Case 5:07-cv-04808-JF
Document 56 63
Filed 07/25/2008
Page 1 of 17
KURT OSENBAUGH (State Bar No. 106132) DEBORAH YOON JONES (State Bar No. 178127)
2
3
SA Y AKA KARITANI (State Bar No. 240122)
WESTON, BENSHOOF, ROCHEFORT,
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5
RUBALCAVA & MacCUISH LLP 333 South Hope Street, Sixteenth Floor Los Angeles, California 90071
Telephone: (213) 576-1000
Facsimile: (213) 576-1100 kosenbaugh~wbcounsel.com
d j ones~wbcounsel. com
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7
skaritani~wbcounsel. com
Attorneys for Plaintiff and Counter-Defendant
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BP WEST COAST PRODUCTS LLC
9 10
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability Company,
Plaintiff,
v.
12
13
Case No.: C07 04808 JF
14
15
ADDITIONAL DECLARATION OF DEBORAH YOON JONES IN SUPPORT OF BP WEST COAST PRODUCTS LLC'S:
16 17
18
(1) REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, Corporation; NAZIM FAQUIRY AN, an individual; OR IN THE AL TERNA TIVE, PARTIAL SA YED FAQUIRY AN, an individual; and SUMMARY JUDGMENT AS TO THE MAGHUL FAQUIRY AN, an individual; and A V A SECOND AMENDED COMPLAINT; AND
STTN ENTERPRISES, INC., a California
GLOBAL ENTERPRISE, LLC, a California limite liability company,
Defendants.
19
20
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(2) REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT AS TO THE COUNTERCLAIM
(Filed concurrently with Reply Briefs;
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Declaration of Elizabeth Chang; Evidentiary Objections to the Declarations of Sayed Faquiryan and John Michael; and Appendix of
Authorities. )
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Date: August 8, 2008 (reserved) Time: 9:00 a.m.
Crtrm: 3
26 27
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Honorable Jeremy Fogel
Filing Date:
September 17, 2007
AND RELATED CROSS-ACTION.
ADDITIONAL DECLARATION OF DEBORAH Y. JONES IN SUPPORT OF BPWCP'S REPLIES RE MSJ/PARTIAL MSJ ON SAC AND COUNTERCLAIM
1227401 i
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DECLARATION OF DEBORAH YO
ON JONES
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I, DEBORAH YOON JONES, declare and state as follows:
1.
I am an attorney duly licensed to practice law before all courts of the State of
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5
California and am a partner with the law firm of Weston, Benshoof, Rochefort, Rubalcava &
MacCuish LLP, attorneys of record herein for plaintiffs BP West Coast Products LLC ("BPWCP").
I make this declaration in support of BPWCP's Reply Briefs in Support of Its Motions for Summary
6 7
8
Judgment, Or In the Alternative, Parial Summary Judgment as to: (1) the Second Amended
Complaint; and (2) the Counterclaim. i have personal knowledge of the facts set forth in this
declaration and if called as a witness, could and would testify competently to them.
2.
9
10
11
Attached as Exhibit 8 are the true and correct copies of relevant transcript
excerpts and exhibits from the deposition of Sayed Faquiryan taken on April 24, 2008, and that are
cited in BPWCP's Reply Briefs.
convennence.
3.
12
13
The relevant portions have been underlined for the Court's
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15
Attached as Exhibit 9 are the true and correct copies of relevant transcript
excerpts and exhibits from the deposition of Nazim Faquiryan taken on April 23, 2008, and that are
cited in BPWCP's Reply Briefs.
convennence.
16
The relevant portions have been underlined for the Court's
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I declare under penalty of perjury under the laws of the State of California and the
United States that the foregoing is true and correct.
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Executed on July 25, 2008, at Los Angeles, California.
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ADDITIONAL DECLARATION OF DEBORAH Y. JONES IN SUPPORT OF BPWCP'S REPLIES RE MSJIPARTIAL MSJ ON SAC AND COUNTERCLAIM
1227401.
Case 5:07-cv-04808-JF
Document 56 63
Filed 07/25/2008
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EXHIBIT 8
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Case 5:07-cv-04808-JF
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..'
UNITED STATES DISTRICT COURT
2 3
4
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
5 6
7
8
BP WEST COAST PRODUCTS, LLC, )
a Delaware Limited Liability)
Certified Copy
Company; and ATLANTIC )
RICHFIELD COMPANY, a Delaware)
9
Corporation,
P 1 a i nt iff s ,
)
10
11
)
vs.
STTN. ENTERPRISES,
I NC ., a
) No.5:07-CV
) 04808JF
) )
12
,-..t',
California Corporation;
NAZIM FAQUIRYAN, an
\
"I r
\
\
13
14
individual; SAYED FA
QUI
RYAN,
)
an indi vidual; and MAGHUL
FAQUIRYAN, an indi vidual;
)
15
)
16
, 17
and AVA GLOBAL ENTERPRISE,
)
LLC, a California limited
liabili ty company,
)
)
18
Defendants.
AND RELATED CROSS-ACTIONS
)
19 20 21 22
)
----------------------------
)
DEPOSITION OF SAYED M.N. FAQUIRYAN
Reported by: CYNTHIA L. LUCAS, CSR No.9 973
23
":",.':,
. ""õ': .. .. . 'i~,
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i
.,
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Pages i - 200
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Case 5:07-cv-04808-JF
Document 56 63
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into a loan agreement pertaining to a gas station?
A.
Q.
2
No.
Now,
No,
I don't.
3
4
in this letter,
this Exhibit E, does it
discuss the 25 percent payments that you would get -A.
Q.
5
6 7
8
No.
-- periodically?
Did tha t 2 5 percent payment provi s ion exi s t in
any of the written documents that BP provided to you, or
was it just something that Ken Wickerham told you?
.
9
10
11
A.
Q.
the top,
No.
It was in the loan agreement.
I'll mark this as the next exhibit.
And at
12 13
14
it says Loan Agreement
If you could please,
(am/pm Mini Market) .
sir, look at that.
(Plaintiffs i Exhibit F was marked for
15
identification. )
BY MS. JONES:
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17 18
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Sir, once you i ve had a chance to look at this, if you could turn to page 18 ~f that document, also Bates stamped BP 01552, and confirm that that i s your
Q.
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signature on that page.
A.
Q.
Yes.
Do you recall when you signed this document?
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24
A.
Q.
No, I don't.
On the first page,
it has a date of February
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\
12, 2007.
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,¡
i
2 3
4
Do you recall if that was the date that you
signed this document?
A.
Q.
February what?
12, 2007.
I don i t recall.
5 6 7
8
A.
Q.
Do you recall who presented you with this
document?
A.
I believe I signed this one at the title
.,
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company for Fi rs t American Tit le Company.
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1 i
Q.
Did you read this document before you signed
it?
A.
Q.
12
Not really.
Can you turn to page 4 of the document.
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14
It's
also labeled BP 01538 at the bottom.
And I want to direct
15
you to provision 1.1.
Did you read that provision prior to signing this
do
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17 18
Cllfferr t:?
A.
What's that?
I'm sorry..
Say again.
19 20 21 22
THE WITNESS:
(RECORD READ.)
No.
BY MS. JONES:
Q.
Prior to signing this document, which iS
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Exhibi t F, did you as k any ques tions from BP?
A.
Q.
No.
And when you signed this agreement, you
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Q.
Did you read this document before you signed
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it?
A.
No.
I signed this one at the title company,
First American Title Company.
Q.
5 6 7
8 9
With regard to Exhibit F, which is the loan
agreement,
document?
AM PM Mini Market, have you ever read thi s
A.
No,
I signed it because I was trying to rush
to get this expedited work to fund and pay the bill.
Q.
10
11 12
So even to this date, you've never read this
document?
A.
Well, I read it after -- you know, after the
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problem.
Not before.
Q.
When did you read it for the first time?
After all this problem arise.
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A.
Q. A.
Q.
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Do you remember the date, approximately?
I don't recall it.
Was it 2006?
, , 'd' . ",-
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2007?
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A.
Q.
2007.
I'm going to mark as Exhibit H, a document
20 21 22
entitled Loan Agreement (Gasoline. )
(Plaintiffs i Exhibit H was marked for
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24
identification. )
BY MS. JONES:
Q.
25
If you would please take a look at that
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documen t,
and confirm for me that it is your signature on
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page 14.
A.
Q.
Yes,
it iS.
Did you read this document before you signed
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it?
A.
Q.
~
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No.
Have you ever read this document?
A.
Q.
After, yes.
In the 2007 time frame?
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1 i
A.
Q.
Yes.
After the issues arose concerning funding?
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A.
Q.
Exhibit H,
Yes.
Prior to signing this document which iS
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did you ever ask any questions from BP
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concerning the document?
A.
vJ e.s i 9 fl
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No one was there when I signed this document.
it l.n
F i !'.S t .Am e r i can Tit 1 e Com pan y, and noon e Wa :3
there to answer question.
Q.
Did you have Ken Wickerham i s cell phone
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number?
A.
Q.
Yes,
I did.
22
So if you had any ques tions, you could have
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called Ken.
A.
Q.
Yes.
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But you didn't.
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tha t loan?
A.
Q.
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No.
Did you ever ask anyone?
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A.
Q.
No.
Prior to you signing the loan agreements, did
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you believe that the loan- money would be paid to you
directly?
A.
Q.
No.
You understood that it would be paid to the
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10 11 12
contractors or various people doing the work;
A.
Q.
correct?
Yes, kind of.
Now, at some point in time before signing the
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franchise agreements, did you ever think about not going
forward with the conversion and becoming a BP franchisee?
MR. MICHAEL:
MS. JONES:
15
Which are the franchise agreements? The franchise agreements are the
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1 I .i- I
Contract Dealer Gasoline Agreement and the AM PM mini
market agreement, which are attached as Exhibits A and C to
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the transcript.
And I 'm going to refer to them in this deposi tion
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as the franchise agreements.
I'm talking about.
And those are the documents
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A.
Q.
I'm sorry,
repeat the question.
Prior to signing the franchise agreements,
25
did you ever reconsider or think twice about becoming a BP 93
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franchisee and not wanting to go forward with that?
A.
Q.
2
No.
After signing the franchise agreements,
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4
did
you decide that you didn't want to go forward and become a
BP franchisee?
MR. MICHAEL:
MS. JONES:
5
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Up until today?
Up until the termination.
THE WITNESS:
No.
BY MS. JONES:
Q.
10
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Do you recall whether BP ever gave you that
option about not going forward and becoming a BP
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franchisee?
A.
Q.
Yes.
And what i s your recollection with regard to
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tha t?
A.
and was 2007,
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Was Rima, I don't remember exactly the time,
end of 2006 or beginning of 2G07~
T)jddan- .'
18
is sue
about the gas price, and noboqy could answer.
She carne in and said, we give you option to
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ei ther move forward,
or we can give you re fund the money
for the franchise fee.
Q.
Were you already -- was the station already
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up and running as an Arco station?
A.
Q.
Yes.
Okay.
And you decided to move forward?
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,"
1
A.
Q.
Yes.
How long was the gas station portion shut
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4
down
in order for you to convert
A.
Q.
it
to an Arco station?
Can you
clear your question, please.
Let
me go
5 6 7 8 9
Sure.
back.
Did you have to stop selling gas at any point in
time in order to convert the Chevron gas station part to
the Arco gas station?
A.
Q.
Yes.
How many days were you shut down where you
10
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couldn't sell gasoline in order to convert the Chevron to
the Arco for purposes of selling gasoline?
A.
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14
I don't recall exact time, but maybe between
two to three days.
Q.
15
And after your franchise with BP was
if any,
16
terminated, how many days,
did you have to shut
.1,17
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down in order to have all the Arco s ignage remOV8jju f,OT the
gas station purposes only?
Do you want me to rephrase the question?
A.
Q.
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Yes, please.
After your BP franchise was terminated, and
BP had to come in and remove a1 i the s ignage, how long were
the gas pumps shut down where you couldn't sell gas any
longer in order for BP to remove all the signage?
A.
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24
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Between six -- four to six hours.
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State of California,
County of Fresno
2
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ss.
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I, CYNTHIA L. LUCAS, a Certified Shorthand Reporter
of the State of California, do hereby certify that the witness in the foregoing deposition, wa~ by me duly sworn
to testify to the truth, the whole truth and nothing but
the truth in the wi thin-enti t1ed cause; that said
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deposition was taken at the time and place therein named;
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(
that the testimony of said witness was reported by me, a
disinterested person, and thereafter transcribed into the
foregoing pages.
And I further certify that I am not of counselor
attorney for either or any of the parties to said
14 15
depos i t ion, nor in any way interested in the outcome of the
cause named in said capt ion.
,In Wi tness Whereof, ., L have hereunto set. my hand
at my office in Clovis, California.
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18
19
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~~ L. L~ GW)
CYNTHIA L. LUCAS, C.S.R. No. 9973
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EXHIBIT 9
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:.- ''"''¡
UNITED STATES DISTRICT COURT
2
3
4
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
5 6 7
8 9
BP WEST COAST PRODUCTS, LLC, )
a Delaware Limited Liability)
Certified Copy
Company; and ATLANTIC )
RICHFIELD COMPANY,
a Delaware)
)
Corporation,
10
1 1
Plaintiffs,
vs.
STTN ENTERPRISES,
INC., a
)
)
12
13
)
No.5:07-CV 04808JF
California Corporation;
NAZ IM FAQUIRYAN, an
)
)
~~;.
':;:1'.- '.'ì;,1
14
individual; SAYED FAQUIRYAN,
an indi vidual; and MAGHUL
FAQUIRYAN, an indi vidual;
)
)
15
)
and AVA GLOBAL ENTERPRI SE,
16
17
)
LLC, a California limited
liabili ty company,
)
)
Defendants.
18
)
AND RELATED CROSS-ACTIONS
)
19
-----------------------------
)
20
21
22
DEPOSITION OF NAZ¡M S. FAQUIRYAN Reported by: CYNTHIA L. LUCAS, CSR No.9 973
Pages 1 - 97
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Q.
Did you review this document in preparation
2
for today's deposition?
A.
Q.
3
4
No.
Let's move on to Exhibi t F, which is a loan
5 6 7
8
agreement for AM PM Mini Market.
And if you couldreview
this document and confirm for me on page 18, which iS Bates
labeled BP 01552, whether that iS your signature.
A.
Q.
I
Yes.
Do you recall when this document was signed
9
10 11 12 13
14
by you?
A.
Q.
No.
Did you read this document before you signed
it?
A.
Q.
No.
And then if you could' flip to the page that's
15
16
17
Bates labeled BP 01557, is that your signature?
A.
Q.
Yes.
Do you recall when you.. signed this document?
18
19
..
A.
Q.
No.
Did you read this document before you signed
20
21 22
it?
A.
Q.
No.
Have you ever read this document?
23
24
A.
Q.
No.
Did you read this document in preparation for 14
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today's deposition?
A.
Q.
2
No.
3
4
Okay.
Let's go to Exhibit G.
On the third
5 6 7
8
page if you could review that and confirm that that i s your signature.
A.
Q.
Yes.
And did you read this document before you
signed it?
A.
Q. A.
Q.
9
No.
Do you recall when you signed it?
10
11
No.
Did you review this document in preparation
12
13
14
for today's deposition?
A.
Q.
No.
Go
15
to Exhibi t
H
If you could
review that
16
17
18
document and then confirm for me on page 14 that that i s
your
signatu.re 0
A.
Q.
Yes.
And do you
19
reca 11
when you signed this
20
21
document?
A.
Q.
No.
22 23
24
Did you review
thi s document be fore you
signed it?
A.
Q.
No.
Have you ever reviewed this document?
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Q.
Did you ever talk to BP about these
2 3
4
documen t s?
A.
Q.
No.
Did you speak to your father about
these
5
6
documents other than in conversation where ydur attbrneys
were present?
A.
Q.
7
8
No.
I may have already asked you this, but just
9
to be safe,
let i S go to Exhibit F, and 01557, is that your
Yes.
And then let 1 s go to Exhibit H to Bates label
10
11 12 13
14
signature?
A.
Q.
BP 01528, is that your signature?
A.
Yes.
You have gone through these
15
MR. MICHAEL:
16
17
1,8
already.
MS. JONES:
Q.
I ju.st wanted
to make sU.re.
Let's turn to Exhibi t M real quick.
19
Have you ever seen this document before?
A.
20
21
No.
Let me just review my notes, and I
MS. JONES:
22 23
24
think we can wrap it up.
(RECESS TAKEN.) BY MS. JONES:
Q.
25
Prior to signing any of the agreements with
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