Filed 10/7/13 Bermudo v. Tahmassebi CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ISMAEL BERMUDO, JR.,

Plaintiff and Respondent,

v.

FARHAD TAHMASSEBI et al.,

Defendants and Appellants.

 B240892

 (Los Angeles County

 Super. Ct. No. YC059960)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

William G. Willett, Judge. Affirmed.

John Schlanger, for Defendants and Appellants Farhad Tahmassebi and Euro 

American Auto Co., Inc.

Law Offices of Philip Landsman and Philip Landsman, for Plaintiff and 

Respondent Ismael Bermudo.

____________________________________
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Ismael Bermudo filed suit against Farhad Tahmassebi and Euro American Auto 

Co., Inc. (Euro; collectively defendants) for damages arising out of Bermudo‟s purchase 

of an automobile. In brief, although defendants were obligated to pay off the balance of a 

loan used to finance Bermudo‟s trade-in vehicle, they did not pay off the loan. As a 

result, Bermudo was subject to collections efforts by the bank holding the loan, his credit 

score declined, and he was forced to file suit against the bank and defendants. Following 

a bench trial, the court entered judgment in Bermudo‟s favor and awarded him $31,760 in 

damages. On appeal, defendants argue insufficient evidence supported the court‟s 

liability findings on claims for fraud and unlawful business practices, and the damages 

award was not supported by substantial evidence. We affirm the trial court judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2008, Bermudo decided to purchase a used Mercedes Benz SL500 

(SL500) from Euro. He arranged with Euro to trade in his old vehicle, a Mercedes Benz 

430CLK (430CLK). Bermudo had financed the purchase of 430CLK and still owed 

Capital One Bank $31,760 on the loan (Capital One loan). To facilitate the purchase of 

the SL500, Euro drew up a contract providing Bermudo would finance over $64,000. 

Euro told Bermudo that of the over $64,000 “purchase price,” $31,760 was to pay off the 

loan on the 430CLK. Bermudo agreed, understanding that he would no longer be 

responsible for the loan on the 430CLK. He gave Euro the keys to the 430CLK, and took 

the keys for the SL500. Tahmassebi was then President of Euro. He was involved in 

arranging the financing for Bermudo‟s transaction. 

Despite the arranged financing, and Euro‟s agreement to pay off the outstanding 

loan balance on the 430CLK, Euro did not pay off the Capital One loan. Euro paid 

approximately $8,000 on the loan balance. In June 2008, Capital One sent Bermudo a 

letter indicating he owed money on the 430CLK loan. Bermudo called Capital One to 

inform the bank he had traded in the car. Bermudo also called Euro and spoke to 

Tahmassebi. Tahmassebi said he would take care of the problem. In August 2008, Euro 

sent Capital One a check for the remaining loan balance, but the check was rejected due 

to insufficient funds. At some point, despite the outstanding loan balance, Capital One 
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sent Euro the title for the 430CLK. In or around September 2008, Euro resold the car to a 

third party. 

Meanwhile, in September 2008, Bermudo began receiving monthly account 

summaries from Capital One demanding that he make payments. The Capital One 

collections department began handling the matter. Bermudo repeatedly attempted to 

clear up the situation. By February 2009, Bermudo was receiving regular written 

correspondence and telephone calls from Capital One, demanding payment. Bermudo 

tried calling Tahmassebi, but was unable to reach him. Tahmassebi did not respond to 

Bermudo‟s calls. Bermudo sent letters to Euro, but received no response. In January 

2009, Capital One turned the file over to NCO Financial Systems, Inc., a collections 

agency. The delinquent account was reported to the credit reporting agencies. 

Bermudo‟s credit score dropped over 100 points. 

Finally, Bermudo hired counsel and filed suit against Capital One and defendants. 

He reached a resolution with Capital One in or around November 2009. As part of the 

settlement, Capital One paid him $3,000 and deleted the “negative remarks” from his 

credit history. Bermudo paid the $3,000 to his attorneys. As of February 2011, 

Bermudo‟s credit score had returned to its pre-incident level. 

By early January 2012, Bermudo had paid over $23,029 in legal fees, and still 

owed an additional $3,852. He was unable to pay counsel to represent him at the one-day 

bench trial. At trial, defendants did not deny they failed to pay off the loan for the 

430CLK, as they had agreed. Tahmassebi testified Euro did not complete the payoff 

because of “financial difficulty,” but claimed it intended to make the payment when it 

entered into the contract with Bermudo. Defendants‟ counsel argued there was no 

evidence of fraud, and Bermudo had not established he sustained any recoverable 

damages or proved their amount. 
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Neither party requested a statement of decision. In a brief written ruling, the trial 

court found Euro liable for damages on all causes of action pled in the complaint.1 The 

court found Tahmassebi liable for fraud and unlawful business practices under Business 

and Professions Code section 17200. The court explained that under “Vehicle Code 

section 11711, [subdivision] (a) . . . a person shall have a right of action against a dealer, 

his salesman, and the surety upon the dealer‟s bond for any fraud practiced on him or 

fraudulent representation made to him by a licensed dealer or one of such dealer‟s 

salesmen acting for the dealer, for failure to pay for a vehicle. Damages shall not exceed 

the value of the vehicle sold to the dealer.” The court concluded Tahmassebi acted as a 

“salesman.” 

The court found defendants‟ actions caused a decrease in Bermudo‟s credit score, 

and caused him emotional distress and inconvenience. The court further found Bermudo 

proved damages of $31,760, and was entitled to attorney fees and costs. Defendants 

timely appealed from the judgment.

DISCUSSION

I. Substantial Evidence Supported the Findings of Fraud and Violation of 

Business and Professions Code section 17200

On appeal, defendants contend that while the evidence may have demonstrated 

Euro breached the contract with Bermudo, there was no evidence of fraud. This 

contention is meritless. “We review a challenge to the trial court‟s factual findings under 

the substantial evidence test. [Citations.] We presume the record contains evidence 

sufficient to support the judgment, consider the evidence in the light most favorable to 

the judgment, and resolve all conflicts in favor of the judgment. [Citation.]” (County of 

San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 540, fn. omitted.)

1 Bermudo‟s first amended complaint asserted claims under the Automobile Sales 

Finance Act, the Consumer Legal Remedies Act, and Business and Professions Code 

section 17200, as well as claims for breach of contract, fraud, negligent 

misrepresentation, and negligence. 
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Here, the evidence established defendants agreed Euro would pay off the balance 

of the loan outstanding on the 430CLK as part of the transaction in which Bermudo 

purchased the SL500. The evidence was undisputed that despite this agreement, 

defendants did not immediately pay off the Capital One loan after the contract was 

entered, and they received the financed amount of over $64,000. The court could 

reasonably infer from this evidence that defendants never intended to pay off the Capital 

One loan, as agreed. The court was free to find not credible Tahmassebi‟s testimony to 

the contrary. It was also undisputed that defendants sent Capital One a bad check. There 

was no evidence offered suggesting this was due to mistake or ignorance. There was also 

evidence that defendants resold the 430CLK, but still did not pay off the Capital One 

loan. There was uncontradicted evidence that Tahmassebi deliberately avoided 

Bermudo‟s communications about the Capital One loan. Bermudo eventually had no 

choice but to sue Capital One and defendants, thus incurring significant legal fees. 

Indeed, the evidence was overwhelming that defendants misrepresented that they would 

pay off the Capital One loan after receiving the funds Bermudo borrowed as part of the 

SL500 transaction; they knew they had no intention of doing so; they intended to induce 

Bermudo to rely on that misrepresentation to enter the contract for the SL500; Bermudo 

justifiably relied on the misrepresentation; and he was damaged thereby. (Lazar v. 

Superior Court (1996) 12 Cal.4th 631, 638.) 

Similarly, there was substantial evidence of defendants‟ liability for unlawful, 

unfair, or fraudulent business practices or acts under Business and Professions Code 

section 17200. The evidence identified above was sufficient to establish defendants‟ 

actions were a “business act or practice.” (Klein v. Earth Elements, Inc. (1997) 59 

Cal.App.4th 965, 968.) Moreover, as the trial court concluded, Vehicle Code section 

11711, subdivision (a) creates a private right of action for any person suffering loss or 

damage by reason of any fraud or fraudulent representation made by a licensed dealer or 

dealer‟s salesman, when there is a contract furnished by the dealer and containing terms 

the dealer has violated. Liability under Business and Professions Code section 17200 

could be premised on this Vehicle Code provision. (Farmer Ins. Exchange v. Superior 
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Court (1992) 2 Cal.4th 377, 383; People v. James (1981) 122 Cal.App.3d 25, 35.) 

On appeal, defendants argue the only evidence of an unlawful business practice offered at 

trial concerned the value of the SL500, and there was no evidence that the stated price of 

$59,000 was inaccurate. This argument fails. Irrespective of the value of the SL500, the 

evidence established that, pursuant to the parties‟ agreement, defendants were required to 

pay off the Capital One loan on the 430CLK, the over $64,000 would have more than 

covered the outstanding loan balance, defendants did not use the money to pay off the 

loan, leaving Bermudo responsible for an obligation defendants had contracted to 

assume. We reject the contention that this was not an unlawful, unfair, or fraudulent 

business act.

II. Substantial Evidence Supported the Damages Award 

The trial court awarded Bermudo $31,760, exclusive of attorney fees and costs. 

Defendants contend the damages award was not supported by substantial evidence. 

We disagree.

Bermudo‟s operative complaint sought “general, special, and actual damages”; 

“incidental and consequential damages”; restitution of monies expended; rescission of the 

purchase contract; injunctive relief; “punitive and statutory damages”; and reasonable 

attorney fees and costs. At trial, Bermudo confirmed he was seeking damages for mental 

suffering and damage to his reputation. In its ruling, the court noted defendants‟ actions 

caused a decrease in Bermudo‟s credit scores “as well as emotional distress and 

inconvenience to Plaintiff.” The court concluded Bermudo proved damages in the sum of 

$31,760. 

On appeal, defendants argue no substantial evidence supported the amount of the 

damage award. However, we conclude there was sufficient evidence to support an award 

of damages for emotional distress.

“In order to recover damages for emotional distress, the injury suffered must be 

severe, i.e., substantial or enduring as distinguished from trivial or transitory. [Citation.] 

Such injury may include „ “all highly unpleasant mental reactions, such as fright, horror, 

grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and 
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nausea.” [Citation.]‟ [Citation.]” (Young v. Bank of America (1983) 141 Cal.App.3d 

108, 114 (Young).) The factfinder—in this case, the trial court—is allowed significant 

discretion in awarding emotional distress damages. We must uphold an award of 

damages whenever possible. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 

1071, 1078.) “ „The evidence is insufficient to support a damage award only when no 

reasonable interpretation of the record supports the figure.‟ [Citation.]” (Rony v. Costa 

(2012) 210 Cal.App.4th 746, 754 (Rony).) Even where there is little direct evidence of 

emotional distress, the circumstances of the defendant‟s unlawful actions may support 

inferences as to the nature and extent of the emotional distress. 

Thus, as Bermudo points out on appeal, in Green v. Rancho Santa Margarita 

Mortgage Co. (1994) 28 Cal.App.4th 686, the husband plaintiff in a housing 

discrimination case testified he was angered by the discriminatory acts, he may have 

taken a Tylenol, and his wife drank “ „Maalox by the bottle.‟ ” (Id. at p. 699.) The 

appellate court determined this testimony, when considered in the context of the case, 

was sufficient for the jury to find emotional distress. The plaintiffs, a married couple, 

were attempting to move to a safer neighborhood and had spent years working and saving 

to find a secure place to live. The court thus concluded: “There was no legal requirement 

that the jury limit its consideration of emotional distress to just [plaintiff‟s] immediate 

reaction and a few bottles of Maalox. The jury could have considered the importance of 

the home purchase for the [plaintiffs] in the context of the long hours and years of hard 

work that had gone into being able to make the leap from Compton to Coto de Caza. 

Given such evidence, the jury would have been amply justified to base the entirety of its 

award on emotional distress alone.” (Id. at p. 700.)

Here, the record established Bermudo expended significant time and energy 

attempting to remedy the effects of defendants‟ fraudulent conduct. He detailed his 

numerous attempts to contact defendants, and their refusal to respond. He also described 

the constant demands for payment from Capital One and its collection agency, and the 

significant decline in his credit rating, which he was apparently monitoring. The ordeal 

lasted months, leading Bermudo to eventually retain counsel. A settlement with Capital 
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One was not reached until well over a year after Bermudo received the first letter from 

Capital One indicating he still owed the bank money. The trial court could justifiably 

interpret Bermudo‟s conduct in response to defendants‟ actions as an indication of his 

humiliation, frustration, worry, and eventual desperation. The court could reasonably 

find Bermudo suffered significant emotional distress, as would any reasonable person 

under such circumstances. (See Young, supra, 141 Cal.App.3d at p. 115; Rony, supra,

210 Cal.App.4th at p. 756.) And, as in Green, given the evidence, the trial court could 

properly base the entire damages award on emotional distress. Thus, we need not 

consider defendants‟ remaining arguments regarding the damages award. 

DISPOSITION

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

BIGELOW, P. J. 

We concur:

RUBIN, J. 

GRIMES, J.