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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                            2
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

                                             3
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.




                                               4
