Free Declaration in Support - District Court of California - California

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,
4
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

6
7

skaritani~wbcounsel. com
Attorneys for Plaintiff and Counter-Defendant
8

BP WEST COAST PRODUCTS LLC

9 10
11

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
21

(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;

22
23

Declaration of Elizabeth Chang; Evidentiary Objections to the Declarations of Sayed Faquiryan and John Michael; and Appendix of
Authorities. )

24
25

Date: August 8, 2008 (reserved) Time: 9:00 a.m.
Crtrm: 3

26 27
28

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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3

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

4
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

14
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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18

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.

19

20

Executed on July 25, 2008, at Los Angeles, California.
21

22
23

24
25

26 27
28
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

Page 3 of 17

EXHIBIT 8

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1
..'

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:

16
17 18

19

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.

20
21 22

signature on that page.
A.
Q.

Yes.
Do you recall when you signed this document?

23
24

A.
Q.

No, I don't.
On the first page,

it has a date of February

25
\

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
.,

9

company for Fi rs t American Tit le Company.

10
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.

13
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

16
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

23
24

Exhibi t F, did you as k any ques tions from BP?

A.
Q.

No.
And when you signed this agreement, you

25

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Q.

Did you read this document before you signed

2
3
4

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

13
14

problem.

Not before.
Q.

When did you read it for the first time?
After all this problem arise.

15

A.
Q. A.
Q.

16
17

Do you remember the date, approximately?

I don't recall it.
Was it 2006?

, , 'd' . ",-

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2007?

19

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

23
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

2
3
4

page 14.
A.
Q.

Yes,

it iS.

Did you read this document before you signed

5

it?
A.
Q.

~

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7 8

No.
Have you ever read this document?

A.
Q.

After, yes.
In the 2007 time frame?

9

10
1 i

A.
Q.

Yes.
After the issues arose concerning funding?

12

A.
Q.
Exhibit H,

Yes.
Prior to signing this document which iS

13
14

did you ever ask any questions from BP

15

concerning the document?
A.
vJ e.s i 9 fl

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17
18

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

19

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number?
A.
Q.

Yes,

I did.

22

So if you had any ques tions, you could have

23
24

called Ken.

A.
Q.

Yes.

25

But you didn't.
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tha t loan?
A.
Q.

2

No.
Did you ever ask anyone?

3
4

A.
Q.

No.
Prior to you signing the loan agreements, did

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6 7 8

you believe that the loan- money would be paid to you

directly?
A.
Q.

No.
You understood that it would be paid to the

9

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

13
14

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

16
1 I .i- I

Contract Dealer Gasoline Agreement and the AM PM mini
market agreement, which are attached as Exhibits A and C to

18

19

the transcript.
And I 'm going to refer to them in this deposi tion

20
21 22

as the franchise agreements.
I'm talking about.

And those are the documents

23
24

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,

3
4

did

you decide that you didn't want to go forward and become a
BP franchisee?
MR. MICHAEL:
MS. JONES:

5

6 7
8 9

Up until today?
Up until the termination.

THE WITNESS:

No.

BY MS. JONES:
Q.

10
11

Do you recall whether BP ever gave you that

option about not going forward and becoming a BP

12 13
14

franchisee?
A.
Q.

Yes.
And what i s your recollection with regard to

15

tha t?
A.
and was 2007,

16
i J7

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

19

20
21 22

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

23
24

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

2 3
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
1 1

couldn't sell gasoline in order to convert the Chevron to
the Arco for purposes of selling gasoline?
A.

12

13
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
18

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.

19

20
21 22

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.

23
24

25

Between six -- four to six hours.

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State of California,
County of Fresno

2
3

ss.

4
5

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

6 7
8 9

deposition was taken at the time and place therein named;

10 11
12 13
(

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.

16
17
18

19

20 21
22 23 24 25

~~ 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
1

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" ....~,.

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1

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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1

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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