Judge: Elaine W. Mandel, Case: SC127317, Date: 2023-05-16 Tentative Ruling
Case Number: SC127317 Hearing Date: May 16, 2023 Dept: P
Tentative Ruling
Ferri v. Devgan
Enterprises et al., Case No. SC127317
Hearing Date May
16, 2023
Scope of Phase II
of Trial
Trial was
bifurcated, with liability preceding damages. At phase one, the court found in
favor of Devgan on the cross-complaint against Ferri for conversion of personal
property from the restaurant location, including ceiling fixtures, lights and
kitchen equipment. The court found Ferri’s cause of action for breach of
contract failed because the underlying contract was illegal.
On March 17, 2023
the court ordered the parties to briefs the scope of phase II of trial. Ferri seeks
to submit evidence of his capital investment and claim restitution because the underlying
lease contract was found to be illegal.
While restitution
can be awarded as an alternative to breach of contract damages when the
underlying contract is illegal, Ferri did not allege a restitution theory until
now. Ferri’s operative pleadings, the first amended complaint, filed 8/26/2019,
included causes of action for breach of contract, negligent misrepresentation
and fraud. It did not include an alternatively pleaded claim for restitution,
quasi-contract or any common count that would allow him to recover his
investment in the event the contract was deemed illegal.
Had the pleading
included claims for quasi-contract, restitution, or quantum meruit, these
theories could have been argued at trial in the alternative to Ferri’s breach
of contract claim. They were not included in the FAC, nor were they argued
during trial. It would be unjust and prejudicial, at this late stage, to allow
Ferri to introduce a new, unpleaded theory of equitable liability after
discovery has closed and most of the issues have been litigated. At phase I one
of the trial, Ferri argued all legal theories alleged his pleading. Restitution
or unjust enrichment is a new legal theory, not included in Ferri’s pleading,
so cannot be introduced for the first time at phase II of trial.
It would be unjust
and prejudicial, at this late stage, to allow Ferri to introduce a new,
unpleaded theory of liability after discovery closed and phase I of the trial
was held. At phase I, Ferri was permitted to argue all legal claims at issue by
his pleading. He cannot now introduce a new cause of action after his pleaded
claims have failed.
Phase II will be
limited to evidence regarding Devgan’s damages as a result of Ferri’s conversion
of personal property.