Spizzirri v. MACH-1 Autogroup CA4/3

Filed 4/3/15 Spizzirri v. MACH-1 Autogroup 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARC SPIZZIRRI,

Plaintiff and Appellant, G049378

v. (Super. Ct. No. 30-2009-00126504)

MACH-1 AUTOGROUP, et al., OPINION

Defendants and Respondents.

Appeal from postjudgment orders of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Reversed and remanded. Law Office of Frank W. Battaile and Frank W. Battaile for Plaintiff and Appellant. Gittler & Bradford and Stephen H. Marcus; Wolff Law Corporation and Joshua M. Wolff, for Defendants and Respondents.

This appeal arises from postjudgment proceedings initiated by a judgment creditor to satisfy a judgment. However, the judgment was separately appealed from and this court reversed the judgment in our concurrently filed opinion Family Investment Company, et al., v. Mach-1 Autogroup, et al., (Apr. 3, 2015, G047783) [nonpub. opn.] (hereafter the FIC opinion). With the judgment vacated, the trial court’s postjudgment orders are nullified and reversed. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 869, p. 928.) I A. The Appeal From the Underlying Judgment As described in more detail in the FIC opinion, the underlying action arises after multiple failed sale attempts of a Honda dealership owned by Family Investment Company, Inc. (FIC). Following a bench trial, the court ruled the prospective buyer MACH-1 Autogroup (Mach-1) breached the final sales agreement. The court determined FIC was not entitled to damages and held FIC’s shareholder, Marc Spizzirri, was obligated to return over $1.5 million in deposits Mach-1 placed into escrow. This ruling was based on the court’s determination the parties’ operative agreement consisted of two separate agreements, one of which contained a provision obligating FIC to return the deposits. The court determined a contrary provision waiving return of the deposits, contained in the second agreement, was not controlling. For reasons discussed at length in the FIC opinion, the court’s ruling cannot be upheld and the matter must be remanded and retried. (FIC opinion, supra, G047783.) Due to the grounds for our reversal of the judgment, we did not address Spizzirri’s argument the court erred in holding he was personally responsible for FIC’s obligation to repay the deposits. We also did not address whether there was evidence to support the court’s calculation that over $1.5 million was owed. If on remand the court determines the operative agreement contains a provision waiving repayment of the deposit, these two issues would be rendered moot. (FIC opinion, supra, G047783.) If