Judge: Lynette Gridiron Winston, Case: 23PSCV00554, Date: 2025-06-12 Tentative Ruling
Case Number: 23PSCV00554 Hearing Date: June 12, 2025 Dept: 6
CASE NAME: Davenport Citrus Partners, LLC v. JMH Covina Holdings, Inc., et al.
2. Plaintiff’s Motion for New Trial
TENTATIVE RULING
The Court GRANTS Plaintiff’s motion for partial judgment notwithstanding the verdict as to the amount of damages as to Defendant Hollander and orders Judgment in favor of Plaintiff and against Hollander in the amount of $44,497.80 as to the Suite 160 contract and $119,633.81 as to the Suite 508 contract. Plaintiff is ordered to submit a proposed Judgment within 5 calendar days.
In the alternative, in the event the judgment were to be reversed on appeal, the Court GRANTS Plaintiff’s motion for new trial as to the amount of damages as to Defendant Hollander, unless Defendant John Hollander consents to an increased verdict in the amount of $44,497.80 as to the Suite 160 contract and $119,633.81 as to the Suite 508 contract. Defendant Hollander shall file and serve an acceptance or rejection of this conditional order within 20 days from the date this conditional order is served by the clerk of the court. If Defendant Hollander accepts the conditional order, Plaintiff shall concurrently serve and submit to the Court a proposed amended judgment reflecting the modified verdict amount, as well as any other uncontested judgment awards. Defendant Hollander’s failure to timely respond to this conditional order will constitute a rejection of the reduction of damages and a new trial will be granted automatically. To be clear, this order granting the motion for new trial will become effective only if the order on the partial judgment notwithstanding the verdict is reversed on appeal and the order on the motion for new trial is either not appealed from or is affirmed on appeal as set forth in Code of Civil Procedure section 629, subdivision (d).
Plaintiff is ordered to give notice of the Court’s rulings within five calendar days of this order.
BACKGROUND
This is a commercial lease dispute. On February 24, 2023, plaintiff Davenport Citrus Partners, LLC (Plaintiff) filed this action against defendants JMH Covina Holdings, Inc. (JMH), John Hollander (Hollander) (collectively, Defendants), and Does 1 through 50, alleging causes of action for two counts of breach of written commercial contract/lease agreement against JMH Covina Holdings, Inc., and two counts of breach of written commercial/contract lease agreement against John Hollander.
On March 28, 2025, following a four-day jury trial, the jury returned a verdict.
PROCEDURAL BACKGROUND – Motion for Partial Judgment Notwithstanding the Verdict
On April 29, 2025, Plaintiff moved for partial judgment notwithstanding the verdict. On May 27, 2025, Defendants opposed. On June 5, 2025, Plaintiff replied.
LEGAL STANDARD – Motion for Partial Judgment Notwithstanding the Verdict
(a) The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.
(b) A motion for judgment notwithstanding the verdict shall be made within the period specified by Section 659 for the filing and service of a notice of intention to move for a new trial. The moving, opposing, and reply briefs and any accompanying documents shall be filed and served within the periods specified by Section 659a, and the hearing on the motion shall be set in the same manner as the hearing on a motion for new trial under Section 660. The making of a motion for judgment notwithstanding the verdict shall not extend the time within which a party may file and serve notice of intention to move for a new trial. The court shall not rule upon the motion for judgment notwithstanding the verdict until the expiration of the time within which a motion for a new trial must be served and filed, and if a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time. The power of the court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial. If a motion for judgment notwithstanding the verdict is not determined before that date, the effect shall be a denial of that motion without further order of the court.
…
(d) If a new trial is granted to the party moving for judgment notwithstanding the verdict, and the motion for judgment notwithstanding the verdict is denied, the order denying the motion for judgment notwithstanding the verdict shall nevertheless be reviewable on appeal from that order by the aggrieved party. If the court grants the motion for judgment notwithstanding the verdict or of its own motion directs the entry of judgment notwithstanding the verdict and likewise grants the motion for a new trial, the order granting the new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the order granting a new trial is not appealed from or, if appealed from, is affirmed.
(Code Civ. Proc., § 629, subds. (a)-(b), (d).)
A judgment notwithstanding the verdict “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) The trial judge cannot weigh the evidence or determine the credibility of witnesses on a motion for judgment notwithstanding the verdict. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) Trial courts may grant judgments notwithstanding the verdict as to less than all issues. (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 323-324.)
PRELIMINARY ISSUES – Motion for Partial Judgment Notwithstanding the Verdict
The timing requirements for a motion for partial judgment notwithstanding the verdict are the same as those for a motion for new trial, neither of which has the same timing requirements as a regular noticed motion. (See Code Civ. Proc., § 629, subd. (b); compare id., § 1005, subd. (b).) “Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties shall have 10 days after that service within which to serve upon the moving party and file any opposing briefs and accompanying documents, including counter-affidavits. The moving party shall have five days after that service to file any reply brief and accompanying documents. These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.” (Id., § 659a.) “Trial courts have no sua sponte duty to monitor compliance with the deadlines for submitting affidavits [for a motion for new trial]; noncompliance, without objection by any party, does not deprive the court of jurisdiction to consider the affidavits.” (Kabran v. Sharp Mem'l Hosp. (2017) 2 Cal.5th 330, 346.)
The Court notes that Defendants filed their opposition to Plaintiff’s motion for partial judgment notwithstanding the verdict almost 30 days after Plaintiff served its moving papers and accompanying documents. Defendants’ opposition is therefore untimely. (Code Civ. Proc., §§ 629, subd. (b), 659a.) But, the Court also notes that Plaintiff did not object to Defendants’ opposition as untimely. (Kabran v. Sharp Mem'l Hosp., supra, 2 Cal.5th at pp. 346-347.) The Court will therefore still consider Defendants’ opposition, but admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward. (See ibid.)
DISCUSSION – Motion for Partial Judgment Notwithstanding the Verdict
Summary of Arguments
Plaintiff moves for partial judgment notwithstanding the verdict as to the amount of damages to be awarded against Defendant Hollander. Plaintiff contends the evidence established and the jury expressly found that Hollander breached his written contracts with Plaintiff, that Plaintiff suffered harm because of those breaches, and yet the jury awarded no dollars for the harm Plaintiff suffered, despite finding exact dollar amounts for Defendant JMH’s breaches of contract. Plaintiff references the jury verdict forms in which the jury answered all questions the same except for the dollar amount of damages to be awarded against Defendant Hollander and in favor of Plaintiff. Plaintiff contends the jury found that, with respect to the contracts for Suite 160, both Defendants entered into written contracts with Plaintiff, i.e., the lease and personal guaranty, the contracts were not modified, Defendants failed to do something the contract required by failing to pay rent, and that Defendants’ breaches harmed Plaintiff. But, the jury inexplicably found damages against Defendant JMH in the amount of $44,497.80 while finding no damages as to Defendant Hollander who personally guaranteed the payment obligations of JMH.
Plaintiff contends both verdict forms indicated the jury found Defendants’ breaches harmed Plaintiff, so it is impossible to harm someone and not have that person suffer damages of some sort, especially since the jury found damages against Defendant JMH as to Suite 160 in the amount of $44,497.80. Plaintiff surmises that the jury felt sorry for Defendant Hollander, but contends that sympathy is not permissible and does not absolve Hollander of his responsibilities under the personal guaranty. Plaintiff contends the exact same dollar judgment rendered against JMH must also be rendered against Hollander. Plaintiff notes that there was a concern about the jury being confused regarding joint and several liability and a double verdict against the tenant and the guarantor and that the Court informed the jury against such a thing, but the jury apparently disregarded it and let sympathy drive its decision.
With respect to Suite 508, Plaintiff contends the verdict forms contained six identical questions as to both Defendants and that the jury answered the first five questions the same, but differed as to damages, awarding $119,633.81 in damages against JMH but no damages against Hollander. Plaintiff contends the verdict forms clearly show that the jury found Hollander failed to perform and that failure to perform harmed Plaintiff, but inexplicably failed to award damages against Hollander. Plaintiff contends the judgment must be amended to also award damages of $119,633.81 against Hollander who personally guaranteed the payment obligations of JMH.
In opposition, Defendants contend the problems with the conflicting damage amounts awarded arise from Plaintiff’s resistance to the defense’s claims of oral modification until the last minute, which led to a last minute flurry of preparing special verdict forms with oral modification language. Defendants contend the resulting language was overly specific, but the Court instructed the jury that it did not have to include calculations for damages awarded and that if the jury determined there was a modification it had to determine the terms of the modification which it could consider in awarding damages. Defendants contend the specific modification in the special verdict form left unanswered whether some other oral modification had been made and left the jury free to determine what it’s the terms of the contracts were, so the jury found there was an oral modification that resulted in damages to JMH and no damages to Hollander.
Analysis
The Court agrees with Plaintiff. There is no reasonable explanation from the evidence why the jury awarded damages against JMH but not Hollander. The evidence was uncontroverted that Hollander personally guaranteed the financial obligations of JMH for both lease agreements. The jury found JMH breached both of its lease agreements with Plaintiff, regardless of whether they were modified, and that JMH’s breaches harmed Plaintiff. (Fleming Decl., Ex. 1.) The jury also found that Hollander breached both of his personal guaranties for JMH’s lease agreements, regardless of whether the guaranties were modified, and that Hollander’s breaches harmed Plaintiff. (Fleming Decl., Ex. 1.) Hollander’s liability was necessarily predicated on JMH’s liability. (Fleming Decl., Exs. 2-3; Civ. Code, § 2807 [surety liable for principal’s failure to perform].) Therefore, Hollander should have been found liable for the same damage amounts awarded against JMH. (See Civ. Code, §§ 2808-2809.)
The Court finds Defendants’ arguments regarding the special verdict forms and oral modifications unavailing because the jury did not find both contracts had been orally modified, and yet the jury awarded damages the same way on both sets of contracts. More specifically, the jury only found the lease and guaranty for Suite 508 had been orally modified. (Fleming Decl., Ex. 1.) The jury did not find that the Suite 160 contracts had been modified, and yet the jury arrived at the same result in awarding damages only against JMH and not Hollander. (Fleming Decl., Ex. 1.) There was no evidence presented at trial to suggest that Hollander’s liability was different from JMH or that Plaintiff suffered different damages as a result of Hollander’s breach as compared to JMH’s breach. The evidence was the same as to Hollander and JMH. When Defendants' evidence is given all the value to which it is legally entitled and every legitimate inference in favor of Defendants from such evidence is considered, there is no substantial evidence to support the jury's finding of zero damages awarded against Hollander, who was the personal guarantor, when it awarded monetary damages against JMH. Thus, the Court finds substantial evidence does not support the verdict awarding no damages against Defendant Hollander. (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68.)
Based on the foregoing, the Court GRANTS Plaintiff’s motion for partial judgment notwithstanding the verdict as to the amount of damages as to Defendant Hollander and orders Judgment in favor of Plaintiff and against Hollander in the amount of $44,497.80 as to the Suite 160 contract and $119,633.81 as to the Suite 508 contract.
LEGAL STANDARD – Motion for New Trial
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:
…
5. Excessive or inadequate damages.
6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
…
When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.
A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.
The order passing upon and determining the motion must be made and entered as provided in Section 660 and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons.
(Code Civ. Proc., § 657.)
PROCEDURAL BACKGROUND – Motion for New Trial
On April 29, 2025, Plaintiff gave notice of intent to move for new trial and also submitted the memorandum of points and authorities and declaration in support of its motion for new trial. On June 5, 2025, Defendants opposed. On June 6, 2025, Plaintiff replied.
PRELIMINARY ISSUES – Motion for New Trial
As noted above, motions for new trial have unique timing requirements. (Code Civ. Proc., § 659a.) Defendants filed their opposition to Plaintiff’s motion for new trial on June 5, 2025, and it is therefore untimely. (Id.) Plaintiff’s reply notes Defendants’ opposition is filed late, but does not appear to otherwise object to it being filed late. (Kabran v. Sharp Mem'l Hosp. (2017) 2 Cal.5th 330, 346-347.) The Court will therefore still consider Defendants’ opposition, but admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward. (See ibid.)
DISCUSSION – Motion for New Trial
Summary of Arguments
The Court notes that the parties’ arguments are virtually identical to those made in support of and in opposition to Plaintiff’s motion for partial judgment notwithstanding the verdict. Thus, the Court will not repeat them here.
Analysis
For the same reasons set forth above in Plaintiff’s motion for partial judgment notwithstanding the verdict, the Court finds the jury awarded inadequate damages against Defendant Hollander. The jury found JMH breached both of its lease agreements with Plaintiff, regardless of whether they were modified, and that JMH’s breaches harmed Plaintiff. (Fleming Decl., Ex. 1.) The jury also found that Hollander breached both of his personal guaranties for JMH’s lease agreements, regardless of whether the guaranties were modified, and that Hollander’s breaches harmed Plaintiff. (Fleming Decl., Ex. 1.) Hollander’s liability was necessarily predicated on JMH’s liability. (Fleming Decl., Exs. 2-3; Civ. Code, § 2807 [surety liable for principal’s failure to perform].) Therefore, Hollander should have been found liable for the same damage amounts awarded against JMH. (See Civ. Code, §§ 2808-2809.) After weighing the evidence, the Court is convinced from the entire record and all reasonable inferences therefrom that the jury clearly should have reached a different verdict with respect to the amount of damages awarded against Defendant Hollander. (See Code Civ. Proc., § 657.) The Court therefore GRANTS the motion for new trial on the issue of damages as to Defendant Hollander in the event the judgment were to be reversed on appeal.
“In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion: (1) If the ground for granting a new trial is inadequate damages, issue a conditional order granting the new trial unless the party against whom the verdict has been rendered consents to the addition of damages in an amount the court in its independent judgment determines from the evidence to be fair and reasonable.” (Code Civ. Proc., § 662.5, subd. (a)(1).)
As noted above, the only error here was the jury’s decision to award no damages against Defendant Hollander while also awarding damages against Defendant JMH, even though Hollander was liable under the personal guaranties for JMH’s failure to perform under the lease agreements. This was an error in law that resulted in inadequate damages to Plaintiff. Accordingly, the Court finds that remittitur is the proper remedy to cure the error and avoid the necessity of a new trial. (See Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 316.)
Given that the Court is granting the motion for new trial with respect to the amount of damages awarded against Defendant Hollander, the Court issues a conditional order granting the new trial unless Defendant Hollander consents to an increased verdict in the amount of $44,497.80 as to the Suite 160 contract and $119,633.81 as to Suite 508 contract. The Court reached this calculation by matching the amounts for which the jury found Defendant JMH liable for the Sute 160 contract and Suite 508 contract, respectively. (Fleming Decl., Ex. 1.) The Court finds this to be a fair and reasonable amount based on the evidence.
CONCLUSION
The Court GRANTS Plaintiff’s motion for partial judgment notwithstanding the verdict as to the amount of damages as to Defendant John Hollander in the amount of $44,497.80 as to the Suite 160 contract and $119,633.81 as to the Suite 508 contract. Plaintiff is ordered to submit a proposed Judgment within 5 calendar days.
In the event the judgment were to be reversed on appeal, the Court GRANTS Plaintiff’s motion for new trial as to the amount of damages awarded against Defendant Hollander, unless Defendant John Hollander consents to an increased verdict in the amount of $44,497.80 as to the Suite 160 contract and $119,633.81 as to the Suite 508 contract. Defendant Hollander shall file and serve an acceptance or rejection of this conditional order within 20 days from the date this conditional order is served by the clerk of the court. If Defendant Hollander accepts the conditional order, Plaintiff shall concurrently serve and submit to the Court a proposed amended judgment reflecting the modified verdict amount, as well as any other uncontested judgment awards. Defendant Hollander’s failure to timely respond to this conditional order will constitute a rejection of the reduction of damages and a new trial will be granted automatically. To be clear, this order granting the motion for new trial will become effective only if the order on the partial judgment notwithstanding the verdict is reversed on appeal and the order on the motion for new trial is either not appealed from or is affirmed on appeal as set forth in Code of Civil Procedure section 629, subdivision (d).
Plaintiff is ordered to give notice of the Court’s rulings within five calendar days of this order.