Filed 8/24/15 Viramontes v. Desert Auto Plaza CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



OSCAR VIRAMONTES,                                                   D067237

         Plaintiff and Respondent,
                                                                    (Super. Ct. No. ECU08061)
         v.

DESERT AUTO PLAZA, et al.,

         Defendants and Appellants.


         APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa,

Judge. Affirmed.

         Gonzalez & Garcia and Jorge C. Gonzalez for Plaintiff and Respondent.

         Thomas W. Storey and Severson & Werson and John B. Sullivan, Adam H.

Hutchinson, and Mary Kate Kamka for Defendants and Appellants.

         Desert Auto Plaza appeals a judgment entered in favor of Oscar Viramontes

because the Retail Installment Sale Contract for the sale of a vehicle did not disclose that

the downpayment was deferred to a later date in violation of Civil Code section 2982,

subdivision (a)(6). We affirm.


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                   FACTUAL AND PROCEDURAL BACKGROUND

       The record of evidence presented to this court is by way of a settled statement

pursuant to California Rules of Court, rule 8.137. According to the settled statement,

Viramontes entered into a Retail Installment Sale Contract (the Contract) with Desert

Auto Plaza for the sale of a vehicle on April 4, 2013. The Contract indicated that

Viramontes made a cash downpayment of $2,000 on the date of signing. Although

Viramontes took possession of the vehicle on April 4, 2013, he made the $2,000

downpayment on April 5, 2013.

       The record contains a Promissory Note, dated April 4, 2013, in which Viramontes

agreed to pay Desert Auto Plaza $2,000 on April 5, 2013.

       The court entered judgment for Viramontes against Desert Auto Plaza due to the

inaccurate disclosure of the downpayment in the Contract in violation of Civil Code

section 2982, subdivision (a)(6). Pursuant to Civil Code section 2983, the court

rescinded the contract, cancelled any amounts due thereunder, and ordered Viramontes to

surrender the vehicle to Desert Auto Plaza and Desert Auto Plaza to return any money

paid pursuant to the Contract to Viramontes. Desert Auto Plaza appeals.

       On appeal, Desert Auto Plaza contends that the judgment must be set aside and the

matter should be reset for trial, because there is no evidence of the Contract since the

Contract itself was never admitted into evidence. Desert Auto Plaza also maintains there

is no evidence that Desert Auto Plaza was a party to the Contract, had capacity to enter

into the Contract, consented to the Contract, or that there was sufficient consideration.



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                                      DISCUSSION

       The Automobile Sales Financing Act (ASFA) "contains detailed disclosure

requirements intended to protect the consuming public and includes provisions that

render a conditional sale contract unenforceable if any of those disclosure requirements

are violated, regardless of the nature of the disclosure violation or any consumer harm."

(Rojas v. Platinum Auto Grp., Inc. (2013) 212 Cal.App.4th 997, 1005; Civ. Code, § 2981

et seq.) Civil Code section 2982, subdivision (a)(6)(D), requires a conditional sale

contract to itemize a buyer's downpayment and specify if all or a portion of the

downpayment is "to be deferred until not later than the due date of the second regularly

scheduled installment under the contract . . . ." (Rojas v. Platinum Auto Grp., Inc., supra,

at p. 1002.) Civil Code section 2981.9 also requires "all of the agreements of the buyer

and seller with respect to the total cost and the terms of payment for the motor vehicle,

including any promissory notes or any other evidences of indebtedness" to be contained

in "a single document." (Ibid.)

       The trial court properly entered judgment for Viramontes because 1) the Contract

did not state that the $2,000 cash downpayment had been deferred until April 5 and 2) the

Promissory Note, deferring the $2,000 cash downpayment to April 5, was not part of the

Contract but a separate document.

       On appeal, Desert Auto Plaza does not assert that the court erred in finding that the

Contract inaccurately disclosed the terms of the downpayment, but instead appears to be

claiming that there is no contract that is subject to the ASFA. Desert Auto Plaza's

argument on appeal is two-fold: 1) there is no evidence of the Contract between the

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parties and 2) there is no evidence that an enforceable contract was formed between the

parties.

       The issue of whether there is evidence of the existence of the Contract is reviewed

for substantial evidence, and the issue of whether an enforceable contract was formed is

reviewed de novo. (Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1009;

Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407 ["whether the

contract . . . is sufficiently definite and certain in its essential terms to give rise to a legal

obligation is a question of law"].)

1.     Is There Evidence of the Contract?

       Based on our review of the record, we conclude there is substantial evidence of the

Contract and the Promissory Note. "In evaluating the legal sufficiency of the evidence,

the following basic approach is required: 'First, one must resolve all explicit conflicts in

the evidence in favor of the respondent and presume in favor of the judgment all

reasonable inferences. [Citation.] Second, one must determine whether the evidence

thus marshaled is substantial. . . . "A decision supported by a mere scintilla of evidence

need not be affirmed on review. [Citation.] [I]f the word 'substantial' [is to mean]

anything at all, it clearly implies that such evidence must be of ponderable legal

significance. Obviously the word cannot be deemed synonymous with 'any' evidence. It

must be reasonable . . . , credible, and of solid value . . . ." ' " (Valenzuela v. California

State Personnel Board (2007) 153 Cal.App.4th 1179, 1184-1185.)

       At the beginning of the bench trial in this case, Viramontes requested that his trial

brief with the attached exhibits be submitted into evidence. Attached to the trial brief

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were Exhibit A (Plaintiff's Requests for Admission) and Exhibit B (Defendants' Response

to Requests for Admission). Attached to Exhibit A were Exhibit 1, the Contract, and

Exhibit 2, the Promissory Note. The court asked defense counsel if he had any objection

to the format of the submission, and defense counsel made no objection.

       Viramontes's requests for admission asked Desert Auto Plaza, among other things,

to admit that Exhibit 1 was a true and correct copy of the Contract and that Exhibit 2 was

a true and correct copy of the Promissory Note. In its response, Desert Auto Plaza

admitted that these were true and correct copies of the Contract and the Promissory Note.

       We therefore conclude that there is substantial evidence of the Contract between

the parties and the Promissory Note executed as part of the sales transaction, and that

both were in fact entered into evidence at trial. Desert Auto Plaza's contentions to the

contrary are meritless.

       In any event, we further conclude that Desert Auto Plaza waived its right to

challenge evidence of the Contract or Promissory Note on appeal by failing to object in

the trial court (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249)

and admitting that the Contract and Promissory Note entered into evidence were true and

correct copies of the Contract and Promissory Note between the parties. (Cushman v.

Cushman (1960) 178 Cal.App.2d 492, 498 [explaining that "one must abide by the

consequences of his own acts and cannot seek relief on appeal for errors he committed or

invited or by his conduct induced, in the trial court"].)




                                              5
2.     Was An Enforceable Contract Formed?

       Desert Auto Plaza contends that there is no evidence that Desert Auto Plaza was a

party to the Contract, had capacity to enter into the Contract, consented to the Contract,

or that there was sufficient consideration as required by Civil Code section 1550. Civil

Code section 1550 states that the essential elements of a contract are parties capable of

contracting, their consent, a lawful object, and sufficient consideration. Because the

question of whether an enforceable contract was formed between the parties is a question

of law and here, based on undisputed facts, it may be asserted for the first time on appeal.

(Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 6.)

       As a preliminary matter, we note that there is no question that Desert Auto Plaza

was a party to the Contract or the Promissory Note. The Contract names Desert Auto

Plaza as the creditor. The Promissory Note sets forth Viramontes' promise to pay Desert

Auto Plaza $2,000 on April 5, 2013. Desert Auto Plaza admitted in its response to

requests for admission that it prepared and signed the Contract and that it required

Viramontes to sign the Promissory Note as a condition of sale of the vehicle.

       It is also undisputed that the Contract concerned a lawful object, a vehicle, and no

argument has been made nor evidence introduced that would indicate Desert Auto Plaza

was incapable of entering into the Contract. (Huntington Landmark Adult Community

Ass'n. v. Ross (1989) 213 Cal.App.3d 1012, 1021 [explaining that contentions on appeal

that are not supported by argument or citation of authority are "deemed to be without

foundation and to have been abandoned"].) Thus, we focus on whether there was consent

and consideration.

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       "Contract formation requires mutual consent, which cannot exist unless the parties

'agree upon the same thing in the same sense.' [Citation.] 'If there is no evidence

establishing a manifestation of assent to the 'same thing' by both parties, then there is no

mutual consent to contract and no contract formation.' [Citation.] 'Mutual assent is

determined under an objective standard applied to the outward manifestations or

expressions of the parties, i.e., the reasonable meaning of their words and acts, and not

their unexpressed intentions or understandings.' " (Bustamante v. Intuit, Inc. (2006) 141

Cal.App.4th 199, 208.) "Consideration is simply the conferring of a benefit upon the

promisor or some other person or the suffering of a detriment by the promisee or some

other person." (California Sch. Employees Ass'n. v. Sunnyvale Elementary Sch. Dist.

(1973) 36 Cal.App.3d 46, 59.)

       The parties entered into a simple agreement for the sale of a vehicle, the terms of

which were memorialized in the Contract and the Promissory Note. The terms of the

agreement were specific and definite and required Viramontes to agree to the terms of

financing and pay a downpayment in exchange for possession and use of the vehicle.

       The evidence reveals mutual consent to the terms of the Contract and the

Promissory Note because the parties complied with the terms of these documents. Desert

Auto Plaza gave Viramontes possession of the vehicle on April 4 and in exchange

Viramontes agreed to the terms of financing and to make a downpayment on April 5. In

accord with the Promissory Note, Viramontes made a $2,000 cash downpayment on April

5. Pursuant to the Contract, Viramontes then made monthly payments, which totaled

$10,403.38 as of November 12, 2014. The parties thus abided by the terms of their

                                              7
agreement and satisfied their promises to each other, evidencing mutual consent. Since

each party conferred a benefit on the other and suffered a detriment, there was also

consideration. We therefore conclude that an enforceable contract for the sale of a

vehicle was formed between Viramontes and Desert Auto Plaza. As such, it was subject

to the ASFA and its disclosure requirements.

                                     DISPOSITION

       Judgment affirmed. Respondent is entitled to costs on appeal.



                                                                           McINTYRE, J.

WE CONCUR:



       McDONALD, Acting P. J.



                       AARON, J.




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