Free Objection - District Court of California - California

Case 5:07-cv-04808-JF

Document 59

Filed 07/25/2008

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KURT OSENBAUGH (State Bar No.1 06132) DEBORAH YOON JONES (State Bar No. 178127)
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SA Y AKA KARIT ANI (State Bar No. 240122)

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WESTON, BENSHOOF, ROCHEFORT, RUBALCAVA & MacCUISH LLP 333 South Hope Street, Sixteenth Floor Los Angeles, California 90071
Telephone: (213) 576-1000

Facsimile: (213) 576-1100 kosenbaugh~wbcounsel.com
dj ones~wbcounsel.com skari tani~wbcounsel. com

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Attorneys for Plaintiff and Counter-Defendant
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BP WEST COAST PRODUCTS LLC

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability Company,
Plaintiffs,
v.

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Case No.: C07 04808 JF

EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRYAN
(Filed concurrently herewith Reply Briefs in Support of Motions for Summary Judgment as

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STTN ENTERPRISES, INC., a California Corporation; NAZIM FAQUIRYAN, an individual;
SA YED FAQUIRY AN, an individual; and MAGHUL FAQUIRY AN, an individual; and A V A

to Second Amended Complaint and
Counterclaim; Declaration of Elizabeth Chang;

Additional Declaration of Deborah Jones;
Evidentiary Objections to Declaration of John

GLOBAL ENTERPRISE, LLC, a California limite liability company,
Defendants.

Michael; and Appendix of Authorities.)

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Date: Time:

August 3, 2008 (reserved)
9:00 a.m.

Crtrr:

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Honorable Jeremy Fogel

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Filing Date:

September 17,2007

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AND RELATED CROSS-ACTION.

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EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRYAN

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Plaintiff and Counter-Defendant BP West Coast Products, LLC ("BPWCP") hereby

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submits the following evidentiary objections to the Declaration of Sayed Faquiryan, submitted in
connection with Defendants STTN Enterprises, Inc. ("STTN"), Nazim Faquiryan, Sayed Faquiryan,

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Maghul Faquiryan and AVA Global Enterprise, LLC's (collectively, "Defendants") opposition to:
(1) BPWCP's Motion for Summary Judgment, or in the Alternative, Parial Summary Judgment as to

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the Second Amended Complaint, and (2) BPWCP's Motion for Summary Judgment, or in the
Alternative, Partial Summary Judgment as to the Counterclaim. Evidence offered in support of a
motion for summary judgment must be in the form of affdavits or declarations based upon personal
knowledge, and must constitute admissible evidence. Fed.R.Civ.Proc.56(e).

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Accordingly, BPWCP objects to, and moves to strike, Defendants' testimony that
fails to meet the requisite standards for admissibility on the following grounds:

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OFFERED EVIDENCE
1.

EVIDENTIARY OBJECTIONS
1.

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, 5, p. 3 lines 4-6. "Because the Station

BPWCP objects to this statement on the

already had this equipment, the gas station
portion of the remodel would be much less

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

expensive than the store portion."

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conjecture; and (4) is improper lay opinion (FRE
§ 701).

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2.

~ 5, p. 3 lines 6-7. "BP was aware of

2.

BPWCP objects to this statement on the

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this because both Ken Wickerham and Tom
Reeder had visited me at the Station and we had
discussed the remodeL."

ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3) is entirely speculative and based upon
conjecture; (4) is improper lay opinion (FRE §

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701); and (5) declarant lacks personal knowledge
(FRE § 602).
i EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRY AN
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OFFERED EVIDENCE
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3

EVIDENTIARY OBJECTIONS
3.

3.

, 5, p. 3 lines 7-8. "Despite this

BPWCP objects to this statement on the

knowledge, BP allocated the loans $150,000 to
the store portion of

ground that it: (1) lacks foundation (FRE § 901);

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the remodel and $250,000

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

to the gas station portion."

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is entirely speculative and based upon
conjecture; (4) is improper lay opinion (FRE §

701); and (5) declarant lacks personal knowledge
(FRE § 602).
4.

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, 7, p. 4 lines 1-2: "From that point

4.

BPWCP objects to this statement on the

forward, STTN was forced to pay for gasoline

ground that it: (1) lacks foundation (FRE § 901);

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with a cashier's check for each load delivered."

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; and (4) is improper lay opinion (FRE
§ 701).

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5.

~ 8, p. 4 and lines 7-9: "Despite the fact

5.

BPWCP objects to this statement on the

that BP was aware that the store remodel would
cost far more than the gasoline station remodel,

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

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the loan agreements allocated only $150,000 to

the store remodel and $250,000 to the gasoline
station construction."

is entirely speculative and based upon

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conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); (5)
violates the Best Evidence Rule (FRE § § 1001,
1002); and (6) declarant lacks personal

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6.

knowledge (FRE § 602).

~ 8, p. 4 line 11: "In addition, many of

6.

BPWCP objects to this statement on the

the categories of construction expenses were
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ground that it: (1) lacks foundation (FRE § 901);

EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRYAN

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OFFERED EVIDENCE
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EVIDENTIARY OBJECTIONS
(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3) is entirely speculative and based upon
conjecture; (4) is improper lay opinion (FRE §

vague. . . ."

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701); and (5) violates the Best Evidence Rule
(FRE §§ 1001,1002).
7.
~ 8, p. 4

lines 13-16: "By this time, I

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BPWCP objects to this statement on the

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had already expended approximately $387,500

ground that it: (1) lacks foundation (FRE § 901);

of STTN's and my own funds on the construction and re-branding and had no choice
but to rely upon the representations of Ken Wirkerham that they would work with me on
the allocation of the funds."
8.

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; and (4) is improper lay opinion (FRE

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§701).
8.

, 9, p. 4 lines 20-22: "The budget that

BPWCP objects to this statement on the

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BP provided to STTN at the same time was for

ground that it: (1) lacks foundation (FRE § 901);

a new 'ground up' facility, even though all

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

parties understood that this was are-brand,
not new construction."

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is entirely speculative and based upon

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conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); (5)
violates the Best Evidence Rule (FRE §§ 1001,

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1002); and (6) declarant lacks personal
knowledge (FRE § 602).
9.
, 11, p. 4 line 28: "As a result of

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the

9.

BPWCP objects to this statement on the

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delay by BP in funding the loans, STTN ran out
of

ground that it: (1) lacks foundation (FRE § 901);

money."

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

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OFFERED EVIDENCE
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EVIDENTIARY OBJECTIONS
is entirely speculative and based upon

conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
10.

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~ 11, p. 5 line 1: "The general

10.

BPWCP objects to this statement on the

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contractor and his subs walked off the job

ground that it: (1) lacks foundation (FRE § 901);

because they were no longer being paid."

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon conjecture; and (4) declarant lacks personal
knowledge (FRE § 602).

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11.

~ 11, p. 5 lines 3-6: "AVA Global

11.

BPWCP objects to this statement on the

Enterprise, Inc., a related company to STTN
(which is owned 50% by my son, Nazim),

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon conjecture; and (4) declarant lacks personal
knowledge (FRE § 602).

refinanced the real property on which the
station was located to generate funds to be used
by STTN to clear the liens, pay the

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subcontractors and general contractor and get
work started."
12.

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, 11, p. 5 lines 6-8: "The refinancing

12.

BPWCP objects to this statement on the

process delayed the project even further
because BP required a new subordination
agreement to be signed and the preparation,

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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review and approval of the new loan took
time."

conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); and (5)
declarant lacks personal knowledge (FRE § 602).

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EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRYAN
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OFFERED EVIDENCE
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3

EVIDENTIARY OBJECTIONS
13.

13.

~ 12, p. 5 lines 9-10: "Long after the

BPWCP objects to this statement on the

loans should have been funded, in May, 2007,

ground that it: (1) lacks foundation (FRE § 901);

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BP required STTN to sign a Disbursement
Agreement. "

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
14.

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, 12, p. 5: lines 11-13: "BP had the
the Disbursement

14.

BPWCP objects to this statement on the

option under ~ 7.3 of

ground that it: (1) lacks foundation (FRE § 901);

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Agreement to pay the mechanics lien from loan proceeds, but although BP caused the problems

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

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by failing to timely fund the loans, it would not

is entirely speculative and based upon

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pay the liens from loan proceeds."

conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); (5)
violates the Best Evidence Rule (FRE §§ 1001,

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1002); and (6) declarant lacks personal
knowledge (FRE § 602).
15.

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, 13, p. 5 lines 13-15: "Even after the

15.

BPWCP objects to this statement on the

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liens had been cleared, BP held up loan funding

ground that it: (1) lacks foundation (FRE § 901);

while gathering documents that were not
conditions to funding."

(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
16.

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, 13, p. 5 lines 16-17: "BP required

16.

BPWCP objects to this statement on the

changes to STTN's corporate documents and requested other documents that were not listed
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ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing suffcient

EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRYAN

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OFFERED EVIDENCE
in the CCL."

EVIDENTIARY OBJECTIONS
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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3

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conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); and (5)
violates the Best Evidence Rule (FRE §§ 1001,

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1002).
17.

~ 16, p. 6 lines 2-4: "Although included

17.

BPWCP objects to this statement on the

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in STTN's broad first request for production of
documents propounded to BP in April, 2008,
BP has failed to produce any documents related

ground that it is irrelevant and immateriaL. To be

clear, STTN waived its rights to seek such

documents by not conducting a meet-and-confer
and/or moving to compel production.
18.

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to gasoline deliveries."
18.
~ 16, p. 6

lines 4-5: "STTN recently

BPWCP objects to this statement on the

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sent a second, more specific request for production regarding this issue and is awaiting
BP's response."

ground that it is irrelevant and immateriaL. To be

clear, STTN propounded its Requests for
Production on June 30, 2008 and BPWCP's

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responses are not due until August 2,2008.
19.
~ 17, p. 6

lines 9-10: "Because STTN

19.

BPWCP objects to this statement on the

had paid construction expenses in excess of the
amount of the gasoline loan, I asked Ms. Smith
if BP would setoff the gasoline payments

ground that it is inadmissible hearsay. (FRE §§
801, 802).

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against the loan proceeds that would go to
STTN."
20.
, 17, p. 6

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lines 10-13: "In fact, STTN

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BPWCP objects to this statement on the

had performed under the payment agreement by
reducing the balance owing by approximately $60,000 and was not in default during the time that BP demanded that it pay the entire balance
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ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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OFFERED EVIDENCE
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3
of

EVIDENTIARY OBJECTIONS
conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
21.

the gas payments before it would fund the

gasoline loan."
21.

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, 18, p. 6 lines 14-16: "First, STTN

BPWCP objects to this statement on the

offered to have the amount of the gas payments
deducted from the gas loan proceeds at the close of escrow when the loan proceeds could
be disbursed."
22.

ground that it is inadmissible hearsay. (FRE §§

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801,802).

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~ 18, p. 6 lines 17-20: "Next, STTN

22.

BPWCP objects to this statement on the

offered to put the amount then owing into the
same escrow as the loan proceeds and that the

ground that it is inadmissible hearsay. (FRE §§
801, 802).

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gas payments could be disbursed to BP at the
same time that the loan proceeds were

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disbursed to STTN to reimburse it for construction expenses."
23.
sense. "

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~ 18, p. 6 line 22: "... which makes no

23.

BPWCP objects to this statement on the

ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).

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24.

, 19, p. 6 lines 25-27: "Because of

the

24.

BPWCP objects to this statement on the

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repeated delays, the repeated requests for additional documentation that is not required by
the loan documents as a condition to funding,
BP's prior breach of

ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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the loan agreements. . . ."

conjecture; and (4) is improper lay opinion in
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OFFERED EVIDENCE
2
3

EVIDENTIARY OBJECTIONS
that it calls for a legal conclusion (FRE § 701).

25.

, 19, p. 7 lines 2-3: "... while BP

25.

BPWCP objects to this statement on the

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5

further delayed funding the gas loan."

ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)

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is entirely speculative and based upon

conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
26.
breaches of

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~ 20, p. 7 lines 5-7. "Because of BP' s

26.

BPWCP objects to this statement on the

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the loan agreements. . . ."

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)

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is entirely speculative and based upon

conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
27.

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~ 20, p. 7 lines 7-9: "I informed BP that

27.

BPWCP objects to this statement on the

as soon as the loan funded, either through the

ground that it is inadmissible hearsay. (FRE §§
801, 802).

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escrow process or otherwise, STTN would

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again purchase and sell gasoline."
28.

~ 23, p. 7 lines 12-14: "I told Tom

28.

BPWCP objects to this statement on the

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Reeder would (sic) try to arrange for a

ground that it is inadmissible hearsay. (FRE §§
801, 802).

cashier's check but that with the weekend and
banking holiday coming up, it may not be until

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Tuesday."
29.
, 23, p. 7

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lines 14-15: "On Tuesday,

29.

BPWCP objects to this statement on the

September 4, 2007, I informed BP that I had a

ground that it is inadmissible hearsay. (FRE §§

cashier's check ready for them."

801,802).

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OFFERED EVIDENCE
2
3

EVIDENTIARY OBJECTIONS
30.

30.

~ 22, p. 7 lines 20-21: "These notices

BPWCP objects to this statement on the

state that STTN did not have any gasoline to

ground that it: (1) lacks foundation (FRE § 901);

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sell for seven consecutive days."

(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; and (4) violates the Best Evidence
Rule (FRE §§ 1001, 1002).
31.

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, 23, p. 7 lines 21-22: "This statement

3 i.

BPWCP objects to this statement on the

is false."

ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3) is entirely speculative and based upon

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conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
32.

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, 22, p. 7 line 23: "The termination

32.

BPWCP objects to this statement on the

notices are, therefore, false and ineffective."

ground that it: (1) lacks foundation (FRE § 90 i);

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

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is entirely speculative and based upon
conj ecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); and (5)
violates the Best Evidence Rule (FRE § § 1001,

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1002).
33.

, 23, p. 7 lines 24-25: "BP wrongfully

33.

BPWCP objects to this statement on the

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terminated the franchise agreements. BP's

ground that it: (1) lacks foundation (FRE § 901);

notice of termination was wrongful. . . ."

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)
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OFFERED EVIDENCE

EVIDENTIARY OBJECTIONS
is entirely speculative and based upon

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3

conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
34.

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5

~ 23, p. 7 lines 25-26: "BP is the one

34.

BPWCP objects to this statement on the

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the breached the agreements and caused the

ground that it: (1) lacks foundation (FRE § 90 I);

alleged arrearages in the gasoline payments."

(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)

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is entirely speculative and based upon

conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
35.

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, 23, p. 7 lines 26-27: "There was no

35.

BPWCP objects to this statement on the

default in gasoline payments due to the doctrine
of setoff."

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

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is entirely speculative and based upon

conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
36.

19

~ 23, p. 7 lines 27-28: "STTN tendered

36.

BPWCP objects to this statement on the

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21

a cure of the failure to operate and sell gasoline,

ground that it: (1) lacks foundation (FRE § 901);

but its tender was refused."

(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

22
23

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conjecture; and (4) is improper lay opinion in
that it calls for a legal conclusion (FRE § 701).
37.
ir 23, p. 7 line 28 through p. 8 line 1:
37.

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BPWCP objects to this statement on the

"The notice falsely states that all grades of
gasoline were not available for sale, when, in
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ground that it: (1) lacks foundation (FRE § 901);

(2) is conclusory without providing sufficient

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OFFERED EVIDENCE
2
3

EVIDENTIARY OBJECTIONS
facts to support or corroborate the statement; (3)
is entirely speculative and based upon
conjecture; (4) is improper lay opinion (FRE §

fact, premium gas and diesel were available and
being sold."

4
5

701); and (5) violates the Best Evidence Rule
(FRE §§ 1001, 1002).
38.

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~ 23, p. 8 lines 2-3: "the notice

38.

BPWCP objects to this statement on the

references the wrong agreement (the 10/12/06

ground that it: (1) lacks foundation (FRE § 901);

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agreement states that it supersedes the prior
agreements)."

(2) is conclusory without providing sufficient
facts to support or corroborate the statement; (3)
is entirely speculative and based upon

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conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); (5)
declarant lacks personal knowledge (FRE § 602);

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and (6) violates the Best Evidence Rule (FRE §§

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1001,1002).
39.

~ 23, p. 8 lines 3-5: "the notice falsely

39.

BPWCP objects to this statement on the

states that 90 days is not required because of
safety concerns and the notice falsely states that

ground that it: (1) lacks foundation (FRE § 901);

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(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

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no notice is required because of consumer
confusion, which makes no sense."

is entirely speculative and based upon
conjecture; (4) is improper lay opinion (FRE §

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701); and (5) violates the Best Evidence Rule
(FRE §§ 1001, 1002).

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40.

, 24, p. 8 lines 6-9: "STTN's alleged

40.

BPWCP objects to this statement on the

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failure to purchase and pay for gasoline was
directly caused by BP's breach of

ground that it: (1) lacks foundation (FRE § 901);

the

(2) is conclusory without providing suffcient
facts to support or corroborate the statement; (3)

commitment letter and loan agreements, but its

11 EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRY AN
i 225802.1

Case 5:07-cv-04808-JF

Document 59

Filed 07/25/2008

Page 13 of 13

OFFERED EVIDENCE
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3

EVIDENTIARY OBJECTIONS
is entirely speculative and based upon

delay in funding the $150,000 loan and its total

failure to fund the $250,000 loan. If BP had
timely performed its obligations, STTN would
be successfully operating the Station today."

conjecture; (4) is improper lay opinion in that it
calls for a legal conclusion (FRE § 701); and (5)
declarant lacks personal knowledge (FRE § 602).

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5

6 7
8

DATED: July 25, 2008

Respectfully submitted,

KURT OSENBAUGH DEBORAH YOON JONES
SA Y AKA KARIT ANI

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WESTON, BENSHOOF, ROCHEFORT, RUBALCA VA & MacCUISH LLP

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EVIDENTIARY OBJECTIONS TO DECLARATION OF SAYED FAQUIRY AN
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