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Bermudez v. Fulton Auto Depot

December 3, 2009

ELEONOR BERMUDEZ ET AL., PLAINTIFFS AND APPELLANTS,
v.
FULTON AUTO DEPOT, LLC ET AL. DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd Allan Phillips, Jr., Judge. Affirmed. (Super. Ct. No. 06AS03896).

The opinion of the court was delivered by: Nicholson, J.

CERTIFIED FOR PUBLICATION

Plaintiffs Eleonor Bermudez and Antonio Aceves bought a Cadillac Escalade from defendant Fulton Auto Depot, signing a retail installment sale contract. On the contract, Fulton Auto Depot overestimated the vehicle license fees by two dollars and charged the plaintiffs $58.25 for a smog check and certificate but failed to submit the vehicle to a smog check until four months later when the error was brought to its attention.

The plaintiffs sued the defendants, Fulton Auto Depot and Patelco Credit Union, the holder of the note, for violations of the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.; hereafter, ASFA). After a bench trial, the trial court entered judgment in favor of the defendants.

On appeal, the plaintiffs contend that they are entitled to remedies under the ASFA because they established that Fulton Auto Depot was untruthful in its disclosures on the retail installment sale contract and did not remedy the violations during the "safe harbor" time period. Their contentions are without merit. The slight overestimation of vehicle license fees and the delayed smog check do not entitle the plaintiffs to remedies under the ASFA.

RECORD ON APPEAL

The record on appeal, designated by the plaintiffs, consists of a full reporter's transcript and a partial clerk's transcript. The partial clerk's transcript includes only the judgment and documents relating to the appellate process.

The plaintiffs have failed to provide a complete record of the trial court proceedings. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533 [appellants must present adequate record].) They claim that they sued the defendants for violations of the ASFA; however, they did not designate the complaint or any other pleading establishing that fact as part of the record on appeal. Neither did they designate any trial briefs. The judgment simply states that judgment is in favor of the defendants and that the defendants are entitled to recover their costs and attorney fees.

Despite this meager record, however, we can consider the plaintiffs' contentions on appeal because the parties agree that this was an action for relief under the ASFA and it appears that all evidence presented at trial has been included in the record on appeal. Therefore, we turn to the plaintiffs' contentions.

FACTS

On November 4, 2005, the plaintiffs went to the Sacramento Auto Plaza, owned by defendant Fulton Auto Depot. They bought a used 2003 Cadillac Escalade for $35,500.*fn1 The plaintiffs signed a retail installment sale contract, financing the vehicle purchase and associated charges, taxes, and fees for a term of seven years. The contract included four items paid by the plaintiffs that are material to this appeal: (1) a $50 charge for a smog check, (2) $8.25 to be paid to the state for a smog certificate, (3) $426 to be paid to the state as "License Fees," and (4) $15 to be paid to the state as "Registration/Transfer/ Titling Fees."*fn2 Next to the amount for "License Fees," the word "Estimate" was typed in.

Because of an oversight on the part of Fulton Auto Depot, the vehicle was not smog checked before it was delivered to the plaintiffs. This was the only time in four years of operation that Fulton Auto Depot had committed this type of error.

On March 2, 2006, about four months after their purchase of the vehicle, the plaintiffs returned to the Sacramento Auto Plaza, complaining that they had not received the registration for the vehicle. On that day, the vehicle was taken to Clean Pipes Center, where it passed a smog check.

Someone from the dealer told the plaintiffs that the registration was delayed because the dealer had lost the file with the paperwork from the sale of the vehicle. As it turned out, the file had been stolen. It was found several ...


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