Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert H. O’Brien, Judge. Reversed.. Los Angeles County Super. Ct. No. BC360844
Davis & Winston and Joseph A. Davis for Defendant, Cross-complainant and Appellant.
Venable, Jon-Jamison Hill; Pierson Law Firm and John K. Pierson for Plaintiff, Cross-defendant, and Respondent.
SUZUKAWA, J.
Plaintiff Raul R. Rodriguez (Raul) employed his cousin, defendant Diane L. Cortez (Dena), as his business manager for nearly 18 years. In 2006, Raul terminated Dena and brought the present suit, alleging that he had agreed to pay Deny only $20,000 per year, and that she had taken from him hundreds of thousands of dollars more than she was entitled to. Dena cross-claimed, asserting that Raul had agreed to pay her an annual salary of $60,000 plus benefits and that Raul owed her back wages of more than $200,000.
The jury returned a special verdict for Raul, awarding him compensatory and punitive damages of nearly $1 million. In special findings, the jury concluded that the parties had agreed that Dena’s annual salary would be limited to $20,000.
We find that there is no substantial evidence to support the jury’s conclusion that the parties had an express oral agreement that Dena would receive a salary of $20,000 per year. We thus reverse the judgment as to Raul’s breach of contract claim. Further, because we conclude that the remaining causes of action are not sever able from the breach of contract claim, we reverse the judgment in its entirety and remand for a complete retrial.
FACTUAL AND PROCEDURAL HISTORY
I. The Parties’ Business Relationship
Raul and Dena are first cousins. They grew up together in a tight-knit extended family in Boyle Heights. Raul is an artist who, among other things, designs Rose Parade floats. Dena has held a variety of jobs, including as a part owner of a medical supply distribution company.
In 1989, Dena began working for Raul as his business manager. In that capacity, Dena handled Raul’s finances, paid his bills, brought his mortgage current, and oversaw repairs to his home. In 1990, Dena moved into Raul’s home and took over the management of his household.
When Dena and Raul began their business relationship in 1989, they did so pursuant to an oral agreement, the terms of which are in dispute. Ten years later, in 1999, Raul allegedly signed a document (the 1999 agreement) that confirmed Dena’s employment as an independent contractor and provided that Dena’s salary would be $60,000 per year, paid at the rate of $5,000 per month. The document further stated that “[i]f the salary cannot be paid on a monthly basis the salary shall accumulate but shall be payable in full at the time of termination.”
II. The Gregory Avenue Apartment
In 2000, Raul refinanced his house. Dena received $75,000 from the proceeds of the refinance (the circumstances of which are disputed), which she invested in an eight-unit apartment building on Gregory Avenue in Los Angeles (the Gregory Avenue apartment). Her partner in the Gregory Avenue apartment venture was Freeman Michaels, a friend of Dena’s and Raul’s, who also invested $75,000.
Dena and Michaels sold the Gregory Avenue apartment in 2004 for $1.1 million. Dena received approximately $360,000 from the proceeds of the sale.
III. The Present Dispute
Raul terminated Dena on October 25, 2006. The same day, he filed a complaint against Dena and accountant Christopher Dutra. The operative first amended complaint, filed February 7, 2007, asserted 10 causes of action against Dena: (1) breach of fiduciary duty, (2) fraud, (3) conversion, (4) negligence, (5) fraudulent misrepresentation, (6) negligent misrepresentation, (7) breach of contract, (8) breach of implied covenant of good faith and fair dealing, (9) accounting, and (10) conspiracy to commit fraud. It alleged that while employed by Raul, Dena paid herself excessive fees and secretly misappropriated hundreds of thousands of dollars from Raul for her own benefit. It further alleged that when Dena procured $75,000 from Raul to purchase the Gregory Avenue apartment, she did so under the false pretense that the investment would be made on Raul’s behalf. Finally, it alleged that Dena acted oppressively and with willful disregard, and it sought both compensatory and punitive damages.
Dutra settled with Raul prior to trial; he is not a party to this appeal.
Dena cross-claimed. Her operative amended cross-complaint asserted four causes of action: (1) breach of contract, (2) open book account, (3) account stated, and (4) reasonable value. It alleged that Raul owed Dena $350,000 in unpaid salary. It sought that sum, plus interest, costs of suit, and attorney fees.
IV. Trial
Trial commenced on April 9, 2008. The evidence relevant to this appeal is as follows.
A. The Employment Agreement
1. Raul’s Testimony
Raul testified that he expected to pay Dena $20,000 per year. He never communicated this expectation to Dena; rather, because “it [their business arrangement] was... so informal and we knew each other so well, she knew that my thinking was $20,000.” Raul further testified that he “left it up to Dena to determine in her own mind what she believed would be fair” with regard to her salary. He “just said ‘Do what’s fair.’” He believes that he told Dena what he thought was fair compensation, but he does not believe that Dena ever told him what she thought was fair.
Raul testified that during the approximately 18 years that Dena worked for him, he asked her on more than four occasions how much he was paying her. She responded, “Oh, you know, what my brother was paying me” and “Don’t you trust me?” He continued, “And then I’d feel a little guilty and then would change the subject.” Until the end of the relationship, Raul did not contact Dena’s brother to determine how much he had paid her. Raul never asked Dena to pay him for room and board, but he “assumed that she would amortize it into what she was doing and getting.” He “just assumed she would say it’s worth this,” but he does not recall whether he ever discussed the value of room and board with Dena.
Raul testified that he “absolutely” did not authorize Dena to pay herself $60,000 per year. Further, he said that he never signed a written document authorizing a salary of $60,000 per year. He stated that the signature on the 1999 agreement was his, but that Dena sometimes had him sign blank documents. He claimed that the first time he saw the 1999 agreement was after he terminated Dena, and that he “would never have signed” the 1999 agreement.
2. Dena’s Testimony
Dena testified that in May 1989, she received a phone call from Raul’s assistant, Chuck Janac. Janac told Dena that he was worried about Raul’s finances. Dena contacted Raul, who told her that there were tax liens against his house and that he had been served with a notice of intent to foreclose. Raul asked Dena for her help, and she agreed to help him.
During a second conversation, Dena and Raul “had a lengthy discussion about exactly his financial picture, exactly what he wanted to do, his goals. And he asked for my help. And he asked me how much I would want as a salary to help him.” Dena “told him that I would want $60,000 a year plus [a] full benefit package. I wasn’t going to take less than what I was getting from MXE [Dena’s then current employer]. [Raul] understood that and he agreed to it.” In exchange, Dena agreed to take care of Raul’s business, help him “untangle his financial mess that he was in right then,” dissolve a partnership with which he was involved, and care for his home. Dena and Raul also agreed that she would be paid “weekly or monthly, depending on how much money was in the account and if I could receive a salary at the time. But it was also discussed at the time of the contract that if he couldn’t pay me, that he would eventually pay me.... I said ‘What if you couldn’t pay me? You would eventually pay me, right?’ And he said yes, he would eventually pay me.”
Dena testified that in August 1990, Raul asked her to move into his home because “[h]e needed help with his home.” “He said that he wanted me to move into his home to help him with his... management of the household and to continue helping him repair his home.” Dena understood that in exchange for these extra duties, she would be getting free room and board.
Dena said that in 1999, as a result of a dispute Raul had with another employee, she became concerned that Raul would not pay her what he owed her, and so she asked him to sign a written contract. He agreed and signed the 1999 agreement in approximately January 1999. She did not sign the agreement until 2003, when Raul’s accountant asked her to do so in connection with a tax audit.
Dena testified that in the two years prior to the time she came to work for Raul, she earned $54,000 and $57,000, plus benefits.
B. The Gregory Avenue Apartment
1. Raul’s Testimony
Raul testified that in 2000, Dena came to him with a business opportunity. She told him that there was a chance to invest in an apartment building found by a mutual friend, Freeman Michaels. “We’d go into a partnership on a building on Gregory Street right near Paramount Studios. And because I know the studio, my printer is there, I thought great. I know it’s a good area. I know it must be a good apartment.” Dena told Raul that “each was going to put in $75,000,” and she suggested that he get the $75,000 by refinancing his house.
Raul testified that when he was with Michaels, Raul “always referred to it as ‘How is our building doing?’” Years later, however, he learned that he was not an owner of the building. After he terminated Dena, Raul called Michaels “to tell him that I had no plans of putting any kind of lien on the Gregory property. And there was almost dead silence. And then he said... ‘Raul, the building sold two years ago, and Dena walked away with over $300,000.’”
Raul testified that he never authorized Dena to take $75,000 from the refinance of his house to invest in the Gregory Avenue apartment on her own behalf.
2. Dena’s Testimony
Dena testified that she first became aware of the Gregory Avenue apartment sometime in 2000. She went to see it the same day and, upon seeing the building, she contacted Freeman Michaels to ask him to look at it. She and Michaels immediately decided to make an offer on the building.
Dena and Michaels purchased the Gregory Avenue apartment as 50/50 partners in late 2000. Dena’s share of the down payment on the Gregory Avenue apartment was $75,000. She obtained the $75,000 from Raul, through a check drawn on Raul’s account that she signed. She said that the check, dated December 15, 2000, was “for my back pay.”
Dena testified that she never considered including Raul as a partner in the Gregory Avenue apartment venture, and there was never any discussion of Raul purchasing the property. Instead, Dena told Raul that she would be purchasing the property with Michaels.
Dena testified that Raul initiated the 2000 refinance before she learned about the Gregory Avenue apartment. She said that she learned about the property from broker Susan Herman “[w]hen I took her the papers for the refinance that Raul had filled out.” Raul received approximately $180,000 from the refinance; of that $180,000, Dena received $135,000 (the $75,000 down payment and an additional $60,000). She testified that her receipt of $135,000 “was agreed upon with Raul and myself.” She explained: “We had discussed my receiving back salary, and he agreed.”
Dena testified that her share of the proceeds of the sale of the Gregory Avenue apartment was about $360,000.
3. Other Testimony
Freeman Michaels testified that Raul referred to the Gregory Avenue apartment as “our building” “quite a few times.” He asked Dena why Raul referred to it that way. Initially, she told Michaels that the money she got from Raul represented her back wages. Subsequently, she told him that “in essence, Raul couldn’t handle[] his own finances. He couldn’t go on title because he was irresponsible with money and that they basically shared everything.” On another occasion, she told Michaels that Raul “had diabetes and that he was going blind, and that she was going to ultimately have to take care of him. And she also told me at that time that they were both on each other’s wills and that whatever was her[s] was Raul’s and whatever was Raul’s was hers.”
C. Damages
1. Raul’s Testimony
For purposes of trial, Raul accepted Dena’s admission that, between 1989 and 1996, he paid her a total of $194,752. With regard to the remaining nine years of Dena’s employment (1997-2006), Raul’s accounting expert, Gordon Gassner, testified that he had reviewed Raul’s financial information and determined that Raul had paid Dena an additional $727,085. Thus, Raul contended that he had paid Dena $921,837 between 1989 and 2006. ($194,752 + $727,085 = $921,837.) He claimed that she was entitled to have received only $20,000 per year for 18 years; thus, he said, his damages were $561,837 ($921,837 – ($20,000 x 18)), plus the $360,000 Dena received from the sale of the Gregory Avenue apartment, plus punitive damages.
2. Dena’s Testimony
Dena testified that she received $855,375 from Raul between May 1989 and October 2006. She claimed that she was entitled to a salary of $60,000 per year for 17.4 years, plus fringe benefits worth $102,000. Thus, she said, she was entitled to damages in excess of $200,000 for unpaid wages. (($60,000 x 17.4) + $102,000 - $855,375 = $290,625.)
V. Verdict, Judgment, and Post trial Motions
The jury returned a verdict for Raul on each cause of action, awarding him damages as follows:
At the conclusion of Raul’s case, the court granted a non suit as to his eleventh cause of action for conspiracy to commit fraud. The jury found against Dena with respect to the claims in her cross-complaint.
Breach of fiduciary duty:
$261,073
Conversion
$75,000
Intentional misrepresentation
$52,215
Concealment
$285,000
Negligent misrepresentation
$26,108
Breach of contract
$156,643
Negligence
$26,108
Total compensatory damages
$882,147
Punitive damages
$100,000
TOTAL
$982,147
The trial court entered judgment on the jury’s verdict on June 26, 2008. Notice of entry of judgment was served on September 25, 2008.
Dena timely filed motions for judgment notwithstanding the verdict and for a new trial. She contended: (1) juror misconduct rendered the trial unfair; (2) there was no substantial evidence that the parties orally agreed that Dena would receive a salary of only $20,000 per year; (3) there was no substantial evidence that Raul had an ownership interest in the Gregory Avenue apartment building; (4) Raul’s claims were time-barred; and (5) the punitive damages award was excessive.
The court denied Dena’s post trial motions on August 19, 2008. Dena timely appealed from the judgment and order denying motion for judgment notwithstanding the verdict on August 25, 2008.
STANDARD OF REVIEW
“‘Well-settled standards govern judgments notwithstanding the verdict: “When presented with a motion for JNOV, the trial court cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied. [Citation.] [Citation.] The same standard of review applies to the appellate court in reviewing the trial court’s granting [or denying] of the motion. [Citations.] Accordingly, the evidence... must be viewed in the light most favorable to the jury’s verdict, resolving all conflicts and drawing all inferences in favor of that verdict.” [Citation.]’ (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258-259.)” (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 49.)
Similarly, “[i]n reviewing a challenge to the sufficiency of the evidence, we are bound by the substantial evidence rule. All factual matters must be viewed in favor of the prevailing party and in support of the judgment. All conflicts in the evidence must be resolved in favor of the judgment.” (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1747.)
DISCUSSION
I. There Is No Substantial Evidence of an Express Oral Agreement That Raul Would Pay Dena a Salary of $20,000 Per Year; Accordingly, the Judgment Must Be Reversed as to Raul’s Breach of Contract Claim
The trial court instructed the jury that, to accept Raul’s contract claim, it must conclude that the parties entered into an oral contract for Dena to “manage Raul Rodriguez’ household and business finances, maintain his books and records and assist in the preparation of his tax returns[] [i]n exchange for... a salary of about $20,000 per year plus room and board.” By its special verdict, the jury concluded that the parties “agree[d] to the terms of the oral contract testified to by Raul R. Rodriguez.” The jury further found that Raul “d[id] all, or substantially all of the significant things that the oral contract testified to by Raul R. Rodriguez required him to do,” Dena “fail[ed] to do something that the oral contract testified to by Raul R. Rodriguez required her to do,” and Raul “[was] harmed by that failure.” It awarded Raul $156,643 damages for breach of contract.
Dena contends that the jury’s verdict was not supported by substantial evidence. Specifically, she urges that there was no evidence that the parties ever agreed that her salary would be $20,000 per year; at best, she says, Raul’s evidence established his uncommunicated subjective intent to pay her an annual salary of $20,000. For the reasons that follow, we agree.
“‘One of the essential elements of a contract is the consent of the parties. (Civ. Code, § 1550.) This consent must be mutual. (Civ. Code, § 1565.) “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code, § 1580.) It is only on evidence of such consent that the law enforces the terms of a contract or gives a remedy for the breach of it. One cannot be made to stand on a contract to which he has never consented.’ (Amer. Aero. Corp. v. Grand Cen. Aircraft Co. (1957) 155 Cal.App.2d 69, 79.) [Fn. omitted.]” (Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 60.)
“‘Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.’ (Alexander v. Code masters Group Limited (2002) 104 Cal.App.4th 129, 141; see also Meyer v. Benko (1976) 55 Cal.App.3d 937, 942-943 [existence of mutual consent ‘is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe’].)” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208, italics added.) “Outward manifestations thus govern the finding of mutual consent required by Civil Code sections 1550, 1565 and 1580 for contract formation. (See also 1 Witkin, Summary of Cal. Law [(9th ed. 1987)] Contracts, § 119, p. 144 [‘... the outward manifestation or expression of assent is controlling. Mutual assent is gathered from the reasonable meaning of the words and acts of the parties, and not from their unexpressed intentions or understanding.’].)” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.) Accordingly, in determining the terms of a contract, “uncommunicated subjective intent is not relevant.” (Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 327.)
In the present case, Raul failed to introduce any evidence of an “outward manifestation” of an agreement that Dena would work as his business manager for $20,000 per year. While Raul testified that he believed they had an agreement that Dena would work for him for “about $20,000 a year,” he never described any conversation in which they reached such an agreement. Instead, he testified that $20,000 per year plus room and board “was more than adequate in my mind” and that because he and Dena knew each other so well, “she knew that my thinking was $20,000.” (Italics added.) Additionally, he testified that he “left it up to Dena to determine in her own mind what she believed would be fair” with regard to her salary.
The strongest evidence Raul identifies is his testimony that he “believe[d]” that he discussed with Dena “what [he] thought would be fair compensation for her services.” This is not sufficient. As we have said, a contract is formed only when both parties expressly agree to the same terms. (Khajavi v. Feather River Anesthesia Medical Group, supra, 84 Cal.App.4th at p. 60.) At best, Raul’s testimony establishes that he offered to pay Dena $20,000 per year; it in no way suggests that she accepted that offer. Accordingly, the testimony does not establish an express oral contract for $20,000 per year.
Raul also suggests that the parties’ course of conduct, especially during the early years of the relationship, demonstrates that he and Dena agreed that her annual salary would be $20,000. We do not agree. The evidence on which Raul relies suggests that he paid Dena $20,000 in 1991 only. In 1989, she received $5,624; in 1990, $2,872; and in 1992, $7,183. This course of conduct does not evidence an oral agreement to pay Dena $20,000 per year.
For all of these reasons, we conclude that there was no substantial evidence of an oral agreement by which Raul would pay Dena $20,000 per year for her management of his business and household. Raul’s breach of contract claim thus necessarily fails. “A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239; Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6.) Raul has the burden of proof as to each element. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Because he has not established the first element—existence of the contract—he cannot establish the contract’s breach.
In his supplemental brief, Raul contends that even if we find no substantial evidence to support the jury’s finding that Dena breached an express oral contract, we nonetheless may affirm on alternative grounds. Specifically, he urges, “[I]t is not a stretch to find that [Raul] proved other contractual or quasi-contractual claims, even if such claims were not expressly stated in [his] operative complaint or identified by name at trial.” We do not agree. “With a special verdict, we do not imply findings on all issues in favor of the prevailing party, as with a general verdict.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 285.) “This rule stems from the nature of a special verdict and its ‘“recognized pitfalls,”’ namely, that it requires the jury to resolve all of the controverted issues in the case, unlike a general verdict which merely implies findings on all issues in one party’s favor.” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.) Accordingly, because in the present case the jury made extensive special findings, we cannot affirm on a ground not reached by the jury, such as implied contract or unjust enrichment.
Raul also contends in his supplemental brief that should the court find insubstantial evidence to demonstrate an express oral contract, it may remand for determination of issues by the trial court, rather than for retrial by jury. The cases Raul cites for this proposition, however, do not support it. In those cases, unlike the present case, the factual determinations were made in the first instance by the court, not by a jury. (Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 888 [review of arbitration award by trial court]; England v. Christensen (1966) 243 Cal.App.2d 413, 421 [“The initial issue before us is whether the trial court properly determined....”].) Thus, following reversals in those cases, the appellate courts remanded for additional determinations of fact by the trial courts. The present case, however, was tried to a jury, not to the court, and thus retrial of issues of fact must also be to a jury.
We thus reverse the judgment as to Raul’s breach of contract claim.
II. Reversal of the Breach of Contract Claim Mandates Reversal of the Remaining Causes of Action
“An appellate court may reverse a judgment in part and order a retrial of a single issue if it is distinct and sever able from the remaining issues. But where a limited retrial might be prejudicial to either party, failure to grant a new trial on all related issues is an abuse of discretion. (In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 34; disapproved on other grounds in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451.)” (Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4th 1651, 1656-1657.) We thus consider whether Raul’s breach of contract claim is “distinct and sever able” from the remaining causes of action or, instead, the claims are sufficiently intertwined to require a retrial of other causes of action.
Dena’s appeal and request for reversal is directed to the judgment generally, not just to the portion of the judgment involving Raul’s breach of contract claim. Even if Dena had appealed only that portion of the judgment involving Raul’s breach of contract claim, we still would be required to consider the effect of our reversal on the remaining causes of action, for the reasons discussed more fully below. At the court’s request, the parties addressed this issue in supplemental letter briefs filed September 1, 2009.
A. Sever ability of Claims Generally
“‘“The test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or interdependent upon, the matters or issues which have not been attacked. [Citations.] ‘[I]n order to be sever able, and therefore [separately] appeal able, any determination of the issues so settled by the judgment... must not affect the determination of the remaining issues whether such judgment on appeal is reversed or affirmed.... Perhaps another way of saying it would be that the judgment is sever able when the original determination of those issues by the trial court and reflected in the judgment or any determination which could be made as a result of an appeal cannot affect the determination of the remaining issues of the suit....’ [Citation.]” [Citation.]’ (Gonzales [v. R. J. Novick Constr. Co. (1978)] 20 Cal.3d [798,] 805-806.)” (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 351, fn. 12, italics added (Red Mountain).)
The court applied these principles in Red Mountain, supra, 143 Cal.App.4th 333. There, the plaintiff developers (the developers) owned land adjacent to a drinking water reservoir owed by the defendant public utilities district (the district). The district had acquired the land on which the reservoir was built from the developers’ predecessors-in-interest (the sellers) pursuant to a contract that granted the district, among other things, a nonexclusive easement (the sanitary easement) over 127 acres of the sellers’ adjacent land to enable the district to keep the reservoir water free of contamination. (Id. at pp. 337-338.) In 1978, the district purchased an additional 18 acres of land from the sellers, granting them in exchange a 60-foot easement (the access easement) over “the existing road” on one side of the parcel being conveyed. (Id. at p. 339.) Several years later, the district expanded the reservoir, obliterating the existing road. (Ibid.) The district then built a new road (the new road) to replace the road that had been destroyed. The district installed a locked gate across the new road, but provided keys to the sellers. (Ibid.)
More than 20 years later, the sellers transferred their interest in land adjacent to the reservoir to the developers. The developers’ subdivision design anticipated access to the subdivision along the new road. The developers thus notified the district that, pursuant to the 1978 agreement, it would provide the documents necessary for the district to grant the developers a 60-foot access easement over the new road. The district responded that it would not grant the access easement, explaining that “the existing road” referred to in the 1978 agreement no longer existed. (Red Mountain, supra, 143 Cal.App.4th at p. 341.)
The developers filed a complaint against the district for breach of contract, specific performance, and inverse condemnation, based on the district’s refusal to grant the access easement. The district cross-claimed to quiet title and for declaratory and injunctive relief. In its cross-complaint, the district asked the court to rule that its sanitary easement was valid and that it precluded the developers’ proposed subdivision. Subsequently, the district filed an eminent domain complaint, condemning the property that included the 127 acres of the sanitary easement and any rights that the developers had to the access easement. (Red Mountain, supra, 143 Cal.App.4th at p. 341.)
After the liability phase of the trial, the trial court issued a statement of decision in which it ruled that (1) the access easement referenced in the 1978 agreement entitled the developers to a 60-foot easement over the new road, and (2) there had been an inverse condemnation of the developers’ land by the district. (Red Mountain, supra, 143 Cal.App.4th atp. 342.) Subsequently, a jury returned a special verdict, awarding the developers $1.4 million on the inverse condemnation and breach of contract causes of action, and $872,000 as the fair market value of the property directly condemned. (Ibid.)
The district appealed. The Court of Appeal concluded that the trial court’s interpretation of the access easement granted by the 1978 agreement was over broad because any ambiguity in a grant by a public entity to a private party must be construed in favor of the public grant or. (Red Mountain, supra, 143 Cal.App.4th at pp. 346-347.) It thus reversed the judgment as to the inverse condemnation and breach of contract claims because it found a “reasonable probability” that the trial court’s erroneous view of the scope of the access easement had affected the resolution of those claims. It explained: “We conclude that if the trial court had construed the access easement as limited to the [developer’s predecessor-in-interest’s] personal ingress and egress, there is a reasonable probability that it would not have ruled that [district’s] refusal to grant the easement resulted in an inverse condemnation of [the developer’s] property. We further conclude that the trial court’s failure to construe the access easement in [the district’s] favor prejudicially affected the jury’s verdict on [the developer’s] inverse condemnation/breach of contract claim. If the court had construed the access easement as limited to the [developer’s predecessor-in-interest’s] personal ingress and egress and instructed the jury accordingly, it is reasonably probable that the jury would have found [the district’s] refusal to grant the easement was not a breach of the 1978 agreement because the easement [the developer] requested was much broader in scope than the personal easement [the district] had agreed to convey. Accordingly, the matter must be remanded for both a redetermination of [the district’s] liability for inverse condemnation and a retrial to determine whether [the district’s] refusal to grant the access easement constituted a breach of the 1978 agreement and, if so, the amount of damages [the developer] suffered as a result.” (Id. at p. 348.)
The court then considered whether its reversal of the judgment as to the inverse condemnation and breach of contract claims required that the issue of just compensation for the district’s direct condemnation of the developer’s property also be retried. The court concluded—notwithstanding the developers’ failure to cross-appeal from the judgment—that a complete retrial was necessary because the trial court’s over broad interpretation of the access easement “may have” prejudicially affected the jury’s determination of just compensation on the district’s direct compensation claim. The court explained: “Under a correct interpretation of the scope of the access easement..., the trial court could conclude that [the district’s] refusal to grant the easement did not result in an inverse condemnation of [the developer’s] property. In that case, there would be no award of damages for inverse condemnation/breach of contract. However, [the developer] would be entitled to seek severance damages on the direct condemnation claim, as well as damages for [the district’s] precondemnation conduct in refusing to grant the access easement and for the direct condemnation of [the developer’s] contractual right to the easement. [¶] The award of $872,560 for direct condemnation reflects the jury’s determination of fair market value of the condemned land as of February 1, 2004, as mitigation land with no access. If there was no inverse condemnation/breach of contract, [the developer] would have had a contractual right to an access easement until [the district] directly condemned that right. Under that scenario, a jury on retrial could find that the value of the property that was directly condemned was higher than the value the jury awarded for direct condemnation in the first trial.” (Red Mountain, supra, 143 Cal.App.4th at pp. 350-351.)
In a footnote, the court explained that reversal of the entire judgment was appropriate even though the developer had not filed a cross-appeal: “Because the judgment is not sever able, [the developer] was not required to pursue a cross-appeal from the judgment or to take other steps to ensure that the award of just compensation for the direct condemnation would be reversed if this court were to reverse the judgment as to the inverse condemnation/breach of contract claims. ‘[T]he failure to take an appeal demonstrates only satisfaction with the judgment as is, not as changed by a partial reversal. One may elect to stand upon a judgment which, he believes, although largely in his favor, does not give him all of the benefits to which he is entitled. To avoid the time and expense of further litigation, he may be persuaded to permit the unfavorable portions to stand in reliance upon the benefits received in the other parts. In such instance, to do justice a reversal of the portion from which the appeal was taken might require a reversal of other provisions.’ (American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 221, fn. omitted.)” (Red Mountain, supra, 143 Cal.App.4th at p. 351, fn. 12.)
The court concluded: “The trial court’s erroneous interpretation of the access easement and its misdirection of the jury on that point prejudicially affected the outcome of the trial with respect to [the developer’s] claims for inverse condemnation and breach of contract. These errors, in turn, may have prejudicially affected the jury’s determination of just compensation on [the district’s] direct condemnation claim. Because resolution of the inverse condemnation/breach of contract claims could have affected the determination of just compensation for the direct condemnation, the judgment is not sever able.” (Red Mountain, supra, 143 Cal.App.4th at p. 351, italics added.) The court therefore reversed the entire judgment.
The court reached a similar result in a new trial context in Liodas v. Sahadi (1977) 19 Cal.3d 278. There, the plaintiff, as trustee of a bankruptcy estate, brought an action against the defendant for damages for fraud and breach of fiduciary duty. The complaint alleged that defendant, the bankrupt’s former attorney, deprived the bankrupt of certain assets by fraudulently persuading him to enter a buyout agreement transferring the assets to the attorney for inadequate consideration. The jury returned a substantial verdict for the trustee, awarding compensatory and punitive damages. Defendant moved for a new trial; the trial court granted the motion and vacated the judgment, but limited the new trial to the issue of damages. The trustee appealed from that order, and the defendant cross-appealed from the order insofar as it restricted the new trial to the issue of damages. (Id. at pp. 282-283.)
The Supreme Court held that the trial court had properly ordered a new trial on damages. It explained that while the jury had been instructed on two theories of liability—ordinary fraud and fraud by a fiduciary—it had been given a damages instruction only for fiduciary fraud. The trial court’s failure to instruct on ordinary fraud damages was prejudicial error because the jury had no alternative but to apply the broader fiduciary fraud standard even if it found that the fiduciary relationship had terminated. (Liodas v. Sahadi, supra, 19 Cal.3d at pp. 283-284.) Thus, the trial court properly granted a new trial on compensatory damages. (Id. at p. 284.)
The court then considered whether the trial court erred in limiting the new trial to damages. It noted that a request for a partial new trial “‘should be considered with the utmost caution [citations] and that any doubts should be resolved in favor of granting of 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.’” (Liodas v. Sahadi, supra, 19 Cal.3d at pp. 285-286, italics added.) The court declared itself “hesitant” to find such an abuse of discretion because both the jury and the trial court had determined liability in the trustee’s favor. However, such a result was necessary under the facts of the case: “[I]n view of the erroneous damages instructions it is not possible to determine on what basis liability was predicated. The trier of fact in any new trial would be required, prior to awarding damages, to decide whether respondent was acting in a fiduciary or non fiduciary capacity. Moreover, the complaint was based not only on the buy-out agreement, but also on numerous transactions prior to the buy-out which were alleged to be fraudulent. Evidence as to [the bankrupt’s] losses from these other incidents was presented. However, [defendant] explained some of these events, and evidence on others was in conflict; a second trier of fact would have no basis for determining which of the transactions the first jury actually found fraudulent, and which, if any, it found fair. These issues go to the heart of the liability question. As they must be redetermined prefatory to any damages verdict, the matter of liability is substantially inseparable from that of damages in the present posture of the case. A partial new trial would be prejudicial to [defendant]. A new trial on all issues is thus required.” (Id. at p. 286.)
The decisions in these cases are consistent with a wealth of California authority. (E.g., American Enterprise v. Van Winkle, supra, 39 Cal.2d 210, 217 [judgment is sever able only if the original determination of the issues appealed by the trial court “cannot” affect the determination of the remaining issues of the suit]; Bullock v. Phillip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696-697 [any doubts as to whether a limited new trial is appropriate “should be resolved in favor of a complete new trial”]; Curties v. Hill Top Developers, Inc., supra, 14 Cal.App.4th 1651, 1656-1657 [“An appellate court may reverse a judgment in part and order a retrial of a single issue if it is distinct and sever able from the remaining issues. But where a limited retrial might be prejudicial to either party, failure to grant a new trial on all related issues is an abuse of discretion.”].)
The principles asserted in the cases cited require us to consider whether reversal of the judgment as it pertains to Raul’s breach of contract claim also requires us to reverse the judgment as it pertains to other claims. Specifically, we must consider whether the breach of contract claim is intertwined with the remaining tort and contract claims—that is, whether the jury’s erroneous determination that the parties had an express oral agreement that Raul would pay Dena $20,000 per year may have prejudicially affected its determination of the other claims. For the reasons that follow, we conclude that the claims are intertwined and, thus, that a complete reversal is required.
B. Raul’s Tort Claims
Raul asserted six tort claims against Dena: (1) breach of fiduciary duty; (2) fraud; (3) conversion; (4) negligence; (5) fraudulent misrepresentation; and (6) negligent misrepresentation. Each of these tort claims was based on two common factual contentions: (1) Dena paid herself excessive compensation; and (2) Dena took $75,000 from the proceeds of Raul’s 2000 refinance under the false pretense that she would invest it on his behalf in the Gregory Avenue apartment building, but she instead invested it in her own name. We conclude that because Raul’s contract and tort claims are intertwined factually, reversal of the breach of contract claim also mandates reversal of Raul’s tort claims.
In his supplemental brief, Raul contends that his tort causes of action were wholly independent of his contract claim. For example, Raul contends that the “core” of his breach of fiduciary duty claim “focuse[d] on the level [of] record keeping maintained by Appellant, her failure to keep Mr. Rodriguez adequately apprised of his financial affairs and her self-dealing and personal loan transactions.” He thus claims it was unrelated to Dena’s “contractual duties or obligations.” We do not agree: In closing argument, Raul’s counsel told the jury that “[T]he claims with respect to the breach of fiduciary duty against [Dena] include over-payments to herself above the amount that he thought he was supposed to pay her....” (Italics added.) Thus, Raul’s fiduciary duty claim was not independent of the contractual dispute over Dena’s salary. Similarly, Raul claims that his negligent and intentional misrepresentation claims related solely to Dena’s alleged falsification of her qualifications to act as Raul’s business manager. Again, we do not agree: In closing argument, Raul’s counsel told the jury that the claims for intentional misrepresentation [erroneously transcribed as “claims for settlement”] and negligent misrepresentation “relate to the misappropriation of funds as well as the fact that she attempted to conceal that Raul was [not] on title and was not a partner on that Gregory Avenue building.” Raul’s negligence claim also is not independent of his contract claim, as he contends: According to his attorney’s closing argument, the negligence claim “covers all of the acts that Dena did starting back in 1989 up and through the year of 2006 and her breach of her duty to Mr. Rodriguez.”
1. Raul’s Excessive Compensation Claim
Raul asserted as a predicate to each of his tort causes of action that Dena paid herself excessive compensation for her managerial services. The operative complaint alleged: “Mr. Rodriguez is informed and believes and thereon alleges that in the years preceding 2006, Defendant Cortez paid herself thousands of dollars in excessive fees for the Services, mischaracterized fees and/or funds as ‘loans,’ and additionally misappropriated funds of Mr. Rodriguez for her own benefit.” Raul’s counsel similarly argued in closing argument, urging the jury that Dena made “over-payments to herself” and “misappropriat[ed]... funds.”
Significantly for our analysis, the essence of Raul’s excessive compensation claim was his contention that Dena took from him more than the $20,000 per year he claimed to have agreed to pay her. He claimed that the measure of his damages for excessive compensation was the difference between what Dena took, which he contended was $921,837, and the amount to which she was entitled, which he claimed was $20,000 per year for 18 years, or $360,000. Thus, he urged the jury to award him excessive compensation damages of $561,837. ($921,837 - $360,000 = $561,837.) The jury did approximately that, awarding Raul excessive compensation damages of more than $520,000. ($261,073 [breach of fiduciary duty] + $52,215 [intentional misrepresentation] + $26,108 [negligent misrepresentation] + $156,643 [breach of contract] + $26,108 [negligence] = $522,147.)
For example, in closing argument, Raul’s counsel said that Dena “has taken far in excess of that $20,000 per year that Raul thought he was obligated to pay her.” These “over-payments to herself above the amount that [Raul] thought he was supposed to pay her” gave rise to breach of fiduciary duty and other tort claims, according to Raul’s counsel.
Had the jury been instructed that there was insufficient evidence of an express oral contract for $20,000 per year, it might have awarded Raul reduced tort damages or, indeed, concluded that Dena was not liable in tort at all. At trial, the jury was presented with four different theories of Dena’s right to compensation. They are as follows:
(1) Raul’s express contract theory: As discussed above, Raul testified he and Dena had an express oral agreement that Dena was to be paid about $20,000 per year. For the reasons discussed above, that alleged contract is not supported by substantial evidence.
(2) Raul’s alternative contract theory: Raul testified in the alternative that he “left it up to Dena to determine in her own mind what she believed would be fair” with regard to her salary. He “just said ‘Do what’s fair.’” Dena testified that she believed that $60,000 per year was fair because it was approximately equal to what she had been earning immediately before she came to work for Raul.
Under California law, “[i]f there are reciprocal promises... the fact that the contract permits one party to set or change the price charged for goods or services does not render the contract illusory.” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 923.) Rather, the contract is valid and enforceable “‘if the party’s actual exercise of that power is reasonable.’” (Ibid.; see also Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 484 [upholding contract permitting the buyer of sugar beets to set the price to be paid; “where a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing”].)
Had the jury been instructed that as a matter of law it could not find an express contract for $20,000 per year, it might well have concluded, as Raul testified, that Raul had agreed to pay Dena “what she believed would be fair.” If so, it would have considered whether an annual salary of $60,000 accorded with good faith and fair dealing. If the jury found that it did, it necessarily would have concluded that Dena was contractually entitled to $60,000 per year.
(3) Dena’s express contract theory: Dena testified that Raul expressly agreed to pay her $60,000 per year, plus benefits. Had the jury been instructed that as a matter of law it could not find an express contract for $20,000 per year, it might have credited Dena’s express contract theory and concluded that she was entitled to be paid an annual salary of $60,000, plus benefits. If so, it would have concluded that Dena was entitled to damages from Raul, not the other way around.
(4) Quantum meruit: “‘“Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made.’” [Citation.] The burden is on the person making the quantum meruit claim to show the value of his or her services and that they were rendered at the request of the person to be charged. [Citations.]’ [Citation.]” (Strong v. Beydoun (2008) 166 Cal.App.4th 1398, 1404.)
Had the jury been instructed that as a matter of law it could not find an express contract for $20,000 per year, it could have concluded, in light of the contradictory testimony of Raul and Dena, that there was no meeting of the minds as to the amount of Dena’s salary. In that case, the jury would have awarded Dena the “value of [her] services.” (Strong v. Beydoun, supra, 166 Cal.App.4th at p. 1404.) Based on the evidence at trial, the jury could have valued Dena’s services at anywhere between $19,800 and $60,000 annually.
The jury’s calculation of the value of Dena’s services has implications for both liability and damages. The implications for damages are obvious: Because Raul’s damages are, by his own admission, the difference between what Dena was paid and what she was owed, the jury’s damages calculation necessarily turned on what the jury concluded Dena was owed. Had the jury been instructed that Raul had not established an express contract for $20,000, it might well have concluded that Dena was entitled to more than $20,000 per year and, thus, reduced Raul’s damages.
The jury’s calculation of the value of Dena’s services has implications for liability as well. Consistent with California law, the jury was instructed that to find Dena liable for the torts alleged, it must find, among other things, that Raul “was harmed.” Raul claimed that he was harmed by Dena’s “serious over-payments, well above and beyond what [he] thought he was obligated to pay, which is the $20,000.” Specifically, Raul contended that Dena was entitled to only about $20,000 per year, but that she took $921,837 over 18 years, or $51,213 per year. ($921,837 ÷ 18 = $51,213.) Thus, Raul claimed he was harmed in the amount of $51,213 - $20,000 = $31,213 per year, for 18 years.
If a jury were to conclude on retrial that Dena were entitled to more than $51,213 per year—a conclusion for which there was substantial evidence, as discussed above—it necessarily would find that Dena was not liable in tort for paying herself excessive compensation. Accordingly, the excessive compensation claim is not sever able from the breach of contract claim.
2. Raul’s Gregory Avenue Apartment Claim
Raul contended at trial that Dena took $75,000 from the proceeds of the 2000 refinance of his house under the false premise that she would invest it on his behalf in the Gregory Avenue apartment. Instead, she invested the $75,000 on her own behalf, realizing a profit of approximately $360,000 when the building was sold. Raul claimed that he “never” authorized Dena to take $75,000 from the refinance of his house to invest in the Gregory Avenue apartment on her own behalf, and thus that he was entitled to damages of $75,000, the amount Dena wrongfully took from him, plus the $360,000 profit she earned as a result.
Dena testified to a very different scenario. She acknowledged that she received the $75,000 she used to purchase the Gregory Avenue apartment from Raul, but she contended that the $75,000 was “for my back pay.” Further, she said, she told Raul that she, not he, would be purchasing the Gregory Avenue apartment building with Freeman Michaels, and that her receipt of the $75,000 (plus an additional $60,000) “was agreed upon with Raul and myself.” She explained: “We had discussed my receiving back salary, and he agreed.”
We have already concluded that the trial court’s erroneous failure to instruct the jury that Raul had failed to prove an express oral contract to pay Dena $20,000 per year prejudicially affected the outcome of the trial with regard to Raul’s excessive compensation claim. This error, in turn, may have prejudicially affected the jury’s determination that Dena’s investment of $75,000 in the Gregory Avenue apartment on her own behalf was a breach of her duties to Raul. That is, because the jury believed that Dena was entitled to only $20,000 per year from Raul, it necessarily concluded that she was not entitled to the $75,000 she took from Raul in 2000. If properly instructed, however, a jury on retrial could conclude that Dena was entitled to as much as $60,000 per year from Raul, and thus that she was owed in excess of $75,000 in back wages in 2000. It thus might conclude that Raul agreed to pay her those back wages to allow her to invest in the Gregory Avenue apartment. Because resolution of the contract cause of action could have affected the jury’s determination of the Gregory Avenue apartment issue, the judgment is not sever able.
Alternatively, a jury might conclude that Raul owed Dena in excess of $75,000 in 2000, but that she nonetheless misrepresented her intentions with regard to the Gregory Avenue apartment to Raul to persuade him to release $75,000 to her. If so, the jury could conclude that Dena had a viable breach of contract claim against Raul, but that he was entitled to the $360,000 she received from the sale of the Gregory Avenue apartment. In other words, a jury could find for Dena on the contract claims but find for Raul on the tort claims. However, because the jury’s acceptance of Raul’s contract theory necessarily led it to also accept his tort theories, the tort and contract claims are sufficiently intertwined to require reversal of the tort claims.
We thus reverse the judgment as to Raul’s tort claims.
C. Raul’s Punitive Damages Claim
Our conclusion that the compensatory damages award must be reversed also compels reversal of the punitive damage award because “‘it would be improper and premature to assess [punitive damages] until or concurrently with the assessment of “the actual damages”’ [citation] and ‘exemplary damages must bear a reasonable relation to actual damages....’” (Liodas v. Sahadi, supra, 19 Cal.3d at p. 284; see also Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1140 [reversal of compensatory damages award “also compel[s] reversal of [a] punitive damage award because of the rule of law requiring some reasonable relationship between the compensatory and punitive damages”].) Accordingly, we reverse the judgment as it pertains to punitive damages.
D. Dena’s Additional Compensation Claim
As discussed above, Dena contended at trial that Raul owed her in excess of $60,000 per year for 17.4 years, plus $102,000 in fringe benefits, for a total of $1,146,000. Thus, she said, even if she had taken $921,837, as Raul contended, he still owed her more than $200,000 in back wages. ($1,146,000 - $921,837 = $224,163.)
There is no question that, by its verdict, the jury rejected Dena’s testimony. We conclude, however, that had the jury been told that it could not credit Raul’s version of the contract, it could well have credited Dena’s. If so, it would have awarded Dena additional compensation. Alternatively, as discussed above, the jury could have credited Raul’s testimony that he left it to Dena to set a salary that she thought was fair, and further concluded that the $60,000 per year salary she set for herself comported with good faith and fair dealing. That conclusion, also, would have resulted in an award of additional compensation to Dena. Thus, we reverse the judgment as it pertains to Dena’s cross-claims for additional compensation.
Because we have concluded that the entire judgment must be reversed, we do not address Dena’s alternative contentions on appeal that there was no substantial evidence that Raul had an ownership interest in the Gregory Avenue apartment or that the award of damages on the Gregory Avenue apartment claim duplicated other portions of the damages award.
In so concluding, we reject Dena’s contention, asserted in her supplemental letter brief, that rather than retrying her cross-claims, we should simply “enter judgment for Appellant on her Cross-Complaint.” Dena contends she is entitled to this relief because “[t]he trial court [instructed the jury that] either the contract was for $20,000 a year plus room and board as Respondent claimed; or it was for $60,000 a year plus benefits, and was modified to include room and board as Appellant claimed. [Citation to record.] In other words, the jury was given an either/or situation: either the oral agreement was for $20,000 a year or the oral agreement was for $60,000 a year. In logical terms, the jury was presented with this formula: if A, then not B; if not A, then B. In ordinary terms: if the contract was for $20,000 a year (‘A’), then it was not for $60,000 a year (‘B’). Either the jury found on Respondent’s Complaint, or it found on Appellant’s Cross-Complaint.”
We do not agree. While the first part of Raul’s rubric undoubtedly is true—if the jury found the contract was for $20,000 a year, it could not have found that the contract was for $60,000 a year—the corollary is not necessarily true. That is, the jury could have rejected Raul’s contract claim without accepting Dena’s. The court explicitly so instructed the jury, telling it that “if both parties did not prove that plaintiff and defendant had agreed to the respective versions, then no oral contract was created.” (Italics added.) The court also instructed the jury as to quantum meruit “[a]lternatively to her [Dena’s] breach of oral contract claim.” (Italics added.)
III. Dena Has Not Established Lack of Substantial Evidence That Raul Was Owed Any Money From the Proceeds of the Sale of the Gregory Avenue Apartment
Dena contends that there is no substantial evidence to support a finding that Raul had an ownership interest in the Gregory Avenue apartment. Thus, she says, he cannot establish that he was entitled to the proceeds of the sale of the apartment.
By so asserting, Dena mischaracterizes the nature of Raul’s claim. Raul never claimed that he was a part owner of the Gregory Avenue apartment; instead, he claimed that Dena had duped him into believing he was a part owner in order to induce him to give her $75,000 of the proceeds of his refinance. Accordingly, Dena’s contention that Raul failed to introduce substantial evidence that he was a part owner of the Gregory Avenue apartment is irrelevant to the merits of this appeal.
DISPOSITION
For the reasons discussed above, the judgment is not sever able. Therefore, the entire judgment is reversed. Appellant shall recover her costs on appeal.
Because the evidence was insufficient to support the jury’s verdict that Dena breached the contract alleged by Raul, on remand Raul may not retry his cause of action for breach of contract. “When the plaintiff has had full and fair opportunity to present the case, and the evidence is insufficient as a matter of law to support plaintiff’s cause of action, a judgment for defendant is required and no new trial is ordinarily allowed, save for newly discovered evidence. (See Code Civ. Proc., §§ 629, 657; 8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 18 et seq.) [Fn. omitted.]” (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661; see also Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 153 [“If the plaintiff had a ‘full and fair opportunity’ to present the supporting evidence, and the evidence was insufficient as a matter of law to support a damage award, a reviewing court may strike the award without ordering a retrial.”].) Accordingly, we direct the trial court to enter judgment for Dena on Raul’s breach of contract claim.
The remaining causes of action alleged in the complaint and cross-complaint shall be set for retrial. (E.g., Gapusan v. Jay (1998) 66 Cal.App.4th 734, 743 [“‘“[A]n 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.” [Citations.]’ [Citation.]”].) On retrial, the parties may urge all of the theories advanced during the first trial, except that Raul may not contend that he and Dena had an express oral contract for $20,000 per year. We express no opinion as to whether the parties may amend their pleadings.
We concur:, EPSTEIN, P.J., WILLHITE, J.