the valves having been ground; (2) he found that a cooling system reserve tank return line was recently welded shut, depriving the engine of the designed coolant reserve; (3) there was no thermostat, which was a required element of the cooling system; (4) the wrong heat range spark plug had been installed, creating a hazard of overheating and engine damage; (5) the distributor was not properly tightened; and (6) the air filter was old and dirty. It was Adams' expert opinion that the valves had not been ground." (Zhadan v. Downtown L. A. Motors, supra, 66 Cal.App.3d 481, 488-489, 136 Cal.Rptr. 132, 136.) He said, however, that the engine had a new short block. He corrected the cooling system, tightened the distributor, installed a new air filter, changed the spark plugs and adjusted the valves for Ms. Zhadan.

papers which represented the repair bill for the Mercedes and asked him what to do. He suggested she should get her car out of defendant's possession, take it to another garage to have it checked, and if it was not in good condition or there was a possibility of a mechanic's lien, she should sell the car.

Nicholas Shammas, called by plaintiff pursuant to Evidence Code section 776, testified that as defendant's present president he is responsible for administrative activities meeting with department heads, determining company policy and making financial decisions. Although he denied any familiarity with automobile mechanics or repair orders, he said he instructed his employees to comply with consumer protection laws. He said it was the usual practice for the service writer when a customer telephoned a verbal authorization to record the...