Filed 7/25/13 Bergeron v. Payne CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA



MERLIN LEE BERGERON,                                                  D060553

         Plaintiff and Appellant,

         v.                                                           (Super. Ct. No. 37-2010-00090076-
                                                                      CU-BT-CTL)
CLIFTON PAYNE, SR.,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Jay M. Bloom,

Judge. Affirmed.



         Archer Norris, W. Eric Blumhardt and Pamela G. Lacey for Plaintiff and Appellant.

         Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller and Matthew B. Stucky; Charles

Anthony Williams for Defendant and Respondent.

         Plaintiff Merlin Lee Bergeron operated a restaurant on property that he rented from

defendant Clifton Payne, Sr., under a written lease agreement. Bergeron filed the instant action

against Payne for breach of contract and intentional interference with contractual relationship

based on Payne's alleged unreasonable refusal to consent to Bergeron's assignment of the lease
to a third party who entered into a contract with Bergeron to purchase the restaurant. After

entering judgment on a jury verdict awarding Bergeron compensatory and punitive damages,

the court granted Payne's motion for new trial on all issues. Bergeron appeals the order

granting a new trial, contending that the court abused its discretion by not limiting the new trial

to the issue of damages. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       In May 2005, Bergeron and Payne entered into a written commercial lease agreement

under which Bergeron leased business premises in San Diego from Payne for a term of five

years with options to extend the lease for three additional five-year periods. Monthly rent was

$2,500 for the initial lease term and $2,750, plus a cost of living increase, for the extended

lease term. The lease required Payne's express written consent for any assignment or

subletting of the lease. The lease also required Payne's prior consent for any alterations or

improvements to the premises.

       Bergeron paid between $164,000 and $200,000 in construction costs to convert the

leased premises to a restaurant. He also spent about $52,000 for restaurant fixtures, $11,000

for a point of sale system, and $12,500 for a liquor license. Approximately 18 months after

signing the lease, Bergeron opened a restaurant named Lucky Bucks on the premises.

       Bergeron began to market the restaurant in September 2008. In the spring of 2009, he

accepted an offer from Naomi Evans to purchase the restaurant, including Bergeron's leasehold

interest, plus "inventory of stock in trade" for $163,000. Evans and her husband Israel

deposited the full purchase price into escrow, paid $5,000 for transfer of the restaurant's

conditional liquor license, and began operating the restaurant. They spent about $50,000


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renovating the restaurant after they took it over. In the summer of 2009, Bergeron decided to

move to Spain after he was diagnosed with a brain aneurysm and his doctor instructed him to

sell his business and relieve all stress in his life. In January 2010, Bergeron's friend Scott

Rhude began to act on Bergeron's behalf under a power of attorney to complete the sale of the

business.

       The closing of escrow for the restaurant sale was expressly contingent on Evans's

obtaining an assignment of the lease. Although Bergeron and Evans executed an assignment

and assumption of lease form on May 11, 2009, Payne did not fill out or sign the section of the

form that called for his written consent to the assignment. Beginning in June 2009, the

Evanses delivered monthly rent checks to Payne. However, on the advice of his attorney,

Payne did not cash the rent checks and ultimately returned them because they were

accompanied by written statements to the effect that cashing them would constitute acceptance

of Bergeron's assignment of the lease to Evans. Payne was reluctant to consent to the

assignment because he had concerns about Naomi Evans's credit score. He requested that

Israel Evans be a cotenant on the lease and that the Evanses submit a "proper lease application"

showing their assets and cash position.

       A real estate agent involved in the sale of the restaurant testified that Payne said he

wanted to break the existing lease so he could charge $1,100 more in rent to the new tenants.

The Evanses offered Payne an additional $500 per month and were willing to accept a five-

year lease term with one five-year option, but Payne did not agree to those terms. He

requested that $53,000 be put into escrow to cover the cost of returning the restaurant premises

to its prior state at the end of the lease. The parties and agents involved in the sale ultimately


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offered to deposit $72,000 in escrow to meet Payne's concerns, but he still refused to consent

to the assignment. The Evanses cancelled escrow when their temporary liquor license expired.

Payne took possession of the premises after obtaining a judgment in the amount of $27,500

against Bergeron in an unlawful detainer action for nonpayment of rent.

       Bergeron filed a complaint against Payne alleging causes of action for breach of

contract, intentional interference with contractual relationship, and declaratory relief. In his

cause of action for breach of contract, Bergeron alleged that Payne breached the lease by

unreasonably withholding his consent to Bergeron's assignment of the lease to Evans. In his

cause of action for intentional interference with contractual relationship, Bergeron alleged that

Payne's unreasonable refusal to consent to the assignment disrupted the contractual relationship

between Bergeron and Evans. He further alleged he was entitled to an award of punitive

damages because Payne's conduct was "willful, wanton and egregious, and done with malice to

spite [Bergeron] . . . ." Payne filed a cross-complaint against Bergeron, alleging Bergeron

breached the lease agreement by failing to timely pay rent and failing to pay late fees for late

rental payments; failing to pay a security deposit; failing to timely pay real estate taxes for the

premises; making or permitting alterations and improvements to the premises without Payne's

prior written consent; and failing to maintain insurance on the building and other

improvements on the premises.

       The case was tried before a jury. In closing argument, Bergeron's counsel told the jury

that if it found Payne breached the lease contract, it could award Bergeron "various contract

damages aside from the $163,000 that was the sale price of the restaurant." Counsel stated the

jury could "also find the unlawful detainer action filed against [Bergeron] was without merit


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[b]ecause [Payne] himself rejected monthly, timely rent checks." Accordingly, counsel asked

the jury to award $42,500 for the unlawful detainer action, consisting of the judgment of

$27,500 and attorney fees of $15,000 that Bergeron incurred in defending the action. Counsel

also asked the jury to award Bergeron construction costs of $146,000, representing the

difference between the cost of the restaurant "build-out" ($309,000) and the $163,000 sales

price of the restaurant; $25,000 for Rhude's "expenses and advances on behalf of Mr. Bergeron

and his time[;]" and $11,000 in additional attorney fees. Adding these items of damages for

the jury, counsel stated, "So that's approximately $388,000."

      The jury returned a special verdict in Bergeron's favor, finding Payne breached the lease

contract and "intentionally interfered with Lee Bergeron's escrow with Naomi Evans." The

jury found that Bergeron's damages were $388,000, the amount that Bergeron's counsel

requested in closing argument. The jury further found that Payne acted with "malice or

oppression." In a second phase of the trial to determine the amount of punitive damages, the

jury awarded Bergeron punitive damages against Payne in the amount of $300,014.59. The

number 1459 is the street address number of the restaurant.

      Payne moved for a new trial and judgment notwithstanding the verdict (JNOV). In both

motions, Payne argued that there was no substantial evidence to support the verdict that he

tortuously interfered with Bergeron's contract with Evans because his actions, at most,

amounted to a breach of contract and not a tort. He further argued there was insufficient

evidence that he acted with malice to support an award of punitive damages. In his motion for

new trial, Payne additionally contended the jury's award of compensatory damages was

excessive and not supported by substantial evidence. He argued that Bergeron, at most, was


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entitled to recover the sales price of the restaurant minus the value of the restaurant equipment

that his agent Rhude removed from the premises and the value of the liquor license he retained.

Payne asked the trial court to "grant a new trial to correct the jury's verdict that goes beyond

the scope of the evidence adduced at trial." Alternatively, Payne suggested that the court "may

grant a new trial subject to the condition that the motion will be denied if Bergeron agrees to a

substantial reduction in damages in an amount [the] court deems fair and reasonable based on

the evidence at trial."

       The court issued a tentative ruling denying Payne's motion for JNOV and granting his

motion for new trial "on the complaint." Following oral argument on the motions, the court

issued an order granting Bergeron's request for leave to file a supplemental letter brief. In his

supplemental brief, Bergeron defended the jury's economic damages award of $388,000 and

argued that if the court was still convinced that certain items of damages included in the award

were unjustified, the court should simply reduce the award. Bergeron further argued that if the

court was inclined to grant a new trial, the trial should be limited to the issue of economic

damages for breach of contract.

       The court issued a final order denying Payne's motion for JNOV and granting his

motion for new trial on the entire complaint. The court found that "the amount of

compensatory damages awarded [Bergeron] by the jury is not supported by the evidence." The

court stated: "Based on the jury's finding that [Payne] breached the lease agreement by

refusing to permit assignment of [Bergeron's] lease to the Evans[es] and thereby intentionally

interfering with the sale of [Bergeron's] interest to the Evans[es], [Bergeron] lost the

opportunity to sell his business interest. The only damages supported by the evidence


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presented would be the sale[s] price. The evidence indicates that the escrow agreement

reflected a sales price of $165,000. . . . [¶] On behalf of [Bergeron], evidence of 'damages'

beyond the sale[s] price was introduced. For instance, [Bergeron's] counsel introduced

evidence of the $35,000 in attorney's fees incurred at the time of trial in this action . . . , a

$25,000 unlawful detainer action judgment against [Bergeron] . . . , the $20,000 in attorney's

fees [Bergeron] incurred in the unlawful detainer action . . . , as well as nearly $60,000

invested by the Evans[es] beyond the sales price. [Bergeron] also testified regarding permit

fees he paid, as well as costs of the improvements he made to the property over the life of the

lease. . . . [Bergeron] also claimed damages for a person who was not even a party to the case

(Mr. Rhude)."

       Noting that Bergeron's counsel suggested to the jury that an appropriate award of

compensatory damages would be $388,000, the court stated: "The reasonable inference is that

the jury awarded Bergeron $388,000 in compensatory damages based on [counsel's]

instruction. [¶] Not only do the amounts suggested by [Bergeron's] counsel not flow, legally

speaking, from the breach of contract, they do not fall within the permissible damages [for

contract interference], as they cannot be considered 'the pecuniary loss of the benefits of the

contract or prospective relation' or 'consequential losses for which the interference is a legal

cause.' Thus, to the extent the jury relied on [counsel's] advice in closing and the testimony on

those points, any award of damages beyond the sale[s] price of $165,000 is unsupported by the

evidence and excessive." Later in its ruling the court added that "[Bergeron's] counsel

expressly told the jury to consider the improper amounts discussed above in order [to] reach

the $388,000 number. Under these circumstances, the conclusion is unmistakable that the jury


                                                   7
reached that number by relying on the improper argument of [Bergeron's] counsel concerning

damages to which [Bergeron] was not entitled."

       Regarding the unlawful detainer judgment against Bergeron, the court stated: "For the

jury to award [that amount] to [Bergeron], the jury would have had to overrule the judge's

ruling in the [unlawful detainer] case and conclude [Bergeron] was the prevailing party in that

case. However, the jury never heard all the facts of [that] case and never made a finding on the

verdict form that [Bergeron] should be a prevailing party in the unrelated case."

       The court concluded: "[B]ecause the jury's award of $388,000 was excessive and based

on improper matters, a new trial must be granted on the complaint. [¶] While partial new trial

is appropriate when the issues of liability and damages are severable, the Court grants an entire

new trial based on its finding that the issues of liability and damages are substantially

interwoven. Moreover, the presentation of numerous claims of damages that were not related

to the case may have unduly inflamed the jury and affected its liability determination."

Regarding Bergeron's request that the court reduce the damages instead of granting a new trial,

the court stated that "while the court is normally amenable to this process, it cannot be done

here. Punitive damages must bear some relationship to the actual damages. It would be

impossible to know what the jury might have awarded in punitive damages[] if they had

awarded a substantially lesser amount of compensatory damages."

                                          DISCUSSION

       Bergeron contends that the court abused its discretion by ordering a new trial on all

issues instead of a new trial on the issue of damages only.




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       "The power of a trial court to grant a new trial as to some issues, while refusing it as to

others, is . . . well established. [Citations.] 'The decision on limiting a new trial to the issue of

damages rests in the first instance in the sound discretion of the trial judge. A new trial limited

to the damage issue may be ordered where it can be reasonably said that the liability issue has

been determined by the jury. An abuse of discretion must be shown `before a reviewing court

will reverse the trial judge's decision.' [Citations.] [¶] [ ] [However, even when it appears that

the issue of liability was correctly determined, a new trial limited to damages 'should be

granted . . . only if it is clear that no injustice will result. [Citations.] . . . [I]t has been held

that a request for such a trial should be considered with the utmost caution [citations] and that

any doubts should be resolved in favor of granting a complete new trial.' [Citation.] In short,

'When a limited retrial might be prejudicial to either party, the failure to grant a new trial on all

of the issues is an abuse of discretion. [Citation.].]' " (Liodas v. Sahadi (1977) 19 Cal.3d 278,

285-286, italics added.)1

       "Three factors of importance in assessing the choice of limited new trial as opposed to

entire new trial are: (1) whether liability was clearly established at the first trial[;] (2) whether

the evidence concerning damages was insufficient or entirely nonexistent; and (3) whether

prejudice to a party would result as the result of the choice of one disposition over the other."

(Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 705.) A new

trial on all issues is appropriate if there are circumstances that indicate the verdict was the



1       As former Presiding Justice Brown of this court observed, "The power of the trial court
is singularly at its greatest in deciding whether to grant a new trial, leaving the appellate court
virtually powerless to reinstate a most reasonable jury verdict." (Candido v. Huitt (1984) 151
Cal.App.3d 918, 924 (conc. opn. of Brown, J.).)
                                                  9
result of prejudice and the question of liability is close. (Hamasaki v. Flotho (1952) 39 Cal.2d

602, 604-605.)

       In the present case, we cannot conclude the trial court abused its discretion in ordering a

new trial on all issues. The improper items of damages that the jury assessed at counsel's

urging resulted in an excessive compensatory damages award, which itself might have affected

the jury's liability findings. (See Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311, 316,

fn. 2 [excessive damages resulting from prejudice or passion may affect the issue of liability

and cannot be cured by a remittitur].) It was not unreasonable for the court to conclude that the

issues of liability and damages were "substantially interwoven" and that "the presentation of

numerous claims of damages that were not related to the case may have unduly inflamed the

jury and affected its liability determination." For example, the court reasonably could have

been concerned that the jury based its liability determination in part on Payne's conduct that

caused Rhude to incur the $25,000 in "expenses and advances." Following Bergeron's

counsel's cue, the jury awarded those expenses and advances to Bergeron as damages. The

court concluded those damages were improper because they were losses suffered by Rhude

rather than Bergeron. The court could reasonably be concerned that inflating the damages

award with items that are not allowed by law may have unduly inflamed the jury and

influenced its liability determination. "The trial court is in a far better position than an

appellate court to determine whether a damage award was influenced by 'passion or prejudice.'

[Citation.] In reviewing that issue, . . . the trial court is vested with the power, denied to us, to

weigh the evidence and resolve issues of credibility." (Schroeder v. Auto Driveaway Co.

(1974) 11 Cal.3d 908, 919.) Because the trial court was reasonably concerned that the


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"improper claims of damages" may have affected the jury's liability determination, the court

did not abuse its discretion in concluding that neither a new trial limited to the issue of

damages nor a remittitur was appropriate.

       Further, notwithstanding the jury's liability findings and obvious dislike of Payne, the

court could reasonably view the question of Payne's liability for breach of contract as close in

light of the unlawful detainer judgment against Bergeron for nonpayment of rent under the

lease Payne was charged with breaching. As noted, if the question of liability is close, it is an

abuse of discretion to grant a new trial limited to the issue of damages. (Hamasaki v. Flotho,

supra, 39 Cal.2d at pp. 604-605.)

       Finally, it was not an abuse of discretion to order a new trial on the issue of punitive

damages because the amount of compensatory damages awarded is a factor relevant to the

assessment of punitive damages. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 417.)

Accordingly, the court properly ruled that a remittitur or limited new trial was not appropriate

because, in the court's words, "[p]unitive damages must bear some relationship to the actual

damages[,] and "[i]t would be impossible to know what the jury might have awarded in

punitive damages[] if they had awarded a substantially lesser amount of compensatory

damages."




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                                       DISPOSITION

      The order granting a new trial on all issues is affirmed. Payne is awarded his costs on

appeal.



                                                                          BENKE, Acting P. J.

WE CONCUR:



MCINTYRE, J.



O'ROURKE, J.




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