Opinion
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from a judgment and orders of the Superior Court of San Diego County, Patricia Y. Cowett, Judge.
AARON, J.
Appellant Brian Connelly, acting as a licensed real estate salesperson, marketed residential units in two condominium projects in downtown San Diego known as Treo and La Vita. The Treo project was developed by respondent Intergulf Development (Kettner), LLC (Intergulf) and the La Vita project was developed by respondent Lennar-Intergulf (Little Italy), LLC (Lennar). Intergulf eventually discharged Brian and filed a lawsuit against him, based largely on allegations that Brian defrauded Intergulf by selling units at prices below Intergulf's established list prices. Brian filed a cross-complaint against Intergulf, Lennar and others seeking unpaid commissions and other damages. Lennar later filed a cross-complaint against the Connellys for fraud and breach of fiduciary duty in connection with the Connellys' purchase of a unit in La Vita. The court dismissed all of Brian's cross-claims against respondents before or during trial, and a jury returned verdicts in the Connellys' favor on Lennar's cross-complaint and in Brian's favor on Intergulf's complaint. After the court entered judgment, Intergulf and Lennar jointly moved for a new trial and the court granted the motion.
For purposes of clarity, we will refer to Brian and appellant Lauren Connelly together as "the Connellys" and to Brian Connelly, separately, as "Brian." We will at times refer to Intergulf and Lennar collectively as "respondents."
In case No. D046932, the Connellys appeal the order entered on August 2, 2005, granting respondents' new trial motion. Brian also appeals the portion of the judgment dismissing his first amended cross-complaint against respondents. In case No. D048344, the Connellys appeal an ex parte order entered on March 13, 2006 (the March 13 order), which states that the August 2, 2005 new trial order (the original new trial order) "is clarified to mean that the Court granted a new trial on all pleadings and issues as to [Intergulf's] complaint and [Lennar's] cross-complaint." We have ordered that the two appeals be considered together and are filing an order with this opinion consolidating the appeals.
The Connellys contend that the original new trial order must be reversed because the trial court did not adequately specify its reasons for granting a new trial on the ground of insufficiency of the evidence, as Code of Civil Procedure section 657 requires. Brian separately contends that he adequately stated causes of action in his first amended cross-complaint and that the court committed reversible error by dismissing his claims without granting him leave to amend. In their second appeal, the Connellys contend that the March 13 order, which purports to clarify the original new trial order, must be reversed because (1) the trial court lacked jurisdiction under the automatic stay provision of section 916, subdivision (a), to issue the order while the Connellys' appeal of the original new trial order was pending; (2) the trial judge entered the order after the Connellys had filed a peremptory challenge and the trial judge had granted their request to reassign the case to another judge; (3) the trial court entered the order after the jurisdictional time period to rule on respondents' new trial motion under section 660 had expired; (4) the order does not specify the grounds or reasons for granting a new trial on all issues as to both respondents, as section 657 requires; and (5) there is insufficient evidence to support a jury verdict in favor of Lennar on its cross-complaint. We reverse both the original new trial order and the March 13 order, and reinstate and affirm the judgment, including the portion of the judgment dismissing Brian's first amended cross-complaint.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Neither Intergulf nor Lennar filed a protective cross-appeal from the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Intergulf and Lennar are subsidiaries of Intergulf Development Corporation that were formed to develop condominium projects in the downtown area of San Diego. Intergulf was formed in 1999 to develop a project known as Treo @ Kettner (Treo) and Lennar was formed in 2002 to develop a project known as La Vita. Joachim Werner was the chief operating officer of Intergulf, Lennar, and a number of other Intergulf-related entities.
In March 2000, Intergulf contracted real estate broker Pickford New Homes Real Estate, Inc., doing business as Prudential New Homes Real Estate (Prudential), to market and sell the Treo units. Prudential hired broker H. Lee Mullinax to manage the sales and marketing of its projects, including Treo. In April 2000, Prudential hired Brian to be the sales manager for Treo. Although Brian had no prior experience selling residential real estate, he had favorably impressed Mullinax when he negotiated a commercial lease for Prudential.
Mullinax implemented an "incremental pricing strategy" for the Treo project under which the units in each phase of the project were reserved for sale in groups or "tiers" of 15 to 18 units, and the unit prices for each successive tier were increased incrementally. Mullinax set forth the tiers and incremental pricing for the Treo units on a document referred to as the "pricing matrix." The incremental pricing strategy was designed to lock prospective buyers who reserved units into particular tiers at projected prices. Mullinax testified that although the reservation price was not legally binding on either the buyer or the seller, "we did our very best when we got to contract to make the price as close to [the reservation] price as we could because we knew that if we were over by a large margin, a lot of those buyers wouldn't buy . . . ." Brian obtained reservations for the entire first phase of Treo, consisting of 180 units, when he was the only salesperson for Treo.
There were 72 different floor plans at Treo. The planned square footage of some units was changed after the units were reserved. As a result, the prices for these units also changed, because prices were determined by multiplying a unit's square footage by the price per square foot. If a unit's square footage did not change, the buyer's contract price was the same as the price quoted at the time of reservation.
Brian testified that Mullinax had given him the authority to raise and lower prices. He also testified that the Treo sales staff would obtain Werner's approval before selling a unit for less than its tier price. Werner testified that he had given his approval to Brian or Mullinax to sell a Treo unit for less than its tier price. The sales staff raised the prices of a number of units by placing them in higher tiers. This resulted in the project selling out for nearly $20 million over the initial projections. At one point, Brian raised the price of all remaining units by $10,000 each, so that the sales staff could offer discounts up to that amount without having to obtain prior approval.
Hareesh Sara, chief financial officer for the Intergulf-related company Intergulf Investment Corporation, and Herman Nuessler, development manager for Treo, both testified that Werner told them that the Treo sales staff had discretion to raise and lower prices.
It is not clear from Werner's testimony whether he approved the sale of more than one Treo unit for less than tier price or whether he gave his approval to Brian or to Mullinax.
In February 2002, Intergulf terminated its agreement with Prudential after it decided to create an in-house sales team rather than use a third-party broker to market the La Vita units. In April 2002, Prudential and Intergulf entered into a "Separation Agreement" pursuant to which Prudential allowed the Treo sales team, including Brian, to become employees of Intergulf in exchange for Intergulf's promise to pay the commissions that were due to Prudential on prior sales of Treo units. Although the effective date of the separation agreement was April 18, 2002, Prudential agreed to allow the Treo sales staff to work under its broker license until Intergulf obtained a replacement broker.
In June 2002, Werner discovered that Brian's father-in-law, Barry Reynolds, had contracted to purchase a Treo unit for $476,000, and that a prior contract to sell the same unit for approximately $514,000 had been cancelled. Werner also discovered that the unit's tier one price had recently been changed on the price matrix from $496,000 to $476,000, after Reynolds contracted to buy the unit. In a telephone conversation on Friday, June 28, Werner confronted Brian about these price discrepancies and asked Brian to stay out of the Treo sales office until Werner arrived there the following Monday. The next week, Werner fired Brian after Werner discovered that Brian and his wife had contracted to buy a Treo unit for $300,000, and that the tier one price for the unit was $336,000.
After Werner fired Brian, Werner and Brian signed an exit agreement dated July 19, 2002. The agreement provided that Brian would release the Treo units that he and his wife and his father-in-law had contracted to purchase, and would cancel all of his La Vita reservations, with the exception of the unit that he and his wife had reserved at its opening price. In addition, Brian would receive the commissions he had earned on Treo units when escrow closed on those units, and would also receive his proportionate share of sales volume bonuses. Brian would not be entitled to any commissions on La Vita. The agreement also provided that Intergulf would give Brian a letter of recommendation, if requested, and that the circumstances of Brian's separation and the terms of the exit agreement would be kept confidential, except as necessary to effect the distribution of Brian's commissions.
Around the time escrows were closing on Treo units in 2003, Werner communicated Intergulf's allegations about Brian's improper sales activities to Prudential's senior vice president, Catherine Nichols. At Nichols's request, Werner sent Nichols documents that supported Intergulf's claims against Brian. Nichols responded with a letter in which she stated that Prudential owed Brian outstanding commissions and would release that money to Brian unless Intergulf filed a lawsuit against Brian by a certain date. Intergulf filed the instant action to prevent Prudential from paying Brian the commissions.
The Gottlieb transaction
The trial court's August 2, 2005 ruling on respondents' motion for new trial is based largely on Brian's involvement in the sale of a Treo unit to Todd Gottlieb. Gottlieb was the second person to reserve a unit at Treo. Although the tier one price for the unit was $186,160, Brian quoted Gottlieb the price of $171,080 and wrote that figure on a copy of the unit's floor plan, which Gottlieb kept. Brian testified that he had mistakenly quoted Gottlieb a price for a different unit that was priced at $171,080 on the pricing matrix. When Brian later contacted Gottlieb to inform him that his unit was "going to contract," Brian quoted a contract price that was higher than the reservation price. Gottlieb reminded Brian that Brian had quoted a reservation price of $171,080, and sent Brian a fax copy of the floor plan on which Brian had written that price. After Brian received the fax, he contacted Gottlieb and told him that Intergulf would honor the quoted reservation price of $171,080. Gottlieb ultimately paid $171,080 for his unit. The Connellys' damages expert, Jeffrey Porter, adjusted the tier one price of Gottlieb's unit to $180,070, apparently based on a reduction in the square footage of the unit after Gottlieb had reserved it. Porter testified that the difference between the price Gottlieb paid for the unit and the unit's tier one price was $9,620.
Gottlieb testified that the contract price Brian quoted "may have been around $216,000."
The figure of $180,070 appears to be the result of either erroneous testimony by Porter or erroneous transcription of his testimony, as $9,620 is the difference between $180,700 and $171,080. There is evidence in the record that the tier one price for Gottlieb's Treo unit in December 2000 was $180,700, and that the reduction in price from $186,160 was the result of a reduction in the planned square footage for the unit.
Intergulf filed a first amended complaint against Brian and Prudential, alleging causes of action against both for intentional misrepresentation, negligent misrepresentation, concealment of material facts, constructive fraud, breach of fiduciary duty, and declaratory relief (pertaining to the existence and breach of fiduciary duties). Prudential filed an interpleader cross-complaint and deposited with the trial court $16,757.12, representing commissions Brian had earned on sales of Treo units.
Intergulf separately named as defendants Pickford New Homes Real Estate, Inc.; The Ryness Company, which Intergulf alleged was a "dba of [Pickford];" and Prudential New Homes Real Estate, which Intergulf alleged was "a fictitious business name ('dba') and/or agent of PICKFORD and/or RYNESS." Our references to "Prudential" include all three entities.
Brian filed a first amended cross-complaint against Intergulf, Lennar, Prudential and others, essentially seeking to be paid his commissions on units he had sold. That pleading included causes of action against Intergulf and Lennar for promissory fraud, fraud, unfair business practices (Bus. & Prof. Code, § 17200), breach of the implied covenant of good faith and fair dealing, and intentional interference with prospective economic advantage. As to Prudential, Brian's first amended cross-complaint included causes of action for negligence, breach of contract, and breach of the implied covenant of good faith and fair dealing. Brian's first amended cross-complaint also included a cause of action for "Declaratory Relief – Full or Partial Indemnity" against all cross-defendants.
The other cross-defendants were Intergulf Development Group, and four individual officers of Intergulf and Intergulf Development Group. The trial court dismissed Intergulf Development Group from the cross-action after granting its motion to quash service of summons. The trial court dismissed the individual cross-defendants after sustaining their demurrer to Brian's first amended cross-complaint without leave to amend.
Prudential filed a demurrer to the four causes of action against it and also filed a special motion to strike those causes of action under section 425.16. The court sustained Prudential's demurrer as to the negligence and indemnity causes of action and overruled the demurrer as to the causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. However, the court granted Prudential's special motion to strike the latter two causes of action. Brian appealed the order granting the special motion to strike. This court reversed that order in case No. D044843, reviving Brian's causes of action against Prudential for breach of contract and breach of the implied covenant of good faith and fair dealing. The present record does not reveal the disposition of those causes of action. However, Prudential is not a party to this appeal.
Lennar filed a cross-complaint against the Connellys for fraud and breach of fiduciary duty in connection with the Connellys' purchase of a unit in La Vita. Lennar alleged that Brian had misrepresented the price of the unit to be $209,000 when the "listed, pre-determined and authorized sales price was approximately $214,000."
Intergulf filed a demurrer challenging Brian's first through fourth causes of action for promissory fraud, fraud, unfair business practices, and breach of the implied covenant of good faith and fair dealing. The trial court sustained Intergulf's demurrer without leave to amend. Lennar also filed a demurrer challenging those four causes of action, as well as the fifth cause of action for intentional interference with prospective economic advantage and the seventh cause of action for declaratory relief/indemnity. The trial court sustained Lennar's demurrer as to the seventh cause of action for indemnity, without leave to amend, and overruled the demurrer as to the first and second causes of action for fraud, the third cause of action for unfair business practices, and the fifth cause of action for intentional interference with prospective economic advantage.
Lennar did not identify the seventh cause of action in its demurrer, but addressed it in its memorandum of points and authorities in support of the demurrer.
Intergulf did not challenge the fifth and seventh causes of action in its demurrer. Although Lennar gave notice that it was demurring to the third cause of action for unfair business practice and the fourth cause of action for breach of the implied covenant of good faith and fair dealing, in its memorandum of points and authorities in support of its demurrer, Lennar erroneously referred to Brian's cause of action for breach of the implied covenant of good faith and fair dealing as the third cause of action, and argued that the court should dismiss this cause of action because Brian failed to allege a contract with Lennar. Lennar did not address Brian's actual third cause of action for unfair business practice in its memorandum of points and authorities. However, the order on Lennar's demurrer overruled the "Demurrer to the Third Cause of Action for B&P 17200" and did not address Brian's fourth cause of action for breach of the implied covenant of good faith and fair dealing.
Intergulf and Lennar subsequently filed a motion for judgment on the pleadings, seeking judgment on the fifth and seventh causes of action as to Intergulf and the first through fifth causes of action as to Lennar. The trial court granted the motion as to both cross-defendants on all challenged causes of action, with the exception of the fifth cause of action for intentional interference with prospective economic advantage. As a result, Brian's only remaining cause of action against respondents at the time of trial was his fifth cause of action.
Respondents filed a motion in limine to exclude any evidence supporting Brian's fifth cause of action, and the court granted the motion. Based on that ruling, the trial court granted respondents' joint motion for nonsuit on Brian's fifth cause of action after the Connellys' opening statement. The remainder of the case was tried to a jury, which returned verdicts in favor of Brian on Intergulf's complaint and in favor of the Connellys on Lennar's cross-complaint.
After the trial court entered a combined judgment on the special verdict and "judgment of dismissal of Brian Connelly's cross-complaint" (capitalization omitted), Intergulf and Lennar jointly filed a "motion for new trial, including to set aside and vacate judgment and enter another and different judgment." (Capitalization omitted.) The trial court tentatively denied the motion, but took the matter under submission following oral argument. On August 2, 2005, the trial court entered the following order:
"The Court having heard oral argument, considered the documents on file herein, and taken the matter under submission on July 29, 2005, now rules as follows:
"The Court grants Plaintiff's Motion for a New Trial. There was insufficiency of evidence to support the jury's finding of no liability of defendant Brian Connelly for negligent misrepresentation. (See jury instructions: 'What constitutes actual fraud by real estate sales agent,' 'Full disclosure defined,' 'Material fact,' 'Justifiable Reliance in Fiduciary,' 'Real Estate Sales Agent's Loss of Right to Commission for bad Faith,' 'Negligent Misrepresentation,' 'Fraud and Deceit – Right to Rely,' and 'Damages.') There was clear and convincing evidence as to the Gottlieb transaction that Brian Connelly:
"1. Told plaintiff the sales price was x, when he knew the price to be x + $9,000.
"2. The sales price is material to plaintiff's decision to contract with buyers.
"3. Connelly knew the statement was false when made.
"4. Connelly had no ground for believing the price to be correct as he specifically knew the correct price but gave the buyer the lower price anyway, and did not recall ever telling the principal the price was wrong, nor ask for approval of the lower price.
"5. Connelly knew plaintiff relied on his representation as to price.
"6. Plaintiff did rely.
"7. And plaintiff suffered a loss of $9,000 plus interest.
"The Court grants judgment notwithstanding the verdict as follows: Plaintiff is awarded the difference between the applicable sales price and the contract price and interest thereon at 10% per annum from the date of contract for sale. Here, the Gottlieb sales contract closed ____ and thus 10% per annum on $9,000 runs from ____, to the present date of July 29, 2005.
"If plaintiff and defendant do not accept said additur on or before August 8, 2005, the trial setting conference for the new trial will be 9:00[]a.m. on August 26, 2005.
"IT IS SO ORDERED."
On August 8, 2005, respondents filed a notice stating that they would not accept the additur set forth in the new trial order. On August 19, the Connellys filed their notice of appeal from the new trial order.
In January 2006, after this court had reversed the order granting Prudential's special motion to strike in case No. D044843, the Connellys filed a peremptory challenge of the trial judge (Judge Cowett) under Code of Civil Procedure section 170.6, and the case was reassigned to a different judge.
At a hearing on February 24, 2006 on a severance motion brought by respondents, the Connellys challenged Lennar's standing to appear at the motion hearing and in the Connellys' appeal of the new trial order. This prompted respondents to file an ex parte application with Judge Cowett in which they sought "clarification" that in issuing the new trial order, Judge Cowett "intended there be a complete new trial in the present matter, including plaintiff [Intergulf's] complaint, cross-complainant [Brian's] cross-complaint and cross-complainant [Lennar's] cross-complaint."
In their respondent's brief filed in case No. D048344, Intergulf and Lennar represent that the newly assigned trial judge, Judge Denton, suggested that the parties ask Judge Cowett to clarify the scope of her August 2, 2005 new trial order.
On March 13, 2006, Judge Cowett granted Intergulf and Lennar's request for clarification and entered the following order: "IT IS ORDERED that [the] Court's August 2, 2005 New Trial Order is clarified to mean that the Court granted a new trial on all pleadings and issues, as to plaintiff, [Intergulf's] complaint, and [Lennar's] cross-complaint."
Judge Cowett interlineated the portion of the proposed order that would have expanded the scope of the new trial order to encompass Brian's cross-complaint.
DISCUSSION
I.
The August 2, 2005 Order Does Not Adequately Specify the Trial Court's Reasons for Granting a New Trial
The Connellys contend that this court must reverse the August 2, 2005 new trial order because the trial court did not adequately specify its reasons for granting a new trial on the ground of insufficiency of the evidence, as section 657 requires. We agree.
Section 657 provides in relevant part: "When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." Section 657 further provides that "on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons." (Italics added.) "The procedural steps specified in [section 657] are 'mandatory and must be strictly followed. [Citations.]' " (Smith v. Moffat (1977) 73 Cal.App.3d 86, 91, citing Mercer v. Perez (1968) 68 Cal.2d 104, 118 (Mercer) and LaManna v. Stewart (1975) 13 Cal.3d 413, 422-423.)
In Oakland Raiders v. National Football League (2007) 41 Cal.4th 624 (Oakland Raiders), the California Supreme Court noted that " 'in the context of [section 657] the words "ground" and "reason" have different meanings.' [Citation.] The word 'ground' refers to any of the seven grounds listed in section 657. [Citation.] A statement of grounds that reasonably approximates the statutory language is sufficient. [Citations.] The statement of 'reasons,' on the other hand, should be specific enough to facilitate appellate review and avoid any need for the appellate court to rely on inference or speculation. [Citations.]" (Id. at p. 634.)
Because a trial court has broad discretion in deciding a motion for new trial and an order granting a new trial generally will not be disturbed on appeal absent a manifest and unmistakable abuse of discretion, the statutory requirement that the trial judge adequately specify the reasons for granting a new trial furthers the purposes of promoting careful judicial deliberation and discouraging hasty or ill-considered new trial orders, and facilitating meaningful appellate review of an order granting a new trial. (Mercer, supra, 68 Cal.2d at pp. 112-113.)
Before the Legislature amended section 657 to require trial courts to specify reasons for granting a new trial on the ground of insufficiency of the evidence, "[t]he appellate court could find itself considering alleged insufficiencies totally unrelated to those relied upon by the trial judge; and without further elucidation of the order, the principle that an abuse of discretion cannot be found in cases in which the evidence is in conflict and a different verdict could have been reached [citation] 'constitutes an iron curtain, cutting off any adequate review of whether or not there was any reason for the trial judge to set aside the verdict of the jury and grant a new trial.' (Italics added.) [Citation.]" (Mercer, supra, 68 Cal.2d at p. 114, fn. omitted.) Section 657 narrows the scope of review "to more manageable proportions: the appellant need only address himself to those asserted deficiencies in the proof which are specified as reasons for the order, and the reviewing court need only determine if there is a substantial basis for finding such a deficiency in any of the respects specified. By the same token, [section 657] also serves the first purpose discussed herein: since the granting of a new trial on the ground of insufficiency of the evidence may . . . be affirmed only for a reason given in the order, it is to be expected that the trial judge will take particular care in ruling on this ground and in articulating the bases of [the] decision." (Mercer, supra, at p. 115.)
The California Supreme Court has noted "that '[no] hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.' [Citation.] However, . . . if the ground relied upon is 'insufficiency of evidence,' the trial judge's specification of reasons 'must briefly identify the portion of the record which convinces the judge "that the court or jury clearly should have reached a different verdict or decision." ' [Citations.]" (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 60 (Stevens).) A specification of reasons phrased in terms of ultimate facts is insufficient. (Id. at p. 61). When a new trial is granted on the ground of insufficiency of the evidence, the trial judge "must briefly recite the respects in which he [or she] finds the evidence to be legally inadequate . . . ." (Mercer, supra, 68 Cal.2d at p. 116.) The trial judge must "identify the deficiencies he [or she] finds in 'the evidence' or 'the record' or . . . 'the proof' – rather than merely in 'the issues' or the 'ultimate facts.' " (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 367.) "It is not enough to merely refer to the testimony of a witness without stating the portions of that testimony on which the court relies for its conclusions." (Previte v. Lincolnwood, Inc. (1975) 48 Cal.App.3d 976, 987.)
Measured by this standard, it is clear that the August 2, 2005 new trial order does not sufficiently specify the trial court's reasons for granting a new trial. As noted, the only ground the trial court cited in the order for granting the new trial motion was "insufficiency of evidence to support the jury's finding of no liability of defendant Brian Connelly for negligent misrepresentation." Section 657 precludes this court from interpreting the order as granting a new trial on the ground of insufficiency of the evidence for any reason that is not stated in the order. However, the order does not include a recitation of the court's reasons for finding the evidence to be legally inadequate to support the jury's determination that Brian was not liable for negligent or intentional misrepresentation, nor does the order identify any portion of the record that led the judge to conclude that the jury clearly should have reached a different verdict on Intergulf's causes of action for negligent misrepresentation or intentional fraud. After referring generally to a number of jury instructions the trial court had given regarding both negligent misrepresentation and intentional fraud, the order addresses only the Gottlieb transaction, and as to that transaction states only that there was clear and convincing evidence that Brian intentionally misrepresented the price of the unit. The court did not identify any particular testimony that it believed or disbelieved in concluding that Brian had not mistakenly quoted the wrong price for the Gottlieb unit, as he testified, but rather, that he intentionally misrepresented the price of the unit; nor did the court cite to any evidence supporting its finding that Intergulf, as the owner and seller of the unit, relied on Brian's representation of the price of the unit that Intergulf was selling. Further, the court made no finding or reference to the record on the issue of whether Intergulf's claimed reliance on Brian's misrepresentation of the price of Intergulf's own unit was reasonable.
The trial court's order is ambiguous as to whether the court found the evidence insufficient to support a finding of no liability for intentional misrepresentation or for negligent misrepresentation. The court correctly instructed the jury that an element of intentional misrepresentation is that the "defendant knew that the representation was false when he made it, or that he made the representation recklessly and without regard for its truth[.]" The court also correctly instructed the jury that the scienter element of negligent misrepresentation is that "[the] defendant had no reasonable grounds for believing the representation was true when he made it[.]" (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182 [negligent misrepresentation is similar to intentional misrepresentation except that the scienter required for negligent misrepresentation is not that the defendant intentionally made a false statement but that the defendant made a false statement lacking any reasonable ground to believe it to be true].) Although the new trial order states that the evidence was insufficient to support the jury's finding on negligent misrepresentation, the order also states that Brian "knew the statement [of the price of Gottlieb's unit] was false when made."
Although respondents discussed the ground of insufficiency of the evidence to support the verdict in the memoranda of points and authorities that they filed in support of their new trial motion and in reply to the Connellys' opposition to the motion, respondents never expressly argued that the evidence was insufficient to support the verdict with respect to the Gottlieb transaction. Respondents mentioned Brian's underpricing of the Gottlieb unit only in the introductory section of their initial memorandum of points and authorities in connection with jury deliberations, and in a "Separate Statement Of Material Facts" and "Supplemental Reply Separate Statement Of Material Facts" that they filed in support of their motion.
In Oberstein v. Bisset (1976) 55 Cal.App.3d 184 (Oberstein), the trial court granted a new trial on the ground of excessive damages and stated, as its specification of reasons, that it had found " 'no evidence to indicate anything other than a very minor type of strain or injury[.]' " (Ibid.) Concluding that this statement was an insufficient specification of reasons for granting a new trial, the appellate court observed that the statement "fails to identify the evidence which convinced the court that the injury was only very minor and that the damages awarded were excessive. Such conclusory statements are wholly inadequate. [Citation.]" (Ibid.)
The same rules that apply to a specification of reasons for granting a new trial on the ground of insufficiency of the evidence apply when the court grants a new trial on the ground of inadequate or excessive damages. (Stevens, supra, 9 Cal.3d at p. 61.)
The Oberstein court also held that a trial court cannot satisfy the statutory requirement by adopting a specification of reasons drafted by counsel. (Oberstein, supra, 55 Cal.App.3d at p. 187-190.)
The trial court's statement in the new trial order that Brian knew his misrepresentation of the price of Gottlieb's unit was false when he made it similarly fails to identify the "clear and convincing evidence" on which the court relied in reaching that conclusion. The court did not identify any evidence to support its findings that Brian "specifically knew the correct price but gave the buyer the lower price anyway," that he did not "ask for approval of the lower price," or that he "knew [Intergulf] relied on his representation as to price." The trial court essentially made only a conclusory finding of ultimate fact that Brian's conduct with respect to the Gottlieb transaction constituted negligent or intentional misrepresentation. Because the new trial order does not adequately specify the trial court's reasons for granting a new trial on the ground of insufficiency of the evidence, this court cannot sustain the order on that ground. (Stevens, supra, 9 Cal.3d at p. 63.)
The Connellys suggest that the new trial order is defective for the additional reason that it fails to specify why the evidence is insufficient as to all of the findings the jury presumably made to support the verdict. To the extent the order was intended to grant a new trial as to all of the issues that the jury decided, it is fatally defective. "An order granting a new trial in which the trial court sets out adequate reason[s] for finding the verdict wrong on only one issue of several submitted to the jury, is erroneous. To grant a new trial in such a situation, the trial court must adequately specify reasons why the evidence is insufficient on all issues presumably found by the jury to support the verdict." (Previte v. Lincolnwood, Inc., supra, 48 Cal.App.3d at p. 987.) Accordingly, even if this court were to conclude that the new trial order adequately specified the trial court's reasons for granting a new trial on the issue of Brian's liability for misrepresentation in connection with the Gottlieb transaction, the order is clearly not sustainable as an order granting a new trial on the other fraud and breach of fiduciary duty issues that the jury decided, because the order does not include a specification of reasons for granting a new trial as to any of those issues.
Although the point is moot in light of our conclusion that we must reverse the new trial order on the ground that the trial court's specification of reasons is insufficient, the portion of the new trial order that purports to grant "judgment notwithstanding the verdict" against Brian in the amount of $9,000 plus interest as an alternative to granting a new trial, unless either Brian or respondents were unwilling to accept "said additur," is improper. Under section 662.5, subdivision (a), an order granting a new trial may be conditioned on an additur only if the new trial is granted on the ground of "inadequate damages." (See San Francisco Bay Area Rapid Transit Dist. v. Fremont Meadows, Inc. (1971) 20 Cal.App.3d 797, 802 ["[T]he only basis on which additur power may be exercised is inadequate damages. [Citation.]"], citing Jehl v. Southern Pacific Company (1967) 66 Cal.2d 821, 827, fn. 1.) Because the jury made no finding of liability against Brian, and thus awarded no damages to respondents, the trial court could not have granted a new trial on the unstated ground of inadequate damages.
II.
This Court Cannot Affirm the August 2, 2005 Order on Any Other Ground Respondents Raised in Their New Trial Motion
Section 657 provides that a new trial order shall be affirmed on appeal "if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons." Accordingly, where a motion for new trial raises grounds other than, or in addition to, insufficiency of the evidence or inadequate or excessive damages, a court's failure to adequately specify reasons renders a new trial order defective but not void. (Oakland Raiders, supra, 41 Cal.4th at p. 636; Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 550, citing Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 900.) "The order may still be sustained if a new trial should have been granted upon any ground set out in section 657 except the grounds of insufficiency of the evidence or inadequate or excessive damages. [Citation.]" (Oakland Raiders, supra, 41 Cal.4th at p. 636, italics added.)
The burden is on the party that is seeking to sustain the defective new trial order " 'to advance any grounds stated in the motion upon which the order should be affirmed, and a record and argument to support it' [citation] and to persuade the reviewing court that the trial court should have granted the motion for a new trial. Thus, the effect of the trial court's failure to file a statement of reasons in support of the order granting a new trial is to shift the burden of persuasion to the party seeking to uphold the trial court's order." (Oakland Raiders, supra, 41 Cal.App.4th at p. 641.)
Respondents have not met this burden because they have not advanced on appeal any ground stated in their motion other than insufficiency of the evidence to justify the verdict. Therefore, this court cannot affirm the new trial order on some other ground that respondents raised in their motion for new trial.
III.
The March 13 Order Is Defective
The March 13 order cannot stand because it is defective under section 657 and untimely under section 660. As noted, the March 13 order, which respondents' counsel drafted, states that the original order "is clarified to mean that the Court granted a new trial on all pleadings and issues, as to plaintiff, [Intergulf's] complaint, and [Lennar's] cross-complaint." Although the March 13 order is entitled an "order clarifying the court's August 2, 2005 new trial order" (capitalization omitted) and on its face purports to clarify the meaning of the original new trial order, we disagree with respondents' characterization of the March 13 order as constituting a mere clerical correction or clarification of the original new trial order.
In support of the viability of the March 13 order, respondents cite the rule that a court has the inherent "power after final judgment and regardless of lapse of time to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself, so that such records will conform to and speak the truth. [Citations.]" (In re Roberts (1962) 200 Cal.App.2d 95, 97.) Respondents also cite Uhl v. Johnson (1956) 141 Cal.App.2d 659, 665 (Uhl), for the proposition that "a court may, at any time, and with or without notice, or on its own motion, correct a judgment by a nunc pro tunc order so as to make the judgment as entered conform to the judicial decision actually made. [Citation.]" However, the Uhl court went on to state that although "a trial court has jurisdiction to correct mistakes in its orders and records which are not actually the result of the exercise of judgment, . . . where the error is inherently judicial rather than clerical or inadvertent, the court has no power to amend its decision. [Citations.]" (Ibid., italics added.)
" 'The rule is well settled in this state that every court of record has the inherent power to correct its records so that they shall conform to the facts and speak the truth, and likewise correct any error or defect occurring in a record through acts of omission or commission of the clerk in entering of record the judgments or orders of the court, and such correction may be made at any time by the court on its own motion, . . . [Citations.]" (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101.) However, " '[i]t is equally well established that the court in the exercise of this power is not authorized to do more than to make its records conform to the actual facts, and cannot, under the form of an amendment of its records, correct a judicial error, or make of record an order or judgment that was never, in fact, given . . . . [Citations.] [Citation.]" (Ibid., italics added; see also Bowden v. Green (1982) 128 Cal.App.3d 65, 71 [clerical error is an inadvertent error in an order or judgment that cannot reasonably be attributed to the exercise of judicial consideration; the test is whether the challenged order or judgment was made or entered inadvertently (clerical error) or advertently (judicial error)].)
The March 13 order does not merely correct clerical or inadvertent error. Rather, the order dramatically expands the scope of the original new trial order in ways that clearly involve the exercise of judgment. The order must therefore be viewed as correction of error that is inherently judicial. The original new trial order on its face addresses only Intergulf's cause of action for negligent misrepresentation with respect to the Gottlieb transaction, and is silent as to any other issue that respondents raised in their new trial motion. There is nothing in the record to indicate that when the trial court initially ruled on respondents' motion, it intended to grant a new trial on all issues as to both Intergulf's complaint and Lennar's cross-complaint, but inadvertently neglected to communicate that intent in the original new trial order. Rather, it appears that in response to respondents' request for "clarification" of the original new trial order, the trial judge reconsidered the entire new trial motion and decided, well after the fact, to expand the scope of its grant of a new trial to include all of respondents' claims against the Connellys. Because the March 13 order expands the scope of the original new trial order beyond any reasonable construction of the language of the original order, the March 13 order cannot reasonably be viewed as a mere "clarification" of the original new trial order.
The fact that the original new trial order would have denied a new trial if the parties had consented to a "judgment notwithstanding the verdict" that would have changed the original judgment only by awarding Intergulf approximately $9,000 in damages, plus interest, in connection with the Gottlieb transaction, supports our view that the original new trial order did not contemplate a complete retrial of all of respondents' claims. The court's proposed judgment notwithstanding the verdict/additur in the original order did not address any other claim for damages by Intergulf or Lennar.
The March 13 order effectively amounts to an attempt to amend and correct the original new trial order, nunc pro tunc, after the trial court's jurisdiction to rule on respondents' new trial motion had expired. Section 660 provides that "the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court . . . or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court."
The 60-day period within which the trial court must rule on a new trial motion under section 660 "is mandatory and jurisdictional. [Citations.] The period may not be enlarged under the rubric of mistake, inadvertence, surprise, excusable neglect under section 473 or by means of a nunc pro tunc order. [Citation.] '[A]n order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void.' [Citation.]" (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517-518; Siegal v. Superior Court, supra, 68 Cal.2d at p. 101.)
The following observation in Gursey v. Campus Camera Shop (1950) 98 Cal.App.2d 257 is particularly apposite here: "While section 473[, subdivision (d)] is authority for a court to 'correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed,' . . . the language of the section cannot be so construed as to authorize the correction of an order granting a new trial to the extent that a defective minute order can be rewritten after the time for entering the order has passed and particularly after the case has been appealed." (Id. at pp. 260-261, italics added.) Because the March 13 order greatly expanded the scope of the original new trial order to "make of record an order . . . that was never, in fact, given," and was issued after the jurisdictional time period under section 660 to rule on respondents' motion for new trial had expired, the order is in excess of the trial court's jurisdiction and is therefore void. (Siegal, supra, 68 Cal.2d at p. 101.)
Although our conclusion that the March 13 order is void under section 660 is dispositive, the order is invalid for the additional reason that it does not state grounds for granting a new trial, as section 657 requires. (Dodge v. Superior Court, supra, 77 Cal.App.4th at p. 523.) To the extent the March 13 order can be viewed as granting a new trial on the ground of insufficiency of the evidence because that ground is stated in the original new trial order, the order is defective because it does not specify any reasons for granting a new trial on that ground as to Intergulf's entire complaint or as to Lennar's cross-complaint. As discussed above, the specification of reasons in the original order addresses only the issue of Brian's liability to Intergulf for negligent or intentional misrepresentation, and only as to the Gottlieb transaction. As to that issue, the specification of reasons is insufficient.
Respondents contend that the Connellys invited any error in the March 13 order by failing to either oppose the order or to appear at the ex parte hearing at which the order was issued, and also by failing to seek clarification of the original new trial order from the trial court. However, the Connellys were not required to seek clarification of the original new trial order before raising its statutory and jurisdictional defects on appeal. Further, the Connellys have not waived their right to challenge the trial court's jurisdiction to issue the March 13 order after expiration of the time period under section 660 to rule on respondents' motion for new trial under the doctrine of invited error. "The time limits set by section 660 . . . are mandatory and jurisdictional [citation], and . . . may not be changed by consent, waiver, agreement or acquiescence. [Citations.]" (Meskell v. Culver [Citation.] Unified School District (1970) 12 Cal.App.3d 815, 825.) In any event, although the Connellys did not appear at the ex parte hearing on respondents' application for clarification of the original new trial order, the record indicates that they did not acquiesce in the March 13 order's expansion of the scope of the original new trial order. The fact that the Connellys challenged Lennar's standing to appear at respondents' severance motion and in the Connellys' appeal of the original new trial order shows that they did not agree with respondents' expansive construction of the original new trial order.
In light of our conclusion that the March 13 order is both void as being in excess of the court's jurisdiction under section 660 and defective under section 657, we need not address the Connellys' other challenges to the March 13 order.
IV.
The Trial Court Did Not Err in Dismissing Brian's First Amended Cross-Complaint
Brian contends that the trial court committed reversible error by dismissing his claims without granting him leave to amend. We reject this assignment of error because it is not adequately supported by argument.
On appeal, the appellant bears the burden of showing that the trial court committed reversible error in sustaining a demurrer or granting a motion for judgment on the pleadings. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 277 [demurrer]; Mack v. State Bar of California (2001) 92 Cal.App.4th 957, 961 [judgment on the pleadings].) An appellate court is not "required to consider alleged error where the appellant merely complains of it without pertinent argument." (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710.) "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
Brian's first amended cross-complaint included the following causes of action (first through fifth) against respondents: promissory fraud, fraud, unfair business practices (Bus. & Prof. Code, § 17200), breach of the implied covenant of good faith and fair dealing, and intentional interference with prospective economic advantage. Brian's cross-complaint also included a seventh cause of action for "Declaratory Relief – Full or Partial Indemnity" against all Cross-Defendants. In his opening brief, Brian notes that in a prior appeal, this court rejected his "contentions with regard to the adequacy of his conspiracy theory allegations and his causes of action against the Intergulf individuals for promissory fraud, fraud, unfair business practices, and intentional interference with prospective economic advantage." He submits, however, "that the lack of specificity in his conspiracy theories and those other causes of action in his [first amended cross-complaint] regarding the actions of the Intergulf individuals does not hold true with respect to the allegations against [respondents];" that respondents do not enjoy the agent's immunity rule that this court found applicable to the Intergulf individuals; and that in considering the adequacy of the causes of action and the conspiracy theory, this court may take judicial notice of certain real estate laws that would fill in many of the gaps that the court identified in its prior opinion.
With respect to Brian's conspiracy allegations, this court noted in the opinion filed in case No. D044843 that conspiracy is not an independent cause of action, but rather, a doctrine that imposes liability for tort on those involved in its commission. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) The opinion concluded that the trial court had correctly sustained the individual cross-defendants' demurrer because under the agent's immunity rule, the individual cross-defendants could not be held separately liable for conspiring with their corporate principal. The opinion further concluded that the trial court did not abuse its discretion in denying Brian leave to amend as to the individual cross-defendants because he did not proffer a means of amending his first amended cross-complaint to state a viable cause of action against them.
Brian acknowledges the statutory provisions that require that a real estate salesperson be compensated only by the broker under whom he or she is licensed (Bus. & Prof. Code, § 10137) and that a broker exercise reasonable supervision over salespersons (Bus. & Prof. Code, § 10177, subd. (h)). Brian asserts that "[k]eeping those laws in mind, the picture becomes clearer in how [he] was alleging the developers and Prudential were together acting unfairly and in violation of law to deprive [him] of his compensation, his reputation, and his livelihood." With respect to his cause of action for unfair business practice, Brian acknowledges that this cause of action "still lacks identification of the particular section of the statutory scheme which was violated," but asserts this "can be easily amended if [he] is given a chance to amend."
The argument Brian offers is insufficient to satisfy his burden of showing that the trial court erred in dismissing his causes of action against respondents. Brian asks this court to either reinstate his causes of action as sufficiently pleaded or grant him leave to amend, but fails to address in his opening brief any of the grounds on which the trial court dismissed his causes of action as to respondents.
As noted, the trial court's dismissal of Brian's first amended cross-complaint as to the individual defendants was based on the agent's immunity rule, which precludes agents from being held liable on a conspiracy theory for torts committed by their principal. The trial court dismissed Brian's causes of action as to respondents on different grounds.
The trial court dismissed the first through fourth causes of action as to Intergulf and the first and second causes of action as to Lennar on the ground that real estate salespersons are prohibited by statute from seeking commissions from anyone other than their employing broker. The court granted judgment on the pleadings on the third cause of action for unfair business practice as to Lennar on the ground that "there is no employment relationship" between Lennar and Brian. The court granted judgment on the pleadings on the fourth cause of action for breach of the implied covenant of good faith and fair dealing as to Lennar on the ground that the employment agreement between Brian and respondents referenced in that cause of action "was not a contract as a matter of law." The court dismissed the seventh cause of action for declaratory relief/indemnity on demurrer as to Lennar, and on judgment on the pleadings as to Intergulf, on the ground than there is no right of contribution for an intentional tortfeasor under section 875, subdivision (d).
In his opening brief, Brian addresses, in a cursory manner, certain defects his causes of action that this court noted in the prior opinion in the context of reviewing the trial court's exercise of discretion to deny Brian leave to amend his first amended cross-complaint as to the individual defendants. However, he does not offer any argument as to why any of the rulings that disposed of his causes of action as to respondents were erroneous.
In his reply brief, Brian contends that this court must reinstate his claims for indemnity and contribution, noting that the trial court dismissed those claims on the ground that indemnity is not available for intentional torts. Although his argument on this point is somewhat unclear, Brian suggests that the trial court's ruling on this issue should be reversed because the jury rejected all of respondents' intentional tort claims against him, and because negligent misrepresentation is not an intentional tort. We need not address this argument, however, because the judgment on special verdict, which we reinstate, exonerates Brian from the liability for which he seeks indemnity and therefore renders his indemnity and contribution claims moot. (See Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1612, fn. 1; Miller v. American Honda Motor Co. (1986) 184 Cal.App.3d 1014, 1019, fn. 2.)
Brian also contends in his reply brief that in granting respondents' motion in limine to exclude all evidence pertaining to his fifth cause of action for intentional interference with prospective economic advantage, the trial court "ignored [his] factual and legal theories underlying that cause of action as set out in his proposed jury instruction, which was entered into the record at the hearing . . ., along with the July 19, 2002 Exit Agreement . . . ." Brian goes on to note the page numbers in the reporter's transcript where "[t]he discussion at the hearing on that motion in limine is recorded . . . ." Rather than explaining why the trial court's disposition of his cause of action for intentional interference with prospective economic advantage was erroneous, Brian simply invites this court to consider the argument he presented to the trial court on this issue. We decline to do so. An appellate court will not consider arguments in the appellant's brief that simply incorporate by reference arguments made in the trial court. (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 290-291.)
In his reply brief, Brian lists the allegations from his first amended cross-complaint concerning various acts of respondents that he claims harmed him. However, he does not tie those acts to any particular element of intentional interference with prospective economic advantage, or to any of his other causes of action.
In addition to failing to present adequate argument as to why the trial court's dismissal of his first amended cross-complaint was erroneous, Brian has not met his burden of showing how he could amend his pleading to cure the various defects on which the trial court based the dismissal of his causes of action. Although we review the trial court's denial of leave to amend a cause of action that is dismissed as insufficiently pleaded for an abuse of discretion, "[t]he burden is on the plaintiff . . . to demonstrate the manner in which the complaint might be amended. [Citation.]" (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602.) "To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.]" (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 890, italics added.)
Brian has not revealed how he would amend any of his dismissed causes of action, if he were allowed the opportunity to do so. In his opening brief, Brian requests "that the liberality in granting leave to amend be granted him." In his reply brief, he asserts that "fairness dictates that [he] should be allowed to amend his First Amended Cross-Complaint, if this [r]eviewing Court concludes he fails to state sufficient facts to constitute a cause of action." However, in neither brief does Brian offer any clue as to which causes of action he would amend, or how he would amend them. Rather, Brian simply states in his opening brief: "At the next go-around [Brian] can more particularly state the required facts, as both discovery and trial have revealed many more particulars concerning [respondents'] tortious actions." Because Brian has not specified any "required facts" or "particulars" that would cure any of the defects in his first amended cross-complaint, he has failed to satisfy his burden of showing that the trial court abused its discretion in denying him leave to amend his pleading.
Brian contends that the trial court violated section 438, subdivision (g) by granting Lennar's motion for judgment on the pleadings as to the first through fourth causes of action in his first amended cross-complaint, after having overruled Lennar's earlier demurrer on the same grounds to the same causes of action. Section 438, subdivision (g) provides that a motion for judgment on the pleadings "may be made even though either of the following conditions exist: [¶] (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer. [¶] (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section." (Italics added.)
The trial court did not violate section 438, subdivision (g), by granting judgment on the pleadings for Lennar on the first through fourth causes of action of Brian's first amended cross-complaint, because the grounds on which Lennar demurred to those causes of action were different from the grounds on which Lennar moved for judgment on the pleadings as to those causes of action. Lennar demurred to the first and second causes of action of Brian's first amended cross-complaint on the grounds that (1) Brian did not plead fraud with the required specificity; (2) a cause of action for promissory fraud does not lie for a false promise negligently made; and (3) Brian did not allege that the cross-defendants had a duty to disclose information to him. In Lennar's memorandum of points and authorities in support of its demurrer, Lennar did not address the third cause of action for unfair business practice as to Lennar, and addressed the fourth cause of action for breach of the implied covenant of good faith and fair dealing (erroneously referred to as the "third cause of action") on the ground that Brian failed "to specify . . . a contract or agreement with [Lennar]." As noted, the trial court did not rule on Lennar's demurrer to the fourth cause of action (See ante, fn. 13.)
Brian's first amended cross-complaint does not include a cause of action for concealment.
In the motion for judgment on the pleadings, respondents sought dismissal of Brian's first through fourth causes of action as to Lennar on the ground that, as a real estate salesperson, Brian was prohibited from seeking compensation from anyone other than his employing broker. With respect to Brian's third cause of action for unfair business practice, which is based on wrongful acts respondents are alleged to have committed in connection with a claimed employment agreement between them and Brian, Lennar sought judgment on the pleadings on the additional ground that no employment relationship existed between Lennar and Brian.
Lennar sought judgment on the pleadings on the fourth cause of action for breach of the implied covenant of good faith and fair dealing on the additional ground that, as a matter of law, the claimed employment agreement containing the implied covenant was not a contract. Although this ground is similar to the ground Lennar raised in its demurrer to the fourth cause of action (failure to specify a contract), the motion for judgment on the pleadings does not contravene section 438, subdivision (g), because the court neglected to rule on Lennar's prior demurrer as to the fourth cause of action. In any event, Lennar sought judgment on the pleadings on the fourth cause of action on the separate ground that Brian may not seek to recover compensation from a non-broker property owner.
We conclude that section 438, subdivision (g), did not preclude the trial court from granting judgment on the pleadings in favor of Lennar on the first through fourth causes of action of Brian's first amended cross-complaint. Because Brian has not provided support for his contention that the trial court erred in dismissing his first amended cross-complaint, and has failed to meet his burden of showing that the court abused its discretion in denying him leave to amend, we will not disturb the portion of the judgment dismissing his first amended cross-complaint. (Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 710; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700.)
V.
Effect of Reversal of the New Trial Orders
"Normally, '[i]f the lower court gives a judgment or order, then vacates it, and an appeal is taken from the vacating order, reversal leaves the proceeding as if the order appealed from (the vacating order) had not been made; i.e., the original judgment comes back into full effect. [Citation.] The same is true of an order granting a new trial: Reversal leaves the judgment as if no such order had been made, i.e., as if the motion had been denied; the original judgment is restored to full force. [Citations.]' [Citation.]" (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1366-1367.)
DISPOSITION
The August 2, 2005 order granting respondents' motion for new trial, and the March 13, 2006 order purporting to clarify the August 2, 2005 new trial order, are reversed. The judgment entered on June 3, 2005, is reinstated and is affirmed in its entirety. Appellants are awarded their costs on appeal.
WE CONCUR: McINTYRE, Acting P.J., O'ROURKE, J.
If the order is not properly viewed as a conditional new trial order, it must be viewed as a conditional grant of judgment notwithstanding the verdict (JNOV). Section 629 authorizes the trial court to grant JNOV on its own motion "after five days' notice . . . ." However, we are not aware of any authority that would allow the trial court to conditionally grant JNOV, as the trial court attempted to do here. Although when additur is properly ordered under section 662.5, the defendant's acceptance of the increased award effectively results in a judgment for increased damages, notwithstanding the verdict, we are aware of no case or statute that authorizes the granting of a new trial conditioned on the defendant's accepting a judgment of liability against him that is contrary to the jury's finding of no liability and an "additur" of damages in a specified amount in place of the jury's award of zero damages.
The trial court granted respondents' motion for nonsuit on Brian's fifth cause of action for intentional interference with prospective economic advantage after granting their motion in limine to exclude any evidence supporting that cause of action.)! The basis of the in limine ruling was that the fifth cause of action was based entirely on conduct that, even if it occurred, would not constitute the tort of intentional interference with prospective economic advantage.