Filed 10/20/15 Plikaytis v. Fairmount, LP CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ANICE PLIKAYTIS,                                                    D065989

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2008-00064809-
                                                                    CU-WT-EC)
FAIRMOUNT, LP,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County,

Katherine A. Bacal, Judge. Affirmed.


         Spiegel Liao & Kagay and Charles M. Kagay; The McMillian Law Firm and

Scott A. McMillan for Plaintiff and Appellant.

         Barry, Gardner & Kincannon, Petrie & Associates, Jeffrey B. Gardner and Laura J.

Petrie for Defendant and Respondent.

         Anice Plikaytis sued her alleged former employers, James Roth, and a number of

Roth's entities, including Fairmount, LP, dba Talmadge Canyon Park (Talmadge Canyon)

on a number of theories. As relevant to this appeal, a jury found in favor of Plikaytis on
her claims against Talmadge Canyon for breach of contract for an unspecified term

(implied contract) and specified term (written contract). Talmadge Canyon appealed,

arguing the verdict against it must be reversed because (1) no contract for a specified term

existed between it and Plikaytis; and (2) Plikaytis was an at-will employee that could be

discharged at any time with or without cause. In an unpublished opinion, we agreed.

(Plikaytis v. Roth (Oct. 4, 2011, D056922) [nonpub. opn.], (Plikaytis I).) The disposition

reversed the judgment in favor of Plikaytis as against Talmadge Canyon on her claims for

breach of written and implied employment agreements. On remand, the trial court

granted summary adjudication of Plikaytis's claim for breach of an implied employment

agreement.

       The parties scheduled the matter for trial on Plikaytis's claim for breach of written

employment agreement. Plikaytis argued in her trial brief that our unqualified reversal

allowed her to retry this claim and produce additional evidence to support the claim.

Talmadge Canyon argued that the law of the case doctrine required the trial court to find

that Talmadge Canyon was not liable for breach of contract. Plikaytis filed an offer of

proof regarding the different material facts she would establish during trial. Thereafter,

the court issued an ex parte minute order directing counsel to appear for an order to show

cause why the court should not enter judgment for Talmadge Canyon on Plikaytis's claim

for breach of written employment agreement, reasoning that Plikaytis had a full and fair

opportunity to present her case against Talmadge Canyon and our unqualified reversal

based on insufficiency of the evidence barred retrial unless Plikaytis could present newly



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discovered evidence. After hearing from counsel, the court entered judgment in favor of

Talmadge Canyon on Plikaytis's claim for breach of written employment agreement.

       Plikaytis appeals from the judgment contending the trial court misinterpreted the

disposition in Plikaytis I. She argues that the unqualified reversal entitled her to a new

trial as to Talmadge Canyon on her claim for breach of written employment agreement.

We disagree. As we will discuss, Plikaytis failed to present sufficient evidence to prove

her claim, she had a full and fair opportunity to try the claim and our unqualified reversal

does not entitle her to a new trial.

                                       DISCUSSION

       The disposition in Plikaytis I stated: "The judgment in favor of Plikaytis as against

Talmadge Canyon on her claims for breach of employment contract for an unspecified

term and specified term are reversed. The judgment holding Talmadge Canyon jointly

and severally liable for breach of employment contract damages is reversed. The

judgment in favor of Plikaytis as against Talmadge East for breach of contract is reversed

and the matter is remanded for a new trial on damages. In all other respects, the judgment

is affirmed. Each party is to bear their own costs on appeal."

       "Ordinarily, an unqualified reversal (i.e., reversal without directions to the trial

court) vacates the appealed judgment or order and remands the case for a new trial or

evidentiary hearing as though it had never been tried or heard. On remand, the parties are

placed in the same positions and have the same rights as before rendition of the reversed

judgment or order." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The

Rutter Group 2014) ¶ 14:141, p. 14-47.) "The parties are entitled to retry the issues

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anew—meaning they can present any evidence in support of or against the allegations in

the complaint. An unqualified reversal cannot restrict the presentation of evidence on

remand." (Id. at ¶ 14:143, p. 14-47.)

       Several exceptions exist to this general rule. First, the general rule will not be

invoked if the appellate opinion as a whole establishes a contrary intention. (Stromer v.

Browning (1968) 268 Cal.App.2d 513, 518-519 (Stromer).) "In Stromer, the trial court

found a real estate broker entitled to his commission on a deal that fell through as a result

of the seller's actions. The Supreme Court reversed because the evidence did not show

lack of good faith on the part of the seller, stating ' "[u]nder the circumstances, plaintiff is

not entitled to recover his commission." . . . "The judgment is reversed." ' [Citation.]

On appeal from the trial court's subsequent entry of judgment, the court concluded that

the Supreme Court had not intended a retrial: 'After a case fully tried, with facts not in

dispute, the intent of the Supreme Court to us appears patent. It intended, as we read its

opinion, that judgment in [the seller's] favor be entered. We can find nothing left for the

trial court to retry.' " (Bank of America v. Superior Court (1990) 220 Cal.App.3d 613,

621 (Bank of America).) Similarly, in Moore v. City of Orange (1985) 174 Cal.App.3d

31, the reviewing court found plaintiff was not entitled to any of the substantive relief

sought in her petition for writ of mandate and reversed the judgment. (Id. at p. 37.) On

remand, the trial court dismissed the case. (Id. at p. 33.) The reviewing court concluded

plaintiff was not entitled to a retrial on new theory not presented in the original trial. (Id.

at pp. 33, 37.)



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       The Stromer exception applies because the Plikaytis I opinion as a whole

establishes an intent contrary to the general rule. (Stromer, supra, 268 Cal.App.2d at

p. 518.) Our discussion in Plikaytis I established that Plikaytis failed to present evidence

that Talmadge Canyon was bound under a 2006 employment agreement between her and

two other entities. Accordingly, we reversed the judgment in her favor, but did not

specifically direct that judgment be entered for Talmadge Canyon. On remand,

Plikaytis's offer of proof shows she sought to retry the claim based on a new theory and

evidence (additional testimony from Plikaytis and documents) that could have been

presented during the original trial. Where, as here, a party has no newly discovered

evidence, a retrial is not warranted.

       Another exception exists where the trial court denies a motion for judgment

notwithstanding the verdict (JNOV) and the appellate court reverses the judgment for

insufficiency of the evidence. (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657,

1661 (McCoy); Bank of America, supra, 220 Cal.App.3d at p. 626.) The McCoy court

noted the general rule allowing a retrial after a reversal is premised on a situation where

an error of law occurred during the proceedings that prevented the appellant from

receiving a fair trial. (McCoy, at pp. 1660-1661.) "A reversal under these circumstances

informs the trial court that a proper motion for new trial, had it been made, should have

been granted. However, a reversal for insufficiency of the evidence is based on the fact

that the plaintiff's evidence does not, as a matter of law, support the plaintiff's cause of

action. When a judgment for the plaintiff is reversed for insufficiency of the evidence the



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appellate court is, in effect, advising the trial court that a nonsuit, directed verdict or

JNOV should have been entered." (Id. at p. 1661.)

       The McCoy court explained, "when the plaintiff has had a full and fair opportunity

to present his or her case, a reversal of a judgment for the plaintiff based on insufficiency

of the evidence should place the parties, at most, in the position they were in after all the

evidence was in and both sides had rested. A judgment for the defendant would then be

entered, and a new trial permitted only for newly discovered evidence." (McCoy, supra,

227 Cal.App.3d at p. 1661.) Although Bank of America and McCoy addressed situations

where JNOV motions were denied and the evidence was later found insufficient to

support the verdict, as we discuss below, reviewing courts have denied retrial in situations

where a JNOV motion was not made below.

       In Cassista v. Cmty. Foods, Inc. (1993) 5 Cal.4th 1050, the trial court denied a

defense motion for nonsuit in favor of defendant "on the ground that plaintiff had failed to

establish she was a handicapped individual within the meaning of the [California Fair

Employment and Housing Act] [(FEHA)]." (Id. at p. 1055.) Our high court granted

review to examine whether "on the record evidence, plaintiff had established a prima

facie case of handicap discrimination within the meaning of the FEHA." (Ibid.) The

Court concluded the trial court erred in denying nonsuit because it was well settled at the

time of trial that plaintiff was required to establish a physiological basis for her alleged

handicap, but plaintiff failed to produce such evidence. (Id. at p. 1066.) Citing McCoy,

the Court stated plaintiff was not entitled to a new trial because she had "received a full

and fair opportunity to prove her case." (Ibid.)

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       In Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, the trial court

entered a default judgment in favor of plaintiff when defendants failed to timely answer

the complaint. (Id. at p. 278.) After denying defendants' motion to set aside the defaults,

the trial court entered judgment in favor of plaintiff. (Id. at pp. 278-279.) The appellate

court reversed the default judgment because the complaint failed to state any cognizable

cause of action against defendants. (Id. at pp. 283-286.) Citing McCoy, the appellate

court concluded it was proper to reverse the judgment with directions to enter a judgment

in favor of defendants because plaintiff had a full and fair opportunity to present his case,

but failed to do so. (Id. at p. 289.)

       Numerous other cases have relied on McCoy to deny a new trial. The critical issue

in these cases is not whether a motion for JNOV or any other motion directed to the

sufficiency of the evidence had been brought or whether the evidence was undisputed, but

whether the party seeking the retrial had a full and fair opportunity to present its case.

(Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 153-

154 [future damages award stricken without granting a retrial because insufficient

evidence supported the award]; Frank v. County of Los Angeles (2007) 149 Cal.App.4th

805, 833-834 [retrial denied where plaintiffs' claim of racial intent not supported by the

record]; Kelly v. Haag (2006) 145 Cal.App.4th 910, 919-920 [no retrial where punitive

damages award not supported by the evidence]; Calif. Maryland Funding, Inc. v. Lowe

(1995) 37 Cal.App.4th 1798, 1809-1810 [judgment for plaintiff reversed based on

insufficient evidence and directing judgment be entered for defendant]; see also, Sonic

Mfg. Technologies, Inc. v. AAE Sys., Inc. (2011) 196 Cal.App.4th 456, 466 [reversal

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based on insufficient evidence not entitled to retrial, citing Frank]; Avalon Pacific–Santa

Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1210

[reversing and directing that judgment be entered for defendants based on plaintiff's

failure to present sufficient evidence, citing Frank].)

       Plikaytis's reliance on Boyle v. Hawkins (1969) 71 Cal.2d 229 (Boyle) and People

v. Barragan (2004) 32 Cal.4th 236 (Barragan) is misplaced. In Boyle, the appellate court

found the evidence insufficient to support a jury award and modified the award. (Boyle,

at p. 232, fn. 3.) Our high court found the evidence supported the jury's award and

affirmed the judgment. (Id. at p. 232.) The Court stated the modification was improper

as the record did not clearly show what the correct judgment should have been and that

"[t]he ordinary disposition upon a finding by the appellate court that the evidence is

insufficient to support the verdict is simply to reverse, giving the respondent a right to a

new trial." (Id. at p. 232, fn. 3.) While this statement is seemingly broad, no court has

ever interpreted it as allowing a new trial whenever a judgment is reversed based on

insufficient evidence.

       In Barragan, a criminal case, our high court concluded that where evidence is

found insufficient to sustain a prior conviction allegation the People are entitled to a

retrial, rejecting the argument that retrial was barred by the constitutional requirement of

fundamental fairness, equitable principles of res judicata and law of the case, and relevant

statutory provisions. (Barragan, supra, 32 Cal.4th at p. 239.) Rather, our high court

noted the Penal Code expressly provides that upon reversal of a judgment against a

defendant, that reversal " 'shall be deemed an order for a new trial, unless the appellate

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court shall otherwise direct.' " (Barragan, at p. 249, citing Pen. Code § 1262.)

Additionally, Penal Code section 1180 provides "[t]he granting of a new trial places the

parties in the same position as if no trial had been had. All the testimony must be

produced anew. . . . " In discussing whether a retrial should be barred under the doctrine

of law of the case, the Barragan court agreed that McCoy and Bank of America modified

the general rule allowing a retrial where a JNOV motion had been improperly denied.

(Barragan, at pp. 250-252.) However, the Barragan court does not state that a JNOV

motion must be brought before the general rule allowing retrial becomes inapplicable. No

cases have cited Barragan for this proposition and, as the preceding discussion shows, the

Supreme Court and numerous appellate courts have not read McCoy and Bank of America

this narrowly.

       We conclude that the McCoy exception also applies. Plikaytis is not entitled to a

second opportunity to prove her breach of contract claim against Talmadge Canyon as she

had a full and fair opportunity to present her case against Talmadge Canyon, but failed to

present sufficient evidence to prove her claim. Plikaytis points out that Talmadge Canyon

could have raised our failure to direct the trial court to enter judgment for Talmadge

Canyon in a petition for rehearing in Plikaytis I, but failed to do so and should be barred

from making this argument. While we agree that Talmadge Canyon could have raised

this oversight in a petition for rehearing in Plikaytis I, this omission did not prevent the

parties from addressing the issue on remand. Finally, a retrial based on newly discovered

evidence is unwarranted as Plikaytis has not challenged the trial court's finding that she



                                              9
has no newly discovered evidence. Accordingly, the trial court did not err when it

entered judgment in favor of Talmadge Canyon.

                                     DISPOSITION

      The judgment in favor of Talmadge Canyon is affirmed. The parties shall bear

their own costs on appeal.



                                                                          MCINTYRE, J.

WE CONCUR:


HALLER, Acting P. J.


MCDONALD, J.




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