Filed 3/27/17 Tsirtsis v. Zampolli 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


STEVE TSIRTSIS,

Plaintiff and Respondent,

v.

CLAUDIO ZAMPOLLI,

Defendant and Appellant.


G052688

(Super. Ct. No. 30-2014-00724456)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Affirmed.
Law Offices of Christopher K. Jafari, Christopher K. Jafari and Kiarash Jafari for Defendant and Appellant.
Conti Law and Alexander L. Conti for Plaintiff and Respondent.

I. INTRODUCTION
This case is confirmation of our fathers’ repeated adjurations to “get the oil changed.” In this opinion we affirm a judgment for about $28,000 obtained by the plaintiff who, in 2004, purchased a used 1995 Lamborghini Diablo, against a mechanical engineer who attempted to restore the Diablo to correct working order after the car’s engine caught fire thanks to a history of less-than-sufficiently-frequent oil changes. The judgment consists of $8,000 for a prepaid 15,000-mile service the mechanical engineer never performed, plus about $20,000 for the car’s engine which the mechanical engineer had taken apart and never put back together. In seeking reversal of the judgment, the mechanical engineer points to a series of four alleged irregularities in the court trial of the case, but we find none persuasive and affirm the judgment.
II. FACTS
In 2004, plaintiff Steve Tsirtsis bought a used, 1995 12-cylinder Lamborghini Diablo. In 2010, he went on vacation to Greece, and left instructions with his son to open the garage door and turn the ignition on just for a few minutes every day. On one of those days the car caught fire, damaging the engine and engine compartment. The car was taken to a Newport Beach dealership. One and one-half years, and $90,000 later, Tsirtsis got the Diablo back, but it still did not run correctly. Another visit to the dealership did not make the car run to Tsirtsis’ satisfaction.
At that point Tsirtsis was referred to defendant Claudio Zampolli, a mechanical engineer who was knowledgeable in exotic cars, having had experience at the Lamborghini factory. Zampolli came to Tsirtsis’ house. He started the car, and saw flames coming out of the left bank of six cylinders combined with considerable residue coming out of the exhaust. Zampolli then drove the vehicle to a car service center in Anaheim, where he agreed to do certain repair work for $7,200.
Tsirtsis paid Zampolli for the work, but Zampolli soon phoned him to say the car need a 15,000-mile service, which would cost $8,000. Tsirtsis prepaid for the work, but the service was never completed. Rather, Zampolli phoned Tsirtsis to say the car had “big problems” and asked to see Tsirtsis at the shop. When Tsirtsis arrived, he found the entire engine had been taken apart with various parts disassembled and scattered. Zampolli said the car had never been properly serviced by the dealership and Tsirtsis had a “great case” against it.
On Zampolli’s advice, Tsirtsis filed a suit against the dealership and his insurer. He hired Zampolli to be an expert on the case. At Zampolli’s deposition, however, Tsirtsis learned, to his surprise, that his Lamborghini should have had its oil changed every 5,000 miles or six months, even if it was just sitting in the garage. Worse, not only had Tsirtsis missed an oil change in the period May 2007 to March 2008, but it appeared the prior owner had never changed the oil at all. The “o rings” over the cylinders were now “just powdery.”
Zampolli’s testimony at the deposition left Tsirtsis “shocked.” The dealership obviously had the automotive equivalent of a “preexisting condition” defense. That led Tsirtsis to testify he would never have sued the dealership if he had known about the poor care the car had received prior to the fire. The case against the dealer and insurer settled, apparently for about $60,000.
But there was still the problem of the car itself. While Tsirtsis was able to retrieve the chassis of the car, the engine and various of its parts were in Zampolli’s garage. Zampolli demanded $20,000 to have the parts released, plus he wanted to be paid for his work on the suit against the dealership. Tsirtsis refused to pay the amount and brought this suit. Tsirtsis eventually obtained a replacement engine from Montreal for about $15,397 plus another $5,776 for certain engine headers, leaving him $21,173 out of pocket.
Tsirtsis sued Zampolli for the $21,173 cost of the replacement engine, plus $8,000 for the 15,000-mile service that was never completed. Zampolli originally had an attorney represent him, but (as Zampolli told the court) he didn’t want to pay the $10,000 fee required for the trial, so in the end he represented himself. The trial court allowed Zampolli, now in propria persona, to tell his side of the story in an extended narrative. Zampolli’s testimony was somewhat desultory and hard to follow, but we divine from it that he believed he was instrumental in helping Tsirtsis obtain the $60,000 from the dealer and insurer, and therefore wanted an offset for it.
The trial court found for Tsirtsis, awarding $8,000 for the prepaid but unperformed 15,000-mile service, and another $20,397 for the engine. A judgment was filed on July 23, 2015. In August, Zampolli, now again represented by counsel, timely filed a new trial motion, which was heard in September. The court denied the motion (saying it “border[ed] on [the] frivolous”) and Zampolli timely filed this appeal in early October.
III. DISCUSSION
Zampolli raises four arguments on appeal. We take them seriatim:
1. Insufficient Time for Trial
Zampolli argues his due process rights were violated when the trial court tried to finish the trial in a half day. He points to his erstwhile attorney’s case management statement filed in August 2014, anticipating a 5- to 7-day trial and the ensuing case management minute order filed in September 2014, anticipating a 3- to 5-day trial. On appeal, Zampolli now claims the trial court rushed him to complete his case on the afternoon of June 23, 2015, forcing him to forego a cross-examination of Tsirtsis that would otherwise have established that Zampolli was entitled to at least some offset for Tsirtsis’s recovery against the dealer and the insurer.
This argument has been waived by failure to object at trial. We note that the reporter’s transcript begins with the afternoon session of June 23, 2015, and on the very first page it is clear that the court was operating on the assumption trial would only take a half day. Why did the anticipated trial time shrink from its more lengthy estimates of August and September 2014, to the half-day of June 2015? On that question the record consists only of Tsirtsis’s attorney’s declaration in opposition to Zampolli’s motion for a new trial. Tsirtsis’s attorney explained that the case was first called in the morning session of June 22, 2015, and during that session that attorney gave the court a three-hour time estimate. Zampolli agreed to that time estimate. The declaration notes that Zampolli did not offer a longer estimate or otherwise voice any thought that more than three hours were needed to try the case.
Moreover, not only do we not have a reporter’s transcript of what happened when the case was initially called on June 22, but a careful reading of Zampolli’s own declaration in support of his motion for new trial contains no statement to the effect that Zampolli told the court on June 22 that he needed more than half a day’s trial time or made any objection to the half-day time estimate established that day at all. Zampolli’s failure to speak up at the time the court called the case for trial and established a half-day’s projected trial time thus waived the issue. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [party who fails to raise issue in the trial court waives the right to do so on appeal].)
2. The Post-Trial Amendment of the Complaint
According to Zampolli, at the end of the trial the court allowed Tsirtsis to amend his complaint to add a cause of action for breach of contract, thus precluding Zampolli from being able to properly prepare a defense against that cause of action. Again the issue was waived, and in any event Zampolli shows no prejudice.
As to waiver, Zampolli again did not speak up when he had the chance. Specifically, after Zampolli finished testifying about an apparently missing intake valve container, the judge noted that in Tsirtsis’s trial brief, he asked for “damages on a breach of contract.” Tsirtsis’s counsel then said he asked for damages for a “claim and delivery,” but “to the extent that the evidence now conforms to proof,” he said he also had “a contract claim” and would thus ask “the court to allow the complaint to amend to conform to proof.” Zampolli was silent during the exchange; he offered no objection.
In any event, there was no prejudice to Zampolli because Tsirtsis’s second cause of action for trover specifically requested compensatory damages according to proof at the time of trial. Trover is an action that seeks to recover damages for the value of chattel property unlawfully in the possession of the defendant. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 122-123.) Given that Tsirtsis had already procured a new engine because of Zampolli’s disassembly of the original engine, it was obvious to all parties even without a formal cause of action for breach of contract that if the court sided with Tsirtsis, he was going to be awarded money damages for the value of the parts retained by Zampolli. Given the nature of the evidence found true by the trial court, a cause of action for breach of contract was indistinguishable from the one already pled for trover.
3. Cross-Examination Concerning the Settlement of the Case Against the Dealer
Zampolli asked this question of Tsirtsis on cross-examination: “When did you, you got this settlement because of my expertise because I testified of what the dealer then the work did wrong, was that a right statement?” Tsirtsis’s attorney objected, saying “That’s not a proper cross examination question. Mr. Zampolli is proceeding on his direct.” The objection was sustained. On appeal Zampolli now asserts that sustaining the objection was erroneous, because, in fact, the question was within the scope of what Tsirtsis had already testified about in his own case-in-chief.
On that precise point Zampolli may be correct. With the aid of time and a written copy of the question to examine carefully, we agree it may have been proper to ask a question about the settlement with the dealership, or Zampolli’s role in helping to facilitate it, on cross-examination of Tsirtsis.
But the court’s ruling was probably prompted by the fact the question Zampolli actually asked was vague. Indeed, it was so vague as to be objectionable on that basis. We spent considerable time trying to make sense of it, and failed. We cannot ascribe reversible error to the court’s rejection of such an impenetrable question. There was nothing here we could call an abuse of discretion.
4. Exhibit 38
Exhibit 38 consisted of a chapter of a book (described in the record as the “Wilhelm book”) which apparently involved a defamation suit by none other than Jay Leno against Zampolli. There is no dispute that Zampolli agreed to the exhibit as part of a general agreement to trial exhibits conducted on Monday morning June 22 – a hearing not included in our record.
Again, we find both waiver and no prejudice on appeal. Zampolli agreed to admitting the exhibit into evidence. He had his chance to object on June 22, and on this record we must conclude he didn’t. And as to prejudice, the record is clear that the trial court gave exhibit 38 virtually no weight. The trial judge was clear the exhibit was “at the bottom” as far as its relevance was concerned.
IV. DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.





BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.