Free Declaration in Support - District Court of California - California

Case 5:07-cv-04808-JF

Document 48

Filed 07/03/2008

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KURT OSENBAUGH (State Bar No. 106132) DEBORAH YOON JONES (State Bar No. 178127)
SA Y AKA KARIT ANI (State Bar No. 240122)

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

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Facsimile: (213) 576-1100 kosenbaugh~wbcounsel.com djones~wbcounsel.com skaritani~wbcounsel. com
Attorneys for Plaintiff and Counter-Defendant
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,
Plaintiff,
v.

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Case No.: C07 04808 JF

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DECLARATION OF BRAD CHRISTENSEN IN SUPPORT OF BP WEST COAST PRODUCTS LLC'S:

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(1) MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, Corporation; NAZIM F AQUIRY AN, an individual; PARTIAL SUMMARY JUDGMENT AS TO SA YED F AQUIR Y AN, an individual; and THE SECOND AMENDED COMPLAINT;
STTN ENTERPRISES, INC., a California
MAGHUL FAQUIRY AN, an individual; and A V A GLOBAL ENTERPRISE, LLC, a California limite liability company,

AND

(2) MOTION FOR SUMMARY
JUDGMENT, OR IN THE AL TERN

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Defendants.

A TIVE,

PARTIAL SUMMARY JUDGMENT AS TO THE COUNTERCLAIM
(Filed concurently with Notices and Motions; Memoranda of Points and Authorities;
Declaration of Thomas Reeder, Deborah Y oon

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Jones, and Cecile McDonnell; Appendix of Non-Federal Authorities; and (Proposed) Orders.)

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

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Honorable Jeremy Fogel

Filing Date:

September 17,2007

AND RELATED CROSS-ACTION.
DECLARATION OF BRAD CHRISTENSEN rN SUPPORT OF BP WEST COAST PRODUCTS LLC'S MOTIONS FOR SUMARY JUDGMENT, OR rN THE ALTERNATIVE, PARTIAL

SUMARY JUDGMENT AS TO THE SECOND AMNDED COMPLAJ AN COUNTERCLAIM
1213046.1

Case 5:07-cv-04808-JF

Document 48

Filed 07/03/2008

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DECLARATION OF BRAD CHRISTENSEN
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I, Brad Christensen, declare and state as follows:
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This declaration is made in support BP West Coast Products LLC's

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("BPWCP"): (1) Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment
as to the Second Amended Complaint; and (2) Motion for Summary Judgment, or in the Alternative,

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Partial Summary Judgment as to the Counterclaim, in the matter entitled BP West Coast Products, et
aI., v. STTN Enterprises, Inc. et aI., United States District Court, Case No. C07 04808 JF. BPWCP

is the franchisor for ARCO-branded service stations and am/pm Mini Markets, including the station

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at issue in this litigation. The facts set forth herein are true of my own personal knowledge, and if
called upon to testify thereto, I could and would competently do so under oath.
2.

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I am currently a Senior Franchise Business Consultant for BPWCP for the

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territory which includes a former ARCO-branded gasoline station and am/pm mini market located at

631 San Felipe Road, Hollister, California 95035 ("Station"). As a franchise business consultant,
my responsibilities include making sure that the dealer-franchisees in my territory are purchasing
and paying for gasoline delivered, as well as selling, and generally making available, ARCO-

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branded gasoline to the public, pursuant to their franchise agreements with BPWCP.
3.

At all times relevant to this lawsuit, I was the Senior Franchise Business

Consultant for the Station and interacted regularly with the franchisee STTN Enterprises, Inc. and its
shareholders, Sayed Faquiryan and Nazim Faquiryan (collectively, "STTN").
4.

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As of January 2007, payments for delivered gasoline product by BPWCP to

STTN was accomplished by way of an Electronic Funds Transfer ("EFT"), which automatically

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drew from STTN's account at the time the gasoline was delivered. Starting in July 2006, BPWCP
delivered gasoline to STTN pursuant to its franchise agreements with BPWCP.
5.

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Throughout January 2007, STTN ordered but refused to pay BPWCP for

gasoline deliveries as follows:
(a)

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On January 8, 2007, STTN's ban returned an EFT in the amount of

$21,078.93 to BPWCP due to a stop payment order by STTN;

DECLARATION OF BRAD CHRISTENSEN rN SUPPORT OF BP WEST COAST PRODUCTS LLC'S

1213046.1

MOTIONS FOR SUMARY JUDGMENT, OR rN THE ALTERNATIVE, PARTIAL SUMARY JUDGMENT AS TO THE SECOND AMNDED COMPLAIT AND COUNTERCLAIM

Case 5:07-cv-04808-JF

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Filed 07/03/2008

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(b)
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On Januar 16, 2007, STTN's bank returned an EFT in the amount of

$20,859.48 to BPWCP for insuffcient funds in STTN's account;
(c)

On January 19, 2007, STTN's bank returned an EFT in the amount of

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$20,866.68 due to a stop payment order by STTN;
(d)

On January 26, 2007, STTN's ban returned an EFT in the amount of

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$20,938.66 due to a stop payment order by STTN; and
(e)

On Januar 31, 2007, STTN's ban returned an EFT in the amount of

$20,836.93 due to a stop payment order by STTN.

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As of the end of January 2007, STTN was delinquent on gasoline balances due to
BPWCP to the sum of $1 04,580.68.
6.

Shortly thereafter, BPWCP began requiring STTN to present a cashier's check

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to the driver of the gasoline delivery truck in order to receive gasoline product. Despite this change

in procedure, STTN continued to be delinquent on the payment for gasoline deliveries.
example:
(a)

For

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On February 2, 2007, BPWCP delivered another load of gasoline, but

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STTN did not pay for the gasoline;
(b)

On February 6, 2007, I discussed STTN's failure to pay for the

February 2 gasoline load, and reached an agreement with Sayed Faquiryan that Sayed would prepare
and make available at the time of the next gasoline delivery, a cashier's check for $44,000, which

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includes the $22,000 owed for the February 2 gasoline delivery as well as $22,000 for that next
delivery;
(c)

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On February 7, 2007, BPWCP delivered another load of gasoline but

STTN only had paid $22,500; and
(d)

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On March 5, 2007, STTN's bank returned a cashier's check in the

amount of $20,851.09 for payment of gasoline due to a stop payment order by STTN.

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As of March 2007, the net due to BPWCP given the gasoline balance delinquencies
had risen to $164,950.81.
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DECLARATION OF BRAD CHRSTENSEN rN SUPPORT OF BP WEST COAST PRODUCTS LLC'S
MOTIONS FOR SUMARY JUDGMENT, OR rN THE ALTERNATIVE, PARTIAL SUMARY JUDGMENT AS TO THE SECOND AMNDED COMPLAJ AND COUNTERCLAIM

1213046.1

Case 5:07-cv-04808-JF

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Filed 07/03/2008

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7.

On May 4, 2007, I met with Sayed Faquiryan and Nazim Faquiryan and

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discussed with them a payment plan for paying down the outstanding balance on the accumulated
invoices for gasoline delivered by BPWCP.

At that time, the outstanding balance was One

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Thousand Eighty-Four Hundred Seventy-Five Dollars and Fifty Cents ($184,075.50). During this
meeting, Sayed and Nazim acknowledged the amounts they owed BPWCP and agreed to a payment
plan where they would pay an additional $30,000 per month for past gasoline deliveries on top of the

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invoice for that particular month's gasoline delivery. I drafted a letter agreement from Sayed and

Nazim to Tom Reeder, Regional Sales Manager ("Payment Plan Agreement"), based on this
discussion, in which Sayed and Nazim agreed to pay an additional $30,000 by certified check

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payable to BPWCP on or before the 15th day of each month. I witnessed Sayed Faquiryan and
Nazim Faquiryan execute the Payment Plan Agreement.

A true and correct Payment Plan

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Agreement is attached hereto as Exhibit A and is incorporated herein as though fully set forth at
length.
8.

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Despite executing this Payment Plan Agreement, as of September 5, 2007,

STTN, has not paid for these gasoline deliveries based on the Payment Plan Agreement. The thencurrent outstanding balance for the gasoline product that STTN has failed to reimburse BPWCP for
gasoline product delivered was One Hundred Twenty-Six Thousand, One Hundred Ninety-Four

Dollars and Seventy-Seven Cents ($126,194.77).
9.

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To date, STTN has not paid for the gasoline. The current outstanding balance

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is One Hundred Twenty-Six Thousand, One Hundred Ninety-Four Dollars and Seventy-Seven Cents
($126,194.77) plus interest.
10.

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Based upon my observations, STTN did not sell any gasoline on beginning the

evening of August 23 through at least September 4,2007. During this time, I observed that STTN's
dispensers were taped off with yellow caution tape preventing the use of the dispensers by

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customers. On two of those occasions, I tried to pump gasoline from a dispenser that was located on

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the exterior of the pump station islands, where the dispenser was not enclosed by the yellow caution

tape. Although I was able to set up the pump, no gasoline or diesel fuel came out. Based on my
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DECLARATION OF BRAD CHRISTENSEN rN SUPPORT OF BP WEST COAST PRODUCTS LLC'S

1213046.1

MOTIONS FOR SUMARY JUGMENT, OR rN THE ALTERNATIVE, PARTIAL SUMMARY JUGMENT AS TO TH SECOND AMNDED COMPLAIT AN COUNTERCLAIM

Case 5:07-cv-04808-JF

Document 48

Filed 07/03/2008

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experience, this indicated to me that either the fuel level was below the siphon or the fuel tan
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turbines were turned off so that no gasoline could flow out.
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In addition, I also had several telephone conversations with Sayed Faquiryan

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during which I informed him that STTN is required to sell ARCO-branded motor fueL. During each
of

my telephone conversations with Sayed on August 23,24,27,28, 30, and 31, and on September 1

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and 4, 2007, I recommended that he order (and pay for) fuel so that he stayed in compliance with his
Gasoline Agreement with BPWCP. However, STTN did not order any fuel fTom BPWCP during
this time. Basd on my experience, if STTN was not ordering any gasoline fTom BPWCP during

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this time period, STT could not have had enough gasoline to sell to his customers.
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When a franchisee is found to be in violation of its fTanchise agreements,

BPWCP issues a written "Default Notice" describing the violation ("Default"). The Default is then
sent to the fTanchisee via certified mail, giving the franchisee an opportunity to cure the violation,

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Based on my observations of STTN's failure to pay for gasoline delivered, as detailed above in
Paragraph 4, I created several Default Notices that were signed and issued by Thomas Reeer,
Regional Sales Manager with responsibilities over STTN. True and correct copies of these Default

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Notices pertaining to STTN's failure to pay for gasoline deliveries, failure to operate the Station, and

failure to make all grades of gasoline available, are collectively attached hereto as Exhibit B and are
incorporated herein as though fully set forth at length.
13.

On September 6, 2007, I hand delivered a Notice of Termjnation to STT

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("Termination Notice"), As of September 6, 2007, STT had not paid the gasoline balance due of
over $126,000, was still not operating the Station (i.e., selling gasoline), and was not making all

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grades of gasoline available for sale to the public. A true and correc copy of the Termination
Notice is attached hereto as Exhibit C.

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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true aÌd correct.

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kø~

Executed on July i 2008, at 6'~1

, Californja.

f) /I 11 l; (J r e;CN DECI.ARATION OF BRACHRSTSI IN SUPPORT

V (' i.y MOTIONS FOR SUMMAY JUDMENT, OR IN THE ALTERNATIVE, PARTIL
SUMARY JUDMENT AS TO THE SECOND AMENDED COMPLAT AND COIINTECLAlM

OF BP WEST COAST PRODUCTS LLC'S