Zhadan v. Downtown L. A. Motors

• Decision Date: 23 November 1976
• Citation: 136 Cal.Rptr. 132,66 Cal.App.3d 481
• Court: California Court of Appeals Court of Appeals
• Parties: Zina ZHADAN, Plaintiff, Appellant and Cross-Respondent, v. DOWNTOWN L.A. MOTORS, a corporation, Defendant, Respondent and Cross-Appellant. Civ. 47380.

Page 132

136 Cal.Rptr. 132

66 Cal.App.3d 481

Zina ZHADAN, Plaintiff, Appellant and Cross-Respondent, v. DOWNTOWN L.A. MOTORS, a corporation, Defendant, Respondent and Cross-Appellant.

Civ. 47380.

Court of Appeal, Second District, Division 3, California.

Nov. 23, 1976.

As Amended Nov. 30, 1976.

David R. Glickman, Beverly Hills, and Ronald Rutiz, for plaintiff, appellant and cross-respondent Zina Zhadan.

Hertzberg, Kaplan & Koslow, and Joshua Kaplan, Los Angeles, for defendant, respondent and cross-appellant Downtown L.A. Motors.

POTTER, Associate Justice.

In this case there are cross-appeals. Plaintiff Zina Zhadan has appealed from the order of the trial court granting a new trial upon the ground of excessive damages; defendant Downtown L.A. Motors has appealed from the judgment entered upon the jury verdict in plaintiff's favor.

The 'Complaint for Damages (Conversion)' sought compensatory and punitive damages on account of defendant's seizure and retention of plaintiff's 1967 Mercedes automobile after she had authorized defendant to tow the car to defendant's place of business for the purpose of examining it to ascertain what, if any, repairs might be required and to obtain an estimate. According to the complaint as filed, defendant purported to perform certain repair work upon said automobile without complying with the provisions of California Business and Professions Code section 9884.9, ¹ and without authority or consent from plaintiff; defendant presented plaintiff with a bill in the amount of $1952.52 for such repair work, some of which repairs were not necessary, were not done, or were done improperly; when plaintiff did not pay defendant withheld the car from her, and when she obtained possession defendant repossessed the vehicle and converted and disposed of the same to its own use. Plaintiff sought compensatory damages in the amount of $3,800, the alleged value of the car, with interest from June 19, 1973, the cost of rental of an alternative automobile, and $50,000 ² punitive damages based upon defendant's alleged malicious and oppressive conduct.

Defendant cross-complained for the value of goods and services rendered and for damages for interference with its garageman's lien based upon plaintiff's temporary taking of possession from defendant. The cross-complaint sought punitive damages of $50,000 on the claim for interference.

Evidence offered in behalf of plaintiff supported her version of the facts as follows: Plaintiff was an unmarried female, age 26, at the time of the events givng rise to this action. She had purchased a 1967 Mercedes 230 SL from a private party in late 1971. She paid $3,600 and financed the car through a bank loan.

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 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.

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 'have any answers.' 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.

When plaintiff returned to Los Angeles around the first of 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 'O.K.'

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.

In order to provide transportation, plaintiff rented cars for a time, for a total cost of approximately $1,000, ³ and then leased a Datsun on a two-year lease for $121.90 a month. Plaintiff was still leasing the Datsun at the time of trial.

As a result of plaintiff being obliged to continue payments of $68 per month due the bank on the loan secured by the Mercedes, and at the same time paying rental for an alternate vehicle, plaintiff found it necessary to take an extra job and to seek a less expensive apartment. When her employer found that she was holding down two jobs, she was fired and had to beg to get her job back.

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 per cent, 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.

Mr. Nicholas Shammas was called by plaintiff as a witness under section 776 of the Evidence Code. He testified that he was owner of all of the stock of defendant corporation. Over defendant's objection that it was irrelevant, Shammas testified that he was also owner of all of the stock of three other dealerships in downtown Los Angeles.

Shammas testified that the defendant is licensed by the Consumer Affairs Bureau of the State of California, that compliance with the state laws and regulations was a matter of constant consideration and attention, and that it was the policy of the defendant that no work be done on a customer's car without authorization. Normally, a customer was asked to sign the estimate authorizing the repairs. This, however, was not done where the customer called in to discuss the matter, when it was not practicable. The following questions and answers related to this practice:

'Q Normally the customer would sign where it says 'I hereby authorize the repairs'?

A Unless they call in, yes.

Q And was it your practice to direct your service personnel to always at least give the customer an original estimated price?

A Obviously that can't be done if they are not there.

Q Not even to tell them the estimated price on the telephone?

A When you talk on the phone and you get confirmation on the phone, which ...