Filed 2/22/24 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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 et al.,

 Plaintiffs, Cross-defendants and 

Appellants,

v.

MACH-1 AUTOGROUP, LLC et al.,

 Defendants, Cross-complainants and 

Respondents.

 G061814

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

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Nathan 

R. Scott, Judge. Affirmed.

Law Office of Frank W. Battaile and Frank W. Battaile for Plaintiffs, 

Cross-defendants and Appellants.

Larson, Paul A. Rigali, Dana M. Howard, Tyler J. Franklin and Kimberly 

E. Wilkinson for Defendants, Cross-complainants and Respondents. 
2

This case comes before us for a second time. In 2008, Marc Spizzirri 

agreed to sell his Honda dealership in Rancho Santa Margarita to Mach-1 Autogroup.1 

Although Mach-1 took over management of the dealership for a time, the parties never 

consummated the transaction, and Spizzirri sued Mach-1 and related entities 

(collectively, Mach-1) for breach of contract and negligence, among other claims. He 

claimed Mach-1 had mismanaged the dealership and breached the purchase agreement by 

failing to close the sale. Mach-1 filed a cross-complaint against Spizzirri.2 It alleged he

was required to return deposits received from Mach-1 and had failed to repay a 

$1 million loan from Mach-1, secured by a promissory note. 

A first bench trial ended with rulings that: (1) Spizzirri was required to 

repay the deposits; (2) Spizzirri had suffered no harm from Mach-1’s failure to complete 

the transaction because he later sold the dealership to another buyer at a higher price;

(3) Mach-1 never assumed management of the dealership; and (4) Mach-1 had agreed to 

cancel Spizzirri’s promissory note. In so ruling, the trial court enforced certain 

provisions from different, contradictory agreements. Spizzirri appealed, and we reversed 

the judgment and remanded for the court to reconsider the parties’ contractual 

obligations. (Family Investment Co. v. Mach-1 Autogroup (Apr. 3, 2015, G047783, 

G048082) [nonpub. opn.].)

Following a retrial on remand, the trial court again ruled that Spizzirri was 

required to repay the deposits and had suffered no harm from Mach-1’s failure to 

complete the transaction. It also concluded that although Mach-1 had assumed temporary 

management of the dealership, Spizzirri had not established any mismanagement during 

1 Spizzirri and another person not relevant here owned the dealership through 

a company they co-owned. We refer only to Spizzirri for simplicity. 

2 Mach-1 also named Spizzirri’s wife as a defendant. Although she is an 

appellant in this case, she raises no separate claims, so we again refer only to Spizzirri for 

simplicity. 
3

that time. As for the $1 million loan, the court concluded Spizzirri was required to repay 

it. 

In this appeal, Spizzirri claims the trial court erred by: (1) denying his 

motion to dismiss the cross-complaint under Code of Civil Procedure section 583.320, 

subdivision (a)(3), which provides a deadline for retrial following a remand from an 

appellate court;

3

(2) including Mach-1’s promissory note claim in the retrial, despite 

Mach-1’s failure to appeal from the prior judgment on the merits; (3) granting Mach-1’s 

motion for judgment following his case-in-chief; and (4) denying his motion to reopen

his case-in-chief.

4

As discussed below, we conclude the trial court did not err by denying the 

motion to dismiss based on Spizzirri’s stipulations and applications for continuances. 

Further, the court properly included Mach-1’s promissory note claim in the retrial based 

on our express reversal of the entire judgment in the prior appeal. The court also did not 

err by granting the motion for judgment because the evidence permitted it to find that 

Mach-1 had not mismanaged the dealership and that Spizzirri had suffered no damages 

due to Mach-1’s failure to close. Finally, the court’s denial of Spizzirri’s motion was not 

an abuse of discretion. Accordingly, we affirm.

FACTS

I. The Parties’ Unsuccessful Transaction

In June 2008, Mach-1 agreed to purchase the Family Honda auto dealership 

from Spizzirri. The agreement set a closing date in August 2008. In October 2008, after 

Mach-1 failed to close by the original deadline, the parties entered into a new purchase 

3 All further statutory references are to the Code of Civil Procedure, unless 

otherwise indicated.

4 Although Spizzirri also purports to challenge the trial court’s denial of his 

motion for a new trial, he includes no argument independent from his other assertions of 

error. We therefore do not separately address the court’s ruling on the motion for a new 

trial. 
4

agreement, with a reduced purchase price, and set a closing date in December 2008. 

Under this agreement, Mach-1 agreed to loan Spizzirri $1 million, memorialized by a 

promissory note. This amount was to be credited to Mach-1 against the purchase price, 

but in the event the transaction did not close, Mach-1 was to retain the promissory note. 

The October 2008 agreement noted that Mach-1 had previously deposited $300,000 into 

escrow and provided that this sum would be applied to the purchase price. The parties 

also agreed that Mach-1 would assume the management of the dealership until closing, 

and Mach-1 did so. Mach-1 again could not close by the deadline. 

On January 15, 2009, the parties executed an “Addendum to Agreement for 

Sale of Automobile Dealership” (the Addendum). By its terms, the Addendum was 

written to modify a new purchase agreement executed that same day, but no party ever 

produced the referenced new agreement. Among other things, the Addendum purported 

to forgive Mach-1’s loan to Spizzirri. It also provided that, barring a contingency not

relevant here, if the transaction did not close, Mach-1 would lose the amounts already 

deposited in escrow. 

The next day, the parties executed a “Restatement to Agreement for Sale of 

Automobile Dealership” (the Restatement), purporting to supersede the October 2008 

agreement and designating a closing date in February 2009. The Restatement reduced the 

purchase price to $3.05 million for the dealership’s goodwill, plus an amount to be 

determined through valuation for various tangible assets. It noted the loan to Spizzirri 

and made no mention of forgiving it. It also provided that if the transaction did not close, 

Mach-1 would receive its deposits, minus certain costs. Following the Restatement, 

Mach-1 made another $250,000 deposit. 

Despite the multiple extensions and revised terms, the parties still did not 

close the transaction, and in April 2009, the sale was terminated and Spizzirri resumed 

management of the dealership. Instead, in November 2009, a third party, RSM Motors, 
5

LP, purchased the dealership for about $3.3 million.5 According to an escrow statement, 

the price included $944,000 for furniture, fixtures, and equipment. 

II. Spizzirri’s Complaint and Mach-1’s Cross-complaint

In July 2009, Spizzirri sued Mach-1, asserting causes of action for breach 

of contract and negligence, among other claims. Spizzirri alleged that Mach-1 had 

breached its contractual obligations by failing to close the purchase of the dealership and 

failing to competently manage it in the interim period. He further alleged that Mach-1’s

mismanagement constituted negligence. Mach-1 filed a cross-complaint against 

Spizzirri, alleging, inter alia, that he had breached his contractual obligation to return its 

deposits and breached the promissory note by failing to repay the loan. 

III. First Trial and Prior Appeal

In early 2012, the matter proceeded to a bench trial at which the principal 

dispute was whether the Addendum or the Restatement was the operative agreement 

between the parties. Following trial, the court (Judge Jamoa A. Moberly) declined to 

choose a single operative agreement and attempted to read both agreements together. 

The court concluded that Mach-1 had breached the Restatement by failing to close the 

transaction but that Spizzirri was not harmed because he later sold the dealership at a 

higher price. It further concluded that Mach-1 had never assumed management of the 

dealership. As for the loan, the court concluded that the Addendum had discharged it and 

thus that Spizzirri owed Mach-1 nothing under the promissory note. Finally, the court 

ruled that Mach-1 was entitled to repayment of its previously paid deposits, plus interest. 

Spizzirri appealed. Mach-1 cross-appealed but challenged only a 

postjudment order addressing attorney fees. In 2015, we reversed the judgment and 

remanded for a new trial. (Family Investment Co. v. Mach-1 Autogroup, supra, (Apr. 3, 

2015, G047783, G048082).) We concluded the trial court had erred by attempting to 

5 Originally, another company, NewSunCo, Ltd., agreed to purchase the 

dealership, but it later assigned its rights to RSM. 
6

read together the Addendum and the Restatement and selecting different provisions to 

enforce from the two contradictory documents. We noted, inter alia, that “an addendum 

cannot predate the agreement it was intended to modify.” Accordingly, we concluded 

that the court’s ruling on the deposits “and the entire judgment” could not be affirmed. 

We later reiterated that “the entire judgment must be reversed and the matter remanded 

for a new trial to sort out the contractual obligations of the two entities.” 

IV. Proceedings on Remand

A. Spizzirri’s Pretrial Motions

On remand, Spizzirri moved for judgment on the pleadings, seeking to 

dismiss all claims that did not deal with Mach-1’s right to repayment of the deposits. 

Noting that Mach-1 had not appealed the prior judgment on the merits, he claimed that 

the deposits were the only matter addressed in the prior appeal and that all other claims 

were outside the trial court’s jurisdiction. The court (Judge Nathan R. Scott) denied the 

motion, ruling that the issue should instead be treated as a trial management matter. It 

later ruled that all issues would be retried, citing our prior opinion’s unqualified reversal 

of the first judgment. 

Following numerous continuances, the retrial was set for January 2021. In 

October 2020, Spizzirri moved to dismiss the action because it had not been brought to 

retrial within the time allowed under section 583.320, subdivision (a)(3). The trial court 

denied the motion. We discuss the circumstances surrounding Spizzirri’s motion to 

dismiss in greater detail below. 

B. Retrial

The retrial proceeded in two phases. In the first phase, the trial court 

determined that the Restatement was the operative agreement between the parties and that 

Mach-1 was entitled to recover its deposit of $550,000. The matter proceeded to the 

second phase of trial on all remaining issues. 
7

As part of Spizzirri’s case-in-chief, he presented evidence that when 

Mach-1 returned management of the dealership to him, the dealership was about 

$1.8 million past due on payments to American Honda Finance Corporation (Honda 

Finance), the financer of its vehicle inventory, which had placed it on a credit hold. It 

was also hundreds of thousands of dollars behind on rent. Spizzirri made payments from 

his personal funds to cover the dealership’s debts. 

Spizzirri also called J. Michael Issa, an expert on the operation of auto 

dealerships. Issa testified about the severe consequences of the dealership’s failure to 

make timely payments to Honda Finance: “Being [$]1.8 million out of trust is just a huge

problem that poses all kinds of legal and financial problems. A dealership on credit hold 

that can’t replace its inventory can’t make any money, and you can’t earn your way out 

of the problem.” He opined that it would be surprising “to see a good general manager 

let a dealership get [to that position] because it tends to be a one-way ticket from which 

it’s hard or impossible to return.” As for the subsequent sale of the dealership to RSM, 

Issa calculated the goodwill value under that sale by subtracting the assigned value of 

furniture, fixtures, and equipment ($944,000) from the purchase price ($3.25 million, 

according to Issa), resulting in a goodwill value of about $2.3 million.6 According to 

Issa, this reflected a loss of $744,000 in the goodwill value of the dealership relative to 

the October 2008 agreement with Mach-1. 

The trial court also received the dealership’s financial statements for 2007 

and 2008. These statements showed substantial declines in monthly profits from 2007 to 

2008, even before Mach-1 began managing the dealership. For instance, the dealership 

made about $81,000 in profit in January 2007 but only about $18,500 in January 2008. 

March profits dropped from about $200,000 in 2007 to about $7,000 in 2008. And after a 

6 As noted above, the escrow statement for the RSM transaction reflected a 

purchase price of about $3.3 million. 
8

profit of over $86,000 in July 2007, the dealership recorded a loss of over $143,000 in 

July 2008. 

C. Mach-1’s Motion for Judgment and the Trial Court’s Tentative Ruling

After Spizzirri rested his case in the second phase of trial, Mach-1 moved 

for judgment under section 631.8 as to all his claims.

7 Mach-1 contended that Spizzirri

had failed to establish either (1) negligence in its management of the dealership or

(2) damages resulting from any breach of contract. 

The next day, the trial court announced its tentative ruling granting the 

motion in its entirety. The court concluded there was no evidence that Mach-1 had 

mismanaged the dealership. It surveyed the evidence of the dealership’s financial 

circumstances and found that the dealership was “struggling” long before Mach-1 took

over. The court noted Spizzirri had not called sales employees to testify about any poor 

practices by Mach-1. It concluded: “[A]ll I know is that at the same time the recession 

hit, a failing store . . . started to fail more. I can’t attribute that to [Mach-1], and 

[Spizzirri] ha[s] not shown that I should.” 

As for the breach of contract claim, the trial court concluded that even if 

Mach-1 had breached its obligation to close the transaction, Spizzirri had not established 

any resulting damages. The court stated that Spizzirri subsequently sold the dealership to 

RSM for more than he had been entitled to under the Restatement. It added: “[Y]ou 

could go deeper than that. You could look at how much is attributed to goodwill, how 

much is attributed to furniture, fixtures, and equipment. But if you’re going to do a deep 

analysis, you need to do a really deep analysis. You need to value each deal. I’m not 

sure the deals have identical terms. [¶] I can tell you that my evidence of the terms of the 

7 As discussed further below, section 631.8, subdivision (a), permits a party 

in a bench trial to move for judgment after the opposing party has completed its 

presentation of evidence. The court must then weigh the evidence and may render a 

judgment in favor of the moving party. (Ibid.)
9

[RSM] deal are somewhat limited. And so if you’re going to . . . try to value the damages 

by looking at more than the purchase price, you’ve got to look at the value of all of the 

terms of both contracts, and that’s [Spizzirri’s] burden. And it probably takes expert 

testimony, and I don’t have that here.” The court further concluded that any other 

damages Spizzirri sought based on the breach of the Restatement would be 

“unrecoverable consequential damages.” 

D. Spizzirri’s Motion to Reopen

After the trial court announced its tentative ruling, Spizzirri moved to 

reopen his case-in-chief to provide additional testimony by Issa and other, previously 

uncalled witnesses. As relevant here, Spizzirri sought to have Issa “walk [the court] 

through” the analysis that led Issa to conclude the purchase price under the RSM 

transaction was substantially lower than the total expected compensation under the 

Restatement. 

The trial court denied the motion to reopen. It concluded the motion was 

untimely because Spizzirri had made it after the court announced its tentative ruling on 

Mach-1’s motion for judgment. The court alternatively concluded that Spizzirri had 

offered no sufficient explanation for failing to present the contemplated testimony before: 

“From what I hear, what [Spizzirri] would like to do is to have the expert walk through 

[the] expert analysis in ways that they could have walked through before but simply 

chose not to.” 

E. The Trial Court’s Ruling on the Motion for Judgment and the Second Judgment

After denying Spizzirri’s motion to reopen, the trial court granted Mach-1’s 

motion for judgment. The court reiterated that Spizzirri had failed to establish damages 
10

from Mach-1’s breach of the Restatement or any mismanagement of the dealership. It 

also criticized Issa’s testimony as containing various contradictions.8 

The trial resumed, and after hearing Mach-1’s case, the trial court 

concluded that Spizzirri had breached the promissory note. It subsequently issued 

judgment awarding Spizzirri nothing on his complaint and awarding Mach-1 about $3.4 

million for its cross-claims regarding the deposits and the promissory note. Spizzirri

timely appealed.

DISCUSSION

Spizzirri claims the trial court erred by: (1) denying his motion to dismiss 

the cross-complaint based on the time limit in section 583.320; (2) including Mach-1’s 

promissory note claim in the retrial, despite Mach-1’s failure to appeal from the prior 

judgment on the merits; (3) granting Mach-1’s motion for judgment; and (4) denying his 

motion to reopen. As explained below, we conclude the trial court did not err in denying 

the motion to dismiss based on Spizzirri’s stipulations and applications for continuance. 

The court correctly included Mach-1’s promissory note claim in the retrial based on our 

reversal of the entire judgment. The court did not err in granting the motion for 

judgment, as the evidence permitted it to find that Mach-1 had not mismanaged the 

dealership and that Spizzirri had suffered no damages due to any breach of the 

Restatement by Mach-1. Finally, the denial of Spizzirri’s motion to reopen was within 

the court’s discretion. 

8 Spizzirri requested a statement of decision for the trial court’s ruling on the 

motion for judgment, but the court did not issue one. According to Spizzirri, at an 

“unrelated hearing,” the court said it recalled that his counsel had said that no statement 

of decision would be required, but his counsel claims he has no recollection of making 

such a statement. As Spizzirri does not assign error to the court’s failure to issue a 

statement of decision, we need not decide whether one was required. In affirming the 

judgment, we rely on the court’s express findings and do not apply the implied findings 

doctrine. 
11

I. Appellants’ Motion to Dismiss the Cross-complaint

A. Background

According to the parties, in June 2015, when this court issued its remittitur

in the prior appeal, Spizzirri was in bankruptcy, and the action was subject to an 

automatic bankruptcy stay. Mach-1 obtained relief from the stay and filed the relevant

order in the trial court in November 2015. 

In April 2018, the trial court scheduled trial for February 2019, which it 

later continued to May.

9

 The parties then twice stipulated in court to continue the trial: 

in March, they stipulated to a continuance to September;

10 and in May, they stipulated to 

continue trial to December 2019.

11

Spizzirri then twice asked and obtained continuances, without Mach-1’s 

agreement. In November 2019, shortly before trial was to begin, he applied for a 60-day 

continuance due to his counsel’s health problems. The trial court granted his application. 

In January 2020, Spizzirri again applied for a 60-day continuance, again citing his 

counsel’s health issues. Over Mach-1’s objection, the court granted this application and 

continued trial to June. The court later unilaterally continued the trial twice more, 

ultimately setting it for January 2021.12 

In October 2020, Spizzirri filed a motion to dismiss the cross-complaint, 

contending that section 583.320, subdivision (a)(3), required dismissal because Mach-1 

9 The parties do not discuss, and the record does not show, the reasons for the 

delay between November 2015 and April 2018. 

10 The trial court’s minute order noted that the continuance was “[p]ursuant to 

stipulation of the parties.” 

11 The minute order stated that this continuance was “pursuant to the request 

of counsel.” 

12 Spizzirri raises no argument about these final two continuances by the trial 

court, and we therefore do not consider them in our analysis. 
12

did not bring its cross-claims to trial within three years after this court issued its remittitur 

and Mach-1 obtained relief from the bankruptcy stay (in November 2015).13 He

contended the statutory period lapsed in November 2018. Mach-1 opposed the motion to 

dismiss, arguing that Spizzirri’s stipulations and requests for continuances barred him

from seeking dismissal based on the statute. 

The trial court denied Spizzirri’s motion to dismiss. Although the court 

agreed that the statutory period initially lapsed in November 2018, it concluded that the 

parties’ post-lapse agreements to continue trial to September 2019 and later to December 

revived and extended the statutory period. And according to the court, Spizzirri’s

subsequent conduct—twice requesting and receiving continuances—estopped him from 

seeking dismissal under the statute. 

B. Governing Principles

Section 583.310 et seq. prescribe the time within which an action must be 

brought to trial or retrial. Under these provisions, a plaintiff must generally bring his or 

her action to trial within five years after commencing it. (§ 583.310.) When an appellate 

court reverses a judgment and remands for a new trial, the plaintiff must bring the action 

to trial within three years after the filing of the remittitur. (§ 583.320, subd. (a)(3).) If 

the plaintiff does not bring the action to trial or retrial within the prescribed time, the 

action “shall be dismissed by the court on its own motion or on motion of the defendant, 

after notice to the parties.” (§ 583.360, subd. (a).) 

The statutory scheme allows for the tolling or extension of the trial and 

retrial periods in different ways. For one, it allows the parties to extend the period by 

written stipulation or by “oral agreement made in open court.” (§ 583.330.) A 

stipulation that complies with these requirements may revive the applicable period even 

13 As discussed further below, section 583.320, subdivision (a)(3), generally 

provides that following an appellate remand for a new trial, the plaintiff must bring the 

action to retrial within three years.
13

after it lapses. (Rio Vista Min. Co. v. Superior Court (1921) 187 Cal. 1, 4, 6 (Rio Vista) 

[parties’ written stipulation to new trial date revived statutory trial period, which had 

already expired]; Estate of Anastasio (1989) 215 Cal.App.3d 486, 489 [“The only 

circumstance that will revive an action after the five-year [trial] period has expired is a 

stipulation between the parties”]; Estate of Thatcher (1953) 120 Cal.App.2d 811, 814 

[stipulation to trial date beyond statutory trial period extends that period, “even though 

such stipulation is made more than five years after the action was filed”]; see also 

6 Witkin, Cal. Procedure (6th ed. 2023) Proceedings Without Trial, § 484 [“the statutory 

extensions, exceptions, and excuses that apply to the 5-year [trial] period . . . expressly 

apply to the 3-year [retrial] period”].)

Additionally, under appropriate circumstances, the estoppel doctrine may 

preclude a defendant from seeking dismissal under section 583.360. (§ 583.140

[“Nothing in this chapter abrogates or otherwise affects the principles of waiver and 

estoppel”].) “If a trial court encounters statements or conduct by a defendant which lulls 

the plaintiff into a false sense of security resulting in inaction, and there is reasonable 

reliance, estoppel must be available to prevent defendant from profiting from his 

deception.” (Borglund v. Bombardier, Ltd. (1981) 121 Cal.App.3d 276, 281.) 

We review the trial court’s application of estoppel for abuse of discretion. 

(Holder v. Sheet Metal Worker’s Internat. Assn. (1981) 121 Cal.App.3d 321, 323 

(Holder).) Legal determinations, such as those involving the interpretation of a statute, 

are reviewed de novo. (Serrano v. Superior Court (2017) 16 Cal.App.5th 759, 767.) 

C. Analysis

The trial court did not err by denying Spizzirri’s motion to dismiss. After 

the statutory period lapsed in November 2018, Spizzirri stipulated in open court to a 

continuance of trial from May 2019 to September 2019. He later agreed in open court to 
14

continue the trial to December 2019.

14

 These agreements revived and extended the 

statutory retrial period. (§ 583.330; Rio Vista, supra, 187 Cal. at pp. 4, 6; Estate of 

Anastasio, supra, 215 Cal.App.3d at p. 489.) Then, Spizzirri unilaterally asked the court 

for two more continuances, and the court obliged, continuing the trial first to February 

2020 and then to June of that year. The court reasonably concluded this conduct 

estopped Spizzirri from seeking dismissal based on Mach-1’s delay. (Holder, supra, 121 

Cal.App.3d at p. 327 [defendants estopped from seeking dismissal based on delay of 

retrial because delay resulted from their counsel’s request for continuance].)

Citing Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, Spizzirri 

contends a stipulation cannot revive a statutory retrial period that has already lapsed. 

Balboa is inapposite because it addressed whether post-expiration conduct could trigger 

estoppel; it did not discuss stipulations. (Id. at pp. 1008-1009.) As discussed, a postexpiration stipulation can revive the retrial period. And because the parties’ stipulations 

here extended the retrial period, Spizzirri’s first application for a continuance was within 

that period, rendering Balboa uninstructive on the estoppel issue as well. 

Next, Spizzirri cites Miles v. Speidel (1989) 211 Cal.App.3d 879, for the 

proposition that only a written stipulation that expressly references the statutory trial or 

retrial period can extend that period. Miles does not stand for that proposition. Indeed, 

the court there acknowledged that an oral agreement could extend the statutory period 

and that a stipulation continuing the trial to a date beyond that period was sufficient. (Id.

at p. 883.) The Miles court proceeded to examine the stipulation between the parties 

there and concluded it preserved the defendant’s existing right to dismissal because it 

14 Spizzirri contends: “[T]here was no stipulation or oral agreement. There 

was simply a statement that [Spizzirri] accepted the [trial] court’s proposed trial date.” 

But the trial court’s minute orders for the relevant hearings stated that there was a 

“stipulation” to continue the trial date to September 2019 and that the trial was continued 

to December “[p]ursuant to the request of counsel.” Nothing in the record refutes these 

representations.
15

stated, “‘Except for [previously] filed [s]tipulations, no extension, waiver or estoppel . . .

exists with regard to Defendant’s rights under [the statute].’” (Id. at p. 884.) The parties’ 

stipulations here included no such term. Accordingly, the trial court did not err in 

denying Spizzirri’s motion to dismiss. 

II. Retrial of Mach-1’s Promissory Note Claim

The trial court correctly denied Spizzirri’s motion for judgment on the 

pleadings and included Mach-1’s promissory note claim in the retrial. “‘As a general 

rule, a judgment becomes final against a nonappealing party even though reversed on the 

appeal of another party. However such a rule does not apply “where portions of the 

judgment adverse to a nonappealing party are so interwoven with the whole that appeal 

from a part affects the other parts; in such a situation, the appellate court can reverse the 

entire judgment if it is necessary to do justice. [Citations.]” [Citation.] “The test of 

whether a portion of a judgment appealed from is so interwoven with its other provisions 

as to preclude an independent examination of the part challenged by the appellant is 

whether the matters or issues embraced therein are the same as, or interdependent upon, 

the matters or issues which have not been attacked. [Citations.] ‘. . . [T]he judgment is 

severable when the original determination of those issues by the trial court and reflected 

in the judgment or any determination which could be made as the result of an appeal 

cannot affect the determination of the remaining issues of the suit . . . .’ [Citation.]”’” 

(City of Santa Maria v. Cohen (2017) 11 Cal.App.5th 96, 107.)

Although Mach-1 did not file a cross-appeal on the merits in the first 

appeal, our prior opinion unequivocally reversed the entire judgment and remanded for a 

full retrial. (Family Investment Co. v. Mach-1 Autogroup, supra, G047783, G048082.) 

We stated that the trial court’s prior ruling on the deposit issue “and the entire judgment” 

could not be affirmed. To the extent Spizzirri suggests we lacked jurisdiction to reverse 

the entire judgment because the different issues were not sufficiently interwoven, the 

law-of-the-case doctrine bars his argument. (Ponce-Bran v. Trustees of Cal. State 
16

University (1996) 48 Cal.App.4th 1656, 1660, fn. 2 [“Under the doctrine of ‘law of the 

case,’ a party may not in subsequent appeals relitigate an appellate court’s jurisdiction in 

an earlier appeal for the purpose of attacking the prior rulings as void; this is true whether 

or not the earlier opinion expressly considered jurisdiction”].)

Moreover, beyond conclusory assertions that the promissory note claim was 

“readily distinguishable from the claim for the deposit[s]” and “simply ha[d] nothing to 

do with the resolution of which [asserted contract] applie[d] to the deposit dispute,”

Spizzirri makes no attempt to show that the claims were independent. He has therefore 

forfeited his contention. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 

890, fn. 1 [we need not reach issues presented without argument and will not develop 

appellants’ arguments for them].) Regardless, the argument is frivolous. The 

Addendum’s enforceability potentially controlled the fate of both the deposits and the 

promissory note, as it purported to forgive the loan and make the deposits nonrefundable. 

Accordingly, the trial court did not err by retrying the promissory note claim. 

III. Mach-1’s Motion for Judgment

A. Governing Principles

Under section 631.8, subdivision (a), a party may move for judgment after 

an adverse party “has completed his presentation of evidence in a trial by the court.” 

“The court as trier of the facts shall weigh the evidence and may render a judgment in 

favor of the moving party.” (Ibid.) “[T]he court may refuse to believe witnesses and 

draw conclusions at odds with expert opinion. [Citation.]” (Jordan v. City of Santa 

Barbara (1996) 46 Cal.App.4th 1245, 1255.) 

We review an order granting a motion for judgment under section 631.8 for 

substantial evidence. (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 658.) “We resolve 

all evidentiary conflicts in favor of the prevailing parties, and indulge all reasonable 

inferences possible to uphold the trial court’s findings.” (Jordan v. City of Santa 

Barbara, supra, at pp. 1254-1255.) Because Spizzirri had the burden of proof at trial, he
17

must establish that the evidence compelled a finding in his favor as a matter of law. 

(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) 

Thus, he must show his evidence was “‘“uncontradicted and unimpeached”’” and “‘“of 

such a character and weight as to leave no room for a judicial determination that it was 

insufficient to support a finding. ”’” (Ibid.) 

B. Analysis

1. Negligence

The trial court permissibly found that Spizzirri had not proven his

negligence claim. “To prove negligence, a plaintiff must show breach of a legal duty and 

‘“that the breach was a proximate or legal cause of injuries suffered by the plaintiff.”’ 

[Citation.] ‘Breach is the failure to meet the standard of care.’ [Citation.]” (Webster v. 

Claremont Yoga (2018) 26 Cal.App.5th 284, 288.) 

Spizzirri contends Mach-1 negligently managed the dealership after it took 

on management responsibilities. For evidence of breach of Mach-1’s duty of care, 

Spizzirri points to the dealership’s failure to pay Honda Finance in a timely manner 

during the relevant period, which led to the loss of the dealership’s credit line. This 

evidence does not compel a finding of negligence. 

Spizzirri has not shown that Mach-1 simply chose not to make timely 

payments to Honda Finance despite the dealership’s ability to satisfy its obligations. 

Indeed, the evidence showed the dealership was struggling financially and was behind on 

rent payments as well. As the trial court observed, the dealership had been performing 

poorly long before Mach-1 assumed its management. The court reasonably concluded

the evidence showed only that “at the same time the recession hit, a failing store . . . 

started to fail more.” Spizzirri points to no other evidence establishing that Mach-1 failed 

to meet the standard of care in managing the dealership. Accordingly, the court was not 

compelled to conclude that he had proven his claim.

2. Breach of Contract
18

The evidence similarly did not compel the trial court to conclude that 

Spizzirri had established his breach of contract claim. To establish a breach of contract, a

plaintiff must prove: “‘(1) the existence of the contract, (2) plaintiff’s performance or 

excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the 

plaintiff.’ [Citation.]” (D’Arrigo Bros. of California v. United Farmworkers of America

(2014) 224 Cal.App.4th 790, 800.) “‘Contract damages are generally limited to those 

within the contemplation of the parties when the contract was entered into or at least 

reasonably foreseeable by them at that time; consequential damages beyond the 

expectations of the parties are not recoverable.’” (Behnke v. State Farm General Ins. Co.

(2011) 196 Cal.App.4th 1443, 1468, italics omitted.) 

Spizzirri’s complaint asserted that Mach-1 had breached its contractual 

obligations in two ways relevant here: (1) by mismanaging the dealership (specifically, 

failing to pay the dealership’s obligations), and (2) by failing to complete the transaction. 

As discussed, Spizzirri’s evidence did not compel a conclusion that Mach-1 had 

mismanaged the dealership. As for Mach-1’s failure to close, the trial court concluded 

Spizzirri had failed to prove he had suffered resulting damages. In support, the court 

cited Spizzirri’s subsequent sale of the dealership to RSM for about $3.3 million, more 

than the $3.05 million price for the dealership’s goodwill under the Restatement. 

Spizzirri notes that the RSM sale included not only goodwill but also 

various tangible assets, and that based on the stated valuation for tangible assets, the 

valuation of goodwill was only about $2.3 million. He claims this shows a decline of 

$744,000 in the dealership’s goodwill value resulting from Mach-1’s breach. But the 

trial court reasonably concluded that Spizzirri cannot separate and compare certain 

elements of the two transactions without offering a complete analysis of their terms and 

values. In a complex transaction involving the purchase of an auto dealership, a lower 

valuation for goodwill alone does not necessarily establish that the seller is worse off. As 

the court noted, Spizzirri provided limited evidence of the terms of the RSM deal. 
19

Spizzirri points to his payments to clear the dealership’s various debts after 

Mach-1 returned its management to him. He asserts, “These damages are recoverable as 

readily foreseeable and consequential damages resulting from [Mach-1]’s . . . failure to 

timely close.” But the only argument he offers in support of foreseeability pertains to 

Mach-1’s alleged mismanagement of the dealership, rather than to its failure to close: 

“Mach-1’s non-payment of rent and the out of trust situation will certainly and 

foreseeably lead to Mr. Spizzirri having to pay them. The failure to pay on the flooring 

line will certainly and foreseeably, and did in fact, lead to a suspension of the 

dealership’s line of credit and a ruinous inability to purchase new cars for sale with an 

ultimate loss of profits arising from the inability [to] sell cars that the dealership cannot 

obtain.” This argument does not establish that the asserted damages were a foreseeable 

result of Mach-1’s failure to close. The trial court was not compelled to conclude 

Spizzirri had proven his breach of contract claim. It therefore did not err by granting

Mach-1’s motion for judgment.

IV. Spizzirri’s Motion to Reopen

A. Governing Principles

“A party may move to reopen its case to offer additional evidence after the 

court announces its tentative decision in a nonjury trial. So long as no judgment has been 

entered, the court may allow additional evidence under its inherent power to control the 

order of proof and the conduct of proceedings. [Citations.]” (Wegner et al., Cal. Practice 

Guide: Civil Trials & Evidence (The Rutter Group 2023) ¶ 12:400, p. 12-95, citing, e.g., 

Code Civ. Proc., § 128, subd. (a)(3) & Evid. Code, § 320.) To justify reopening, the 

proponent must provide a satisfactory explanation for not introducing the evidence 

previously. (Stewart v. Cox (1961) 55 Cal.2d 857, 866 [denying reopening not an abuse 

of discretion where proponents made “[n]o sufficient showing . . . why the additional 

evidence . . . was not presented at trial”].) 
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“Trial courts have broad discretion in deciding whether to reopen the 

evidence. [Citation.] We review a court’s denial of a motion to reopen evidence for an 

abuse of discretion. [Citation.] The appropriate test for abuse of discretion is whether 

the trial court’s decision exceeded the bounds of reason.” (Horning v. Shilberg (2005) 

130 Cal.App.4th 197, 208-209.) 

B. Analysis

Assuming Spizzirri’s motion to reopen was timely, the trial court did not 

abuse its discretion in denying it. Spizzirri asserts additional testimony by Issa was 

necessary to clarify matters the court had misunderstood from his original testimony 

about the reasons for the decline in the value of the dealership’s goodwill.

15 But the trial 

court reasonably concluded that Spizzirri sought “to have the expert walk through [the] 

expert analysis in ways that they could have walked through before but simply chose not 

to.” 

Moreover, even if denial of reopening were an abuse of discretion, it would 

not have been prejudicial. The claimed clarification Spizzirri sought to offer would not 

have remedied the flaws in his case that led the trial court to grant Mach-1’s motion for 

judgment. It would not have established that Mach-1’s failure to pay Honda Finance was 

the result of mismanagement rather than difficult financial circumstances. And it would 

not have shed additional light on the unknown terms of the RSM transaction so as to 

show it was less favorable than the failed deal with Mach-1. Because the denial of 

reopening could not have prejudiced Spizzirri, it is no basis for reversal. (People v. Chun

(2009) 45 Cal.4th 1172, 1201 [reviewing court may not set aside judgment due to trial 

court absent prejudice].) 

15 In his briefs, Spizzirri does not meaningfully argue the trial court erred by

denying reopening for presentation of testimony by new witnesses, and he has therefore 

forfeited any contention in that regard. (Dills v. Redwoods Associates, Ltd., supra, 

28 Cal.App.4th at p. 890, fn. 1.) 
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DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

GOODING, J.