Judge Kristin S. Escalante , Case Number: 20STCV31839, Date: 2023-06-29 Tentative Ruling

Judge: Kristin S. Escalante , Case: 20STCV31839, Date: 2023-06-29 Tentative Ruling

DEPARTMENT 24 - LAW AND MOTION RULINGS

Submission Instructions.

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5.Tentative rulings are not invitations or opportunities to file further documents relative to the hearing before the Court. Said document(s) will not be considered by the Court.

NATURE OF PROCEEDINGS: Hearing on Motion for Summary Judgment or Alternatively, Adjudication, of Cross-Complaint of Cross-Complainants Michael Mizrachi, Marina Mizrachi, and Weedmayhem, Inc., and Affirmative Defenses thereto.

TENTATIVE RULING:

The Court has read the moving papers in the above-captioned motions and announces its tentative rulings in open Court.

The Motion for Summary Judgment or Alternatively, Adjudication, of Cross-Complaint of Cross-Complainants Michael Mizrachi, Marina Mizrachi, and Weedmayhem, Inc., and Affirmative Defenses thereto; reservation no.: 574536463995 filed by Cross-Defendant Sardor Azimovich Abdullaev on 12/21/2022 is DENIED.

Cross-Defendants motion for summary judgment is denied. Cross-Defendants motion for summary adjudication of issues one through eight are denied.

Cross-Defendants Sardor Azimovich Abdullaev (“Sardor”) and Sarvar Azimzhanovich Abdullaev (“Sarvar”) (collectively “Cross-Defendants”) move for summary judgement on the cross complaint filed by Cross-Complainants Michael Bensimon Mizrachi (“Michael”), Marina Kusheva Mizrachi (“Marina), and Weedmayhem Inc., (“Weedmayhem”) (collectively “Cross-Complainants”). In the alternative, Cross-Defendant seeks summary adjudication of eight issues.

By way of background, Cross-Complainants alleged that they first met Cross-Defendants in 2018. Until November 2019, Cross-Defendants and Cross-Complainants attempted to get their startup, Weedmayhem, off the ground. However, due to financial issues, the project fell through. The Cross-Complaint more specifically concerns certain online publications, allegedly posted by the Cross-Defendants, which paint Cross-Complainants as criminals and con-artists.

Procedural background

On September 30, 2021, Cross-Complainants filed the cross-complaint against Cross-Defendants, Xcentric Ventures LLC (“Xcentric”); Scamguard.com, and RipoffReport.com. Of the eight causes of action, Cross-Complainants alleged the second (fraud – intentional misrepresentation), third (defamation – libel), fourth (defamation – libel per se), fifth (false light) sixth (intentional interference with prospective economic advantage), seventh (intentional infliction of emotional distress), and eighth (declaratory judgment) causes of action against Cross-Defendants. The court sustained Cross-Defendants’ demurrer to the second, sixth, seventh (only as against Weedmayhem), and eighth causes of action (Minute Order, Nov. 30, 2021)

On December 21, 2022, Cross-Defendants filed their motion for summary judgment (“MSJ”) or, in the alternative, summary adjudication. With the motion, Cross-Defendants filed a proof of service signed by Haylee Martinez (“Martinez”) under penalty of perjury—attesting to having provided electronic service of the motion and accompanying papers to Cross-Complainants’ counsel Reshma Kamath (“Kamath”).

On February 22, 2023, Cross-Complainants filed a memorandum of points and authorities in opposition to Cross-Defendants’ MSJ. A month later, on March 2, 2023, Cross-Complainants filed a notice of non-reply to the opposition from Cross-Defendants. In the notice of non-reply, Cross-Complainants articulated for the first time—contrary to the MSJ’s proof of service—that Cross-Defendants had not served the separate statement of undisputed facts, the compendium of declarations, and the evidence in support of the motion. (Notice of Non-Reply at pp. 2:24-3:04.)

On March 3, 2023, Cross-Defendants filed a reply, a declaration from Cross-Defendants’ counsel Hee Kim (“Kim”), and an objection to Cross-Complainants “incorrect notice of non-reply.” Kim declared that his office caused the “filing system to electronically file and concurrently serve all the moving papers on Cross-Complainants’ counsel, Reshma Kamath . . . The screenshot shows that Cross-Complainants’ counsel opened the notice of motion and memorandum of points and authorities on the day they were served, but never retrieved copies of any other moving papers.” (Kim Decl., at p. 2:22-3:01.)

As a result of the competing claims of service, the court continued the MSJ. (Minute Order, Mar. 8, 2023.) Both parties elected to file supplemental declarations which the court reviewed prior to the hearing. After reviewing the moving papers and the additional declarations the court made the factual finding that “service of all the moving papers was timely made on counsel for Michael Mizrachi and Marina Mizrachi through the electronic filing service. The court finds the declaration of Hee J. Kim is credible and that the documentary evidence establishes that service was properly made. The court expressly finds that Mizrachi’s counsel, Reshma Kamath, is engaged in gamesmanship by not opening the documents. Ms. Kamath has not provide any declaration or other evidence that she did not receive the documents through the electronic filing service. . .” (Minute Order, Mar. 10, 2023 at p. 1.) As a result, of these findings the court continued the motion for summary judgment until Cross-Complainants motion for disqualification of counsel could be heard. (Minute Order, Mar. 10, 2023 at p. 2.) On April 6, 2023, the court denied the motion to disqualify counsel. (Minute Order, Apr. 6, 2023.)

In the interim, Cross-Complainants filed an objection to the prior rulings which the court addresses next.

Objections

Cross-Complainants’ 05/01/2023 objections to the orders issued by Judge Kristin Escalante on March 10, 2023, and Judge Charles Lee on April 06, 2023, respectively, are overruled. As a procedural matter, Cross-Complainants objections are not properly brought as part of their opposition to the MSJ the substance of which should be brought by noticed motion.

As to grounds for their objections, Cross-Complainants—through the Kamath declaration—accuse Judge Kristine Escalante and Judge Charles Lee of demonstrating racial discrimination and bias against female attorneys of Indian American descent when they ruled against Kamath’s clients. (Kamath Decl., ¶5.) She declares Judge Escalante “has a tendency to believe Latin-Americans, as well as East-Asian Americans. . .” over Kamath. (Kamath Decl., ¶ 9.) Further, she declares that this “kind of judicial misconduct must be brought before the Commission for Judicial Performance (who do almost nothing to hold judicial officers accountable) – and will be referred to in a lawsuit that I intend to bring against a lower court judicial officer . . .” (Kamath Decl., ¶13) Kamath states that Judge Escalante’s finding of gamesmanship was solely the product of discriminatory animus. (see Kamath Decl., ¶14.) Kamath also adds that Judge Charles Lee had an ex parte communication with Kim during a hearing on the motion to disqualify counsel. (Kamath Decl., ¶21.)

Cross-Defendants filed an objection to Kamath’s declaration on the grounds it does not represent what took place during the aforementioned hearings. (Obj. to Kamath Decl.)

Here, again, Cross-Complainants elect the wrong procedural tool to raise concerns about discrimination and misconduct. The proper procedure is to file a noticed motion setting forth their claims and support therefor, and what relief they seek. And, of course, Cross-Complainants are free to present to the Commission on Judicial Performance any claims they deem appropriate.

Cross-Defendants’ 6/21/2023 objection to the declaration of Reshma Kamath is overruled. Cross-Defendants’ objection to the notice of non-service of the motion for summary judgment related documents is sustained. The court has already found that the service of the MSJ papers was proper. (Minute Order, Mar. 10, 2023.)

Cross-Complainants’ 03/06/2023 objection to Cross-Defendants’ Notice of Non-Reply is sustained. The reply was timely filed on March 3, 2023, five days prior to the hearing date of March 8, 2023. (Code Civ. Proc., §437c, subd. (b)(4).)

Legal Standard

Unless and until a defendant meets that burden, the plaintiff has no burden to present controverting evidence. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468 [“There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.”]) If a defendant fails to meet that burden, summary judgment must be denied, even if the plaintiff fails to file an opposition and fails to proffer any evidence.

On the other hand, if the defendant “has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials in its pleadings to show that a triable issue of material fact exists, but instead “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

1. Third Cause of Action – Defamation, Libel [Issues No. 1, 3, 4, 5, 6, and 7]

Cross-Defendants make six arguments challenging Cross-Complainants’ defamation cause of action: (i) Cross-Defendants did not publish the defamatory statements, (ii) Cross-Complainants were a limited purpose public figure, (iii) the allegedly defamatory statements were statements of public concerns, (iv) Cross-Complainants cannot prove the defamatory statements were false, (v) Cross-Complainants cannot prove actual malice because Cross-Defendants had a reasonable basis for making the posts, and (vi) the posts are true.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Ct. (2016) 1 Cal.App.5th 1300, 1312 [internal citations and quotations omitted].) “In general, a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259–60 [internal ellipses omitted].)

Cross-Defendants argue summary judgment is appropriate because Sarvar did not publish or publicly disclose any information.

In support of the contention that Cross-Defendants did not publish or publicly disclose any information, Cross-Defendants submit their own declarations attesting to the fact that they did not publish any statements. Cross-Defendants’ declarations are insufficient to shift the burden to Cross-Complainants on a motion for summary judgment. They have not satisfied their burden to “present[] evidence that conclusively negates an element of the plaintiff’s cause of action . . . or . . . show[n] that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119.) Instead, they have presented evidence which supports their version of the facts. While a trier of fact may find such evidence credible and dispositive at trial, it does not meet the standard on a motion for summary judgment.

Next Cross-Defendants argue Cross-Complainants were limited purpose public figures.

“If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence, that the libelous statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (Jackson, supra, 10 Cal.App.5th at p. 1260 [internal quotations and ellipses omitted].) “The rationale for such differential treatment is, first, that the public figure has greater access to the media and therefore greater opportunity to rebut defamatory statements, and second, that those who have become public figures have done so voluntarily and therefore invite attention and comment.” (Id. at p. 1260 [internal quotations omitted].)

“In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” (Copp v. Paxton, 45 Cal.App.4th 829, 845.) “To characterize a plaintiff as a limited purpose public figure, the courts must first find that there was a public controversy.” (Ibid.) “If the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.” (Ibid.) Next, the court must determine whether the plaintiff undertook “some voluntary act through which he seeks to influence the resolution of the public issues involved.” (Ibid.) “Finally, the alleged defamation must have been germane to the plaintiff's participation in the controversy.” (Id. at p. 846.)

“The trial court's decision on the question whether a plaintiff is a limited public figure is a mixed question of law and fact. It must determine the predicate facts upon which it then concludes whether, as a matter of law, a plaintiff is or is not a limited public figure.” (Denney v. Lawrence (1994) 22 Cal.App.4th 927, 933.)

Here, moving parties have not established Cross-Complainants are public figures.

First, it not clear that online sale of legal recreational cannabis industry is a matter of public controversy. Cross-Defendants state that the matter of “recreational cannabis in various states” is a matter of public controversy but offer no authority for this position or further explanation. While it may be that there is public controversy regarding issues within the cannabis industry, Cross-Defendants have not established that fact, failed to delineate the scope of such controversy or provided the court with adequate facts to make the legal determination that Cross-Complainants are limited public figures. (See Denney, supra, 22 Cal.App.4th at p. 933; see also Vegod Corp. v. Am. Broad. Companies, Inc. (1979) 25 Cal.3d 763, 769 [“While availability of goods for sale and their quality are matters of public interest, this is not the test. The public interest test was expressly rejected. . . in favor of the public controversy test.”].)

Second, it is not clear that Cross-Complainants undertook voluntary action to influence the resolution of public issues involved. Cross-Defendants cite to Michael Mizrachi’s statements to investors regarding Weedmayhem, publications that Weedmayhem was going to create an online marketplace of the legal cannabis industry, reference to an event announcement for Weedmayhem, and Cross-Complainants’ touted online presence and self-promotion. (Sardor Decl., ¶15, Ex. 27; Kim Decl., ¶¶3, 4, 5, 7; Ex. 34, 35, 44 at pp. 82:19-83:02, 30 ) “[A] person in the business world advertising his wares does not necessarily become part of an existing public controversy.” (Vegod, supra, 25 Cal.3d at p. 770.) The referenced items appear to be advertisements or statements of anticipated marketing, and do not, alone, indicate that Cross-Complainants were at the center of a controversy. Further, without proper delineation of the controversy it is not possible to conclude Cross-Complainants’ promotional efforts are within the scope of that controversy. As the first and second element have not been satisfied the court does not address the third.

Next, Cross-Defendants argue that the facts disclosed were of public interest which is a bar to liability. Cross-Defendants’ citation to Taus v. Loftus (2007) 40 Cal.4th 683, 717, for this proposition is inapt. The quoted sections of Taus dealt with the tort of public-disclosure-of-private facts, not defamation. The tort of public disclosure of private facts requires that the disclosed fact “not be of legitimate public concern.” (Ibid.) The court—after looking at the elements—determined that newsworthiness was “complete bar to common law liability.” (Ibid.)

A defamation, cause of action, on the other hand, changes the burden of proof where the statements amount to one of public concern about a private individual. “When the speech involves a matter of public concern, a private-figure plaintiff has the burden of proving the falsity of the defamation.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.) Further, a private-figure plaintiff must prove actual malice to recover punitive or presumed damages for defamation if the matter is one of public concern. They are only required to prove negligence to recover damages for actual injury to reputation. (Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273-74.) Cross-Defendants have not cited any cases supporting the proposition that a publication on a matter of public interest is a complete bar to a defamation cause of action.

Cross-Defendants argue Cross-Complainants cannot prove Cross-Defendants acted with actual malice.

As discussed previously, actual malice is required where either (i) a public figure alleges defamation, or (ii) a private figure seeks to recover punitive or presumed damages for the defamation on a matter of public concern. (Jackson, supra, 10 Cal.App.5th at p. 1260 [public figure], Khawar, supra, 19 Cal.4th at p. 273-74 [private figure].) Here, Cross-Defendants have not established that Cross-Complainants cannot show actual malice. They rely on their own declaration to support as evidence, which is insufficient to show that Cross-Complainants cannot obtain evidence in support of their position. At most Cross-Defendants provide evidence supporting their version of the fact, not evidence that Cross-Complainants cannot show any contradictory facts.

Finally, Cross-Defendants argue that Cross-Complainants cannot prove the falsity of the publications and that the statements were substantially true.

Defamation requires that the publication made be “false.” (John Doe 2, supra, 1 Cal.App.5th at p. 1312.) Accordingly, “[t]o bar liability, it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details. . . Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. Put another way, the statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” (Jackson, supra, 10 Cal.App.5th at p. 1262–63 [internal quotations and citations omitted].)

As laid out in the complaint, the defamatory statements at issue are as follows:

Michael Bensimon Mizrachi Mizrachi [sic] and Marina Mizrachi are two criminals that act as a couple to fraud people with their forged financial and other type of fake documents to make it seem they are successful entrepreneurs. Micahel Mizrachi will write articles all over internet claiming to be Tech genius, Philanthropist, Venture capitalist, etc. ALL FAKE CLAIMS! This is where he acquired his latest scam, WEEDMAYHEM, and claimed to be the builder himself. . .

They are professional crooks that have been scamming people for years with fake documents, forged bank statements, fake checks and much more. Google: Michael Bensimon Mizrachi Mizrachi and there will be tons of lawsuits under the name for similar schemes. Their latest scam is around the cannabis industry called WEEDMAYHEM which was a prebuilt platform they purchased from: www.yo-kart.com and pretended to be the ones who spent millions and more than 5 years to build All false and dirty lies. Everything you read on WEEDMAYHEM is smoking mirrors as they wanted to become famous by using other people's money and lying to everyone that the platform is transactional. BEWARE AS THESE ARE TOP-NOTCH PROFESSIONAL CON ARTISTS that know their job quite well and have been surviving by screwing many people for years squeezing everything out of them. Please run a background check report or just google the full name as mentioned before.

CRIMINALS ON THE LOOSE! WARNING! BEWARE! Michael Bensimon Mizrachi Mizrachi [sic] . . . and his accomplice Marina Mizrachi (AKA: Marina Kusheva) . . . are two criminals that act as a couple to FRAUD people with their forged financial and other type of fake documents to make it seem they are successful entrepreneurs. Michael Mizrachi will write articles all over internet claiming to be Tech genius, Philanthropist, Venture capitalist, Harvard graduate, creator of multiple successful internet conglomerates etc. ANYTHING YOU READ ABOUT HIM IS FAKE AND LIES! He is not a developer, coder or anything close! He had been scamming people and getting away with it for years. THIS GUY SHOULD BE IN JAIL! Please stay away and report them if you have been a victim to local police agencies or District Attorney. They have been sued many times and filed for bankruptcies to get away . . . This is where he acquired his latest scam, WEEDMAYHEM, and claimed to be the builder himself . . .

In support that these statements are true, Cross-Defendants submit the following evidence. They submit their own declarations, which as previously discussed are insufficient to shift the burden of proof to Cross-Complainants. They submit audio files and transcripts of an audio recording of what is labelled a meeting with Mike Tyson. (Kim Decl., ¶11, Ex. 39-42.) However, Cross-Defendants have not laid an evidentiary foundation for the audio recording in his declaration in terms of authenticity, how the audio recordings were obtained the audio recordings or personal knowledge of all statements made therein. For these reasons, the court will not consider this proffered evidence.

Next, Cross-Defendants submit the deposition testimony of Michael. Michael testified in deposition, that he did not go to college or complete high school; he owned and operated two businesses: Apple in Bulk and Apumac LLC; his marketing skills were self-taught; and his websites did not generate revenue. (Kim Decl., ¶6, Ex. 43 [“Michael Depo.”], at pp. 25:13-16, 31:23-33:19, 37:01-14, 51:24-52:04.) He also testifies that he was not directly employed or an independent contractor with a number of entities listed in his LinkedIn profile. (Michael Depo., at pp. 77:13-23; 79:17-80:11; 82:24-83:02; 87:12-17; 90:1-6; 92:7-12; 93:3-7; 94:21-95:3; 95:7-15; 101:25-102:12.)

Cross-Defendants also submit evidence that several lawsuits, some of which include allegations of fraud, have been filed against Michael. (See Kim Decl., ¶13, Ex. 1 [“ST-Care Complaint”]; ¶15, Ex. 3 [“Flint Hills Complaint”]; ¶16, Ex. 4 [“Ahmed Abdulwahed Complaint”]; ¶17, Ex. 4 [“St. Barth Complaint”]; ¶18, Ex. 11 [“Ahmad Fahmy Complaint”].) In at least some of the cases against Michael, the court entered a judgment against him. (Kim Decl., ¶14, Ex. 2 [“ST-Care Judgment”]; ¶19, Ex. 12 [“Ahmad Fahmy Judgement”]; ¶25, Ex. 10 [“Naja Hill Judgment”].) Cross-Defendant submits evidence in the form of discovery responses that Michael did not speak with anyone at Google or Apple regarding Weedmayhem. (Kim Decl., ¶43 Ex. 46 at pp. 12, 13.)

Cross-Defendant has presented a variety of evidence which could allow a jury to conclude that the alleged statements contain truth. The evidence admitted, however, does not show that Cross-Complainants will be unable to dispute the statements as false. Further, the statements at issue are considerably broad, and the evidence submitted does not support that every single portion of the statements is definitely true or impossible to contest. Cross-Defendant has not conclusively negated an element of a cause of action.

2. Fourth and Fifth Causes of Action – Defamation, Libel Per Se and False Light [Issues No. 1, 3, 4, 5, 6, and 7]

“A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be liable on its face. Defamatory language is not libelous on its fact is not actionable unless the plaintiff alleges and proves that he has suffered special damages as a proximate result thereof.” (Civ. Code, § 45a.) “A statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter. [citation] However, if the listener would not recognize the defamatory meaning without knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally attributable to all reasonable persons [citation], the matter is deemed defamatory per quod and requires pleading and proof of special damages. (McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 112.)

“False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” (Jackson, supra, 10 Cal.App.5th at p. 1264.) The elements of false light are a portrayal of the plaintiff which casts him or her in a false light and that is objectionable to a reasonable person, the publication of the portrayal. (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 820.) “[A] truthful publication is constitutionally protected if (1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community’s notion of decency.” (O’Hilderbrandt v. Columbia Broadcasting System, Inc. (1973) 40 Cal.App.3d 323, 334.) “[W]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Jackson, supra, 10 Cal.App.5th at p. 1264.)

Here, summary adjudication of the issues as to Cross-Complainants’ defamation cause of action has been denied. This outcome turns on the same issues previously discussed. The court incorporates by reference its prior discussion. For the same reasons summary adjudication of issues one, three, four, five, six, and seven is denied. The outcome remains unchanged.

2. Seventh Cause of Action – Intentional Infliction of Emotional Distress [Issue Nos., 2, 8]

Finally, Cross-Defendants argue the IIED claim fails because Sarvar did not make any statements, and any statements that were made were not outrageous as a matter of law.

To prove a valid claim for IIED, a plaintiff must show (1) defendant’s outrageous conduct; (2) intentional or reckless causing of emotional distress; (3) severe emotional distress resulting from the defendant’s conduct; and (4) causation. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) Conduct is outrageous if it is of “such substantial quantity or enduring quality” that an individual in civilized society should not be expected to endure it. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227; see also Cochran v. Cochran (1998) 65 Cal App.4th 488, 494 [stating that the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious. . .”].)

As to whether Sarvar made the claims, Cross-Defendants state that “Sarvar Abdullaev did not post the statements, was not aware of them, and did not help any other person post them. . .” (MSJ at p. 9:24-27.) Again, in support of this contention, Cross-Defendants cite their own declarations. Cross-Defendants’ declarations are insufficient to shift the burden to Cross-Complainants on a motion for summary judgment. Cross-Defendants declarations do not establish that Cross-Complainants cannot obtain any evidence in support of their allegations. (See Gaggero, supra, 108 Cal.App.4th at p. 891 [stating defendant must present evidence “showing that plaintiff does not have and cannot obtain evidence to support his or her claim.”].)

As to whether the statements could give rise to an IIED claim, Cross-Defendants incorporate all the prior evidence referenced for the premise that Sardor had a “reasonable basis to make the posts.” (Sept Stmt, No. 109.) Cross-Defendants then provide a single citation to Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614. Plotnik states “Regarding emotional distress, the trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Ibid.)

Plotnick does not state that if there is a reasonable basis to make an outrageous and extreme statement IIED has not occurred. Instead, it states reasonable persons can differ on what is extreme. From Plotnick, Cross-Defendants conclude that the subject statements cannot be construed as anything other than reasonable based on the evidence. Cross-Defendants argument is a conclusion without admissible evidence as to why reasonable persons could not dispute whether the statements were extreme or outrageous. Neither do Cross-Defendants provide

Conclusion

Cross-Defendants’ motion for summary judgment is denied. Cross-Defendants’ motion for summary adjudication of issues one through eight are denied.

Because Cross-Defendants did not shift the burden on any issue, Cross-Complainants had no burden to present controverting evidence. (See Consumer Cause, supra, 91 Cal.App.4th 454, 468 [“There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.”]) Since Cross-Defendants failed to meet that burden, summary judgment must be denied, regardless of whether Cross-Complainants failed to file opposition or proffer any evidence. Accordingly, Cross-Complainants’ failure to file a separate statement, and opposing evidence does not affect the outcome of the motion. (Rules of Ct, Rule 3.1350, subd. (e).)