Filed 2/9/16 R & T Investments v. Kawasaki Motors Corp. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




R & T INVESTMENTS, INC. et al.,                                                              C078231

                   Plaintiffs and Appellants,                                        (Super. Ct. No.
                                                                               34201200131661CUBCGDS)
         v.

KAWASAKI MOTORS CORP., U.S.A. et al.,

                   Defendants and Respondents.




         In this judgment roll appeal,1 plaintiffs contend the trial court erred in failing to
exclude evidence of a prior criminal conviction and in denying their motion for judgment
notwithstanding the verdict based on promissory estoppel. Finding no merit in their
arguments, we affirm.



1      Where, as here, the appellate record does not include a reporter’s transcript, agreed
statement, or settled statement, an appeal is referred to as a judgment roll appeal. (See
Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.)

                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       In the absence of a record of the evidence offered at trial in this matter, we cannot
offer a summary of the underlying facts consistent with the jury’s verdict. Accordingly,
we recite the procedural background of the case only.
       In September 2012, plaintiffs R & T Investments, Inc. (R & T), Rancourt Family
Trust (Rancourt), Dana Tutt, and Jody Tutt commenced this action by filing a complaint
for damages against defendants Kawasaki Motors Corp., U.S.A. (Kawasaki) and Richard
Perrin.2 That complaint alleged as follows:
       R & T owns and operates a motorcycle dealership in Carmichael. R & T is owned
by Rancourt and Dana. Dana and Jody are husband and wife. Kawasaki distributes new
motor vehicles; Perrin is a senior district manager for Kawasaki.
       In 2009, Dana made contact with Perrin to discuss acquiring the Kawasaki
franchise for the Roseville area. From July 2010 through 2012, Perrin made numerous
representations to Dana and R & T concerning Kawasaki’s intention to enter into a
franchise with R & T for the Roseville market. According to Perrin, the only impediment
was the acquisition of a suitable facility from which to operate the dealership.
       In June 2012, Rancourt and the Tutts purchased a parcel of property in Roseville
for the new dealership. In July 2012, Perrin informed Dana that Kawasaki had decided to
award the Roseville franchise to another entity.
       The complaint asserted causes of action for breach of contract, breach of the
covenant of good faith and fair dealing, intentional misrepresentation, concealment, false
promise, and negligent misrepresentation against Kawasaki and causes of action for
intentional misrepresentation, concealment, false promise, and negligent
misrepresentation against Perrin.




2      We will refer to the Tutts individually by their first names to avoid confusion.

                                              2
       The case proceeded to jury trial in July and August 2014.3 According to the
minutes, on the first day plaintiffs’ “oral motion to exclude testimony and/or reference to
felony convictions of Plaintiff Dana Tutt was discussed.” Although the minutes do not
disclose any ruling on that motion, it appears undisputed that the court ruled that
defendants would be allowed to ask Dana about his truthfulness with respect to a prior
conviction on the dealer franchise application. They apparently did so, and thereafter,
following plaintiffs’ rebuttal case, plaintiffs presented a written motion asking the court
to reconsider its ruling regarding the evidence of the prior conviction. The premise of the
motion for reconsideration was that because Dana received relief from his conviction
pursuant to Penal Code section 1203.4, he was not required to disclose that conviction on
the franchise application.
       Apparently as a result of the motion for reconsideration, the trial court ruled that
the jury would be given the following special instruction: “Evidence was introduced that
Mr. Tutt withheld information on his dealership application to Kawasaki about a prior
felony conviction. You are instructed that this conviction was dismissed and as such, the
law did not require Mr. Tutt to disclose it on the application form used by Kawasaki.”
       The jury returned special verdicts finding as follows: R & T did not enter into a
contract with Kawasaki to be appointed a Kawasaki dealer in Roseville; however, Perrin
made a false representation of an important fact to plaintiffs that he knew was false or
made recklessly and without regard for the truth, he intended plaintiffs to rely on that
representation, and they reasonably did so, which was a substantial factor in causing




3      The only record of the trial -- other than two pages of a reporter’s transcript
improperly attached to the respondents’ brief (see Cal. Rules of Court, rule 8.204(d)
[attachments to appellate brief may include “exhibits or other materials in the appellate
record or copies of relevant local, state, or federal regulations or rules, out-of-state
statutes, or other similar citable materials that are not readily accessible”]) -- are the daily
minutes.

                                               3
harm to them, resulting in damages of $45,000 for carrying costs. But Perrin did not
have ostensible authority to make that representation on behalf of Kawasaki. Beyond
that, Perrin did not intentionally fail to disclose an important fact that plaintiffs did not
know and could not have reasonably discovered. He did make a promise to plaintiffs that
was important to the transaction, but he intended to perform that promise when it was
made.
        In October 2014, the trial court entered judgment on the verdicts, awarding
plaintiffs $45,000 against Perrin and nothing against Kawasaki. At some point, plaintiffs
moved for a new trial and for judgment notwithstanding the verdict. (None of the papers
relating to the motions, other than the court’s rulings on them, are contained in the
appendix.) As relevant here, in support of the latter motion plaintiffs argued (among
other things) that “under the doctrine of promissory estoppel, the uncontroverted
evidence established [that] plaintiffs justifiably and foreseeably relied on the promise
made by defendants and equity demands enforcement of the agreement to award the
Kawasaki franchise to plaintiffs in order to avoid an injustice.” The court rejected this
argument, ruling that “[p]romissory estoppel was not pled or argued at trial” and could
not “be raised for the first time on a motion for judgment notwithstanding the verdict.”
        Following the denial of both motions, plaintiffs timely appealed.
                                        DISCUSSION
                                               I
                             Erroneous Admission Of Evidence
        Plaintiffs first contend the trial court erred in allowing Kawasaki to “inquire about
[Dana’s prior conviction] as it related to the DMV license application.” According to
plaintiffs, because Dana obtained a dismissal of that conviction pursuant to Penal Code
section 1203.4, he was under no obligation to disclose that conviction to the DMV, and
therefore “admission of the evidence related to the conviction was in error and a
prejudicial abuse of discretion.”

                                               4
       Plaintiffs cannot prevail on this issue because they chose to proceed with their
appeal on the judgment roll alone. On appeal, we must presume the trial court’s rulings
are correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt
all inferences in favor of those rulings, unless the record expressly contradicts those
inferences. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) Also, it is the burden of
the appellant to provide an adequate record for us to assess claims of error. (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is on the judgment roll, our
review is limited to determining whether any error “appears on the face of the record.”
(National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.)
       Relying on the special instruction the trial court gave that told the jury Dana did
not have to disclose his conviction on the application, defendants contend that “any
surmised prejudice to [plaintiffs] was removed” by the instruction. This is not
necessarily true, however, because the mere fact that Dana had a felony conviction was
still before the jury and could have influenced the jury’s decision. However, because all
we have here is an appeal on the judgment roll, even if error could be shown on the face
of the record, what is not shown and cannot be shown is there was prejudice to plaintiffs
because of the evidence of the conviction. As a matter of constitutional law, “[n]o
judgment shall be set aside, or new trial, granted, in any cause, on the ground of . . . the
improper admission . . . of evidence . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13, italics added.) In the
absence of a reporter’s transcript, “[w]e do not have the [evidence] before us. Assuming
error . . . , the burden of showing prejudice is on appellant. [Citations.] It is apparent
that, since the appeal is on the judgment roll alone, no prejudicial error is shown.”
(Hartford v. Pacific Motor T. Co. (1936) 16 Cal.App.2d 378, 382.)




                                              5
                                              II
                                    Promissory Estoppel
       Plaintiffs next contend the trial court erred in denying their motion for judgment
notwithstanding the verdict based on promissory estoppel. They assert that “[i]n
rendering a verdict in favor of Plaintiffs on the misrepresentation claim, the jury, as the
trier of fact on the disputed factual claims, found that the[] elements [of promissory
estoppel] were established,” and therefore the trial court should have “appli[ed] the
remedy of promissory estoppel” based on the jury’s findings, notwithstanding their
failure to raise the issue of promissory estoppel before their motion for judgment
notwithstanding the verdict.
       Plaintiffs’ argument is without merit because, contrary to their position, in making
its findings on the intentional misrepresentation cause of action, the jury did not find that
the elements of promissory estoppel were established -- in particular, the element of “a
clear promise.” (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692.) In its
findings on intentional misrepresentation, the jury found only that “Perrin ma[d]e a false
representation of an important fact to Plaintiffs.” That is not the equivalent of a finding
that Perrin -- let alone Kawasaki -- made a clear promise to plaintiffs. Moreover, as far
as Kawasaki’s liability for Perrin’s false representation goes, the jury specifically found
that Perrin did not “have ostensible authority to make the representation on behalf of
Kawasaki,” which explains why the jury did not hold Kawasaki liable for Perrin’s
misrepresentation. Thus, nothing about the jury’s findings with respect to the intentional
misrepresentation by Perrin constituted a finding that the elements of promissory estoppel
were established against Kawasaki.4 For this reason, plaintiffs’ challenge to the trial
court’s denial of their motion for judgment notwithstanding the verdict has no merit.



4      We note that while the jury, in its special verdict on the false promise causes of
action, did find that Perrin “ma[d]e a promise to Plaintiffs that was important to the

                                              6
                                     DISPOSITION
       The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)



                                                /s/
                                                Robie, Acting P. J.



We concur:



/s/
Butz, J.



/s/
Renner, J.




transaction,” the jury also found that Perrin “intend[ed] to perform this promise when it
was made,” and as result the jury did not make any findings on whether plaintiffs
reasonably relied on this promise or whether plaintiffs’ reliance on the promise was a
substantial factor in causing harm to them. This explains why plaintiffs do not argue that
the jury’s findings on the false promise causes of action established the elements of
promissory estoppel.

                                            7
