Judge: Nathan R. Scott, Case: Family Investment Co. v. Mach-1 Autogroup, Date: 2022-08-19 Tentative Ruling

Motion for New Trial

Plaintiffs Marc Spizzirri and Candace Spizzirri’s motion for new trial is denied.  (See Code Civ. Proc., § 657 [authorizing motion]; Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1159-1160 [court must “weigh the evidence and consider the entire record”]; People v. Anderson (2007) 152 Cal.App.4th 919, 940.)

The court exercises its discretion to consider plaintiffs’ exhibits, despite being filed more than 10 days after the notice of intent.  (See Code Civ. Proc., § 659a [10 days to file supporting documents]; Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342 [this deadline is not jurisdictional].)

Nonetheless, plaintiffs have not shown grounds for new trial.  Whether the Jan. 16 Restatement (Ex. 25) required amendments to be in writing, is a separate question from whether the closing date was waived by Marc Spizzirri; Mach-1 presented evidence at trial supporting the latter.   (See 1/26/21 and 11/29/21 trial transcripts.)  Further, Spizzirri eventually cancelled the sale to Mach-1 in May 2009.  (Ex. 262.)

Moreover, many of the asserted items of damage are either (1) liabilities which plaintiffs concede were never assigned to Mach-1 (see Mot. at p. 3:3; see also 11/2/21 and 11/10/21 trial transcript), (2) items that plaintiffs failed to prove were required under the Interim Management Agreement (Ex. 23), or (3) are unrecoverable consequential damages (see Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243).  Nor have plaintiffs shown Mach-1 caused the dealership to fall out of trust; the opposition shows otherwise.  (See 10/28/21 trial transcript.)

Finally, plaintiffs have not shown the court abused its discretion in denying their motion to reopen. 

“[W]here a party has rested, and after a nonsuit has been granted on a subsequent day seeks to reopen his case, in the absence of a showing of reasonable grounds for the delay in offering the witness we are satisfied that the trial court commits no abuse of discretion in refusing to permit the reopening of the case to allow such testimony to be introduced out of order.”  (Onick v. Long (1957) 154 Cal.App.2d 381, 388.)

Motion to Stay

Plaintiffs/cross-defendants Marc Spizzirri and Candace Spizzirri’s motion to stay enforcement of judgment is denied.  (See Code Civ. Proc., § 918.5 [discretionary stay where “the judgment debtor has another action pending on a disputed claim against the judgment creditor”].)

Regardless of “[t]he likelihood of the judgment debtor prevailing in the other action” (Code Civ. Proc., § 918.5, subd. (b)(1)), plaintiffs have not shown that “[t]he amount of the judgment of the judgment creditor as compared to the amount of the probable recovery of the judgment debtor in the action on the disputed claim” (id., subd. (b)(2)) justifies staying the judgment. 

Plaintiffs acknowledge the Chrysler property’s value is disputed.  They fail to show the Mach-1 parties had the duty or ability to cure any defaults so as to avoid foreclosure on either the Chrysler or Theater property.  (Mot. at pp. 7:10-20, 12:10-12.)

In contrast, Mach-1 RSMH offers evidence showing both properties were “upside down” prior to their obtaining control of Auto Orange II, LLC.  (Mach-1 RFJN Ex. 6.)  It has also presented evidence it attempted to cure the defaults in order to stave off foreclosure, but were unable to do so as to the Chrysler property due to the second deed of trust placed by Marc Spizzirri, and due to insufficient time between regaining the Theater property and its foreclosure.  (Mach-1 RFJN Exs. B and C.)

Mach-1 RSMH’s request for judicial notice is granted.  (Evid. Code, § 452, subd. (d).)

Mach-1 RSMH’s evidentiary objections are sustained (#1-3, foundation; #4, Evid. Code § 1152; #5, foundation/hearsay).

Plaintiffs shall give notice of both rulings.