H.T.L. Properties v. Speck CA2/2

Filed 5/4/21 H.T.L. Properties v. Speck CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
H.T.L. PROPERTIES, LLC et al., B299160
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC677442)
v.
JAMES SPECK et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michael P. Vicencia, Judge. Affirmed in
part and dismissed in part.
McCreary and Duncan J. McCreary for Plaintiffs and
Appellants.
Ferruzzo & Ferruzzo, Gregory J. Ferruzzo and Jillian P.
Harris for Defendants and Respondents.
______________________________
This litigation arises out of a dispute between certain
entities and individuals concerning the use of a large electronic
sign in the City of Long Beach to advertise car dealerships in the
area. When plaintiffs and appellants H.T.L. Properties, LLC
(HTL Properties) and HTL Automotive, Inc. (HTL Automotive),
were denied use of the sign, they filed a lawsuit against
defendants and respondents James Speck (Speck), Circle
Automotive Group, Inc. (Circle Auto), and Electra Media, Inc.
(EMI),1 claiming that defendants wrongfully denied them use of
the sign. Defendants successfully moved for summary judgment,
and HTL Properties and HTL Automotive appeal, claiming that
they demonstrated a triable issue of fact precluding summary
judgment.
Because HTL Automotive is not in good standing with the
Franchise Tax Board, we dismiss its appeal. We affirm the
judgment against HTL Properties.
1
There is some confusion as to which entities and
individuals are parties to this litigation, which entities are
parties to this appeal, and which entities and individuals were
just part of the relevant transactions. HTL Automotive is
identified as an appellant on the notice of appeal and in the
opening brief, but the reply brief indicates that “HTL
[Automotive] remains suspended and did not take part in this
appeal. HTL [Properties] filed the Opening Brief.” Hooman
Michael Nissani (Nissani) is not a plaintiff or appellant, and
Alant Corporation (Alant) is not a defendant or respondent.
Electra Media was erroneously sued as Electric Media, Inc. We
describe the relationship among these entities and persons (and
others) as is relevant to this appeal below.
2
FACTUAL BACKGROUND
I. The relevant parties
A. North East Long Beach Advertising Association (NEDA)
NEDA is an unincorporated association formed in 1998.
Three entities (Salta Pacific, LLC, dba Beach Toyota (Salta);
Coast Cadillac; and Alant dba Circle Imports Audi and
Porsche/Circle Isuzu and Mitsubishi) located in Long Beach
formed NEDA to build a large electronic reader board sign
adjacent to the freeway to advertise the members’ car dealerships
(the NEDA sign). The terms of the entities’ agreement is set
forth in a contract titled Auto Dealers Association and Reader
Board Participation Agreement (the NEDA agreement).
The NEDA agreement was signed by Salta, Coast Cadillac,
and Alant. Significantly, Speck executed the NEDA agreement
on behalf of Alant, in his capacity as Alant’s president.
As discussed below, when HTL Automotive purchased the
Toyota dealership in 2008, it joined NEDA.
The NEDA sign consists of three parts. The top is a static
display of the words “Long Beach.” The middle portion is a
digital display with rotating graphic images, which at all times
has consisted of advertisements for NEDA members’ new car
dealerships and public service announcements from the City of
Long Beach. The bottom portion of the sign contains static
advertisements for the NEDA members’ new car dealerships.
B. EMI
EMI is a full-service sign management company
responsible for overseeing the life of an advertising display. It
handled all aspects of the construction, permitting, programming,
and maintenance of the NEDA sign. NEDA remits payment to
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EMI on a monthly basis for the expenses of maintaining,
programming, and operating the NEDA sign.
C. Alant
Alant is the entity that operates under the fictitious
business name Circle Imports and owns Circle Audi and Circle
Porsche, two new car dealerships located near the “Traffic Circle”
area of Long Beach. Speck is Alant’s president.
Alant, not Speck, is a member of NEDA.
D. Circle Auto
Among other things, Circle Auto manages the dealerships
owned by Alant. It does not own any car dealerships and has
never been a member of NEDA. That said, it regularly handles
the administrative tasks associated with NEDA, such as
collecting payments from members and remitting payment to
EMI.
E. HTL Automotive
In 2008, HTL Automotive began operating a new car
dealership in Long Beach under the fictitious name Hooman
Toyota. Nissani was the president of HTL Automotive. In 2016,
HTL Automotive sold the dealership to a third party and has not
operated a new car dealership in Long Beach since. Until the
sale of its dealership, HTL Automotive was a member of NEDA.
F. HTL Properties
HTL Properties owns and leases parcels of land in
Long Beach. It has never operated a new car dealership in Long
Beach.
HTL Properties is managed by Nissani.
II. The NEDA agreement
As set forth above, Salta, Coast Cadillac, and Alant formed
NEDA pursuant to the NEDA agreement. The purpose of the
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NEDA agreement was to establish NEDA and install an
electronic reader board sign to advertise car dealerships in
Long Beach. The NEDA sign would be “used for identifying and
advertising the Member’s Auto Dealerships.” “Auto Dealership”
is defined as “a Member’s facility in the City of Long Beach
empowered with the right to sell or lease new Vehicles under a
license or franchise granted by a Vehicle manufacturer and the
State of California.” Notably, the NEDA agreement specifies that
“[a]ny and all development and use of the sign shall at all times
comply with any and all requirement[s] of the Municipal [C]ode
of the City of Long Beach, California.”
The NEDA agreement also provides that “membership in
the Association held by any Member shall automatically
terminate upon the transfer, conveyance, pledge, or alienation of
an Auto Dealership by the Member thereof.”
III. Renovations to the NEDA sign
In 2006, the NEDA sign was relocated approximately
10 feet and assigned a new address. It was increased in size, the
words “Long Beach” were added to the top in backlight letters,
and the City of Long Beach received 15 percent of the available
advertising time for public service messages.
The City of Long Beach loaned NEDA $300,000 for the
renovation. The loan was guaranteed by Alant as well as Jentra,
LLC dba Beach Toyota, which had become a member of NEDA
when it purchased the Toyota dealership from Salta.
IV. HTL Automotive acquires Beach Toyota
In 2008, HTL Automotive acquired Beach Toyota from
Jentra, LLC, and began doing business as Hooman Toyota. As
part of the acquisition, HTL Automotive executed an assumption
agreement, which provides, in relevant part: “Seller hereby
5
assigns and Buyer hereby undertakes and agrees from and after
the date hereof, to assume and to pay, perform and discharge
when due . . . all obligations of Seller arising in connection with
the following Assumed Contracts” listed on an attached schedule.
The schedule identified the NEDA agreement as well as “Seller’s
duties and obligations as a member of” NEDA, and “Seller’s
obligations pursuant to its guaranty of obligations of” NEDA
made for the benefit of the City of Long Beach.
Hooman Toyota began advertising on the digital portion of
the NEDA sign and used one quarter of the static portion. HTL
Automotive made payments for the maintenance of the NEDA
sign and repayment of the loan to the City of Long Beach.
V. HTL Automotive and Alant agree to split the usage and
expense of the NEDA sign
In 2012, Nissani began taking steps to move Hooman
Toyota from its location near the “Traffic Circle” to the parcel
adjacent to the NEDA sign. While Coast Cadillac had previously
occupied that parcel, the dealership had since closed and the
property remained vacant.
Because of Coast Cadillac’s departure, there were only two
remaining members of NEDA: Alant dba Circle Audi/Circle
Porsche and HTL Automotive dba Hooman Toyota. Alant owned
two-thirds of NEDA and HTL Automotive owned one-third of
NEDA.
Speck wanted to maintain Alant’s two-thirds majority
ownership in NEDA, but he and Nissani began discussing a
reallocation of NEDA expenses and advertising time. In June
2012, Nissani and Speck exchanged a series of e-mails, during
which (1) Speck proposed that he and Nissani “share the [costs
and] the sign [usage] 50/50”; (2) Nissani agreed that he “would
6
take up to 50% of the sign and expense and you would stay at
50%”; and (3) Speck replied that he and Nissani “would both
share the sign 50/50” in usage and expense, “even though [Speck]
would have 67% ownership.”
Thereafter, the digital advertising costs were split evenly
between Speck’s and Nissani’s dealerships. Circle Auto collected
monthly payments for the NEDA sign’s expenses from Alant and
HTL Automotive and remitted them to EMI.
At around the same time, Nissani arranged with EMI for
the purchase and installation of a new panel with the words
“HOOMAN TOYOTA OF LONG BEACH” to take up half of the
static advertising space on the NEDA sign.
In 2013, Speck and Nissani began exchanging e-mails
again, this time arguing over who had what percentage of
ownership of the NEDA sign. They exchanged the occasional e-
mail on the subject from 2013 to 2016. Despite their e-mail
disagreements, the allocation of advertising time remained at
50/50 from 2012 to 2016.
In late 2013, Nissani successfully relocated Hooman Toyota
to the parcel adjacent to the NEDA sign.
VI. After HTL Automotive sells its dealership to an unrelated
third party, it claims advertising rights on the NEDA sign
In 2016, HTL Automotive sold its dealership to an
unrelated third party, the Ken Garff Automotive Group (Garff).
Thereafter, Speck and Nissani began arguing over whether HTL
Automotive had any continuing rights to advertise on the NEDA
sign. Specifically, Nissani wrote to Speck: “I have no intention to
transfer my ownership to . . . Garff [in] the [NEDA] sign, I have
sold them my dealership and did not give [them] or transfer to
7
them any rights to the sign! [¶] [A]nd plan using the sign for my
new dealership on the property where the sign is.”
VII. After HTL Automotive sells its dealership, the word
“Hooman” is removed from the NEDA sign
After Nissani sold the Toyota dealership, Toyota demanded
that he stop advertising the franchise. EMI removed the vinyl
decals for the word “TOYOTA,” leaving “HOOMAN [blank] OF
LONG BEACH” on the NEDA sign.
In 2017, the City of Long Beach notified Speck that Nissani
no longer operated any dealerships in Long Beach. Speck, as
president of NEDA, directed EMI to remove “HOOMAN [blank]
OF LONG BEACH” and “HOOMAN” from the NEDA sign. EMI
complied.
VIII. City of Long Beach permits
There are two types of signs allowed in the City of
Long Beach: “on-premises” and “off-premises.” The NEDA sign
is an “on-premises” sign. Pursuant to Long Beach Municipal
Code section 21.44.102, the copy for all on premises signs is
limited to identification of the business and products or services
available on the premises. (Long Beach Mun. Code, § 21.44.102.)
This limitation contrasts with a “billboard,” defined as any form
of “off-premises advertising,” electronic or otherwise. (Long
Beach Mun. Code, § 21.54.020.)
Because all signs in the City of Long Beach require
permits, in 2006, NEDA applied for and obtained a permit for the
renovated NEDA sign. During the permitting process, the City of
Long Beach issued a staff report that outlined the reasons for its
approval of the NEDA sign as an “on-premises sign.” Specifically,
the report provides: “In this case, the proposed sign is intended
to allow the dealerships to provide signage that is comparable to
8
competing auto dealerships. These dealers are located inland
away from the freeway. Newer dealerships in neighboring cities
have been locating near the freeways, which provide greater
visibility and opportunity for on-site advertising. Auto sale
centers in neighboring cities have electronic signs of comparable
[size] and height. The larger sign size will allow all the dealers to
[advertise] on one sign. Staff believes the request will serve to
further the goals of the zoning regulations by prompting
productivity of local businesses and providing auto dealers with
signage that is comparable to that used by competing businesses
in adjacent cities.”
The permit contained express conditions. It required that
“[a]ll messages shall be limited to on-site advertising of goods or
services for” NEDA. It also required that NEDA maintain an
office on the property for business operations, thereby making the
NEDA sign an “on-premises” sign.
PROCEDURAL BACKGROUND
I. Complaint
HTL Automotive and HTL Properties initiated this action
on September 27, 2017. The complaint asserts claims for
intentional interference with contractual relations, intentional
interference with prospective economic relations, negligent
interference with prospective economic relations, breach of
contract, and trespass with personal property based upon the
following allegations: In 2012, HTL Automotive entered into an
agreement with Speck and Circle Auto to own 50 percent of the
NEDA sign. “Later, [HTL Automotive] assigned its rights to the
sign to [HTL Properties].” Approximately five years later, “Speck
and Circle [Auto] intentionally and without cause instructed EMI
to remove all advertising associated with [HTL Automotive]
9
and/or [HTL Properties] from the sign. EMI subsequently
removed all advertising associated with [HTL Automotive] and/or
[HTL Properties] from the sign.” As a result, HTL Automotive
and HTL Properties claimed over $1 million in damages.
II. Defendants’ motion for summary judgment
On December 28, 2018, defendants filed a motion for
summary judgment. Regarding the breach of contract and
interference with contract causes of action, defendants asserted
that the claims failed because existence of a valid contract is an
essential element of those claims, and “[p]laintiffs’ membership
was terminated [pursuant to the terms of the NEDA agreement]
before the time of the alleged breach.” Alternatively, plaintiffs’
breach of contract claim failed because they did not contract
directly with any defendant.
Defendants also argued that plaintiffs’ claims for
interference with prospective economic advantage failed.
Although not spelled out in the complaint, Nissani’s deposition
testimony explains the basis of this claim. He testified that it
was his understanding that HTL Automotive and HTL Properties
would have the ability to lease their alleged advertising rights to
any other business, including a non-car dealership located
outside of Long Beach. Plaintiffs claimed that they were in
discussions with Garff to lease the advertising rights, and Speck
and Circle Auto interfered with that prospective economic
advantage. According to defendants, plaintiffs had no right to
advertise on the sign once they sold the car dealership and only
members of NEDA can advertise on the sign. Thus, they had no
viable claim for interference with prospective economic
advantage.
10
Finally, plaintiffs’ trespass to personal property cause of
action failed because they had no right to possession of the NEDA
sign.
III. Plaintiffs’ opposition
HTL Automotive and HTL Properties opposed the motion,
arguing that there were three key triable issues of material fact:
(1) whether Alant, Speck, and/or Circle Auto ever agreed to be
bound by the NEDA agreement; (2) with whom plaintiffs were
contracting: Alant, Speck, and/or Circle Auto; and (3) whether
Speck is the alter ego of the partnership created by the course of
conduct between himself and plaintiffs.
In support, plaintiffs submitted a declaration from Nissani.
He averred that “[f]rom 2012 to 2016, [HTL Automotive] and/or
[HTL Properties], on the one hand, and Speck and/or Circle
[Auto], on the other, entered into multiple agreements regarding
the use and ownership of the Sign.” Attached to his declaration
were copies of various e-mail exchanges between Nissani and
Speck purportedly supporting his contention.
Nissani also attested that he “had pre-existing
relationships with [Garff] because [HTL Automotive] sold its
Toyota dealership to Garff. Garff was not a party [to] any of the
contracts between myself and Mr. Speck.” “Based on Speck’s
discussions with Garff, I was unable to lease the Sign rights to
Garff.”
Finally, Nissani stated: “Prior to the sale of Hooman
Toyota to Garff in 2016, I assigned the rights in the ownership
and use of the Sign from [HTL Automotive] to [HTL Properties].”
IV. Trial court order granting summary judgment
After entertaining oral argument, the trial court granted
defendants’ motion for summary judgment. In so ruling, it found,
11
inter alia, that plaintiffs’ first cause of action for intentional
interference with contractual relations and fourth cause of action
for breach of contract failed as a matter of law because the NEDA
agreement was terminated when plaintiffs sold their only new
car dealership in Long Beach. As for plaintiffs’ second and third
causes of action for interference with prospective economic
advantage, those claims failed because plaintiffs could not
“demonstrate a reasonable probability that an existing
relationship would have yielded economic benefits.” Finally,
plaintiffs’ fifth cause of action for trespass to personal property
failed because plaintiffs could not “demonstrate the essential
element of a right to possession of the NEDA Sign since they are
not members of the NEDA and do not operate a new car
dealership in Long Beach.”
Judgment was entered in favor of Speck, Circle Auto, and
EMI, and against HTL Automotive and HTL Properties.
V. Appeal
This timely appeal ensued. The notice of appeal identifies
HTL Properties and HTL Automotive as appellants.
DISCUSSION
I. Dismissal of HTL Automotive’s appeal
In the respondents’ brief, defendants argue that HTL
Automotive’s appeal must be dismissed because it is not in good
standing with the Franchise Tax Board. The reply brief concedes
that HTL Automotive is suspended and claims that it did not
take part in this appeal. But, HTL Automotive is named as an
appellant on the notice of appeal. And, the opening brief
repeatedly refers to “Appellants,” sometimes including HTL
Automotive in that ambiguous grouping. To resolve this
confusion, we liberally construe the notice of appeal to include
12
HTL Automotive, a party aggrieved by the judgment entered
against it, as an appellant. (Apple, Inc. v. Franchise Tax Bd.
(2011) 199 Cal.App.4th 1, 13.) Because HTL Automotive is not in
good standing with the Franchise Tax Board, its appeal is
dismissed.2 (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th
1300, 1306.)
II. Standard of review
“We review a grant of summary judgment de novo,
considering ‘“all of the evidence set forth in the [supporting and
opposition] papers, except that to which objections have been
made and sustained by the court, and all [uncontradicted]
inferences reasonably deducible from the evidence.”’ [Citation.]
‘In independently reviewing a motion for summary judgment, we
apply the same three-step analysis used by the superior court.
We identify the issues framed by the pleadings, determine
whether the moving party has negated the opponent’s claims, and
determine whether the opposition has demonstrated the
existence of a triable, material factual issue.’ [Citation.]”
(Granadino v. Wells Fargo Bank (2015) 236 Cal.App.4th 411,
415.)
“The general rule is that summary judgment is appropriate
where ‘all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law . . . .’ [Citation.] A defendant
‘moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of
2
Because we are dismissing HTL Automotive’s appeal, we do
not address any arguments by the parties concerning HTL
Automotive.
13
any triable issue of material fact.’ [Citation.] The moving
defendant may meet this burden either by showing that one or
more elements of a cause of action cannot be established or by
showing that there is a complete defense thereto. [Citations.]
‘“[A]ll that the defendant need do is to show that the plaintiff
cannot establish at least one element of the cause of action . . . [;]
the defendant need not himself conclusively negate any such
element . . . .” [Citation.]’ [Citation.] Once the moving party’s
burden is met, the burden shifts to the plaintiff to demonstrate
the existence of a triable issue of material fact. [Citation.] The
plaintiff must produce ‘“substantial”’ responsive evidence
sufficient to establish a triable issue of fact. [Citation.]
‘[R]esponsive evidence that gives rise to no more than mere
speculation cannot be regarded as substantial, and is insufficient
to establish a triable issue of material fact.’ [Citation.]”
(Granadino v. Wells Fargo Bank, N.A., supra, 236 Cal.App.4th at
p. 415.)
In reviewing an order granting summary judgment, we
strictly scrutinize the moving party’s papers (Chevron U.S.A.,
Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 549, overruled in
part on other grounds by Camargo v. Tjaarda Dairy (2001) 25
Cal.4th 1235, 1245), and liberally construe the declarations of the
party opposing summary judgment to determine the existence of
triable issues of fact. (Sosinsky v. Grant (1992) 6 Cal.App.4th
1548, 1556.) All doubts as to whether any material, triable issues
of fact exist are to be resolved in favor of the party opposing
summary judgment. (Ibid.)
We affirm an order granting summary judgment if it was
correct on any ground that the parties had an adequate
opportunity to address in the trial court. (Securitas Security
14
Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115,
120.)
III. The trial court properly granted respondents’ motion for
summary judgment
A. Breach of contract
The elements of a claim for breach of contract are (1) the
contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) resulting
damages. (San Mateo Union High School Dist. v. County of
San Mateo (2013) 213 Cal.App.4th 418, 439.) “‘Under California
law, a contract will be enforced if it is sufficiently definite (and
this is a question of law) for the court to ascertain the parties’
obligations and to determine whether those obligations have been
performed or breached.’ [Citation.]” (Bustamante v. Intuit, Inc.
(2006) 141 Cal.App.4th 199, 209.) “It is essential to the validity
of a contract, not only that the parties should exist, but that it
should be possible to identify them.” (Cal. Civ. Code, § 1558.)
HTL Properties did not raise a triable issue of fact to
preclude summary adjudication of this cause of action. It never
set forth the terms of the parties’ alleged agreement. All Nissani
asserted in his declaration in opposition to defendants’ motion for
summary judgment was that “[f]rom 2012 to 2016, [HTL
Automotive] and/or [HTL Properties], on the one hand, and Speck
and/or Circle [Auto], on the other, entered into multiple
agreements regarding the use and ownership of the Sign.” It is
unclear whether there was one contract or more than one
contract. What are the terms of the alleged contract(s)? Who are
the parties to the alleged contract(s)? Absent these basic terms,
HTL Properties’s breach of contract claim fails.
15
In addition, as set forth above, Speck and/or Circle Auto
could not have entered into any agreements regarding the use
and ownership of the NEDA sign because the NEDA sign is
owned by NEDA. And neither Speck nor Circle Auto are
members of NEDA.
On appeal, HTL Properties asserts that “Respondent made
multiple agreements regarding the ownership and usage of the
NEDA Sign and Respondent breached said agreements.” HTL
Properties’s use of the generic term “Respondent” when there are
three respondents in this action makes it difficult to discern HTL
Properties’s argument.
Presumably, in this context, “Respondent” refers to Speck,
and HTL Properties’s theory seems to be that either it or Nissani
entered into agreements with Speck as evidenced by the e-mail
exchanges between Speck and Nissani. Even if we were to accept
HTL Properties’s premise that it somehow entered into multiple
contracts regarding the use of the NEDA sign with Speck, HTL
Properties’s argument still fails. As set forth above, Speck did
not own the NEDA sign; NEDA owns the sign.3 And NEDA’s use
of the sign is dictated by the terms of the permit issued by the
City of Long Beach. Speck could not alter those terms.
3
HTL Properties contends that “Speck revealed [Circle Auto]
was assigned the ownership and usage rights to the Sign when
Speck confirmed that [Circle Auto] [w]as the actual 100% owner
of [the] Sign, not Alant.” HTL Properties misrepresents the
evidence. As pointed out by respondents, Speck misspoke when
he used the phrase “Circle Auto” as opposed to “Circle Porsche
Audi [Alant].” He explained this error during his deposition. It
is unreasonable to infer that this one errant comment creates a
triable issue of fact concerning ownership of the NEDA sign.
(Hirsch v. Blish (1977) 76 Cal.App.3d 163, 166.)
16
The fact that Nissani and Speck used the word “I” in those
e-mails does not change our analysis. If the individuals used the
word “I” to indicate that they were negotiating in their individual
capacities, then the proper plaintiff in this litigation would be
Nissani. But, as noted above, he was not named as a plaintiff in
the complaint; Speck did not obtain a judgment against Nissani;
and Nissani is not an appellant.
To the extent HTL Properties’s claim may be based upon
the NEDA agreement, it fails for the simple reason neither HTL
Properties nor respondents are parties to the NEDA agreement.
While Speck signed the NEDA agreement, he did so in his
capacity as president of Alant.
Urging us to reverse, HTL Properties argues that there is a
triable issue of fact as to whether “Respondent” signed the NEDA
agreement, and therefore whether this “Respondent” is a party to
the NEDA agreement who could terminate “Appellant’s
membership interest” in the NEDA agreement. This argument
makes no sense. HTL Properties, the appellant in this case, was
not a party to the NEDA agreement. Therefore, no respondent
could have terminated its membership interest in the NEDA
agreement.
Furthermore, as set forth above, the respondents in this
litigation include Speck, Circle Auto, and EMI, who, as they
readily admit, were not parties to the NEDA agreement. Thus,
they cannot be liable for breach of the NEDA agreement.
Assuming respondents are correct that HTL Properties
uses the ambiguous term “Respondent” here to refer to “Alant,”
HTL Properties’s claim still fails. First, HTL Properties does not
have a contract with Alant and HTL Properties was never a
member of NEDA. Second, Alant was not a named defendant in
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the complaint, Alant did not move for summary judgment, and
Alant did not obtain a judgment against HTL Properties. Thus,
any argument concerning Alant and whether it was a proper
party to the NEDA agreement is irrelevant and offers no basis for
reversal.
HTL Properties further argues that there is a triable issue
of fact as to whether NEDA is a general partnership. Assuming,
without deciding, that NEDA was a partnership, HTL Properties
still offers no grounds for reversal. There is no evidence or
argument that HTL Properties was an alleged “partner” in
NEDA and how that status would somehow give rise to a breach
of contract cause of action.
Relying upon Speck and Nissani’s 2012 e-mails, HTL
Properties seems to suggest that these individuals somehow were
partners. The fact that Speck and Nissani’s 2012
e-mails confirm “50/50” usage and expenses for the NEDA sign
does not create a triable issue of fact as to whether Speck and
Nissani were members in NEDA as an alleged partnership.
There is no evidence that Speck and/or Nissani were
communicating in their individual capacities, as opposed to their
representative capacities on behalf of the entities (HTL
Automotive and Alant) that were members of NEDA. And even if
they did somehow transform into partners, HTL Properties fails
to explain how that relationship would give it a claim for breach
of contract.
B. Interference causes of action
The elements of a cause of action for intentional
interference with contractual relations are (1) a valid contract
between the plaintiff and a third party, (2) the defendant’s
knowledge of this contract, (3) the defendant’s intentional acts
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designed to induce a breach or disruption of the contractual
relationship, (4) actual breach or disruption of the contractual
relationship, and (5) resulting damages. (Ixchel Pharma, LLC v.
Biogen, Inc. (2020) 9 Cal.5th 1130, 1141.)
The elements of a cause of action for intentional inference
with prospective economic advantage are similar: “‘“(1) [A]n
economic relationship between the plaintiff and some third party,
with the probability of future economic benefit to the plaintiff;
(2) the defendant’s knowledge of the relationship; (3) intentional
acts on the part of the defendant designed to disrupt the
relationship; (4) actual disruption of the relationship; and
(5) economic harm to the plaintiff proximately caused by the acts
of the defendant.” [Citations.]’ [Citation.]” (LiMandri v. Judkins
(1997) 52 Cal.App.4th 326, 339.) In addition, “a plaintiff seeking
to recover for an alleged interference with prospective contractual
or economic relations must plead and prove as part of its case-in-
chief that the defendant not only knowingly interfered with the
plaintiff’s expectancy, but engaged in conduct that was wrongful
by some legal measure other than the fact of interference itself.”
(Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th
376, 393.)
HTL Properties’s claims of interference fail because it did
not have a right to lease any advertising rights. HTL Properties
was never a member of NEDA. Nor could it have been because
the NEDA agreement specifies that only car dealerships can be
members of NEDA. To the extent HTL Properties’s claim is
somehow based upon its relationship with HTL Automotive, its
claim still fails because, as set forth in the NEDA agreement,
when a car dealership is sold, the seller’s membership in NEDA
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automatically terminates. Thus, HTL Properties had nothing to
lease to Garff.
C. Trespass to personal property
“Trespass to chattel ‘lies where an intentional interference
with the possession of personal property has proximately caused
injury.’ [Citation.]” (Levy v. Only Cremations for Pets, Inc. (2020)
57 Cal.App.5th 203, 216.)
At the risk of sounding redundant, HTL Properties’s claim
fails because the NEDA sign is and was not its personal property;
it had no right to the NEDA sign. Thus, it cannot prosecute this
claim.
D. Claims against EMI
The opening brief fails to argue why the judgment against
EMI must be reversed. As such, HTL Properties has waived any
arguments concerning EMI. (Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852.)
E. Propriety of order granting summary judgment
For the first time in the reply brief, and almost in passing,
HTL Properties argues that the order granting summary
judgment was defective because it failed to comply with Code of
Civil Procedure section 437c, subdivision (g). Aside from the fact
that this argument was not raised below (Algeri v. Tonini (1958)
159 Cal.App.2d 828, 832), it is well-settled that we do not
consider arguments first raised in a reply brief. (Prang v.
Los Angeles County Assessment Appeals Bd. No. 2 (2020) 54
Cal.App.5th 1, 17.)
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DISPOSITION
HTL Automotive’s appeal is dismissed. The judgment
against HTL Properties is affirmed. Respondents are entitled to
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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