1. Motion by Plaintiff Allstar Tire & Wheel for Summary Judgment/Summary Adjudication of Issues:

The motion of plaintiff Allstar Tire & Wheel, Inc. dba Autohaus West, Inc. (“Plaintiff” or “Autohaus”) for order summarily adjudicating against defendants Fariborz Yaghoubi and Highline Specialist Corp. dba House of Luxuries (“HOL”) the second cause of action for conversion and the fifth cause of action for open book account in Autohaus’ first amended complaint (“FAC”) is denied.

(a) Merits

For summary adjudication, Plaintiff must establish each element with admissible evidence. Plaintiff has failed to establish the property taken by Defendants, or Plaintiffs’ damages, with admissible evidence.

(i) Plaintiff’s entire evidentiary showing as to the vehicles taken by HOL and Plaintiff’s damages is paragraph 12 of Aynehchi’s declaration in which he lists the cars and the amounts due “[b]ased on his review of Autohaus and HOL corporate records.” Aynehchi’s statement is thus hearsay, and the records it is based on are hearsay. Nor has any attempt been made to show a business records exception for those records or the attached exhibits. Defendants have objected to this portion of Aynehchi’s declaration and the recommendation is to sustain the objection. [The same is true as to Okun Decl., ¶4.]

(ii) As a result, Plaintiff has not made a prima facie showing on an essential element of its claim and is not entitled to summary adjudication.

(iii) Even if paragraph 12 of Aynehchi’s declaration were admitted, Plaintiff would not be entitled to summary adjudication as Defendants have established a triable issue of fact as to Plaintiffs damages with the Broadbent declaration, paragraphs 7-12 (described above).

(iv) On reply, Plaintiff argues that each car/invoice is a separate cause of action so it is entitled to summary adjudication as to the cars/invoices listed by Aynehchi for which Defendants did not submit counter evidence. Plaintiff did not give notice that it was seeking summary adjudication as to such issues, however, so the court may not grant such summary adjudication. CRC 3.1350; Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. Nor may Plaintiff now state that it will take whatever amount of money Defendants have not disputed. This, too, was not set forth in Plaintiff’s motion. Defendants did enough to show a triable issue of fact as to the causes of action noticed and moved on by Plaintiff. Had Defendants been given notice that Plaintiff would ask for any “undisputed” amount, they may have submitted evidence to put it all into dispute.

(b) Evidentiary Objections:

(i) Defendants’ objections to:

◦Shrahram Aynehchi Decl – sustained as to Nos. 1, 6 and 7; overruled as to Nos. 2, 3, and 4.

◦Neil Okun Decl. – sustained as to Nos. 1 and 3; overruled as to Nos. 2 and 4.

(ii) Plaintiff’s objections to:

◦Fariborz Yaghoubi Decl. – overruled. The objections fail to comply with California Rule of Court 3.1350 (b) and (c).

◦Bryan Broadbent Decl. – overruled. The objections fail to comply with California Rule of Court 3.1350 (b) and (c).

Responding Party shall give Notice.

2. Motion by Cross-Defendants Allstar Tire & Wheel, Inc., Okyn, and Aynehchi for Summary Judgment/Summary Adjudication of Issues:

The motion of cross-defendants Autohaus, Shahram Aynehchi, and Neil Okun for an order summarily adjudicating the first cause of action for fraud, second cause of action for intentional interference with contract, third cause of action for intentional interference with prospective economic advantage, and fourth cause of action for intentional infliction of emotional distress in the second amended complaint of cross-complainants Yaghoubi and HOL is denied as to the first and fourth causes of action and granted as to the second and third causes of action.

(a) Merits

(i) First Cause of Action for Fraud

Aynehchi and Okun declare they and Autohaus intended to perform their promise to Cross-Complainants when the promises were made. Cross-Defendants point to Cross-Complainants’ lack of evidence that Cross-Defendants’ did not intend to perform as promised.

Cross-Defendants are correct that lack of performance alone is not evidence of no intent to perform. Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n (2013) 55 Cal. 4th 1169, 1183. Here, the only evidence of Cross-Defendants’ state of mind is their own declarations. The court may not weigh the credibility of these declarations but under the circumstances has the discretion to deny summary adjudication so that a jury can do so. Code Civ. Proc. 437c (e).

Cross-Defendants also argue that the fraud claim fails because the promise to supply exotic, high-end cars is too vague to be enforced or give rise to fraud liability. But Cross-Complainants’ fraud cause of action is not based on that promise only, but also on the alleged promises to pay Yaghoubi back for the $400,00 he paid his partner to buy him out and then to pay the partner an additional $150,000. Cross-Defendants do not address these promises. They do not argue the promises are too vague. Nor do they establish that these promises were in fact kept and thus not a possible basis for a fraud cause of action.

(ii) Second and Third Causes of Action for Intentional Interference with Contract and Intentional Interference with Prospective Economic Advantage

Cross-Defendants have submitted evidence that they did not contact HOL’s banks as alleged by Cross-Complainants for their causes of action (SACC ¶ 55) and did not make statements, much less false ones, about HOL’s financial condition or inability to pay debts. [Aynehchi Decl., ¶ 15; Okun Decl., ¶ 15.] And Cross-Complainants concededly rely on “false statement [by Cross-Defendants] to the banks regarding HOL’s purported financial state” for their interference causes of action. [Cross-Complainants Opp. MPA to MSA on SACC, 10:23-24, 14:22-23.] But in the face of Cross-Defendants’ evidence that they did not make such statement, Cross-Complainants have failed to present any evidence that in fact Cross-Defendants did make those statements.

Cross-Complainants have thus failed to show a triable issue of fact that the false statements/interfering acts were made. In the absence of this element, neither of Cross-Complainants’ interference causes of action can be sustained.

(iii) Fourth Cause of Action for IIED:

Cross-Defendants again argue their lack of intent, as shown by their declarations, as grounds for summary adjudication. As discussed above, and for the reasons discussed above, the court may deny summary adjudication on this basis.

Cross-Defendants also argue the separate ground that their conduct simply was not extreme enough to give rise to IIED. On demurrer, the court already found that the allegations of Cross-Defendants’ conduct showed sufficient basis for IIED. On MSA, Cross-Defendants do not present evidence of their actual conduct, as opposed to that alleged in the SACC, to negate that their actual conduct was outrageous or reckless. See SACC ¶¶30, 31, 36-38.

(b) Evidentiary Objections

(i) Cross-Complainants’ objections to:

◦Shrahram Aynehchi Decl – no. 7 is sustained; the remaining are overruled.

◦Neil Okun Decl. – nos. 3 and 7 are sustained; the remaining are overruled.

(ii) Cross-Defendants’ objections to:

◦Fariborz Yaghoubi Decl. – nos. 1, 2, 3, 5, and 6 are sustained; no. 4 is overruled.

◦Bryan Broadbent Decl. – nos. 9 and 10 are sustained; nos. 7 and 8 are overruled.

Moving Parties Cross-Defendants All-Star Tire & Wheel, Inc., etc. shall give Notice.