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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

MACH-1 AUTOGROUP, et al.,

 Defendants and Respondents.

 G049378

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

 O P I N I O N

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.
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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 
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the court determines the operative agreement calls for repayment, the amount and 

responsible parties are new issues that must be determined by the trial court based on its 

interpretation of the operative agreement before rendering its judgment.

B. Postjudgment Collection Proceedings

Following the judgment, Mach-1 discovered Spizzirri was a member of a 

limited liability company (LLC), Auto Orange II, and it was in the process of selling 

property. While the assets of a LLC are not subject to execution on a judgment, a 

member’s interest in the LLC may be reached by a charging order. On January 30, 2013, 

Mach-1 filed a motion for a charging order. It also filed an ex parte application for an

order to stop the release of escrow funds from the LLC’s pending sale of assets to be 

released before the hearing. The court granted the ex parte application and issued a 

charging order. 

The charging order created a lien on Spizzirri’s interest in the LLC which 

Mach-1 could seek foreclosure at any time. (8 Witkin, Cal. Procedure (5th ed. 2008) 

Enforcement of Judgment, § 296, p. 322.) The court set a foreclosure sale for May 17, 

2013. At the hearing, Spizzirri claimed he owned only 99 percent of Auto Orange II, and 

his wife, Candice Spizzirri owned the remaining 1 percent. The court accepted Mach-1’s

bid of $1,000 for Spizzirri’s economic interest in Auto Orange II. There were no other 

bidders.

Mach-1 next sought and succeeded on September 6, 2103, in obtaining a 

charging order against Candice Spizzirri’s 1 percent interest in Auto Orange II. The 

court set a foreclosure hearing for October 4, 2013. Spizzirri filed a petition for Chapter 

11 bankruptcy. The court decided the issue of foreclosure should be addressed in the 

bankruptcy court. 

The court set a bankruptcy status conference for November 1, 2013. A few 

days before the hearing, Mach-1 filed a report stating it should be granted management 

rights over Auto Orange II because Candice Spizzirri’s interest was community property 
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that was already transferred to Mach-1 when it purchased her husband’s interest at the 

foreclosure sale. The court agreed, holding, “The [c]ourt finds it appropriate that the 

management and control of [Auto Orange II] be given to Mach-1 effective immediately.”

All the above postjudgment orders are reversed. Our ruling in the FIC 

opinion, reversing the judgment, nullifies the postjudgment orders because they all 

concern Mach-1’s efforts to enforce the judgment. “An unqualified reversal remands the 

cause for a new trial [citation], and places the parties in the trial court in the same 

position as if the cause had never been tried, with the exception that the opinion of the 

court on appeal must be followed so far as applicable. [Citation.]” (Central Sav. Bank of 

Oakland v. Lake (1927) 201 Cal. 438, 443.) 

III

The postjudgment orders are reversed. Appellants shall recover their costs 

on appeal. 

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.