Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 7CC10613 Gregory Munoz, Judge.
Gary Dean Lobel and Ronald J. Green, Jr., for Defendant and Appellant Lobel Financial Corporation.
Ludwig Law Center, Eric S. Ludwig for Defendant and Appellant Automotive Funding Group, Inc., dba County Financial Services.
Law Offices of Jeffrey B. McMillen, Jeffrey B. McMillen for Plaintiff and Respondent Hyduke’s Valley Motors.
OPINION
O’LEARY, ACTING P. J.
A wholesale used car dealer sold vehicles to a second used car dealer with the agreement the second dealer would pay for the cars when title was available for transfer. The second dealer sold the vehicles to consumers under conditional sales contracts, sold (and assigned) the conditional sales contracts to two finance companies, and went bankrupt before paying the wholesale dealer for the cars and obtaining certificates of title as required by the terms of the conditional sales contracts. The wholesale dealer filed this action against the finance companies seeking a declaration they were required to pay the wholesale dealer for the vehicles to obtain certificates of title. In a bench trial, the trial court followed this court’s decision in Quartz of Southern California, Inc. v. Mullen Bros., Inc. (2007) 151 Cal.App.4th 901 (Quartz), which on largely identical facts held as between the wholesale dealer and the finance company, the wholesale dealer was the legal owner of the title certificates and the finance companies were required to purchase the titles from the wholesale dealer for transfer to the consumer buyers. The finance companies appeal from the judgment raising a variety of contentions, none of which have merit. We affirm the judgment.
THE QUARTZ DECISION
Because it formed the basis for the trial court’s ruling, and controls our decision here, we depart from our usual custom of first setting forth the facts and instead summarize this court’s opinion in Quartz, supra, 151 Cal.App.4th 901.
Quartz was a licensed wholesale used auto auction that would acquire vehicles and sell them to other dealers at auction. (Quartz, supra, 151 Cal.App.4th at p. 904.) For various reasons, title was generally not available at the time of auction. (Ibid.) While Quartz customarily required buying dealers to pay before taking possession, with some dealers it allowed the buying dealer to take the car after agreeing to return and pay for title when it became available. (Ibid.) Mohawk was a licensed used car dealer that had such an arrangement with Quartz. (Ibid.)
Mohawk took possession of 17 vehicles from Quartz without paying pursuant to their standing agreement. (Quartz, supra, 151 Cal.App.4th at p. 904.) With Quartz’s knowledge, Mohawk sold the vehicles to consumers through conditional sales contracts. (Ibid.) Mohawk then sold and assigned the contracts to Mullen, a finance company. (Ibid.)
When Quartz purchased and received title certificates to all 17 vehicles, it notified Mohawk payment was due, but Quartz discovered Mohawk had gone out of business. (Quartz, supra, 151 Cal.App.4th at p. 904.) Mullen refused Quartz’s demand for payment for the title certificates. (Ibid.) Subsequently, Quartz agreed to surrender the title certificate to each consumer who paid off his indebtedness while preserving its right to pursue a remedy against Mullen. (Id. at p. 905.)
The trial court found Quartz to be the lawful holder of title to the vehicles but would not direct Mullen to pay for the certificates of title. (Quartz, supra, 151 Cal.App.4th at p. 906.) On appeal, we affirmed the former part of the judgment but reversed the latter.
We concluded the Uniform Commercial Code did not govern transfer of title to or perfection of security interest in the cars. “The transfer of title to a vehicle registered in California is accomplished under Vehicle Code section 5600: ‘No transfer of the title or any interest in or to a vehicle registered under this code shall pass, and any attempted transfer shall not be effective, until the parties thereto have fulfilled either of the following requirements: [¶] (1) The transferor has made proper endorsement and delivery of the certificate of ownership to the transferee... and the transferee has delivered to the department... the certificate....’; or ‘(2) The transferor has delivered to the department... the appropriate documents for the registration or transfer of registration of the vehicle....’ (... § 5600, subd. (a).)” (Quartz, supra, 151 Cal.App.4th at pp. 907-908.) Furthermore, “[S]ection 6300 provides the exclusive method for perfecting a security interest in a vehicle not constituting inventory: ‘[N]o security interest in any vehicle registered under this code, irrespective of whether the registration was effected prior or subsequent to the creation of the security interest, is perfected until the secured party or his or her successor or assignee has deposited... with the department... a properly endorsed certificate of ownership to the vehicle subject to the security interest showing the secured party as legal owner....’ The provisions of the California Uniform Commercial Code do not come into play to determine the rights of competing parties until the security interest is perfected under the Vehicle Code. (... §§ 6301, 6303.)” (Quartz, supra, 151 Cal.App.4th at p. 908.)
All further statutory references are to the Vehicle Code, unless otherwise indicated.
We found “Quartz did not perfect a security interest in the vehicles, and Mullen purchased conditional sale contracts, not the vehicles themselves.” (Quartz, supra, 151 Cal.App.4th at p. 909.) Although Mullen had purchased the conditional sale contracts—which gave it the right to collect moneys due under their terms—“Mullen acquired no security interests from Mohawk, because Mohawk did not perfect them under the Vehicle Code. Thus Quartz holds title to the vehicles unimpaired by any security interests.” (Id. at p. 910.)
We concluded the trial court erred in not providing Quartz a remedy against Mullen, finding “the policies of the Commercial Code would be best served by requiring Mullen to pay it for the titles to the vehicles.” (Quartz, supra, 151 Cal.App.4th at p. 910.) “‘[T]he ultimate goal of the California Uniform Commercial Code is to set forth rules of law that promote the optimal allocation of society’s resources, i.e., promote economic efficiency. In the context of the used car industry, the goal can be restated as making vehicles available to consumers as efficiently as possible.’” (Ibid.) We found Mullen, the finance company, was “in the better position to prevent the loss caused by Mohawk while minimizing the disruption of the efficient flow of used vehicles from dealers to consumers. The trial court found that Mullen did not act in a commercially reasonable manner when it failed to verify Mohawk’s title before purchasing the sale contracts because a finance company could easily verify that a dealer had title, or it could ascertain who held the title and how much was owed to obtain it.” (Id. at pp. 910-911.)
Mullen also was to bear the loss because “Mullen [was] Mohawk’s assignee, thereby stepping into Mohawk’s shoes. The parties stipulated that Mohawk had the duty to register the vehicles with the [California Department of Motor Vehicles (DMV)] reflecting the consumers as registered owners and Mullen as lienholder, which required the acquisition of the certificates of title.... The Automobile Sales Finance Act [citation] provides that ‘[a]n assignee of the seller’s right is subject to all equities and defenses of the buyer against the seller, notwithstanding an agreement to the contrary, but the assignee’s liability may not exceed the amount of the debt owing to the assignee at the time of the assignment.’ [Citation.]” (Quartz, supra, 151 Cal.App.4th at p. 911.)
Finally, “Mullen argue[d] only the buyers [could] enforce its performance of Mohawk’s duties under the conditional sale contracts. But the buyers [were] not parties to [the] action. The trial court ruled that as between Quartz and Mullen, Quartz [was] the legal owner of the title certificates. The [trial] court erred in failing to order Mullen to purchase the titles from Quartz for transfer to the consumer buyers. The facts that Quartz ha[d] voluntarily released titles to some of the buyers and others ha[d] obtained duplicate titles from the DMV [did] not affect Mullen’s duty.” (Quartz, supra, 151 Cal.App.4th at p. 911.)
FACTS & PROCEDURE
We turn to the facts of this case. Hyduke’s Valley Motors is a licensed motor vehicle dealer that sells vehicles at retail and wholesale. Much of Hyduke’s business consists of acquiring vehicles and reselling them to other car dealers.
Maria del Rocio Garcia, dba U.S. Auto Sales (U.S. Auto) was another licensed motor vehicle dealer that frequently bought cars wholesale from Hyduke’s and sold them on the retail market. U.S. Auto would take possession of vehicles with the understanding Hyduke’s would transfer titles as they became available and the vehicles were paid for.
County Financial Services (CFS) and Lobel Financial Corporation (Lobel) are automobile finance companies that frequently bought retail installment motor vehicle contracts from U.S. Auto. In some instances, CFS and Lobel would offer U.S. Auto a “float, ” whereby they would pay U.S. Auto for a contract before U.S. Auto was able to transfer legal title to the vehicle to the finance companies.
Hyduke’s transferred possession of 19 vehicles to U.S. Auto, which sold them to consumers on conditional sales contracts. U.S. Auto in turn sold the contracts to CFS (6 vehicles involved in this action) and Lobel (13 vehicles involved in this action), but went out of business before it paid Hyduke’s for the titles to the cars.
Hyduke’s filed this action against, among others, U.S. Auto, CFS, Lobel, U.S. Auto’s bond company, and the DMV. As to CFS and Lobel, Hyduke’s alleged causes of action for declaratory relief, unfair business practices, breach of contract, fraud, money had and received, and conversion. The matter proceeded to a bench trial on the causes of action between Hyduke’s, CFS, and Lobel only.
Thomas O’Neill, president of Hyduke’s testified its normal course of business was to acquire vehicles from fleet and lease companies. He explained that generally Hyduke’s obtained possession of a particular vehicle before title was transferred to it for a variety of factors, including the seller currently not having title. Hyduke’s would not pay for a vehicle until the title paperwork with the proper releases was sent to it, in accordance with the common practice of the industry.
Hyduke’s would sell and transfer possession of vehicles to other dealers such as U.S. Auto. Hyduke’s did not always demand immediate payment but would retain title until the dealer paid for the vehicle. O’Neill testified this practice was normal in the industry. Occasionally, Hyduke’s would not yet have title to a particular vehicle when transferring possession to U.S. Auto or another dealer; in those instances, after receipt of title Hyduke’s would let the dealer know the title was available for transfer and payment.
O’Neill testified Hyduke’s was owed $92,550 for 13 vehicles it sold to U.S. Auto for which the conditional sales contracts were sold and assigned by U.S. Auto to Lobel. O’Neill also testified Hyduke’s was owed $48,700 for six vehicles it sold to U.S. Auto for which conditional sales contracts were sold and assigned by U.S. Auto to CFS. The CFS vehicles included $12,500 for a 2001 Chevrolet Tahoe for which Hyduke’s itself had not yet paid for title. O’Neill testified he had made an arrangement with the Tahoe’s seller, West Coast Motors, to hold title until the present lawsuit was resolved.
O’Neill testified U.S. Auto began to experience financial difficulties and to fall behind in payments about April 2007. During this period, until U.S. Auto stopped paying altogether, Hyduke’s and U.S. Auto would apply payments to particular vehicles—from older or more recent transactions—according to mutual agreement. O’Neill stated it was not possible he applied monies paid by U.S. Auto to other debts.
Lobel employee Kathy Nelson testified Lobel bought 903 conditional sales contracts from U.S. Auto between November 2003 and October 2007. Although Lobel had a policy of obtaining a motor vehicle’s title immediately upon purchasing an installment contract, in some cases Lobel would “float” the dealer by immediately paying for the contract and giving the dealer time to transfer the title. Lobel would run a credit check on a dealer before providing a float, but it generally did nothing more to verify the dealer had title to the vehicle in question. Nelson testified she believed a dealer for which a float was provided signed an agreement to transfer title to CFS. Lobel did not receive title to the 13 vehicles involved in this action for which it had bought the conditional sales contracts from U.S. Auto.
Mitch Leyton, chief executive officer of CFS, testified CFS bought approximately 270 conditional sales contracts from U.S. Auto from 2004 through 2007. Before buying contracts from a dealer, CFS would check the dealer’s credit and most of the time would ask the dealer to provide proof it had title to the vehicle in question.
Leyton testified CFS would often “float” dealers by paying for a vehicle in advance of the dealer actually acquiring title. CFS monitored outstanding “floats, ” and if a dealer had too many, before funding new contracts, CFS might require the dealer to provide proof it held title to the vehicle involved in the new contract or had acquired title on some of the other outstanding floats. He considered a faxed copy of the certificate of title in the dealer’s possession demonstrated the dealer had “most likely paid for that title.” CFS did nothing further to check the status of title prior to purchasing conditional sales contracts. But Leyton conceded a faxed copy of a certificate of title might only indicate the dealer had a copy of certificate of title, not that the dealer had the original certificate of title (or that the dealer held legal title).
Leyton testified CFS did not require U.S. Auto to provide original title certificates to get funding. On direct examination, Leyton testified he had received faxed copies from U.S. Auto of title certificates for four of the six vehicles CFS financed that are subject of this litigation. On cross-examination, he testified CFS only required U.S. Auto to fax a copy of one vehicle’s title certificate before it purchased the conditional sales contract concerning that vehicle. The certificate was not endorsed by anyone, but Leyton testified he did not know what that meant. O’Neill admitted Hyduke’s had likely faxed U.S. Auto a copy of the title certificate it had, but he did not know what U.S. Auto did with it.
Following a bench trial, the trial court issued a statement of decision and judgment finding Hyduke’s held legal title to the cars because none of the parties involved complied with section 5600 governing the proper method to convey title to a motor vehicle. “The primary issue before the [trial court was] which of these three trusting parties should be held responsible under the law for the damages suffered by the parties.” The trial court found Quartz, supra, 151 Cal.App.4th 901, and Morris Plan Co. of California v. Moody (1968) 266 Cal.App.2d 28, controlling.
The court found Lobel and CFS were in the best position to verify U.S. Auto held title before purchasing installment contracts. “Unlike tort law, which is designed primarily to fairly apportion loss, the UCC was designed to facilitate commerce primarily by guiding and making predictable the consequences of behavior and its loss apportionment function is secondary to this primary function.” The court further concluded Lobel and CFS should bear the loss because they were U.S. Auto’s assignees by virtue of the installment contracts purchased from U.S. Auto and stood in its shoes when they sold the cars to consumers.
The trial court awarded Hyduke’s $75,140 plus interest for a total of $86,896.00 against Lobel. It ordered Hyduke’s to transfer to Lobel title to the seven vehicles to which title had not been transferred. The trial court awarded Hyduke’s $48,700 plus interest for a total of $56,317.00 against CFS. The trial court ordered Hyduke’s to transfer to CFS title to the six vehicles to which title had not been transferred, including the 2001 Chevy Tahoe to which Hyduke’s did not yet have title.
DISCUSSION
1. Appellate Burden/Standard of Review
Neither CFS nor Lobel attack the reasoning of Quartz, supra, 151 Cal.App.4th 901, or the trial court’s conclusion, with regard to ownership of legal title to the vehicles. In other words, it is fairly conceded Hyduke’s is the legal owner of title to the vehicles at issue. Rather, the finance companies seemingly attack the “remedy” side of the analysis. CFS offers a variety of arguments attempting to distinguish the facts of the present case from those in Quartz, asserting it behaved in a commercially reasonable manner and thus it should not be required to pay for the certificates of title. Both CFS and Lobel attack certain elements of the damage award. And Lobel contends the trial court applied the wrong measure for payment.
Although an appellant’s duty on appeal is well established, we feel compelled to set forth a few basics. A judgment is presumed to be correct, and the burden of demonstrating error rests squarely on the appellant. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631 632, and cases cited therein.) When the trial court has issued a statement of decision, but the parties failed to file objections thereto, “the appellate court will infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues. [Citations.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 60.)
We review the trial court’s findings of fact according to the substantial evidence rule. (Brasher’s Cascade Auto Auction v. Valley Auto Sales and Leasing (2004) 119 Cal.App.4th 1038, 1048 (Brasher’s).) “[W]e independently review the trial court’s rulings on questions of law [citation], such as issues of statutory construction and the application of that construction to a set of undisputed facts. [Citation.]” (Ibid.)
When an appellant raises an issue “but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784 785 (Badie), see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim) [appellate court not required to consider points not supported by citation to authorities or record].) An appellant may not simply make the assertion the ruling is erroneous and leave it to the appellate court to figure out why.
2. Commercial Reasonableness
In Quartz, having determined the wholesale dealer held legal title to the vehicles, this court concluded the policies of the California Uniform Commercial Code were best served by requiring the finance company to pay the wholesale dealer for the titles so title could be transferred to the consumer. (Quartz, supra, 151 Cal.App.4th at p. 910.) The finance company was found to have not acted in a commercially reasonable manner because it failed to verify the used car dealer’s title before buying the conditional sale contracts, when it could easily have done so. The finance company was “in the better position to prevent the loss caused by [used car dealer] while minimizing the disruption of the efficient flow of used vehicles from dealers to consumers.” (Id. at pp. 910-911.)
CFS attempts to distinguish itself from the finance company in Quartz by arguing it acted in a commercially reasonable manner by attempting to confirm that U.S. Auto in fact had legal title to the cars. We find no reversible error in the trial court’s ruling.
CFS maintains trial court determinations of commercial reasonableness are subject to independent review. However, inquiry regarding commercial reasonableness is “intensively factual” and only reviewable under the substantial evidence rule. (Ford & Vlahos v. ITT Commercial Finance Corp. (1994) 8 Cal.4th 1220, 1235.) Although the trial court did not make an express finding that CFS (and Lobel) acted in a commercially unreasonable manner, we imply such a finding into the statement of decision and review the finding only for substantial evidence.
CFS asserts it is uncontroverted that it asked U.S. Auto for and received faxed copies of the certificates of title from U.S. Auto and that fact distinguishes it from the finance company in Quartz, which did not take steps to verify the used car dealer’s title before purchasing the conditional sales contracts. CFS also argues Hyduke’s “hands are not clean” because it faxed copies of those certificates of title to U.S. Auto and knew or should have known U.S. Auto would forward those faxed copies to the finance companies.
Substantial evidence supports the trial court’s conclusion. Although CFS’s president testified he received copies of certificates of title from U.S. Auto via fax, he also testified he only requested one faxed copy of a certificate of title. Hyduke’s president conceded Hyduke’s had probably faxed a copy of the certificate of title that it had to U.S. Auto but had no knowledge as to what U.S. Auto did with that certificate. Although copies of various title certificates were admitted into evidence at trial, the parties have not provided us with any exhibits on appeal. Regardless, CFS’s president testified the copy of the title certificate it received was not endorsed, and there was nothing on it indicating title had been released to U.S. Auto. The trial court could reasonably conclude that CFS did not take appropriate steps to confirm U.S. Auto held title to the vehicles before buying the conditional sales contracts. Like the finance company in Quartz, CFS was in the best position to determine who held title and to prevent any loss. (Quartz, supra, 151 Cal.App.4th at p. 910.) It could easily have traced title by reviewing the title documents faxed to them and calling the last listed titleholder. By doing so CFS could have followed the chain and determined Hyduke’s held title, not U.S. Auto. Applying the reasoning of Quartz, CFS’s failure to verify adequately that U.S. Auto had legal title before purchasing installment contracts was not commercially reasonable.
“Where exhibits are missing we will not presume they would undermine the judgment.” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291; see also Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 925, fn. 1.)
In passing CFS asserts it could not have followed the chain of title and discovered Hyduke’s was holder of legal title because Hyduke’s failed to comply with the requirements of sections 5600 and 5901. The argument is unsupported by any analysis or citation to authority, and we treat the point as waived. (Badie, supra, 67 Cal.App.4th at pp. 784 785.)
3. Accounting/Mitigation of Losses
CFS contends Hyduke’s failed to properly account for payments it had received from U.S. Auto. We find no error.
CFS cites familiar legal principles concerning mitigation of damages. They include that one may not take advantage of his own wrong (Civ. Code, § 3517), and a plaintiff may not recover damages that could have reasonably been avoided. (See e.g., Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [plaintiff may not recover damages avoidable through ordinary care and reasonable exertion]; Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41 [duty to take reasonable steps to mitigate damages]; Los Angeles Nat. Bank v. Bank of Canton (1991) 229 Cal.App.3d 1267, 1278 [UCC places responsibility on party in best position to prevent loss].)
CFS asserts U.S. Auto made some payments to Hyduke’s for vehicles. But rather than apply those payments to the car represented by the conditional sales contract the sale of which resulted in the specific funds U.S. Auto paid to Hyduke’s, Hyduke’s applied U.S. Auto’s payments randomly. CFS argues Hyduke’s accounting methods were not commercially reasonable. Had Hyduke’s specifically tracked the source of the funds U.S. Auto paid, it might have been possible to show Hyduke’s had in fact been paid for title to some or all of the specific vehicles that are the subject of this action.
Again, CFS has not shown any reversible error. There is nothing in this record mandating a finding Hyduke’s accounting was unreasonable or that it somehow improperly managed payments from U.S. Auto. The evidence at trial demonstrated that when Hyduke’s obtained the title certificate for a specific vehicle, it would advise U.S. Auto title was available for transfer and payment. There is no evidence Hyduke’s would have any knowledge of whether U.S. Auto still had possession of the vehicle or had sold it to a retail customer. When U.S. Auto made payments, Hyduke’s would apply them to the vehicles as agreed to by U.S. Auto—typically the older debts. There is no evidence Hyduke’s had any knowledge as to or duty to inquire as to the source of the funds being paid to it.
4. Standing: The 2001 Chevy Tahoe
CFS contends Hyduke’s lacked standing to seek recovery as to one of the vehicles—the 2001 Chevy Tahoe—because it had not obtained the title certificate to that vehicle. CFS concedes the standing argument was not raised below, but correctly asserts the argument is not waived because it is a question of law. (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605 [“[l]ack of standing is not waived by the failure to raise it in the trial court; it may be raised at any point in the proceedings”].) Nonetheless, we reject CFS’s argument.
Code of Civil Procedure section 367 provides that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” The real party in interest is the person possessing the right sued upon by reason of the substantive law, and is one “‘having an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action.’ [Citation].” (County of Alameda v. State Bd. of Control (1993) 14 Cal.App.4th 1096, 1103.)
Among the vehicles Hyduke’s contracted to sell U.S. Auto, which U.S. Auto had taken into its possession, and for which payment had not been received, was a 2001 Chevrolet Tahoe with an agreed purchase price of $12,500. Hyduke’s president testified Hyduke’s had not yet received the certificate of title to that vehicle. He had contracted to buy the vehicle from West Coast Motors, which had agreed “to hold that title until [this litigation is] resolved. Then I will pay them.” In its judgment, the court ordered CFS to pay Hyduke’s for the title certificates, and ordered Hyduke’s to transfer title to CFS, for the six vehicles in question “including the 2001 Chevy Tahoe.” We cannot say the trial court erred by concluding that although Hyduke’s had not acquired legal title to the 2001 Chevrolet Tahoe, it had standing to enforce its interest in the vehicle. The evidence was that Hyduke’s was contractually obligated to pay West Coast Motors for title to that vehicle and West Coast had agreed to defer its right to payment until this litigation was resolved.
5. Application of Bond Payment
CFS and Lobel in passing contend the trial court erred by not crediting them with bond proceeds received by Hyduke’s. Hyduke’s president testified Hyduke’s was one of several claimants in a mediation involving U.S. Auto’s bond carrier. Hyduke’s claim encompassed many vehicles, including the vehicles involved in this action. All the claimants shared pro rata in the bond proceeds; Hyduke’s received $19,877 in bond proceeds.
CFS and Lobel both contend Hyduke’s bond recovery must be credited towards this judgment. Each proposes a different method of allocating the bond proceeds. Neither offers any legal analysis of their contention on appeal. And for that reason, we decline to consider it further. (Badie, supra, 67 Cal.App.4th at pp. 784 785.)
6. The Six Repossessed Cars
Lobel contends the trial court erred by ordering it to pay for title to six of the 13 vehicles it had financed. We reject its contention.
Hyduke’s president testified there were 13 vehicles it had contracted to sell to U.S. Auto for a total of $92,550 for which it was not paid. U.S. Auto took possession of those vehicles, sold them to consumers, and sold and assigned the conditional sales contracts to Lobel. Apparently, even though it did not have legal title, Lobel repossessed six of the vehicles from the consumers. Hyduke’s president testified he and Lobel agreed Hyduke’s would take the six vehicles back and Lobel would get a credit of $17,410 against the balance Lobel owed on those cars. Although Lobel’s counsel objected to the characterization of the settlement stating “there has been no definitive resolution of what happened other than [Hyduke’s] received the six cars back[, ]” Lobel offered no evidence to contradict Hyduke’s president’s testimony about the terms of the parties’ agreement. There is no evidence in the record on appeal as to which six cars were repossessed and returned to Hyduke’s. As to Lobel, the court’s judgment awarded Hyduke’s $75,140, representing the $92,550 it claimed was owed for all 13 cars, less the agreed upon $17,410 credit.
Lobel contends the six cars returned to Hyduke’s possession should have been excluded from the award entirely. It argues all claims Hyduke’s had with regard to those six vehicles were “extinguished when [Hyduke’s] elected to foreclose on its security interest” in the six cars. It further argues that once those six cars were repossessed, none of the policy reasons articulated in Quartz apply—there were no longer any consumers to protect.
Lobel’s provides no citation to legal authority or legal analysis in support of any of its contentions concerning the effect of returning the vehicles to Hyduke’s. For that reason, the contention is waived. (Badie, supra, 67 Cal.App.4th at pp. 784 785.) Furthermore, as noted in Quartz, the aggrieved automobile wholesaler did not hold a security interest in the vehicle—it was legal owner of title to the vehicle. “[S]ection 6300 provides the exclusive method for perfecting a security interest in a vehicle not constituting inventory: ‘[N]o security interest in any vehicle registered under this code, irrespective of whether the registration was effected prior or subsequent to the creation of the security interest, is perfected until the secured party or his or her successor or assignee has deposited... with the [DMV]... a properly endorsed certificate of ownership to the vehicle subject to the security interest showing the secured party as legal owner....’” (Quartz, supra, 151 Cal.App.4th at p. 908.) The trial court found no party had complied with the requirements of the Vehicle Code, thus no security interest was created in the vehicles.
Furthermore, Lobel’s contention that once the cars were taken from the consumers, the policy articulated in Quartz (i.e., protecting the consumer) no longer applied does not support reversal. Quartz observed the finance company’s liability arose from its status as assignee of the conditional sales contracts. “‘An assignee of the seller’s right is subject to all equities and defenses of the buyer against the seller....’ [Citation.]” (Quartz, supra, 151 Cal.App.4th at p. 911.) As assignee, Lobel assumed U.S. Auto’s obligation to purchase title from Hyduke’s once it became available. The fact Lobel was able to mitigate that obligation by eventually returning some of the cars to Hyduke’s for an agreed upon credit does not absolve Lobel of its obligations.
7. Measure of Damages
Lobel criticizes the measure of damages the trial court used in calculating Hyduke’s damages. Hyduke’s presented evidence the agreed upon purchase price of the 13 cars it sold to U.S. Auto, later financed by Lobel, was $92,550. After deducting the agreed upon $17,410 credit, the court awarded Hyduke’s $75,140 (plus interest) against Lobel.
Lobel complains the trial court should not have awarded damages that gave Hyduke’s the benefit of its bargain with U.S. Auto because that was in effect a contract measure of damages, when there was no contract between Lobel and Hyduke’s. Rather, Lobel argues the court should have applied a tort (or some unspecified statutory) measure of damages and should only have awarded Hyduke’s the amount that would compensate it for its losses, which Lobel contends would be Hyduke’s out-of-pocket loss. Lobel asserts Hyduke’s president testified Hyduke’s paid a total of $41,025 for the seven vehicles that were not repossessed, which should have been the limit of the award. Lobel provides us with no record citations to support its claim as to how much Hyduke’s paid for the vehicles.
Attached to Lobel’s opening brief is an “appendix” purporting to identify the six vehicles returned to Hyduke’s, the seven vehicles that remained in consumer’s possession, and the price Hyduke’s paid for each of those seven vehicles. We decline to consider that appendix. It is not part of the record on appeal and attaching it to the opening brief is a violation of California Rules of Court, rule 8.204(d). (See Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 546, fn. 1.)
The measure of damages for “breach of an obligation arising from contract... is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” (Civ. Code, § 3300.) The measure of damages for “breach of an obligation not arising from contract... is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code, § 3333.) Generally, the purpose of tort damages is to make the plaintiff whole; the purpose of contract damages is to give the plaintiff the benefit of the contract. (Overgaard v. Johnson (1977) 68 Cal.App.3d 821, 823 (Overgaard).) “[T]he measure of damages in Civil Code section 3333 and Civil Code section 3300 is not the same (although in a given factual situation the result may be the same).” (Overgaard, supra, 68 Cal.App.3d at p. 824.)
Hyduke’s complaint contained both contract and tort causes of action. Lobel cites to no authority for its proposition that only the tort measure of damages was appropriate in this case. Lobel cites to A. A. Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal.App.3d 144, 160, which observed, “‘Where there is more than one method of ascertaining damages, that method which is most definite and certain should be adopted. No one method is exclusive, where several exist, but that one should be chosen which best achieves the fundamental purpose of compensation to the injured person for his loss; and if the facts show that either of two measures of damages will fully compensate plaintiff for his loss, that measure must be adopted which is less expensive to defendant. [Citations.]’” But that case does not compel the result Lobel seeks—indeed it acknowledges the damage award in tort (as well as contract) is that which will fully compensate the plaintiff for its loss.
“There is no fixed rule for the measure of tort damages under Civil Code section 3333. The measure that most appropriately compensates the injured party for the loss sustained should be adopted. [Citation.]’ [Citation.] ‘A plaintiff in a tort action is not, in being awarded damages, to be placed in a better position than he would have been had the wrong not been done.’ [Citation.]” (Metz v. Soares (2006) 142 Cal.App.4th 1250, 1255.) A trial judge has discretion and flexibility under Civil Code section 3333 to fashion an award that will appropriately compensate the plaintiff for the detriment caused by the defendant’s tortious conduct, whether that compensation amounts to a benefit-of-the-bargain award or some other measure of damages. (Overgaard, supra, 68 Cal.App.3d at p. 828.)
We cannot say the court abused its discretion by applying what turned out to be a benefit-of-the-bargain measurement of damages—whether those damages sound in contract or tort. The gravamen of Hyduke’s action was to get paid the agreed upon purchase price for legal title to the vehicles. The trial court had the flexibility and discretion to conclude the price for each vehicle agreed upon by U.S. Auto fairly represented the value of that title. It was not required to limit its award to what Hyduke’s originally paid for the cars.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: FYBEL, J., IKOLA, J.