Filed 4/22/15 Padilla v. Moore CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



ANGELICA PADILLA,

         Plaintiff and Appellant,                                        E059794

v.                                                                       (Super.Ct.No. CIVRS 1201776)

JOSEPH MOORE et al.,                                                     OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,

Judge. Affirmed.

         Timothy L. Taggart for Plaintiff and Appellant.

         Manning Leaver Bruder & Berberich, Gary H. Prudian and Robert D. Daniels for

Defendants and Respondents.

         Plaintiff and appellant Angelica Padilla appeals the summary judgment granted in

favor of defendants and respondents Joseph Moore and Ontario Nissan, Inc. dba Metro

Nissan (Metro) in her action for fraud and declaratory relief—rescission of her contract to

purchase a vehicle. She claims triable issues of fact exist as to whether defendants
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misrepresented her status as a purchaser of the vehicle when she was to be a cosigner and

whether they falsified her income and employment status on her credit application.

Additionally, she asserts that she was not provided with copies of the sales documents, in

violation of the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) and that

defendants failed to provide her with a Spanish version of the documents, in violation of

Civil Code section 1632. We reject her contentions and affirm.

                   I. FACTS AND PROCEDURAL BACKGROUND

      On or about October 25, 2009, Padilla filled out a credit application at Metro that

showed gross monthly income of $8,375, and a monthly mortgage payment of $2,175.

On or about October 26, 2009, Padilla executed a Retail Installment Sale Contract

(contract) for the purchase of a 2009 Nissan Murano from Metro. Metro prepared the

contract, identifying Padilla as the sole buyer. Padilla understood that “[w]henever you

sign as a cosigner, you’re always responsible, no matter what.” Moore was Metro’s

salesman who presented the contract to Padilla for signature.

      By signing the contract, Padilla was helping her friend and coworker, Deandra

Stroud, purchase a vehicle “along with me, both, the two of us.” Padilla agreed to be a

cosigner. The plan involved Stroud giving Padilla the money each month to make the

payment. However, on or about November 1, 2011, when Stroud stopped giving Padilla

the money, Padilla went to Stroud’s house, picked up the Murano, and returned it to the

dealership.

      On March 6, 2012, Padilla initiated this action against defendants, asserting causes

of action for fraud and declaratory relief—rescission. Padilla alleged that Moore, as an

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agent of Metro, defrauded her into signing the contract when he advised her that she was

merely cosigning for a friend who was purchasing a car. She claimed that she was

justified in relying on Moore’s representations because “she did not read English very

well, and the documents were not in Spanish.” For damages, Padilla alleged “negative

marks on her credit.” Padilla sought a declaration from the court as to her right to rescind

the contract and not face any negative marks on her credit. Defendants answered

Padilla’s complaint in May 2012.

       In April 2013, defendants moved for summary judgment on the grounds that:

(1) Padilla suffered no damage from the representation that she was a cobuyer and not a

buyer on the contract; (2) defendants had no duty to disclose to her the contents of her

credit application to prospective lenders; (3) defendants did not intend that she rely on the

contents of her application; (4) there is no basis for rescission; and (5) Moore was not a

party to the contract. Defendants claimed it was undisputed that Padilla signed the

contract, she understood that as a cobuyer she was fully responsible for the payments due

under the terms of the contract; Moore was employed by Metro; and the purpose of the

credit application was to disclose Padilla’s income to prospective lenders, not Padilla.

       In opposition, Padilla disputed her understanding that signing the contract as a

cobuyer made her fully responsible for the car payments. Padilla added that she was not

given a copy of the contract and did not take delivery of the vehicle; she did not review

the documents that she signed; her primary language is Spanish; defendants obtained her




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signature on a loan application with blank income and mortgage information; and the

information that was added to the loan application was false.1

       After considering the evidence submitted by the parties, the trial court took the

matter under submission and later ruled in favor of defendants.2 Judgment was entered

on September 18, 2013.




       1 Padilla’s opposition stated that she had purchased three vehicles, one for herself
and two for Stroud. Padilla explained that the vehicle purchases for Stroud were
conducted in a short period of time because Stroud’s boyfriend had “totaled” the first
vehicle purchased for Stroud. The insurance check on the purchase of the first Stroud
vehicle was sent to Padilla, who cashed it and gave the money to Stroud. The second
Stroud vehicle, the subject of this action, was purchased shortly thereafter. Although
Padilla had received the purchase documents for the vehicle she purchased for herself,
she stated that she never received the purchase documents for the two vehicles purchased
for Stroud.

       2  The court stated: “On the issue of whether Defendants misrepresented
Plaintiff’s status as a co-buyer, Defendants meet their prima facie burden on the motion,
showing that damages cannot be established. Plaintiff’s opposition does not raise a
triable issue of material fact. On the issue of whether the Defendants willfully deceived
the Plaintiff into signing a document as buyer instead of co-buyer, Defendants meet their
prima facie burden on the motion. Plaintiff’s opposition does not create a triable issue of
material fact. [¶] The Court GRANTS Adjudication of the Plaintiff’s cause of action for
Fraudulent Concealment. Defendants show there was no legal duty to disclose to
Plaintiff her mont[h]ly income as set forth on the credit application. Defendants show
that the creditworthiness and ability to repay by a borrower are for the lender’s
protection, not the borrower’s. Plaintiff’s Opposition does not create a triable issue of
fact. [¶] The Court grants Adjudication of the Plaintiff’s cause of action for Declaratory
Relief—Rescission. Defendants meet their prima facie burden on the motion, showing
that damages cannot be established. Defendants show there was no legal duty to disclose
to Plaintiff her monthly income as set forth on the credit application, and that Joseph
Moore was not a party to the Contract. Plaintiff’s Opposition does not create a triable
issue of fact.”

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                                     II. DISCUSSION

       A. Standard of Review

       Summary judgment properly is granted if the “affidavits, declarations, admissions,

answers to interrogatories, depositions, and matters of which judicial notice shall or may

be taken” in support of and in opposition to the motion “show that there is no triable issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” (Code Civ. Proc., § 437c, subds. (b)(1) & (c).)

       “On review of a summary judgment in favor of the defendant, we review the

record de novo to determine whether the defendant has conclusively negated a necessary

element of the plaintiff’s case or demonstrated that under no hypothesis is there a

material issue of fact that requires the process of trial. [Citation.]” (Ann M. v. Pacific

Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674, disapproved on other grounds in

Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.) “There is a triable issue of material fact

if, and only if, the evidence would allow a reasonable trier of fact to find the underlying

fact in favor of the party opposing the motion in accordance with the applicable standard

of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

       “A defendant moving for summary judgment must prove the action has no merit.

He does this by showing one or more elements of plaintiff’s cause of action cannot be

established or that he has a complete defense to the cause of action. At this point,

plaintiff then bears the burden of showing a triable issue of material fact exists as to that

cause of action or defense. [Citations.]” (Towns v. Davidson (2007) 147 Cal.App.4th

461, 466.)

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B. Fraud

       A claim for fraud includes the element that the defendant misrepresented a

material fact. (Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381.) Here,

Padilla alleged that defendants misrepresented her status as a buyer or signer on the

contract when she was supposed to be a cosigner. She further asserts defendants falsified

her income on the financing application.

       Regarding her status as a buyer or signer, defendants demonstrated the complete

absence of any misrepresentation by introducing evidence that Padilla signed documents

intending to be a cosigner and knowing that a cosigner is “fully responsible for the

payments on the contract.” The evidence reveals that Padilla is able to communicate on a

daily basis speaking English with her friends and her attorney. It further shows that prior

to the purchase of this vehicle, Padilla purchased another vehicle from defendants.

However, she offers no evidence that the documents for such prior purchase were in

Spanish, not English. Padilla’s attempt to create a factual issue based on her

understanding that she was not buying the vehicle by signing the contract fails when we

consider that she admitted to her intent to be a cosigner and her understanding that a

cosigner is “fully responsible for the payments on the contract.”3



       3 One party to a contract may not be held liable for the other party’s lack of
understanding. The law in California is that a party, even an illiterate one, is presumed to
have read a contract he or she signed. “Ordinarily, one who accepts or signs an
instrument, which on its face is a contract, is deemed to consent to all its terms, and
cannot escape liability on the ground that he or she has not read it. If the person cannot
read, he or she should have it read or explained.” (1 Witkin, Summary of Cal. Law (10th
                                                                 [footnote continued on next page]

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        Regarding any misrepresentation of Padilla’s income on the financing application,

defendants showed there was no legal duty to disclose to Padilla her monthly income set

forth in the credit application. The information contained in the application is for the

lender’s protection, not the borrower’s. Padilla offered no evidence to create a material

issue of fact.

        In sum, Padilla failed to show any triable issue of material fact regarding any

purported misrepresentation regarding the purchase of the vehicle.

        C. Declaratory Relief—Rescission

        Because of defendants’ fraudulent actions, Padilla seeks a declaration from the

court that she was justified in her rescission of the contract.

        Padilla contends that she is entitled to rescission because defendants violated Civil

Code section 1632 by not providing all documents in Spanish where the contract or loan

was negotiated in Spanish, and Civil Code sections § 2981 et seq. by not providing her

with copies of the documents. This contention fails for three reasons. First, Padilla never

pleaded such statutory violations and never raised allegations to that affect until briefing

on appeal. In any summary judgment motion, the pleadings define the issues to be

addressed. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 215.) An appellant

cannot advance a theory on appeal she did not plead and did not raise in any form below.




[footnote continued from previous page]
ed. 2005) Contracts, § 118, p. 157; see also Randas v. YMCA of Metropolitan Los
Angeles (1993) 17 Cal.App.4th 158, 163.)

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       Second, Civil Code section 1632 applies, by its terms, to businesses that actively

conduct negotiations in Spanish. (Civ. Code, § 1632.) There is no evidence of

negotiations in Spanish here. To the contrary, Padilla acknowledges there were no

negotiations: defendants “merely showed up at [her] home and directed her to sign the

documents.” Therefore, Civil Code section 1632 is inapplicable.

       And finally, Padilla has waived her contention by not presenting any substantive

legal argument supported by citations to the record and legal authorities. “‘Issues do not

have a life of their own: If they are not raised or supported by argument or citation to

authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or

arguments to undermine the judgment and defeat the presumption of correctness. When

an appellant fails to raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v.

County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. omitted.) Here, Padilla has

offered no analysis of how the application of the statutes to this case creates a material

issue of fact. The mere assertion alone is not enough.

       We conclude Padilla failed to show the existence of any material fact which would

defeat summary judgment on her claim declaratory relief-rescission.




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                                   III. DISPOSITION

     The judgment is affirmed. Defendants shall recover their costs on appeal.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                           HOLLENHORST
                                                                                 J.
We concur:


     RAMIREZ
                           P.J.

     MILLER
                              J.




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