Filed 6/25/20 Nguyen v. House of Imports, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

LOI NGUYEN,

Plaintiff and Appellant,

v.

HOUSE OF IMPORTS, INC., et al.,

Defendants and Appellants.

G056789, G057216

(Super. Ct. No. 30-2016-00866783)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed as modified.

Rosner, Barry & Babbitt, Christopher P. Barry, Arlyn L. Escalante and Hallen D. Rosner for Plaintiff and Appellant.

Kolar & Associates, Elizabeth L. Kolar and Benjamin T. Runge for Defendants and Appellants.

* * *

Plaintiff and appellant Loi Nguyen sued defendants and appellants House of Imports, Inc., Mercedes-Benz Financial Services USA, LLC, and Safeco Insurance Company of America (collectively House of Imports or defendants), for numerous causes of action related to the purchase of a preowned Mercedes-Benz vehicle. According to Nguyen, the vehicle had accident damage and other problems, and it should not have been sold as “certified pre-owned.”

The jury returned a verdict for defendants. Nguyen raises over a dozen alleged errors, including instructional error, a defective special verdict form, the court’s decision to grant certain defendants a nonsuit on several causes of action, multiple evidentiary errors, the denial of an injunction, and a partial award of costs to defendants. We find no error and affirm the judgment.

In a cross-appeal, defendants argue the trial court erred by failing to award all costs for deposition transcripts. We conclude defendants are correct and that as a matter of right, they are entitled to $7,742.00 in deposition costs. We shall order the costs award modified accordingly.

I

FACTS

A. Nguyen’s Duty to Accurately Summarize the Record

The appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment, “‘not merely their own evidence.’” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) This duty increases with the complexity of the record. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) Nguyen’s briefing fails to meet this standard. Instead, it is full of references to what he “alleges” despite the fact that this is a posttrial appeal and his allegations are irrelevant (unless he is referring directly to the complaint). What is relevant is the evidence set forth at trial.

Nguyen also plays fast and loose with facts relating to defendants’ side of the case. For example, he states: “House of Imports contends that its employees never tell customers whether a vehicle had been in an accident or not; instead customers are directed to look at the Carfax report.” This implies that defendants’ salespeople intentionally withhold knowledge of prior accidents, but the referenced testimony says no such thing. When asked about what a salesperson would say to a customer if asked about prior accidents, the witness, House of Imports’s general manager, answered: “The first thing they would say is ‘I don’t know, let’s check the worry-free folder and see what’s in there. Let’s look at Carfax together. Let’s – you know, let’s look at the car together.’ [¶] Obviously, [it would] be impossible for a salesperson to know the history of every vehicle. So they would be looking through the folder to see what’s in there and what they could show the customer.”

The witness was then asked: “Fair to say that the salesman doesn’t have any personal knowledge regarding the history of this vehicle?” The witness responded: “They may find some, you know, while looking at the car or at the Carfax report or repair order. But without going through that discovery with the customer, they wouldn’t – unless they just did it with a previous customer, they wouldn’t know that car specifically.” The next question was: “So the salesman is taught to disclose just what they know, and for all intents and purposes, oftentimes that’s what’s on the Carfax?” The witness answered: “Correct.” Nguyen’s statement in his brief is at best entirely out of context and misleading, and at worse dangerously close to being in bad faith. Such statements of “fact” in his brief are disregarded.

B. Relevant Underlying Facts

In August 2014, Nguyen visited the House of Imports car dealership to purchase a used vehicle. He eventually bought a 2012 Mercedes-Benz E350W (the vehicle), which the dealership referred to as a “certified pre-owned vehicle.” Certified pre-owned, or CPO, is an internal Mercedes-Benz program. To qualify as a CPO, vehicle, it must meet certain standards Mercedes-Benz has established and pass an inspection. Among other things, “identifiable structural damage of any kind” should prevent a vehicle from being sold as CPO. Under Mercedes-Benz standards, the buyer of a CPO vehicle should be provided with a copy of the inspection and certification report, among other documents. Certain types of noncompliance with Mercedes-Benz requirements may result in the “improper representation of the vehicle” as CPO.

Nguyen purchased the vehicle with a 48 month/50,000 mile warranty, and as a CPO, the vehicle was subject to an unlimited coverage warranty for one year.

Throughout the pendency of the case, House of Imports has asserted it had no knowledge that the vehicle was in a prior accident, which was referred to by numerous witnesses at trial as “minor.” Testimony established the lessor did not disclose the accident to House of Imports.

The prior lessor, according to witness testimony, took the vehicle to a body shop in Los Angeles County for repairs. The front body upper tie bar was replaced, which was described by witnesses as a bolt-on part and not structural. It is not part of the frame, it’s part of the unibody construction of the vehicle, and not welded to the frame. The body shop used original Mercedes-Benz parts and a new hood was put on, and no structural or frame damage was noted.

Nguyen alleged that in May 2016, he learned the vehicle had been in an accident prior to his purchase, which substantially impaired the vehicle’s value. He testified at trial that the dealership refused to assist him or repurchase the vehicle.

On August 1, 2016, he filed the instant lawsuit alleging eight causes of action: (1) violation of the Consumers Legal Remedies Act (CLRA); (2) fraud; (3) negligent misrepresentation; (4) action for rescission; (5) violation of the Song-Beverly Consumer Warranty Act; (6) violation of Business & Professions Code section 17200; (7) violations of Vehicle Code sections 11713, 11713.1, and 11713.18, subdivision (a); and (8) violation of Vehicle Code section 11711.

Among other things, he claimed he signed a checklist which was not signed by dealership employees, that House of Imports failed to disclose prior damage, that House of Imports’s reconditioning of the vehicle was substandard and not in compliance with Mercedes-Benz standards, resulting in a vehicle certified as CPO which it should not have been. He also alleged the accident caused structural damage which should have prevented it from being sold as CPO.

Prior to trial, the parties agreed to bifurcate liability and damages. At the conclusion of Nguyen’s case, House of Imports moved for nonsuit on the first five causes of action. The court granted the motion as to defendant Mercedes-Benz only. After an eight-day trial on liability, the jury found in House of Imports’s favor. Nguyen’s subsequent motion for injunctive relief was denied, and his motion to tax costs was granted in part.

Nguyen appeals the entire judgment, while House of Imports filed a limited cross-appeal on the issue of costs.

II

DISCUSSION

We begin by noting that on appeal, we start with the presumption that an order of the trial court is presumed correct and reversible error must be affirmatively shown by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.” (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)

A. Instructional Error

We review questions of instructional error de novo. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1373.) Whether the appellant contends that the trial judge gave an erroneous instruction or omitted a proper instruction, we view the evidence in the light most favorable to the claim of instructional error. (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358; Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157.)

“Upon request, a party in a civil case is entitled to correct, nonargumentative jury instructions on every theory of the case that is supported by substantial evidence. [Citations.] The trial court has no duty to instruct on its own motion, nor is it obligated to modify proposed instructions to make them complete or correct. [Citations.] Such instructions may be rejected without the trial court’s attempting to modify or correct them.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526.)

As to the question of prejudice, Nguyen asserts in his reply brief that “prejudice from instructional error is presumed, and it is the respondent’s burden to rebut” that presumption. (Capitalization & boldfacing omitted.) The sole case he cites on this point is Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683, a case about jury misconduct, asserting in a parenthetical “same standard for instructional error.” But the cited case does not state this with respect to jury instructions.

Further, the California Supreme Court has stated that erroneous jury instructions are not inherently prejudicial. “We . . . conclude that there is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case ‘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.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Instructional error may rise to that level “‘[w]here it seems probable’” that the error prejudicially affected the verdict. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875-876.)

In Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, the Supreme Court left no room for doubt on this issue, citing Soule: “We have, however, recently considered and rejected precisely this theory of inherent prejudice from instructional error in civil cases.” (Id. at p. 983.) Further, the Court clarified that the burden of establishing prejudice lies with the party asserting the error: “[W]e conclude [the appellant] has failed to demonstrate a miscarriage of justice arose from the erroneous instruction.” (Ibid.) This rule was reaffirmed in 2004, in Cassim v. Allstate Insurance Co. (2004) 33 Cal.4th 780, 801-802. Nguyen is simply incorrect here. The burden of establishing prejudice, which in this case must meet the standard of a miscarriage of justice, lies squarely with him.

1. CLRA

Nguyen’s first claim of instructional error is that the court failed to instruct on the CLRA (Civ. Code, § 1750, et seq.). The CLRA makes unlawful various unfair or deceptive practices in a transaction which results in the sale of good or services to any consumer, setting forth 27 proscribed acts or practices. (Civ. Code, § 1770, subd. (a); Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 723.) These include, as relevant here, representing that goods have characteristics or benefits that they do not; representing that goods are of a particular standard of quality if they are not; [a]dvertising goods or services with intent not to sell them as advertised”; and “[r]epresenting that the subject of a transaction has been supplied in accordance with a previous representation when it has not.” (Civ. Code, § 1770, subd. (a) (5), (7), (9), (16).)

Courts have also recognized a limited duty of disclosure under the CLRA. Such a duty exists “when the defendant is the plaintiff’s fiduciary, when the defendant has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff, and when the defendant actively conceals a material fact. In addition, the duty to disclose exists ‘when the defendant makes partial representations that are misleading because some other material fact has not been disclosed.’” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1258.)

Nguyen asserts House of Imports “lied to [him] when the salesman and the documents presented to [him] stated the Vehicle had never been in an accident and had no damage” and showed him a Carfax report and another document so reflecting, with full knowledge the vehicle had been in an accident. He asserts he would not have bought the vehicle had he known this to be the case. He also claims that the certification of the vehicle as CPO was in violation of the CLRA.

In sum, Nguyen claims House of Imports violated the CLRA by “1) misrepresenting and/or omitting material facts regarding the prior accident history of the vehicle prior to selling it to [him]; [¶] 2) selling an unmerchantable vehicle; [¶] 3) misrepresenting the Vehicle had not been in an accident prior to purchase; [¶] 4) misrepresenting the prior ownership history of the Vehicle; [¶] 5) failing to affix a Buyer’s Guide to the Vehicle; and [¶] 6) advertising and selling the Vehicle as “certified,” in violation of Vehicle Code section 11713.18(a).”

(a) Inadequate Record

House of Imports asserts that by failing to include the refused instruction on the CLRA in the record, Nguyen has waived any error (indeed, they assert this as to all Nguyen’s claimed instructional errors). Nguyen asserts this was House of Imports’s responsibility due to his “presumption of prejudicial error” theory (which is incorrect, as we have already discussed). Nguyen then claims that 1) he did “put forth a full record of both parties’ proposed jury instructions,” and 2) House of Imports provided a respondents’ appendix which included the given instructions, thereby curing any error. Nguyen also submitted a reply appendix of refused/withdrawn instructions.

The record does include Nguyen’s proposed instructions, including instructions on the CLRA. But he never cites to either the page in his original appendix (which is 905 pages long) or his reply appendix where the refused instructions on the CLRA can be found. Notably, it is not included in his reply appendix, which purports to be only refused and withdrawn instructions – he admits that the packet of refused and withdrawn instructions does not include special instructions. He simply states the trial court refused these instructions, but his only record citation is to a comment the court made before trial began that was not in the context of jury instructions.

This record is inadequate; without seeing the actual instructions the court refused, we cannot determine whether they correctly reflected the law. (Maureen K. v. Tuschka, supra, 215 Cal.App.4th at p. 526.) It was Nguyen’s responsibility to provide an adequate record, and this alone is sufficient grounds for finding no error.

(b) Adequacy of Instructions Given

Even if the record were adequate, and examining the facts on the refused instructions in the light most favorable to Nguyen, we find no error for several reasons. We begin by presuming that Nguyen’s proposed special instructions on the CLRA were the same instructions refused by the court.

Nguyen’s lengthy and nonsequential proposed instructions included unnecessary definitions (such as “goods” and “person”), an unneeded instruction on statutory intent, and a confusing instruction on interpreting the CLRA. The proposed instructions were overly complex, muddled, and failed to limit their scope to the issues relevant to the instant case. It was not the court’s job to fix the instructions. (Maureen K. v. Tuschka, supra, 215 Cal.App.4th at p. 526.)

Further, despite Nguyen’s assertions to the contrary, the court provided an instruction on the CLRA claim:

“Mr. Nguyen claims that House of Imports engaged in unfair or deceptive acts or practices in the transaction by which he bought the automobile and that he was harmed by those acts and practices. To establish this claim he must prove all of the following:

“l. That he bought the automobile for personal, family, or household

purposes;

“2. That House of Imports misrepresented the certification and

history of the automobile;

“3. That plaintiff was harmed; and

“4. That plaintiff’s harm resulted from defendant’s conduct.

“A plaintiff’s harm resulted from defendant’s conduct if plaintiff

relied on defendant’s representation. To prove reliance, plaintiff need only prove that the representation was a substantial factor in his decision. He does not need to prove that it was the primary factor or the only factor in the decision.

“If defendant’s representation of fact was material, reliance may be inferred. A fact is material if a reasonable consumer would consider it important in deciding whether to buy the vehicle.”

Nguyen claims this was not a CLRA instruction, but “some sort of unfair competition instruction,” but this is clearly wrong. In fact, the instruction given substantially mirrors CACI No. 4700, the pattern instruction on the CLRA’s elements, an instruction jointly requested by the parties.

The only difference between the instruction jointly requested and the one ultimately given was some appropriate simplification of the language by the court. It is absurd for Nguyen to suggest this was not a CLRA instruction, and he cannot object to any portion he requested, which is nearly all of it. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255.) He does not explain why the differences are material or why they rendered the instruction inadequate. Instead, he insists the court gave no CLRA instruction at all.

The instruction regarding misrepresenting the “certification and history of the automobile” more than adequately covers Nguyen’s allegations regarding the accident history, the merchantability of the vehicle, and the advertising of the vehicle. Further, this instruction, unlike Nguyen’s proposed instructions, sets forth what the jury must find in a straightforward manner.

This leaves only Nguyen’s claim that House of Imports violated the CLRA by “failing to affix a Buyer’s Guide to the Vehicle” and he has failed to indicate where in the record we can find evidence that he suffered damage as a result of this alleged lapse.

In sum, we find no error with respect to the CLRA instruction.

2. Mislabeling

Nguyen next claims the court erred by failing to instruct on his “mislabeling theory, a subset of his breach of the implied warranty cause of action under Song-Beverly” citing Civil Code section 1791.1 on implied warranties. That section states: “(a) ‘Implied warranty of merchantability’ or ‘implied warranty that goods are merchantable’ means that the consumer goods meet each of the following: [¶] (1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or affirmations of fact made on the container or label.” (Civ. Code, § 1791.1, subd. (a)(1), (2), (3), (4).)

We need not consider this issue at length. First, Nguyen completely fails, in either his opening or reply brief, to provide any analysis of prejudice. His only comment on the issue is: “It is probable that, had the trial court given this instruction, the jury would have reached a different result. The trial court’s refusal to so instruct the jury resulted in a miscarriage of justice and prejudicial error.” This is entirely conclusory and inadequate. Even if we were to find error, we would not find reversible error.

There are numerous other issues, such as Nguyen’s failure to provide a citation to his proposed instruction (much less the version the court refused), and his failure to analyze why the given implied warranty instruction was inadequate. But because Nguyen has failed to demonstrate prejudice, we need not consider these issues further.

3. Substantial Impairment Instruction

Nguyen’s next claim is the court’s instruction on substantial impairment was inadequate. CACI No. 3204, the pattern instruction, reads:

“In deciding whether a reasonable person would believe that the vehicle’s defect[s], if any, substantially impaired the vehicle’s use, value, or safety, you may consider, among other factors, the following:

“(a) [The nature of the defect[s];]

“(b) [The cost and length of time required for repair;]

“(c) [Whether past repair attempts have been successful;]

“(d) [The degree to which the vehicle could be used while awaiting repair;]

“(e) [The availability and cost of comparable transportation during the repairs;] [and]

“(f) [Insert other appropriate factor.]”

The Directions for Use of CACI No. 3204 state: “Some or all of the stated factors may not be necessary in every case. Depending on the facts of the case, other factors may be added as appropriate.”

As given, the instruction read: “In deciding whether a reasonable person would believe that the vehicle’s defects, if any, substantially impaired its use, value, or safety, you may consider, the nature of the defect.”

Nguyen claims this was error because the instruction is only applicable to express warranty claims where the plaintiff has to prove the defect impaired the vehicle’s use, value or safety. Because he was not bringing an express warranty claim, he asserts, it was error to give the instruction. We disagree. Nguyen claimed the fact that the vehicle had been in a prior accident substantially impaired its value, and the jury had to be instructed on how to evaluate that claim. He also had an expert testify as to safety. In the context the instruction was given, we find no error.

We need not consider Nguyen’s claims that other instructions could not cure the court’s errors, as we have found none.

B. Special Verdict Form

A special verdict’s correctness is analyzed as a matter of law and therefore subject to de novo review. (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303.) Errors in a special verdict form are subject to harmless error analysis. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1244.)

A “special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.) A special verdict is “fatally defective” if it does not allow the jury to resolve every controverted issue. (Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal.App.4th 958, 1005-1006.)

1. CLRA

Nguyen’s first claim is that the special verdict form did not submit a CLRA question to the jury. House of Imports asserts Nguyen waived this issue by failing to object to the verdict form or to seek posttrial relief.

With respect to the CLRA, Nguyen claims his counsel did object. But the portion of the record he cites does not support this assertion. Nguyen’s counsel did not, as he now asserts, object to “the trial court’s refusal to allow verdict questions as to the CLRA,” he objected to the lack of labels on causes of action in the special verdict form: “Because the questions aren’t identifying the causes of action as the way CACI would do it, I think there can be confusion as to whether a question relates to the CLRA, which from their perspective they may not care . . . . But from our perspective and knowing what we prevailed on, which — [¶] . . . [¶] I’m worried about the remedies as well.” At another point counsel suggested the court’s working might “cause some confusion,” but did not indicate, as Nguyen now asserts, he believed the verdict form failed to include a CLRA question. Accordingly, Nguyen has lost the right to appeal that issue. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-264.)

2. Use of Term “Certified”

Nguyen next argues the trial court refused to allow a verdict question on the purportedly misleading use of the term “certified.” But we agree with House of Imports that the jury was specifically instructed as to when a vehicle cannot be sold as certified. One way which it can be so certified is to provide a completed inspection report, and the special verdict form asked about this: “Has plaintiff proved by a preponderance of the evidence that the Certified Pre-Owned (CPO) inspection report for his 20l2 Mercedes-Benz failed to provide him with a completed inspection report indicating all the components inspected?” (The jury answered “no.”)

This was sufficient. Nguyen appears to believe that the special verdict form must be a lengthy document which breaks each cause of action down into its elements and inquires as to each. This is not, however, required, as long as all of the essential facts are addressed. (§ 624.)

3. Mislabeling

Mirroring his instruction argument, Nguyen next claims the verdict form was fatally defective for failing to include a question on mislabeling, instead including a more general implied warranty question. His opening brief on this issue includes no discussion of prejudice whatsoever, and his reply brief focuses on the lack of an instruction rather than a defect in the special verdict form. His assertion of prejudice is entirely conclusory. Thus, we need not discuss this issue further.

4. Substantial Impairment

Nguyen raises essentially the same argument here as he did with respect to the substantial impairment instruction, and for the same reasons, we reject it. Further, his argument with regard to prejudice is entirely conclusory.

C. Nonsuit

Nonsuit is a statutory device under which a defendant may move for judgment in its favor during trial. A motion for nonsuit may be brought after the plaintiff has completed its opening statement or after the presentation of plaintiff’s evidence in a jury trial. (§ 581c.)

A defendant is entitled to a nonsuit if the trial court determines the evidence presented by plaintiff is insufficient to permit a jury to find in his or her favor as a matter of law. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.)

The plaintiff’s evidence, however, must have substance upon which reasonable minds can differ; evidence that raises mere conjecture or speculation is insufficient. (Abreu v. Svenhard’s Swedish Bakery (1989) 208 Cal.App.3d 1446, 1457.) A plaintiff seeking to overcome a nonsuit cannot prevail unless he or she can demonstrate substantial evidence in the record to support each claim asserted, and mere conjecture or nonsensical interpretations of evidence are not sufficient. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580.)

On appeal, “[w]e independently review the ruling on a motion for nonsuit, guided by the same rules that govern the trial court.” (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) Our review is “based on the whole record, not just excerpts chosen by appellant.” (Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at p. 1581.)

After the close of Nguyen’s case, all defendants moved for nonsuit on his claims for (1) CLRA violations; 2) fraud; (3) negligent misrepresentation; (4) rescission; and (5) Song-Beverly Consumer Warranty Act violations. The court granted the motion as to defendant Mercedes-Benz only. Nguyen argues this was error.

He is incorrect. Pursuant to the sales contract Nguyen entered into, any liability of Mercedes-Benz is based entirely on the liability of the dealership. Nguyen’s counsel conceded as much at trial: “Mercedes-Benz Financial only comes in because the purchase contract says any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller. [¶] . . . . [¶] [I]f we establish liability against the dealership, then contractually they’re liable for the same thing.”

Because the jury found the dealership not liable – a conclusion we uphold today – we find no error.

D. Evidentiary Error

“Trial court rulings on the admissibility of evidence, whether in limine or during trial, are generally reviewed for abuse of discretion.” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

Further, the judgment “may not be reversed on the basis of the erroneous admission of evidence, unless that error was prejudicial. (Code Civ. Proc., § 475.)” (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799.) “The record must show that the appellant ‘sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.’ [Citation.] Additionally, article VI, section 13, of the California Constitution provides that a judgment may not be set aside based on the erroneous 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.’ Evidence Code section 353 reinforces that provision: we may not reverse a judgment ‘by reason of the erroneous admission of evidence unless . . . [¶] . . . [¶] . . . the error or errors complained of resulted in a miscarriage of justice.’” (Ibid.)

 

1. Evidence Code 776

Evidence Code section 776, subdivision (a), states: “A party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.” The purpose of this statute is “to permit an adverse party to be called to prove or to be questioned about facts material to the case of the party calling him, whether to prove a single material fact or a number of material facts,” and to do so “without making him his own witness.” (MacGregor v. Kawaoka (1955) 132 Cal.App.2d 407, 40-410.)

Nguyen’s argues the trial court erred by failing to allow him to call an adverse witness as his first witness, relying on the language “at any time” in Evidence Code section 776. The trial court had previously advised the parties that neither side would be allowed to call a witness under Evidence Code section 776 “as its first witness.” The court cited Evidence Code section 320, which permits the court “the discretion to regulate the order of proof.”

The only case Nguyen cites with respect to Evidence Code section 776 and the order of proof is Murry v. Manley (1959) 170 Cal.App.2d 364, 366. In that case, the appellate court reversed a trial court’s ruling that the plaintiff was required to establish a prima facie case before calling any adverse witnesses. This is beside the point, as the trial court here stated it was simply disallowing an adverse witness as either party’s first witness.

We do agree, however, that this blanket order was error. “Whenever it was material to her case or whenever she desired before the close of the case to call . . . an adverse witness it was her privilege under the statute to do so.” (MacGregor v. Kawaoka, supra, 132 Cal.App.2d at p. 410.)

We do not find, however, that the error was prejudicial. Nguyen claims he was prejudiced “because he was forced to rearrange his witness order and therefore his presentation of evidence to the jury. This produced a domino effect affecting different aspects of Mr. Nguyen’s case . . . . [¶] [He] had intended to call House of Imports’ technician first to testify about what he did to inspect the Vehicle for certification and then call Mr. Nguyen’s expert Mark Jannesari to give his opinion as to House of Imports’ inspection practices. Instead, Mr. Nguyen was forced to call third party witnesses first, then his expert, before calling House of Imports employees.” (Record references omitted.)

First, Nguyen does not explain why or how changing the order of witnesses prejudiced his case; he simply asserts that it did. Second, there is no indication in the record that the court was requiring Nguyen do anything but call one of his own witnesses first. He was not “forced” to do anything else. Nguyen offers no explanation, nor can we think of one, that would support the contention that calling one nonadverse witness first resulted in a miscarriage of justice. “‘In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc., supra, 225 Cal.App.4th at p. 799.) There is simply no indication that changing the order of the witnesses changed the outcome of the case. Accordingly, we find no error.

2. Expert Witness

Nguyen next asserts the trial court erred by sustaining an objection to the testimony of his expert witness, Mark Jannesari. Jannesari was examined on his qualifications – he was an owner and an operator of a body shop for 23 years, and experienced in auto body repair. During direct examination, he was asked by Nguyen’s counsel: “Do you have an opinion of whether or not you believe House of Imports should have noticed the same conditions of this vehicle that you noticed?” After an objection by House of Imports’ counsel that the question was speculative and lacking in foundation, the court sustained the objection, suggesting the answer might be hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665, 686.

Nguyen claims he was precluded from an entire “line of questioning,” yet identifies only this single question. There was no attempt at clarification as to any other questions he was precluded from asking (except for a request for a discussion outside the jury’s presence, which the court declined), and no attempt to rephrase the question in a manner that might have satisfied the court. He simply asserts this was error, and that this “line of questioning had nothing to do with Sanchez – it did not involve any out-of-court statements.”

We do not review this as a “line of questioning” but only the question asked. It is difficult to tell whether the answer would have been hearsay or not, but even if we were to assume error, we do not find it sufficiently prejudicial to require reversal. Counsel was permitted to ask Jannesari about the quality of the repairs done after the prior owner’s accident, which he called “low quality, poor quality, unfinished repair work.” He also described the vehicle as “wrecked and partially repaired, improperly repaired.” Therefore, his unavoidable opinion was clearly that House of Imports should have noticed the prior repair, and any reasonable juror would have been aware of this. Accordingly, even if there was error, it was not prejudicial.

3. Errors in Sales Documents

Nguyen further asserts that the trial court refused to allow his counsel “to question House of Imports employees as to errors in the sales documents provided to [him].” Specifically this was a reference to the vehicle’s odometer reading and prior owners, although the way counsel had presented the case did not involve the odometer and had stipulated the vehicle had one prior owner. The court stated: “My wider ruling is let’s not make this an odometer case.”

While Nguyen claims this was about the credibility of the witnesses, he ventures too far afield. He was not forbidden from challenging the credibility of the House of Imports employees – as the court pointed out, that is what cross-examination is for. He simply ventured into irrelevant areas and was reigned in. We find no error.

4. Cumulative Error

“Under the ‘cumulative error’ doctrine, we reverse the judgment if there is a ‘reasonable possibility’ that the jury would have reached a result more favorable to defendant absent a combination of errors.” (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216-1217.) No such combination of errors are present here.

E. Injunctive Relief

Nguyen’s next argument is that the trial court erred by failing to grant an injunction under the CLRA. We review a grant or denial of injunctive relief for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.)

Nguyen argues, based entirely on his one-sided presentation of the evidence, that an injunction under the CLRA was proper. Unlike errors in jury instructions, however, the facts here are reviewed in the light most favorable to the judgment. (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th

683, 688-689.) Further, when the court and jury are presented with the same evidence, the court cannot reject the jury’s factual findings. (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 160-161.) The jury found none of the predicate facts were present that would justify an injunction under the CLRA. Accordingly, we find no error in denying Nguyen’s demand for injunctive relief.

 

F. Costs

1. Service of Process Fees

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (§ 1032, subd. (b).) Costs incurred must be reasonably necessary to the conduct of the case. (§ 1033.5, subd. (c)(2); Charton v. Harkey (2016) 247 Cal.App.4th 730, 738-739.) Allowable costs include those incurred for service of process (§ 1033.5, subd. (a)(4)).

“Whether a party falls within one of the . . . categories authorizing the recovery of costs as a matter of right is a question of law we review de novo. [Citations.] We otherwise review a trial court’s cost award for abuse of discretion. [Citations.] For example, we review a trial court’s determination on which costs are reasonably necessary and reasonable in amount under the abuse of discretion standard.” (Charton v. Harkey, supra, 247 Cal.App.4th at p. 739.)

With respect to the service of process fees, Nguyen argued that some of the witnesses for whom services costs were sought did not testify at trial, and therefore $632.36 should be taxed. What Nguyen fails to acknowledge is that trial is a fluid process, particularly for defendants, who present their case last. Therefore, there may be occasions where it is necessary to subpoena witnesses who ultimately do not testify.

Nguyen claims that House of Imports did not need to subpoena Bahram Farshidi, a former “owner” of the vehicle. House of Imports claims Farshidi was listed on the Carfax report in error and asserts Nguyen violated a stipulation on this point. In any event, Nguyen has not established an abuse of discretion on the court’s part. The only other witness Nguyen discusses is Travis Dwyer, a subpoena for whom Nguyen argues was unnecessary due to a stipulation, but he does not establish any stipulation predated the subpoena’s service. We therefore find no abuse of discretion as to Dwyer. As to the witnesses about whom Nguyen did not offer any analysis or discussion, we find he also failed to establish error.

2. Expert Witness Fees Under Section 998

House of Imports sought a total of $31,068.55 in expert witness fees pursuant to section 998. The court ultimately denied Nguyen’s motion to tax these costs.

Expert witness costs are recoverable under section 998 if a plaintiff rejects a defendant’s offer pursuant to that section and fails to obtain a more favorable verdict at trial. “‘As recognized in numerous Court of Appeal decisions, the clear purpose of section 998 . . . is to encourage the settlement of lawsuits prior to trial.’ [Citation.] ‘Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party. [Citations.]’ [Citations.] ‘In that situation, the prevailing party is precluded from recovering its own postoffer costs and must pay its opponent’s postoffer costs, including expert witness fees, if awarded in the court’s discretion. [Citation.] The purpose of the cost-shifting statute is to encourage the settlement of litigation without trial, by punishing the party who fails to accept a reasonable settlement offer from its opponent.’” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 129.) Determining the reasonableness of an expert witness’s fee is within the trial court’s discretion. (Michelson v. Camp (1999) 72 Cal.App.4th 955, 975-976.)

It is undisputed that Nguyen rejected two offers under section 998. The only question is the reasonableness of the costs of the two experts used by House of Imports. Nguyen argues the time spent by expert witness Jason Arst, which he calculates at over 65 hours, was “wholly unreasonable for this case.” Nguyen contends: “The invoices produced by Respondents showed Mr. Arst routinely billed 0.2 hours for reading and responding to emails and text messages. He spent 28.7 hours preparing to testify at trial, despite having over 27 years of experience and having been involved in over 2,000 cases. He somehow billed 15.1 hours for a day of attending a deposition that lasted 6 hours and testifying at his own deposition which lasted 1.5 hours. Mr. Arst’s fees were unreasonable and not reasonably necessary to the conduct of the litigation. The trial court should have taxed these costs.” (Record references omitted.)

The billing records show that Arst often billed .1 or .2 hours for responding to e-mails or “texts,” which we read to mean multiple messages, and Nguyen does not explain why this is unreasonable. Nor does he explain why 28 hours to prepare for trial is unreasonable. He asserts Arst overbilled for the day of his own deposition without providing a page citation to the bill for that day. In any event, the trial court’s exercise of its discretion may be based on “less than perfect billing records.” (Michelson v. Camp, supra, 72 Cal.App.4th at p. 976.) In a declaration accompanying the opposition to its motion to tax costs, House of Imports stated that “Defendants’ expert was a critical part of their defense in this action, which revolved around Plaintiff’s claims that the subject vehicle was involved in an undisclosed prior accident and that the vehicle should have never been certified as a certified pre-owned vehicle. Without Defendants’ expert at trial, they would not have been able to properly defend against Plaintiff s claims and would not have obtained a verdict in their favor.” Nguyen has failed to establish the expert witness costs awarded were improper or unreasonable.

G. The Cross-Appeal – House of Imports’ Deposition Costs

The sole issue House of Imports raises in its cross-appeal is the trial court’s decision to tax its deposition costs, which it asserts was error pursuant to section 1033.5, subdivision (a)(3)(A). We review this under the same standard as the service of process costs.

House of Imports offered, in opposition to the motion to tax costs, invoices for 13 depositions, 11 of which were noticed and taken by Nguyen, totaling $7,742.00. As long as they were reasonably necessary, House of Imports was entitled as a matter of right to recover its deposition costs. (§ 1032, subd. (b).)

Nguyen’s only argument on this point is that “[h]ere the trial court found that these costs even if allowable were not supported and it was within its discretion that it denied these costs.” But Nguyen ignores that a verified memorandum of costs is prima facie evidence of the propriety of the items listed on it, and it also provided invoices in its opposition to Nguyen’s motion to tax costs. The burden then shifted to him, as “‘the party challenging these costs to demonstrate that they were not reasonable or necessary.’” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.) Nguyen does not offer any such argument or point to any such argument in the court below. We therefore conclude the court erred by taxing the deposition costs.

III

DISPOSITION

The costs order is modified to award an additional $7,742.00 in deposition costs to defendants. We affirm the judgment in all other respects. Defendants are entitled to their costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

GOETHALS, J.