Jogani v. Jogani























Filed 1/3/13
Jogani v. Jogani CA2/1

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION ONE




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SHASHIKANT JOGANI, Plaintiff, Appellant and Respondent, v. HARESH JOGANI et al., Defendants, Respondents and Appellants.

B222561, consol. w/B228875 (Los Angeles County Super. Ct. No. BC290553) ORDER MODIFYING OPINION [change in the judgment]

THE COURT:

It
is ordered that the opinion filed herein on December 5, 2012,
be modified as follows:

1. On page 11, the first sentence of the first
paragraph, reading, “By special verdict, the jury found Haresh, Gilu
Investments Limited, and Mooreport Holdings Limited were not liable in quantum
meruit because Jogani provided no services for their benefit,” is modified to
read, “By special verdict, the jury found Haresh, Gilu Investments Limited, and
Mooreport Holdings Limited were not liable in quantum meruit because Jogani was
not asked to provide services for their benefit.”



2. On page 21, the following sentence is added
at the end of footnote 2:

“Jogani may still seek imposition of a
constructive trust as a remedy.”

3. On page 26, the following paragraph is added
at the end of section II A:

“Given
this ruling, the judgments obtained after trial in favor of Haresh, Mooreport
Holdings Limited and Gilu Investments Limited on Jogani’s claim for quantum
meruit must also be reversed. To
establish quantum meruit, Jogani was required to prove he rendered services at
Haresh’s request for the benefit of Haresh, Mooreport Holdings Limited and Gilu
Investments Limited. (>Earhart v. William Low Co. (1979) 25
Cal.3d 503, 518.) But the trial court
prevented Jogani from presenting evidence of a partnership agreement between
himself and Haresh, on the ostensible ground that its summary adjudication
rulings established no such agreement existed.
In light of our holding that summary
adjudication was improper, it follows that the pretrial rulings based
thereon were erroneous. And there is
little question the error was prejudicial.
(See Clifton v. Ulis (1976) 17
Cal.3d 99, 105-106 [erroneous exclusion of evidence permits reversal when it is
reasonably probable the error was prejudicial].) The alleged partnership agreement contained
Haresh’s request that Jogani perform services for the partnership, including
Haresh and the holding companies. The
jury’s finding that Jogani was not asked to provide services for these
defendants can be directly attributed to the court’s exclusion of the
agreement.”



4. On page 28, the second paragraph, beginning
“As noted above, in addition to . . . .” is deleted in its
entirety and is replaced with the following two paragraphs:

“As noted above,
in addition to their motion for new trial, which the trial court granted, J.K.
Properties, H.K. Realty, Hansa and Commonwealth moved for judgment
notwithstanding the verdict, seeking an order that Jogani receive no more than $3,325,000 on his quantum meruit
claim, less the $2.4 million already disbursed.
The trial court denied this motion.
On appeal, defendants argue that because Jogani’s damages evidence was
incompetent, it failed to support a judgment on his behalf in any amount. However, they argue, their own expert’s
testimony supported a judgment for Jogani in the amount of $3,908,331. Subtracting the $2.4 million found by the
jury to have already been paid to Jogani, defendants contend the trial court
should be directed to enter judgment in favor of Jogani in the amount of
$1,508,331.

We
disagree. When a plaintiff’s only
damages evidence is held to have been erroneously admitted, the remedy is not
to grant judgment notwithstanding the verdict in an amount supported by the
defendant’s evidence, but to grant a new trial.
(Teitel v. First L.A. Bank
(1991) 231 Cal.App.3d 1593, 1604-1605 [new trial is the exclusive remedy where
some damages are properly awarded but the amount is excessive]; >Donahue v. Ziv Television Programs, Inc.
(1966) 245 Cal.App.2d 593, 609-610 [a plaintiff has the right to rely on the
trial court’s admission of damages evidence, and to receive a new trial if
admission of that evidence was erroneous].)
Pursuant to the discussion in part (II)(B), ante, the parties shall have a new trial.”



5. On pages 28 to 29, the Disposition is deleted
in its entirety and replaced with the following:

“The order granting
defendants’ motion for new trial and denying their motion for judgment
notwithstanding the verdict is affirmed.
The order granting summary adjudication of plaintiff’s cause of action
for constructive trust is affirmed.
Summary adjudication in favor of Haresh Jogani is otherwise
reversed. Summary adjudication as to
Pinkal Jogani is affirmed. The judgments
for Haresh Jogani, Mooreport Holdings Limited and Gilu Investments Limited are
reversed. All parties shall bear their
own costs.”

These modifications
change the judgment.

The petitions
for rehearing are denied.

MALLANO, P. J. CHANEY, J. JOHNSON, J.