Filed 6/19/15 Reyes v. Sabha CA2/4
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.


                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                           SECOND APPELLATE DISTRICT

                                                          DIVISION FOUR




VILMA GLORIA REYES,                                                              B256286

           Plaintiff and Respondent,                                             (Los Angeles County
                                                                                 Super. Ct. No. BC482927)
           v.

MOHAMMAD SABHA,

           Defendant and Appellant.




           APPEAL from a judgment of the Superior Court of Los Angeles County,
Ernest M. Hiroshige, Judge. Affirmed.
           Law Offices of Bennett Kerns and Bennett Kerns for Plaintiff and Respondent.
           Law Office of Sam H. Nordean and Sam H. Nordean for Defendant and Appellant.
                                                 ________________________
       Mohammad Sabha, doing business as Rainbow Auto Sales, sold a used car to
plaintiff Vilma Gloria Reyes. The sale was handled by Sabha’s sales representative,
identified in the record simply as “Hugo.” The trial court found that Hugo induced Reyes
to buy the car on time through a loan by a financing company. The vehicle was
defective, and Reyes eventually stopped making payments on the car, leading to the
lender repossessing the car. Reyes sued Sabha for breach of contract and fraud. The case
was tried to the court without a jury. The court found in favor of Reyes, awarding
damages for breach of contract and fraud. It awarded punitive damages based on fraud.
The trial was not reported, and the record before us consists almost exclusively of the
trial court’s statement of decision, the judgment itself, and the briefing of the parties. On
this record we find no error, and affirm the judgment.


                                     DISCUSSION
       On appeal we apply the basic presumption in favor of the judgment: “A
judgment or order of the lower court is presumed correct. All intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.” (9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 400.) Since the record on appeal lacks
a reporter’s transcript, we must and do rely on the trial court’s statement of decision,
which was requested by the parties and prepared pursuant to Code of Civil Procedure,
section 632.
       The trial court received trial briefs from both sides, then, after trial, it called for
further briefing, particularly with respect to arguments made by defendant. After this
briefing was received, the court announced its ruling and asked respondent’s counsel to
prepare a proposed statement of decision. Ultimately the court adopted that draft, with a
single material change: it deleted a paragraph that would have increased the amount of
punitive damages for fraud.


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       The following summary of the evidence is taken from the trial court’s statement of
decision. In selling the vehicle, a 2001 GMC Yukon used automobile, to Reyes, Hugo
told her she was “getting a good deal” except for two problems which he would see were
fixed: a broken radio button (or buttons) and the outside lock on a passenger door. It was
an “excellent car,” according to Hugo, and there was no need for a test drive. Besides
that, he could not allow the car to be test driven on a freeway before purchase because
“they did not have insurance.” The Rainbow Auto facility itself was a busy dealership
with many used cars on its lot for sale. Reyes wanted to pay cash for the car if she could
get a discount for doing so, but Hugo persuaded her to switch to a financing arrangement
under which she was required to pay interest at the “exorbitant” rate of 21 per cent.
       Reyes purchased the car as Hugo had urged, and asked her nephew to drive it
home on a freeway, which he did. Arriving home, the nephew told Reyes the car shook
repeatedly and did not drive smoothly. Reyes immediately complained to Hugo and the
dealership, but was not satisfied with the response she received. According to the
statement of decision, “This was just the beginning of her nightmare experience
regarding this automobile,” and to the extent the dealership was willing to fix any of the
problems, it was only on the basis of Reyes’s paying half the price for its doing so. It
turned out that there were many mechanical defects to the vehicle. The vehicle was, in
fact, “seriously defective” when sold to Reyes, and Hugo’s representation that it was in
“good condition” amounted to an intentional concealment of the defects.
       The trial court found Reyes’s testimony “very credible as to the manner in which
she was treated; the damages she suffered; and the misrepresentations by Hugo of the
condition of the automobile she purchased.” By the time of trial Hugo was no longer
employed by the dealership and could not be located. Defendant presented its general
sales manager, Miguel Lopez, in a “weak attempt” to deny that Hugo had misrepresented,
but the court found no believable evidence that Lopez was present during the sales pitch
by Hugo or why Reyes’s request to test drive the vehicle was denied.
       The trial court next addressed several of the arguments made by appellant in the
briefing. Appellant argued Reyes could have walked away from the deal at any point,

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and was not forced to buy the vehicle. Reyes was influenced to buy the car by Hugo’s
misrepresentations. She also could have had the vehicle inspected by a mechanic, but,
relying on Hugo’s misrepresentations, she did not. The trial court stated that it is
common knowledge that a person who buys a used vehicle from an apparently reputable
dealer lacks the money and time to have it inspected. The fact that Reyes did not do so
did not excuse Hugo’s fraud. Appellant argued the contract had an integration clause,
but no such language appears in the contract as received in evidence and, even if it did,
it would not excuse the fraud.
       The court awarded $8,795.44 in contract damages, which is the amount Reyes
requested in her briefing.
       Turning to punitive damages, the court found not only fraud but also oppression
and malice, proven by clear and convincing evidence. The court discussed the switching
Hugo carried out from a cash to a credit purchase, and “[g]iven the methodical manner in
which Hugo was operating, it is reasonable to assume that he was trained by Rainbow
Auto to switch buyers into their financing arrangement so they could gain further
financial benefit for the dealership and sales person without regard to any financial
detriment to the consumer.” Overall, the sales technique used by Hugo and the switch
were “oppressive” and “malicious” actions by the dealership toward less educated and
unsophisticated clientele.
       The court also addressed and rejected other arguments advanced by appellant to
the effect that Reyes’s position should not be credited. It concluded that, “Given the
sophisticated manner in which Rainbow Auto was equipped and operated to get the
maximum money out of the unsuspecting consumer, here plaintiff, the Court originally
found that $35,000 in punitive damage should be awarded to plaintiff.” But the court
struck the next paragraph which would have provided that on reconsideration, that
amount should be raised by $5,000 to $40,000.
       The court also adopted the legal reasoning and factual discussion by plaintiff’s
counsel as an additional basis for its statement of decision. In that discussion, counsel
rebutted appellant’s arguments that Reyes had driven the car for some time, was naive

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and unsophisticated, and relied on Hugo’s reputation and promises about the vehicle.
The court also explained the lack of credibility in some of Lopez’s testimony, such as
offering Reyes a free battery.
       In his briefing before this court, appellant attempts to reargue the facts, and
criticizes the statement of decision prepared by Reyes’s attorney as “rife with
mischaracterizations of the evidence and other closing-argument type statements.” But
we are bound by the resolution of evidentiary issues by the trial court. Appellant argues,
in effect, that Reyes got no more than should have been expected in buying a 10-year-old
used car with 154,695 miles on it. He refers to “the buyers guide” (not otherwise
identified) which lists defects that may occur in a used vehicle, and claims it is
“inconceivable that a car in as bad a shape as Reyes claims could be driven on a regular
basis for any length of time.” But, again, these are factual arguments which should be,
and apparently were, made to the trial court.
       Appellant also argues that the car was sold “as is.” The record before us does not
include the contract, although Reyes does not dispute that this provision is in the
agreement. But, as the trial court found, it is obviated by Hugo’s assurances and
misrepresentations to Reyes.
       In sum, the record before us supports the conclusions of the trial court and affords
no basis by which we may second guess its decision.


                                      DISPOSITION
       The judgment is affirmed. Respondent Reyes shall have her costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                    EPSTEIN, P. J.
We concur:



       MANELLA, J.                                  COLLINS, J.

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