Free Proposed Order - District Court of California - California

Case 5:07-cv-04808-JF

Document 51

Filed 07/03/2008

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
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BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability Company,
Plaintiff,

Case No.: C07 04808 JF

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(PROPOSED) ORDER GRANTING DP WEST COAST PRODUCTS LLC'S v. MOTION FOR SUMMARY JUDGMENT, OR IN THE AL TERNA TIVE, PARTIAL STTN ENTERPRISES, INC., a California SUMMARY JUDGMENT AS TO THE Corporation; NAZIM F AQUIRY AN, an individual; SECOND AMENDED COMPLAINT
SAYED FAQUIRYAN, an individual; and
MAGHUL FAQUIRY AN, an individual; and A V A

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

(Filed concurrently with Notice and Motion; Memorandum of Points and Authorities; Declarations of Deborah Yo on Jones, Thomas
Reeder, Brad Christensen, and Cecile
McDonnell; Appendix of

Non-Federal
August 8, 2008 (reserved)
9:00 a.m.

Authorities. )
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Date: Time:
Crtrm: 3

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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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¡PROPOSED) ORDER GRATING MOTION FOR SUMARY JUGMENT, OR IN THE
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ALTERNATIVE, PARTIAL SUMARY JUGMENT AS TO THE SECOND AMENDED COMPLAINT

Case 5:07-cv-04808-JF

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This action came on for hearing before the Court, on August 8, 2008, the Honorable
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Jeremy Fogel, United States District Court Judge Presiding, on Plaintiff BP West Coast Products

LLC's ("BPWCP") Motion for Summary Judgment, Or In the Alternative, Partial Summary
Judgment as to the Second Amended Complaint. Deborah Yoon Jones, Esq. of Weston, Benshoof,

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Rochefort, Rubalcava and MacCuish, LLP appeared on behalf of BPWCP, and John G. Michael,
Esq. of Baker Manock & Jensen appeared for Defendants STTN Enterprises, Inc., Sayed Faquiryan,
Nazim Faquiryan, Maghul Faquiryan, and A V A Global Enterprises, LLC (hereinafter collectively

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"Defendants"). The evidence presented having been fully considered, the issues having been duly
heard and a decision having been duly rendered, the Court hereby ORDERS as follows:

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After considering all of the evidence, both oral and documentary, filed in connection
with this Motion and introduced at the hearing thereon, being fully advised in the premises and good
cause appearing therefore, the Court hereby GRANTS BPWCP's Motion for Summary Judgment on
the Second Amended Complaint, as follows:
The Court adopts and incorporates BPWCP's Statement of

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Uncontroverted Facts, and

finds that there are no triable issues of material fact in this action as to the First through Ninth

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Causes of Action asserted by BPWCP against Defendants. BPWCP is entitled to a judgment in its
favor as a matter of law for the following reasons:
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BPWCP Is Entitled to Summar Judgment Against STTN On BPWCP's First

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Cause of Action for Declaratory Relief Under the PMP A Because, As a Matter of Law, BPWCP

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Properly Terminated STTN's Franchise: BPWCP's decision to terminate was proper under the
Petroleum Marketing Practices Act, 15 U.S.c. § 2801, et seq. ("PMPA") because STTN materially

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breached the franchise relationship by failing to pay BPWCP for over $126,000 worth of gasoline
delivered, failing to sell gasoline for more than seven consecutive days, failing to have all grades of
gasoline available for sale to the public, and defaulting on the Store Loan Agreement. Each of these
grounds are specifically enumerated and proper under the PMP A (see Sections 2802( c )(8) and

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2802(c)(9)), the franchise agreements, and the applicable legal authority.

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(PROPOSED) ORDER GRANTING MOTION FOR SUMARY JUGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMARY JUGMENT AS TO THE SECOND AMNDED COMPLAINT
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BPWCP Is Entitled to Summar Judgment Against STTN, Nazim Faquiryan,

Sayed Faquiryan, and Maghul Faquiryan On BPWCP's Second Cause of Action for Breach of the

Gasoline Franchise Agreement: Defendants breached the Gasoline Agreement, by failing to pay
BPWCP for gasoline delivered, failing to sell gasoline for more than seven consecutive days, and
failing to have all grades of gasoline available for sale to the public;
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BPWCP Is Entitled to Summary Judgment Against STTN, Nazim Faquiryan,

Sayed Faquiryan, and Maghul Faquiryan On BPWCP's Third Cause of Action for Breach of the
Mini Market Franchise Agreement: Defendants breached the Mini Market Agreement because they

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did not pay BPWCP within 30 days of termination of the franchise relationship the amounts owed
under the Store Loan Agreement, which is an Event of Default under the Mini Market Agreement. In addition, Defendants breached the Mini Market Agreement and related Franchise Guaranties by
failing to operate all of its concurrent businesses at the Station (i.e., failures to sell gasoline).
4.

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BPWCP Is Entitled to Summar Judgment Against STTN, Nazim Faquiryan,

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Sayed Faquiryan, and Maghul Faquiryan On BPWCP's Fourth Cause of Action for Breach of the
Franchise Guaranties:

By virtue of the breaches of the Franchise Agreements, STTN, Nazim

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Faquiryan, Sayed Faquiryan, and Maghul Faquiryan have breached the related Franchise Guaranties.
5.

BPWCP Is Entitled to Summary Judgment Against STTN, Nazim Faquiryan

and Sayed Faquiryan On BPWCP's Fifth Cause of Action for Goods Sold and Delivered: BPWCP

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is entitled to summary judgment for goods sold and delivered because Defendants agreed to
purchase gasoline products from BPWCP, which they received from BPWCP, but Defendants failed
to make payments upon delivery of

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the gasoline product by BPWCP. To date, Defendants stil have

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not paid any portion of the outstanding balance of over $126,000 due and owing to BPWCP for the
gasoline deliveries.
6.

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BPWCP Is Entitled to Summary Judgment Against STTN, Nazim Faquiryan

and Sayed Faquiryan On BPWCP's Sixth Cause of Action for Unjust Enrichment: Defendants have
been unjustly enriched because they obtained a benefit at BPWCP's expense (i.e., received and sold

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for profit ARCO-branded gasoline delivered by BPWCP) and must restore BPWCP to its former
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(PROPOSED) ORDER GRANTING MOTION FOR SUMARY JUGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMARY JUGMENT AS TO THE SECOND AMENDED COMPLAINT

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position by returning the total balance of money equivalent to the amount of gasoline delivered to
Defendants but not paid for.
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BPWCP Is Entitled to Summary Judgment Against STTN, Nazim Faquiryan,

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Sayed Faquiryan, and Maghul Faquiryan On BPWCP's Seventh and Eighth Causes of Action for
Breach of the Loan Agreements and Guaranties: Defendants breached the Gasoline Agreement and
related Franchise Guaranties, by failing to pay BPWCP for gasoline delivered, failing to sell gasoline

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for more than seven consecutive days, and failing to have all grades of gasoline available for sale to
the public; Defendants breached the Store Loan Agreement and the related personal

loan guaranties

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because they did not pay BPWCP within 30 days of termination of the franchise relationship, which
is an Event of Default under the Store Agreement; and Defendants breached the Mini Market

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Agreement and related Franchise Guaranties by failing to operate all of its concurrent businesses at
the Station (i.e., failures to sell gasoline).
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BPWCP Is Entitled to Summary Judgment Against STTN and AVA Global

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Enterprises, LLC On BPWCP's Ninth Cause of Action for Unified Judicial Foreclosure: BPWCP is
entitled to summary judgment for an unified judicial foreclosure because STTN and A V A Global, as

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the owner of the Real Property, are in default by failing to make payments on the promissory note
secured by the Deed of Trust and UCC-l.

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IT is ORDERED AND ADJUDGED that BPWCP's Motion for Summary Judgment

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on the Second Amended Complaint of BPWCP is granted, and judgment be entered in favor of
BPWCP on these claims by BPWCP.

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DATED:
Hon. Jeremy Fogel

United States District Court

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(PROPOSED) ORDER GRANTING MOTION FOR SUMARY JUGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMARY JUGMENT AS TO THE SECOND AMENDED COMPLAINT
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Respectfully submitted,
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DATED: July 3, 2008
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KURT OSENBAUGH DEBORAH YOON JONES
SA Y AKA KARIT ANI

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WESTON, BENSHOOF, ROCHEFORT,

RUBALCAVA & MacCUISH LLP

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Jifto~

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

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AL TERN

(PROPOSED) ORDER GRANTING MOTION FOR SUMARY JUGMENT, OR IN THE A TIVE, PARTIAL SUMAR Y JUDGMENT AS TO THE SECOND AMENDED COMPLAINT

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