Filed 5/15/17 Grace v. Colome 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


RICHARD H. GRACE,

Plaintiff and Appellant,

v.

DREW COLOME,

Defendant and Respondent.


G052849

(Super. Ct. No. 30-2014-00701512)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed.
Buchalter Nemer, Robert M. Dato, Paul J. Fraidenburgh, James R. Rose and Katharine H. Falace for Plaintiff and Appellant.
Jay-Allen Eisen Law Corporation and Jay-Allen Eisen for Defendant and Respondent.

Plaintiff Richard H. Grace sued defendant Drew Colome for breach of an oral contract arising out of the restoration of a 1967 Volkswagen (VW) bus. After trial, the court ruled in favor of Colome and determined Grace did not prove by a preponderance of the evidence that Colome had agreed at the outset to restore the bus to the very highest standard or that the failure to complete the bus by the time Grace took possession breached the agreement. The court further determined Grace prevented Colome’s performance by taking possession of the bus. Grace argues there was insufficient evidence to support the court’s findings, and that reversal is required because the court failed to rule on his objections to the statement of decision. Finding no error, we affirm the judgment.

FACTS

This case involves the restoration of a classic VW bus. In May or early June 2010, Grace called Colome about a 1967 VW bus Colome posted for sale online. Colome owns an auto dealership specializing in VWs, and had restored between 90 and 120 VW buses. Grace purchased the VW bus and hired Colome to restore it.
Grace is a hobbyist who had restored seven other vehicles in the past, including another VW bus, and had shown cars at the prestigious Pebble Beach Concours d’Elegance (Pebble Beach) and similar shows. For a car to compete at Pebble Beach, the restoration must be done with original parts. This type of restoration requires hundreds of hours more work than needed to restore a vehicle, even those shown at other types of car shows. The VW Classic in Irvine is one of the biggest VW shows in the country. Unlike Pebble Beach, any VW may enter the Irvine show. All owners of vehicles in the show get to vote for the best.
The parties disagree about what level of restoration was initially expected. At first, Grace asked for the bus to be restored to enjoy with his family. He then wavered between wanting an “excellent to outstanding bus” he could show or “the best bus in the world.” At the end of June 2010, Grace e-mailed Colome and asked for the “BEST original and correct bus in the world” and stated he would like to “enter . . . two or three of the BEST shows.” Because the bus was a VW, Colome understood Grace’s desire to enter the bus in the “BEST shows” to mean he wanted it restored to the standards of the best VW show, the VW Classic. Grace mentioned both Pebble Beach and the VW Classic in conversations with Colome. In June 2010, at the time the parties were entering into their agreement, Pebble Beach did not yet allow VWs. Despite Grace’s mention of Pebble Beach, Colome rejected the idea of presenting the bus there because VWs were not allowed.
The parties also disagree about how long the restoration was supposed to take. Grace testified his expectation was the restoration would take 12 to 18 months, but there is no evidence he communicated that timeframe to Colome. Colome understood time was not a primary issue, but rather he was to focus on preparing the bus for a show at the level of the VW Classic.
In May 2011, almost a year into the restoration, the opportunity arose to apply to show the bus at Pebble Beach. Colome testified this change required him to start on “an entirely different build” which raised the quality of the restoration, increased the time necessary to complete it, and raised the cost. Colome and his expert witness testified a reasonable time for a full restoration to Pebble Beach level can take three years or more.
In October 2011, Grace sent Colome an e-mail expressing disappointment with the lack of communication on the project. Grace reiterated that he wanted “THE BEST” and did not want Colome to hurry the job.
Grace believed that by October 2011, the final assembly would take another two months, at most. Colome testified, however, that it was normal for final assembly to take seven and a half months or longer. While the parties did not discuss a specific timeline for the final assembly, Colome assumed Grace understood the process given his prior experience restoring several cars.
In January 2012, Grace e-mailed Colome and stated he wanted to “finish the project not to perfection but rather to the level of excellent.” Grace was frustrated the project was not yet finished. Grace requested Colome finish the project as soon as possible so Grace could take delivery of the bus and dispose of it. Colome wrote to Grace and requested they continue to build the bus to the level of excellent because he had dedicated so much time and so many resources to the project. Grace agreed. Colome noted May 22, 2012, was an important date for Grace, his birthday. Colome’s goal was to have the bus ready by that date, but he testified that date was not a hard deadline and the build was more important than a specific deadline.
In July 2012, the bus was not finished and Grace told Colome he “wanted to terminate the project” and take the bus “regardless of where we were or what condition the bus was in.” The bus was delivered to Grace in a winery parking lot near his home in early August. When Grace drove the bus the short distance from the winery to his home, he found it difficult to steer and the brakes were not functioning properly. Colome testified he was not aware Grace would try to drive the bus. Colome stated if he knew Grace’s intent, he would not have shipped the vehicle because it was not safe to drive. Indeed, Grace himself expressed concern “that the bus would even be safe” before accepting delivery.
Grace paid another mechanic $12,250 to put the bus in working condition. He then sold the bus for approximately $98,000.
Grace filed suit against Colome for breach of an oral contract. Grace alleged Colome breached the parties’ contract by “[f]ailing to restore [Grace’s] 1967 21-Window VW Bus to show condition.” After a bench trial, the court entered judgment in favor of Colome on all issues. Specifically, the court found: Grace failed to establish by a preponderance of the evidence that he contracted with Colome in June 2010 for the restoration of the bus to the standards of Pebble Beach; the contract was modified in May 2011 to reflect a mutual understanding that the restoration would be to Pebble Beach standards; Colome did not breach the agreement because Grace prevented his performance when he retrieved the bus in August 2012; Grace did not reasonably communicate his intention to drive the bus upon retrieval; and Grace failed to establish by a preponderance of the evidence that Colome’s failure to complete the restoration of the bus was a breach of reasonable expectations under the contract because no time for completion was specified in the contract and a reasonable time would have been approximately three years.
Grace filed objections to the proposed statement of decision, but the court did not rule on the objections. On the same day Grace filed his objections, the court signed the statement of decision and entered judgment.


DISCUSSION

The Agreed Level of Restoration
The trial court determined Grace “failed to establish by a preponderance of the evidence that [Grace] contracted with [Colome] in June, 2010, for the restoration of the vehicle to the standards of the Pebble Beach Concours D’Elegance.” Because the trial court found Grace failed to carry his burden of proof, “‘the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.”’” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 733 (Eriksson).) Under this standard, an appellant must show “undisputed facts lead to only one conclusion” compelling judgment for appellant. (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.)
Grace contends “undisputed documentary evidence showed that Grace and Colome agreed on the highest level of restoration possible” in May or June 2010. What the evidence showed, however, were multiple exchanges between Grace and Colome about the level of restoration that were less than clear on what, if anything, was agreed upon. Grace’s testimony that he “discussed” Pebble Beach with Colome in 2010 does not demonstrate Grace intended to show the bus at Pebble Beach at that time. Grace may have desired to show the bus at Pebble Beach as early as 2010, but there was no evidence that this assumption was adequately conveyed to Colome. In fact, Colome testified that the idea of showing the bus at Pebble Beach did not occur to him in 2010 because VWs were not allowed to be shown at that time.
The court determined Grace failed to carry his burden at trial to prove that the parties mutually understood and agreed from the outset of the contract that the bus would be restored to Pebble Beach standards. The evidence does not compel a finding in favor of Grace as a matter of law because he fails to carry his burden to prove that undisputed facts compel judgment in his favor.

Breach of the Agreement
The court ruled there was no breach of the parties’ agreement because Colome was “prevented from performing the agreement when [Grace] retrieved the vehicle on August 3, 2012.” We review the trial court’s findings under the sufficiency of the evidence standard. Under this standard, we start “with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s affirmative burden to demonstrate otherwise.” (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 951.) “It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
Grace argues the undisputed evidence at trial showed Colome’s material delay in performance was the reason for Grace’s retrieval of the bus after two years. Grace cites Colome’s statements that he would strive to complete the job in time for Grace’s birthday in 2012 as uncontroverted evidence that Colome breached the “most important” deadline for the project. Grace ignores ample evidence demonstrating the back and forth nature of the project and the ever changing standards and deadlines. Colome testified Grace’s birthday was not a deadline, but rather a goal. Colome indicated that while Grace’s birthday was an important date, “[t]he build was more important.” This understanding meshes with several communications from Grace indicating he did not want Colome to rush the project along for fear of compromising the restoration. Substantial evidence supports the court’s determination that Colome did not breach the agreement because he was prevented from performing the agreement when Grace retrieved the bus in August 2012.

Reasonable Time for Completion of Restoration
The court determined there was no time for completion specified in the contract and a reasonable time for completion for the project was three years. Grace contends the court erred because it imposed a judicially determined contract term that differed from the parties’ agreement. As discussed above, because the court determined Grace failed to establish by a preponderance of the evidence that Colome’s failure to complete the restoration of the bus was a breach of Grace’s reasonable expectation, we review “‘whether the evidence compels a finding in favor of [Grace] as a matter of law.’” (Eriksson, supra, 233 Cal.App.4th at p. 733.)
Where a contract does not specify a time for completion, “a reasonable time is allowed.” (Civ. Code, § 1657.) Grace testified the restoration “should be done in a reasonable amount of time.” Other evidence demonstrated that the quality of the project was more important than a specific deadline. Grace argues he specified a 12 to 18 month time frame to restore the bus at the time of contracting. While Grace may have desired this timeline, there was no undisputed evidence demonstrating this was the timing the parties agreed upon. Grace contends his birthday in 2012 was another agreed upon deadline for completion. As discussed above, however, the evidence on this issue was disputed and demonstrated while Grace’s birthday may have been a goal for completion, it was not a set deadline. Expert testimony showed that a Pebble Beach level restoration on the bus would require “three years minimum.” Grace did not dispute this testimony. Because evidence on the duration term was disputed, the court did not err by determining the detailed restoration warranted a three-year term.

Objections to Proposed Statement of Decision
Grace claims the court’s failure to rule on his objections to the proposed statement of decision constituted prejudicial error. A party is allowed to file objections to the proposed statement of decision. (Cal. Rules of Court, rule 3.1590(g).) Grace does not direct us to any authority stating a trial court is obligated to issue a ruling on objections to the statement of decision. “In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining party’s favor which would have the effect of countervailing or destroying other findings. [Citation.] A failure to find on an immaterial issue is not error. [Citations.] The trial court need not discuss each question listed in a party’s request; all that is required is an explanation of the factual and legal basis for the court’s decision regarding the principal controverted issues at trial as are listed in the request.” (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)
Here, Colome submitted a proposed statement of decision, Grace filed objections, and the court issued a statement of decision that was virtually identical to the one proposed. Grace contends the court erred by failing to address his objections and specifically complains the statement of decision was issued later on the same day his objections were filed. He claims this demonstrates the court failed to consider his objections. But the court’s failure to expressly rule on Grace’s objections to the proposed statement of decision does not mean the court did not consider them. The timing of the court’s statement of decision so soon after receiving Grace’s objections could also signal the court found the objections inconsequential. In any event, Grace must demonstrate the court committed prejudicial error in failing to expressly rule on his objections. Here, Grace’s objections sought clarification and findings regarding: the modification of the contract in 2011; the parties’ agreement the contract would be performed on or before May 22, 2012 (Grace’s birthday); whether the trial was conducted without an appearance on behalf of Colome Motors; and the omission of any discussion concerning Grace’s cause of action for common counts. These issues merely reargued parts of Grace’s case. The court was not required to list every fact and issue in its decision. The statement of decision adequately addressed the court’s factual and legal basis for its decision regarding the principal controverted issues at trial, and any alleged omission or deficiency was merely harmless error.

DISPOSITION

The judgment is affirmed. Colome shall recover his costs on appeal.



IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.