Case 5:07-cv-04808-JF
Document 46-2
Filed 07/03/2008
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EXHIBIT 1
Case 5:07-cv-04808-JF
Document 46-2
Filed 07/03/2008
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
-000BP WEST COAST PRODUCTS, LLC, )
a Delaware Limited Liability),
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Company; and ATLANT IC )
RICHFIELD COMPANY, a Delaware)
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Corpora t i on, )
Plaintiffs,
vs.
STTN ENTERPRISES, INC., a California Corporation;
) )
)
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) No.5:07-CV
) 04808 JF
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11 12
) ) ) ) ) )
NAZIM FAQUIRYAN, an
individual; SAYED FAQUIRYAN, an individual; and MAGHUL FAQUIRYAN, an individual; and AVA GLOBAL ENTERPRISE, LLC, a California limited
liabili ty company,
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) )
) )
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Defendants.
AND RELATED CROSS-ACTIONS
) )
Fresno, California; April 23, 2008 The deposition of SAYED M.N. FAQUIRYAN was taken in the above-entitled matter pursuant to the provisions of law pertaining to the taking and use of depositions,
commencing a t the hour of 10: 30 a. m., a t the law offices of
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Baker, Manock & Jensen, 5260 North Palm Avenue, Fresno,
California, before Cynthia L. Lucas, C.S.R. No. 9973, a Certified Shorthand Reporter of the State of California,having offices located at Clovis, California.
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State of Cal ifornia,
County of Fresno
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, was by me duly sworn
to testify to the truth, the whole truth and nothing but
the truth in the within-entitled cause; that said
deposition was taken at the time and place therein named;
that the testimony of said wi tness was reported by me, a
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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
deposition, nor in any way interested in the outcome of the
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cause named in said capt ion.
In Witness Whereof, I have hereunto set my hand
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at my office in Clovis, California.
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~~ L. L\1 ~Wì
CYNTHIA L. LUCAS, C.S.R. No. 9973
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Case 5:07-cv-04808-JF
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Q.
The San
Felipe location? Felipe and
301 Ga teway Dr i ve
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A.
Q.
The San
both.
Did 301 Gateway become an Arco
No.
station?
a 76
A.
Q.
5 6
7
8
That 's the one that i s
. currently
station?
A.
Q.
Yes.
Now,
Mr. Faquiryan, you i re able to read
English,
r i gh t ?
A.
Q.
9
Yes,
I am.
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And you i re able to write English; is that
correct?
A.
Q.
Yes.
I'm going to mark as Exhibit A, a document
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that i senti tled Contract Dealer Gasoline Agreement.
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A.
Yes.
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(Plainti f fs i Exhibit A was marked for identification. )
BY MS. JONES:
Q.
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If you could please take a look at that
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document.
A.
Q.
Yes, I exactly recall this document.
And on page 15 of that document, it i S also.
Yes.
Up at the top where it says Buyer,
is that
Bates labeled BP 02844, iS your signature on that page?
A.
Q.
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your signature?
A.
Q.
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Yes.
And at the time you signed this document, did
you read the document?
A.
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No.
The document they gave it to me.
And by
such a hurry,
they want it back to give them signature.
Because they came in the store.
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And they pick them up.
sign it in a restaurant,
I
and I got a copy of it.
o ka y,
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And they said,
after they signed by BP.
we'll give you a copy,
okay,
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And they -- I was so anxious to
get this situation solved, and I got my son signature down
there so he sign it too.
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I didn't get a chance to review all of it.
Q.
So they brought it in, and they asked you to
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sign it right then and there?
A.
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Exactly.
Because if they want to change it
to get it right away.
Q.
And do you recall who brought that in to you
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to sign?
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A.
I believe that was -- I believe it was
if I don't make a mistake.
I don't remember
Ken Wickerham,
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exactly.
Q.
Did you as k -- if it was Ken or whoever the
BP representative was, did you ask that person if you could
have the time to read the document before you signed it?
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Yes, I got a gasoline contract and inside store
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contract.
Q.
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So you did end up getting the documents?
Yes, that was i~ April 20th of 2007.
A;
Q.
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Do you recall what the date was that you
started selling gasoline as an Arco gas station?
A.
I don't remembe r exact date, but between
October
12
to October 14th.
Q.
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Of ' 0 6?
Of
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A.
Q.
'06.
And when you
signed the Contract Dealer
Gasoline Agreement,
you understood that you had to perform
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a retrofit of the gas station within a certain time frame;
is that correct?
A.
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What do you mean "retrofit," if you can
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explain it.
MR. MICHAEL:
Remodel.
BY MS. JONES:
Q.
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Yeah.
Did you understand that as part of
you were required to remodel the
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this gas agreement,
station so it would be an Arco station?
A.
T hat's rig h t, Arc 0 AM PM.
Otherwise, they
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don't want to sign this agreement with me.
MS. JONES:
I'll mark this next exhibi t as
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Exhibi t B, an amendment to the agreement.
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(Plaintiffs' Exhibi t B was marked for
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identi fication. )
BY MS. JONES:
Q.
Have you seen this document before,
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Mr. Faquiryan?
A.
Yes, signed by my son.
But I have never got
a copy of that signed by BP.
Q.
And do you understand what this document
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says?
A.
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Getting in a contract with Arco for one
year -- supply contract gasoline until I finish the
remodeling.
Q.
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I'm going to mark another document as Exhibi t
(Plaintiffs' Exhibit C was marked for
c.
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identification. )
BY MS. JONES:
Q.
At the top it says am/pm mini market
I'll show this document to you, and if you
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agreement.
A.
Q.
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could review it and confirm --
Yes, I do remember that.
-- whether or not you've seen this document.
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A.
Q.
No,
I saw that.
And it looks on page 4, or Bates No. 02792,
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that there is a signature of Nazim Faquiryan.
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A.
Q.
Yes.
Do you recall seeing this document at the
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time Nazim signed it?
A;
Yes.
And I was the one that got the
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signature from my son,
and I told him to sign it.
She'll ask you questions.
And I'm
sure -MR. MICHAEL:
THE WITNESS:
Okay.
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BY MS. JONES:
Q.
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Did you wi tness Nazim signing the document?
A.
Q.
Yes.
When did you get this document to sign?
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A.
Q.
There's a date on there.
Do you believe that the date there,
which is
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June 20th, 2006,
that's the date that BP presented it to
you for signature?
A.
Q.
My son came in the store and signed it.
Was that the same day that BP gave you the
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document to sign?
A.
Q.
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They want my son's signature,
yes.
So that was the day of -- June 20th was when
they walked in and handed the document to you for
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signature?
A.
Q.
That was Ken Wickerham,
yes.
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Okay.
Did you have an opportuni ty to review
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this document before you signed it?
A.
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No.
We sign them; give to him and we got a
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copy.
Q.
Did you ask Ken Wickerham for some time to
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review the document before you signed it?
A.
Q.
I don't recall it.
Did you understand when you had your son sign
this document, that this document was going to govern the
relationship between BP and yourself concerning the mini
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market?
A.
Q.
Yes, supposed to pay me $475,000.
And I i m saying "you" wi th regard to these
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questions, but I notice that both on Exhibit A, which is
the Contract Dealer Agreement, and this Exhibi t C, which is
the mini market agreement, that it refers to an entity
called STTN Enterprises,
A.
Q.
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Inc.
Yes.
And you're part owner of that company, right?
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A.
Q.
Yes.
And wha t percentage do you own?
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A.
Q.
49 percent.
And who owns the other 51 percent?
My son Nazim.
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A. Q.
And other than -- does STTN Enterprise
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currently own the business that's at 631 San
Felipe?
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wanted you to stay wi th them?
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A.
Well, I ask them because Ken Wickerham asked
me to terminate the contract.
Q.
Right.
No.
Do you have any documents to show --
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A.
They -- I had made the phone call.
They
didn i t send me officially.
Q.
You need to wait until I finish asking the
questions.
Do you have any documents which show that Chevron
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wanted you to stay on as a Chevron dealer?
A.
Q.
No.
Have you ever been terminated by any of the
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other oi 1 companies that you've deal t wi th in the pas t?
A.
Q.
No.
Have you ever received notices of default
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from any of the other oil companies that you've deal t wi th
in the past?
A.
Q.
No.
You have to wai t until I'm done.
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A.
Q.
Okay.
I know you can tell where I'm going with it,
but you have to wait.
A.
Q.
Exhibi t D.
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Okay.
This next document I'm going to mark is
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(Plaintiffs' Exhibit D was marked for
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identification. )
BY MS. JONES:
Q.
Please take a look at that and confirm that
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that's your signature.
I s that your signature, Mr. Faquiryan? A.
Q.
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Yes.
Do you recall when this document was
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presented to you?
A.
Q.
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I believe the day I got it and I signed it.
You believe it was on June 20th of 2006 that
you received this document?
A.
Q.
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I don't recall the exact date.
Do you recall who presented you wi th this
Mos t likely Ken Wickerham.
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document?
A.
Q.
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But you don't know for sure?
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A.
Q.
No, I don't.
Now, at some point, or as part of you
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becoming a BP franchisee, you spoke to BP about loans for
the store and for the gas station;
A.
Q.
correct?
Can you make -Let me make it clearer.
At some point when you were either considering
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becoming a BP franchisee, or in the process ~f becoming a 48
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correct?
A.
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No, said going to come later on from my
pocket when they finished.
Q.
Did you ever get a bill for that?
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A.
Q.
No.
So the total of the cost to convert the
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Chevron gas station to the Arco gas station was between 48
and 58,000 out of your pocket if we're including the pic
and the POS. A.
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I'm sorry,
i paid to convert from Chevron to
Arco.
i paid the total bill, which is cost about between
800 to $900,000, except $150,000 been funded by Arco in
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July. That before.
Q.
fund supposed to be done by March, on or
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Okay.
What portion of the 800 to 900,000 was
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spent converting the gas station portion of your business
from a Chevron to an Arco, and not including the
convenience store portion?
A.
P robabl y the mos t came about - - no,
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not even
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90,000.
Probably 70 to $80,000 to get -- include the
painting, the building, painting the canopy, imaging sign,
probably to 80 to 90,000 to convert from Chevron to Arco~
Q.
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So you did pay for the imaging and signage?
A.
The people that came in -- Arco people, they
And those people came.
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brought Brad Christensen.
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And
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so much money should be spent for mini mart.
My
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understanding that $400,000 go all toward the remodeling of
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the store because all one proj ect.
Q.
So until you spoke to Cile about the
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allocations, you had never seen anything in wri ting about -A.
Q.
No.
-- the loans, and you never signed anything
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about the loans?
A.
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Well, I did sign it, because most of the
time, I didn i tread it because they were always in rush.
Li ke, say, get it done so we have to expedi te it.
Didn't get the project done on Watsonville on
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time.
But we have to show something good fai th to BP, you
Okay.
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are doing something good.
Q.
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So do you recall signing anything wi th
regard to the loans?
A.
You have to show me the documents.
It's
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possible.
Q.
I'm going to mark as Exhibit E, a letter
If you could take a look at that,
dated May 25, 2006.
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please.
(Plaintiffs' Exhibi t E was marked for
identification. )
THE WITNESS:
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Yes, I signed this.
But didn't
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have this attachment.
BY MS. JONES:
Q.
That came later.
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Okay.
Now,
when you spoke to Cile -- you
were just telling me about a conversation with Cile
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McDonnell about the different allocations, and that was the
first time you had heard about that.
Do you recall when that conversation took place?
A.
It was after March -- after April, because,
Take that back.
When my
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you know -- actually, wait.
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general contractors walked out from me because for
nonpaymen t, and I cal 1 her, say, when are you going to pay
them.
So then the allocation stuff came in later.
Q.
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Do you recall what time frame that was in?
In 2006?
In 2007?
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A.
2007 most likely, but I don i t recall the
How many conversations wi th Cile did you have
exact date.
Q.
about the allocation portion?
A.
Q.
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Too many.
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More than ten?
A.
Q. A.
Yes.
More than 20?
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I don't recall it, but I can say it's too
many.
Q.
25
So look at Exhibi t E on the second page.
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into a loan agreement pertaining to a gas station?
A.
Q.
2
No.
Now,
No, I don't.
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in this letter,
this Exhibit E, does it
discuss the 25 percent payments that you would get -A.
Q.
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No.
-- periodically?
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Did tha t 2 5 percent payment provis ion exi s t in
any of the written documents that BP provided to you,
or
9
was it just something that Ken Wickerham told you?
A.
Q.
the top,
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No.
It was in the loan agreement.
I ' 1 1 mark this as the next exhibi t.
And at
it says Loan Agreement
If you could please,
(am/pm Mini Market) .
s ir,
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look at that.
(Plaintiffs' Exhibit F was marked for
15
identification. )
BY MS. JONES:
Q.
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Sir,
once you've had a chance to look at
this,
if you could turn to page 18 0 f tha t document,
also
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Bates stamped BP 01552, and confirm that that's your
signature on that page.
A.
Q.
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Yes.
Do you recall when you signed this document?
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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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understood that you were going to get some loan proceeds
from BP to remodel your store; correct?
A.
Q.
Yes.
Did you understand that the amount that you
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were going to recei ve from BP was not going to cover all of
the costs to remodel the store?
A.
Q.
Yes.
You knew there would be some expenses that
9
you would have to payout of pocket?
A.
Q.
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11
Yes.
Did you have an idea of, you know, what
12
amount you would have to payout of pocket?
A.
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Estimate between 250 -- between 200 to
250,000.
Q.
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And how were you planning to fund tha t 200 to
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250,000?
A.
Q.
I had the money, and I paid it.
I'm going to mark as Exhibit G, a document
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which is called Secured Promissory Note.
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I f you could just review
3 that it's your signature.
that and confirm on page
(Plaintiffs i Exhibi t G was marked for
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identification. )
THE WITNESS:
Yes.
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BY MS. JONES:
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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
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With regard to Exhibit F, which is the loan
agreement,
documen t ?
AM PM Mini Market, have you ever read thi s
A.
No,
I signed it because I was trying to rush
to get this expedi ted work to fund and pay the bill.
Q.
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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.
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Do you remember the date, approximately?
A. Q.
I don't recall it.
Was it 2006?
2007 .
2007?
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A.
Q.
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I'm going to mark as Exhibi t H, a document
enti tled Loan Agreement
(Gasoline. )
(Plaintiffs' Exhibit H was marked for
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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.
No.
Have you ever read this document?
A.
Q.
After, yes.
In the 2007 time frame?
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A.
Q.
Yes.
After the issues arose concerning funding?
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A.
Q.
Yes.
Prior to signing this document which is
13
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Exhibit H, did you ever ask any questions from BP
concerning the document?
A.
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No one was there when I signed this document.
We sign it in First American Title Company, and no one was
there to answer question.
Q.
19
Did you have Ken Wickerham's cel 1 phone
Yes,
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number?
A.
Q.
I did.
So if you had any ques t ions, you could havè
Yes.
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called Ken.
A.
Q.
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But you didn't.
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and everything for gasoline.
understanding that was it.
Q.
And at that time, was my
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Nothing else.
So as of the time you signed the gas loan
agreement which is Exhibi t H, you had spent the 48 to
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58,000 on the pic machine and the POS; correct?
A.
Q.
Yes.
Nothing else?
Nothing else.
I'm going to as k you to look at this next
A.
Q.
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11 12
document which we'll mark as Exhibi t I.
Disbursement Agreement. ,
And it's entitled
(Plaintiffs i Exhibi t i was marked for
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14
identification. )
BY MS. JONES:
Q.
15
Please review that and confirm for me that
16
17 18
it's your signature on the third page of this document.
A.
Q.
Yes,
it is.
Have you -- do you recall what this document
19
is?
A.
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That's a disbursement which is how they pay
the bill for the general contractor, or wi th the money they
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promise me to pay.
Q.
Okay.
So did you understand that you had to
fill one of these documents out and provide it to BP before any loan moneys would be paid out?
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MR. MICHAEL:
The question is vague and
2
ambiguous.
There's nothing for him to fill out.
BY MS. JONES:
Q.
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4
Sign.
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Did you understand that you had to sign and
submit this document to BP before you or the contractor
recei ved any funds?
A.
Q.
Yes.
And how did you have that understanding?
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A.
Cile McDonnell ask me going to pay directly
to my general contractor, and sign the document.
I said,
and they can submit the invoice
13
14
no, you have to have my signature submit.
And that's what
I don i t want them to overcharge myself.
she's explaining to me was,
Q.
15 16
17
I believe, around May 2007.
When was the first time you saw a document
tha t was en titled Disbursement Agreement, whether it was
filled in with the information on Exhibit I or a blank one?
A.
and November,
18
19
I i m not sure about the time, between October
2006.
20 21
22
And I submi t wi th a package to
Jean Smi th for some of the
Q.
invoices.
Who explained this disbursement a)reement to
23
24
you for the first time?
MR. MICHAEL:
BY MS. JONES:
87
21
I f anyone.
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A.
Q.
That's what she told me.
2 3
4
It was in October or November of 2006 when
you first saw this disbursement agreement.
Is that the first time you became aware that you
5 6
7
8
had to fill this type of document out in order to receive
the -A.
No, she didn't say I have to fill up this
form.
She send me kind of another form -- what you call
9
it -- voucher,
I'm sorry.
Send me some voucher to fill up.
10
11
And she didn't ask me to fill up this one and send it to
her.
Q.
12
When did you first find out that you had to
13
14
fill out this Disbursement Agreement form?
A.
After I spoke with Cile McDonnell,
I believe,
lS
16
17
18
in Mayor June 2007.
Q.
I'll show you a document enti tled Exhibi t J.
(Plaintiffs' Exhibi t J was marked for
identification. )
BY MS. JONES:
Q.
19
20
21
of Rents,
It's called a Deed of Trust wi th Assignment
Securi ty Agreement and Fixture Filing. A.
Q.
22 23
24
Yes.
If you could confirm for me on the third page
of the document, or BP 01445, that that is your signature,
25
as well as that next page on BP 01446.
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A.
Q.
Yes.
Did you read that document before you signed
2 3
4
it?
A;
Q.
No.
Do you recall when you signed that document,
5
6
7
8
or never mind.
Strike that.
It's entitled Consent to
I'll have you look at this next document, which
we'll mark as Exhibit K.
9
Encumbrance of Tenant's Interest.
10
11 12
(P laint i ffs' Exhibi t K was marked for identification. )
BY MS. JONES:
Q.
13
14
Do you recall ever seeing this document?
I'm sorry, what was the question?
A.
Q.
15
It was do you recall seeing this document?
16
17 18
A.
Q.
Yes, I saw it.
Did you sign the document that i s on page 5?
Yes.
Did you read the document before you signed
Is that your signature?
A.
Q.
19
20
21 22
it?
A.
Q.
No.
I'll mark as Exhibi t L, a document enti tled
23
24
Uncondi tional Continuing Guaranty.
25
If you could review it and confirm that your
90
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signature is on the fifth page.
(Plaintiffs' Exhibi t L was marked for
2 3
4
identification. )
BY MS. JONES:
./
5 6
7
8
Q.
I s that your signature, sir?
Yes.
Did you read this document before you signed
A.
Q.
it?
A.
Q.
9
No.
You mentioned that Jean Smith talked to you
10 11
12
about vouchers.
When was the concept of vouchers first explained
to you by BP?
13
14
A.
Was October I paid some money advance for,
15
like,
equipment inside the store for shop for equipment.
Say how I can get
16
17 18
And I spoke wi th Jean Smi th.
reimbursement from them.
She sent me the sample of voucher and say submit
it with voucher,
Q.
19
and we'll pay it.
We'll reimburse you.
20 21
22
An d t hat was 0 c t 0 b e r 0 f 2 0 0 6 ?
Sometime October or November of 2006,
A.
Q.
yes.
I i m going to mark as Exhibi t M,
a document
23
24
which is called Voucher Processing and Disbursement
Procedure.
///
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BY MS. JONES:
Q.
2
3
4
So when you were running a Chevron store and
your independent convenience store -- let me break it down.
When you were running the Chevron gas station,
5
you made higher sales in gas sales than when you were
running the Arco gas station on average.
MR. MICHAEL:
THE WITNESS:
6 7
8
Gross sales.
Gross sales, when we open thi s
9
Arco, because new and probably even.
BY MS. JONES:
Q.
They were even.
10
11 12
Okay.
Now, wi th regard to the convenience
store,
when you were running it as an independent
13
14
convenience store wi th your restaurant in it compared to
when you were running it as an AM PM mini market, how did
the gross sales compare?
A.
Q.
15
16
17
I s more sale,
but less profit.
M 0 res ale and 1 e ssp r 0 fit a san AM PM m in i
18
market? .
A.
Q.
19 20
21 22
Yes.
Now,
you've mentioned a couple of times
during this deposition that at some point, you ran into
issues wi th BP concerning the loan funding.
Can you describe for me what those issues were.
A.
Q.
23
24
Issue was why I'm not getting the funds.
25
Any other issues concerning tha loan funding
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that you had with BP?
2 3
4
That's as I said, fund to pay general contractor.
A.
Q.
yes, why we not getting the
Okay.
I understand that that was one of your
5
6
issues.
Did you have any other issues wi th BP concerning
7
8 9
the loan funding?
A. answered it.
Q.
Can you clear your question because I
10
11 12
It seems to me your issue wi th BP concerning
the loan funding was that you weren't get ting the money,
right?
A.
Q.
13
14
That's right.
There was nothing else related to the loan
Maybe how people were
15
funding that you had issues with.
16
17
treating you or...
A.
The issue is the higher gas price and less
18
margin profi t.
Q.
19
Do you believe that it was BP tha twas
20
21 22
causing the delays in getting you the loan funding?
A.
Q.
Yes.
Is there anyone specific at BP that you
23
24
believe was causing those delays?
A.
Q.
I don't know.
25
It wasn't anyone person that you fel t
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wasn't -- was causing the delays?,
A.
Q.
2
3
4
I don't --
Was it Jean that was causing -- Jean Smith
that was causing the delays?
A.
Q.
5 6 7
8
As I said,
I don't know..
Do you know if it was Ken Wickerham that was
caus ing any delays?
A.
Q.
I don't know.
9
Do you know if Rima was caus ing any de lays?
I don't know.
10 11
12
A.
Q.
Did BP ever tell you at any point in time
that they had all the documents that they needed in order
to fund the store loan?
A.
Q.
13
14
Yes.
And when was
15
this?
in July,
I spoke
16
17 18
A.
I
believe
was
with
Mike
Hage r.
Mike Hager told me,
yes, he had
all the
Between
He
documents what he need.
Augus t .
An d a 1 soh ere con firm it in
19
I really don't recall the exact date.
20
21
August 18 to 21st, he called me.
He was on a trip.
said,
I have all the documents I need -- we need.
Q.
22 23
24
Is that in 2007?
A.
Q.
Seven, sorry.
And then how long after that -- how much
25
longer after that, did you receive -- let me. back it up.
105
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Did you receive the store loan funds?
A.
2
3
4
I received -- well, they pay the $150,000 to
Fortune-Ratliff, the general contractor.
Q.
And when was that?
It was July 2007.
5 6
7
8
A.
Q.
I'm a little confused, because you said that
And he said he
in July of 2007, you spoke to Mike Hager.
had all the documents.
August of 2007.
A.
But then you reconfirmed it in
9
10
11 12
Reconfirm again.
He said, I have all the
doc um en t s, his po r t ion to fun d for the s tor e for $ 1 5 0 , 0 0 0 .
Q.
And then you said Fortune-Ratliff was paid in
l3
14
July of 2007.
A.
Q.
Yes.
So you reconfirmed wi th Mike that BP had
15
16
17
18
received all the documents after Fortune-Ratliff had
recei ved the moneys?
A.
No.
The issue was after paid Fortune-Ratliff
19 20 21 22
$150,000, and I asked Mike Hager what other documents you
need to fund for the $250,000.
He said, "I have all the document I need, Sayed."
Q.
Was that a conversation you had over the
23
24
phone, or was that via e-mail?
A.
Over the phone.
And ne also he came in my
25
office, and he confirmed by wi tnessing my ch~ldren out
28
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there.
Q.
in
2 3
4
After you had the conversa tion wi th Mr. Hager
August of 2007 where he confirmed he had all the
did you get any correspondence or
else at BP saying that
documents needed,
telephone conversations from anyone
5
6 7
8
you still needed to provide documents?
A.
I don't recall that because it was my only
contact.
Q.
contact ?
9
At that time, Mike Hager was your only
10
11 12
A.
Q.
I was supposed to go through him.
Were you not speaking wi th Jean Smi th at that
13
14
point?
A.
I was talking wi th Jean Smi th.
But he's a
15
step into take the responsibili ty and move forward and get
it solved.
Q.
16
17 18
At that time, in the August of 2007 time
frame,
did Jean Smi th tell you that you still needed to
19
provide other documents?
A.
not remember.
20
21 22
I haven't heard from Jean Smi th any -- I do
And I don't know tha t she told me.
I'm
so r r y, I don't remember if she mention.
anything that she needed any documents.
Q.
No, she didn't say
23
24
How about Cile McDonnell, in this August of
25
2007 time frame, did she -- let me ask the qu~stion so it's 107
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4
clear.
In the August of 2007 time frame or thereafter,
did Cile McDonnell ever contact you to inform you that you
still needed to provide documentsl
A.
Q.
5
6 7
8
No.
Did anyone else from BP advise you after
August of 2007 that you still needed to provide documents
in order to fund the gas loan?
A.
Q.
9
-No.
10
11
Did anyone other than Mike Hager tell you
that BP had all the documents to support the funding of the
store loan?
A.
Q.
12 13
14
I don't recall.
During your communications with BP starting
15
from the time that you became interested in opening an
16
17
18
Arco, through the time that you started having issues about
the funding wi th the loan, were you the main contact person
from STTN to communicate wi th BP?
A.
Q.
19
Yes.
Did any of your business partners or
20
21 22
relatives communicate with BP concerning this Arco station
at the Hollister San Felipe location?
A.
23
24
Can you clear up your question so I can
understand it better.
Q.
25
I'm sorry?
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A.
Anybody else?
What you mean anybody else?
2
Regarding wha t?
Q.
3
4
Let's start at the beginning.
Concerning the
interest for STTN to open up an Arco station at the San Felipe location, did anyone other than yourself speak to BP
on behalf of STTN or Ava Global,
A.
Q.
.5
6 7
8
for that matter?
No.
Did any of your business partners or
9
relatives speak with BP about any of the other gas station
si tes that they were interested in perhaps opening an Arco
10
11
12
station?
A.
Q.
Yes.
Who?
13
14
A.
There was a few places I referred to
15
Ken Wickerham, and I don't remember all those names, who
16
17 18
they are.
I give it to Ken Wickerham to contact.
Q.
Were any of them direct family members,
like
your children or your wife?
A.
Q.
19
No.
Toan To, did you refer Toan To to
20
21 22
Ken Wickerham?
A.
We had a few meeting wi th Toan To wi th
23
24
Ken Wickerham, yes.
Q.
Concerning what locations?
Concerning about Holl ister location, and al so
25
A.
109
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Watsonville.
Q.
2 3
4
In terms of communications about the
franchise agreements, which are the Contract Gasoline
Agreement and the AM PM mini market agreement, did anyone.
other than yourself have communications wi th BP about those
,5
6
agreements?
A.
7
8
That's kind of open question.
Can you
specifically be specific on your question so regarding
franchisee agreement, what you mean by that?
Q.
9
10
11 12
Regarding did anyone other than yourself
speak to BP about the franchise agreements, about, you
know, the document themselves is my question?
A.
Q.
13
14
No.
Did Nazim ever speak to BP about, if you
15
know, about the franchise agreements, and any questions he
might have about the franchise agreement?
A.
16
17
If he meeting, he was with me, because I ask
Because they in such a rush to sign the
18
him to come over.
19 20
21
documents.
Q.
To get the detail, no.
Nazim never contacted BP by himself to talk
.
about the franchise agreement?
A. Q.
22
No.
Concerning the loan agreements, the gas loan
23
24
agreement and the store loan agreement, did anyone other
25
than yoursel f tal k to BP about those agreemeQts, about any
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provide me hi s cell phone.
I tried to get it from other
2 3
4
source.
He
Nobody
And I
provide
ask him
me
his cell phone number. why he not going to give it to
me.
said,
we 11,
you have too many
questions.
You
keep
.5
6 7
8
calling me and bothering me.
Q.
I don't want to tal k.
Tom Reeder said tha t to you?
A.
Q.
Yes.
Did you have Tom Reeder's office number?
9
A.
Yes, I got his number.
And sometime in
10
11 12
August,
he called me from his office number on my cell
phone, August 2007.
Q.
Did you have Brad's office number?
I had cell phone.
13
14
A.
Q.
Oh, you had his cell phone.
But Brad
15
wouldn't give you Tom's cell phone number.
A.
16
17
He never provided me upper management.
Wha tever he had to go through me.
Q.
18
Did you have Mike Hager's cell phone number?
19
A.
Q.
Yes.
I want you to review this e-mail.
It's dated
20
21
May 18th, 2007.
22 23
24
Do you recall receiving that e-mail?
A.
Q.
Yes,
I did.
Wi thout taking the time to go back through my
25
notes,
33
when was Fortune-Ratliff, when did th~y receive the
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money from BP?
A.
Q.
2 3
4
I believe it was in July 2007.
So from as of this May 18th,
2007 e-mail.it
seems like the store portion ?f the loan had funded;
.5
6 7
8
correct?
MR. MICHAEL:
What does that mean funded?
What
do you mean?
BY MS. JONES:
Q.
9
That the store portion of the loan was ready
10 11 12
to be paid out; is that correct?
A.
My understanding Fortune-Ratliff, they,
received the money in July 2007.
13
14
To me be ready to have the money en tire 1 y
different.
Q.
order
15
But you understood that Fortune-Ratliff in
they had to submi t certain
16
17 18
to get the money,
documents in order to get paid; i s that right?
A.
Q.
Yes.
They had to fill out voucher information and
19
20 21
22
provide
invoices; correct?
A.
Q.
Yes.
And do you have any understanding of how -
23
24
quickly Fortune-Ratliff provided that information?
A.
My understanding we were in contact,
that
25
they asked probably not delay too long not to provide it. 142
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A.
Q.
I don't recall it.
Did you ever have this agreement put down in
2 3
4
wri ting where ei ther you e-mailed it to any of the
gentlemen you spoke wi th, or they e-mailed you or wrote
5 6
7
8
something to you?
A.
Q.
I don't remember.
How many conversations did you have about
that agreement?
A.
Q.
9
I don't remember.
Too many.
10
11 12
At one point, did someone from BP tell you
Tha t you we re
tha t tha t wasn't wha t the agreement was.
supposed to put the money in?
A.
Q.
supposed to put your money in first, and then BP was
13
14
I don't recall it.
What happened wi th that agreement?
15
16
17 18
A.
Nobody called me the money is there.
I never
got a confirmation from the title company the money is
there,
I could put my money there.
Q.
19
Now,
you mentioned that you had some invoices
20
21 22
outstanding.
What were those invoices for?
A.
Q.
Can you clear your question.
23
24
You just were talking about the fact that
You said they were
there were some invoices outstanding.
25
disputed, and that -- so you were going to PQt some money
153
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into the escrow account to clear those invoices and -A.
Q.
2 3
4
Gasoline invoice deliver Arco or BP.
They were all for gasoline deliveries?
A;
Q.
Yes.
5 6 7
8
And they were
for deliveries that were made
to the store at Hollister that were not paid for?
A.
Q.
That's correct.
And you said they were disputed, right?
There's a couple of invoices by,
9
A.
men t ioned,
as I
10
11
12
Brad Christensen,
I called the phone number they
had, and I disputed I never get a confirmation where there
was action.
And the beginning was $189,000 total
13
14
outstanding bill.
But according to the agreement I made, that was
15
paying every time for the load, plus extra money to bring
my balance down.
Q.
16
17
18
So at what point did this balance reach
$189,000?
A.
Q.
19
Yes.
No.
At what point in time did the balance
20
21
reach $189,000?
A.
22
February 12 -- February sometime.
February
23
24
2007.
Q.
Okay.
And were all of the
invoices disputed?
154
25
A.
No, three 0 f them.
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104,000?
A.
2
3
4
That's what the last time I got from
Mike Hager in August 2007 was my balance went down to
104,000.
Q.
5
6 7
8 9
Did you ma ke payments on the amounts tha t you
owed?
A.
Every delivery.
Beca us e they put me on COD.
Every delivery I was buying by cashier's check,
2,000 to $3,000 to the balance.
Q.
and plus
10
11
How often were these deliveries made where
you were making these extra payments?
A.
12
Every other day or every day.
Maybe every
13
14
two days.
Q.
Did you keep copies of those checks where you
15
were making the two to $3,000 extra?
A.
16
17 18
All total, because I got number from
for example,
Brad Christensen for -- like,
the balance
total cost of one load was 22,000.
He said every time I got a load,
pay us 26,000.
19
say you have to
20
21 22
That's every time I was making get a
cashier check for $22,000 to $27,000 cashier's check to
give it to him to deliver gas for me.
Q.
23
24
Now, were there ever any ins tances where gas
was delivered to the San Felipe station and put in the
qround in the tanks. and a cashier's check was not qiven to
25
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the driver that you were aware of?.
A. Q.
2 3
4
Yes.
How many times?
A;
I don't recall because Brad Christensen and
5 6 7
8
Tom Reeder a couple of times made a deal wi th my son.
Q.
Which son?
A.
Tim.
And they deliver the gas, and they want
the cashier's check before the next delivery.
Q.
9
Did your son Tim get your approval to enter
10 11
12
into that agreement?
A.
Q.
I
believe
he was
authorized.
He was
what?
Authorized?
13
14
A. Q.
Yes.
Okay.
Were you
involved in the day-to-day
15
operations of the station -A.
Q.
16
17 18
Yes.
-- at the San Felipe location?
A.
Q.
Yes.
You were there -- how many times a week were
19
20
21 22 23
24
you at that location?
A.
Q.
Seven days a week.
How many hours each day on average?
Between seven hours to 12 or 16 hours.
A.
Q.
And were your children working at that si te
157
25
as well?
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Every time I was buying a cashier's check, called
him first before I get a cashier's check to deliver it to
the BP.
3
4
And I don't know what day I found out my
outstanding balance was that much.
those three
but he
5
6 7
8
And I mention about
invoices. never did.
Q.
Brad said,
"I will take care of it,"
Before that time in February of 2007 where
9
Brad talked to you about this $189,000 that was due, were
you aware that you weren't paying for some of the gas?
A.
Q.
10
11 12
Yes.
Why weren't you paying for it?
Because the three invoices,
I didn't recei ve.
13
14
A.
They made a s top payment EFT from BP in which BP didn't
15
like it.
Q.
16
17
But then why didn't you pay for the other
loads of gasoline other than the three disputed invoices?
A.
18
That's when they called me in February and
19
said, you have to pay by cashier's check.
Q.
20
21 22
Okay.
But you said that the three disputed
invoices
totaled about $65,000.
A.
Q.
Uh-huh.
But that in February,
23
24
they told you the
amount was $189,000.
A.
25
Yeah, because,
you know, every
,time they
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deliver, like,
two or three days, they were giving us to
I didn't know.
2 3
4
take the money or seven days.
They didn't
explain their terms of agreement, how much they take the
money.
Q.
,5
6
7
8
So there were deliveries being made to your
station where you weren't paying for them, and I don't
understand.
A.
Arco was delivering the gas every day or
9
every other day, which it would have my knowledge.
Q.
10
11 12
But was that necessary for them to deliver
Were you running out?
gas every day?
A.
Q.
No, not neces sary.
But you said they were delivering it every
13
14
day.
Was this before you were put on cashier's check?
A.
Q.
15
Yes.
Did you ask that they stop delivering
16
17
gasoline so often?
A.
Q.
18
Yes,
I did.
19
And what did they say?
20
21
A.
They said,
this is our agreement.
And it was
Brad Christensen's.
Q.
22 23
24
Now, the gas you received from BP, even the
ones that you didn't order, you sold that gasoline, right?
A.
Q.
Yes.
And you made a profit off of that gasoline,
25
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A.
Q.
Yes.
So you didn't lose money.
2 3
4
You made a minimal
profit.
A.
Q.
Well, yes.
Now, after February of 2007, where you had a
5 6
7 8
conversation wi th Brad Christensen about this amount that
you owed for the gasoline, did you talk to BP about some
type of payment plan that you were going to agree to?
MR. MICHAEL:
9
Other than what he's already
10
11 12
testified to?
BY MS. JONES:
Q.
Other than what you've already testified to.
13
14
A.
Yes, we did.
Because Brad Christensen told
me there we sign some letter, and we wrote a letter draft
15
by Brad Christensen, and send it to me.
We sign it.
And
16
17 18
he said,
"Sayed, if you don't sign this agreement,
and thi s
let ter, we not going to fund your gasol ine loan."
Q. A. Q.
And did you sign that agreement?
19
Yes,
I did.
20
21
22
Do you recall,
you know, what the payment
amounts were?
A.
Q.
Like,
anywhere between 25 to $30,000 a month.
23
24
had you
Prior to this February of 2007 time frame,
ever
had any problems paying for gasoline that was
25
being del i vered to you whi le you were an ArcQ dealer?
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didn't receive the load?
A.
Q.
2
3
4
I call them.
Did they reverse it?
You know,
A.
I never got any documenta tion that
5
6
they reverse it.
Q.
Did you ever fol low-up on that?
I was telling Brad Christensen, and give him
And say, Brad,
7
8 9
A.
the information.
this is the one I had
dispute,
so find out.
10
11 12
They said, okay,
they'll send you information.
I
never got the information.
Q.
But you don't know ei ther way whether or not
13
14
they credi ted it back to you?
A.
Q.
Exactly.
I'll show you a document.
15
We'll mark it as
16
17
18
Exhibi to.
It's Bates stamped BP 01114.
(Plaintiffs' Exhibit 0 was marked for
identification. )
BY MS. JONES:
Q.
19
20
21
You were talking about a document that Brad
helped you draft up for a payment plan for money that you
22 23
24
owed.
Is this document Exhibit 0 that document?
A. Q.
Yes.
And so according to this document, you agreed
25
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to pay $30,000 each month until the balance due was paid
2 3
4
off.
A.
Here I said, We, Nazim Faquiryan and
Sayed Faquiryan, agreed to pay an additional $30,000 by
certified check payable to BP on or
.5
6
before the 15th of each
month beginning June 20th until the total sum of balance
due are paid in full to the credi t department.
7
8
These separate monthly payments wi 1 1 continue
until all outstanding balances due BP currently $184,075.50
9
10
11
have been paid, yes.
Q.
You agreed to that?
I agreed to that.
12
A.
Q.
13
14
Did you ever make any payments per this
letter agreement?
15 16
17
A.
Because every time I was buying the gas, I
was paying additional between 2,000 to $3,000; otherwise,
they didn' t deliver the gas.
How my balance is going down
18
f rom 184, 000 to 104, 000 0 r $ 11 0 , 000 .
Q.
19
Did Brad understand that those extra two to
20
21 22
three thousand was part of this $30,000?
A.
Q.
Exactly right.
He understood that?
Yes.
23
24
A.
Q.
You tal ked to him about tha t?
Yes.
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Q.
Did Brad tell you that was acceptable?
He didn't say acceptable or not acceptable.
2 3
4
A.
Q.
So you never made a $30,000 check?
A.
No, because they don't want my high balance
5
6 7
8
standing down there wi thout money pay to bring the balance
lower.
Q.
Am I correct that as soon as your franchise
wi th BP was terminated, you stopped making any payments for
this gas invoice -- the gas amounts that were due?
A.
Q.
9
10
11 12
Yes.
So you haven't -- since the franchise was
terminated, you haven i t paid BP any money; correct?
A.
13
14
No, because they have my franchise money for
And they have my money.
I
Watsonville and Hollister.
don't have thei r money.
Q.
lS
16
17 18
And as of today's date, have you made any
repayments on the store loan of $150,000?
A.
Q.
No.
I'm going to mark as Exhibi t P, a document
19
20
21
entitled Default Notice dated September 5, 2007.
(Plaintiffs i Exhibi t P was marked for
22
23
24
2S
identification. )
BY MS. JONES:
Q.
Mr. Faqui ryan?
Do you recall receiving this document,
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A.
Q.
Default on what?
2 3
4
If you could please read that document.
A.
Yes, they brought bunch of them that day,
they deliver by Brad Christensen.
Q.
5 6 7
8 9
Now,
is it true that from the evening of
August 23, 2007 through September 4th, 2007, the San Felipe
station was not selling any gasoline to customers?
A.
Yes.
Not selling any?
MR. MICHAEL:
THE WITNESS:
10
11
12
I'm sorry.
Not selling any gasoline?
Selling gasoline -- we had to sell
MR. MICHAEL:
THE WITNESS:
13
14
gasoline.
We had a premium.
We had some diesel we were
selling, but not unleaded.
BY MS. JONES:
Q.
lS
16
17 18
During that time frame, the August 23, 2007
through September 4 th of 2007, were there any days where
you didn't sell any gasoline?
A.
19
Not any.
We were selling some, but not the
20
21
22
expectation -- you know,
Q.
I don't know what BP was thinking.
You said you had diesel available, and -Premi um.
A.
Q.
23
24
Were there any days during that August 23,
2007 to September 4, 2007 time frame, where all of the
25
dispensers were taped off?
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A.
Q.
What do you mean "taped off"?
2 3
4
Taped off to prevent customers from accessing
the pumps.
A.
Well,
on a metal pump with the pic machine,
5
yes, but not on both sides.
MR. MICHAEL:
6 7
8
She asked if there were any times
when all the pumps were taped off so the customers could
not get to them.
THE WITNESS:
9
Well, we put the taped off, but
10 11 12
they had access on the pump on the side on both sides of
the station,
Q.
not on the metal.
BY MS. JONES:
13
14
I guess you're going to have to describe your
station since I don't have -- are there two islands of
15
pumps?
A.
16
17 18
I tape the pump because people didn i t want to
I tape the pump here, and the pump this way to
come here.
here.
open.
But these two pumps here and two pumps here were
19 20 21 22
Q.
Did you actually sell gasoline from the
exterior pumps during the time frame of August 23, 2007
through September 4 th of 2007?
A.
Q.
23
24
Yes, were selling premium and diesel.
Where are the -- is the diesel located on
2S
those same pumps?
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September 4th of 2007, were where you were only selling
diesel or premium?
A.
2 3
4
I don't recall, because I had some gas, you
know, get to the bottom of the tank.
I don i t want to reach
.5
6 7
8
down there, otherwise, cost a lot of money to reactivate
the pump.
I stop the pump on 1800 gallon to sell unless by
20 gallon of gas.
regular customer was selling 10 gallon,
Q.
When did you stop the pumps for those
9
particular tanks?
A.
10 11 12
Actually when we reached to the 700 gallon,
I
stop my unleaded, which is I don't remember exactly which
day was it.
Q.
13
14
But was it within the August 23 through the
September 4th time frame?
A.
lS
16
17
18
I believe was between August 27 to August
4th.
Q.
September 4th? September 4th.
SO
A.
Q.
19
between August 27th and September 4th, you
20
21 22 23
24
believe you shut off the unleaded tanks?
A.
Q.
Yes.
What about the regular tanks?
Tha tis regular unleaded.
Bu t the premium and
A.
diesel I still had.
And even Mi ke Hager come in and saw we
25
were selling less.
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Was there anything in wri ting which tal ked about the
requirement that BP had to fund all $400,000 in order for
the. franchise agreements to be in effect?
2 3
4 5
A.
Q.
No.
The las t document I bel ieve I'm going to mark
6
7
8
is Exhibit R.
(Plaintiffs' Exhibi t R was marked for
identification. )
BY MS. JONES:
Q.
9
10
11 12
And it i S a document dated December 6, 2007,
enti tled Notice of Termination.
Mr. Faquiryan, would you please review that, and
confirm that you received this document.
A.
Q.
13
14
Yes,
I recei ved tha t one by Brad Chr is tens
en .
15
Brad Christensen delivered it to you?
16
17 18
A.
Q.
Yes.
Have you had any problems wi th Valero, your
current franchisor?
A.
Q.
19
No.
Do you have a contract gasoline agreement
20
21 22
with them?
A.
Q.
Yes.
Is it month-to-month or is it -It's a year.
23
24
A.
Q.
25
Is your convenience store branded through
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and move forward wi th the construction.
Q.
2 3
4
During this telephone conversation,
though,
did Jean actually say that BP was guaranteeing that you
would receive those moneys?
A.
5 6 7
8
I never heard that one, but it satisfy
because I wasn't -- you know, it wasn't three-way
conversation.
to Al Fortune,
And I called Jean Smi th and hand the phone
and they confirm it to see how Arco BP is
The balance is coming from
9
going to pay that $400,000.
10
11
12
Sayed.
Q.
But you couldn't hear what Jean was telling
Mr. Fortune over the phone?
A.
13
14
Well,
I heard,
says,
yes, BP paying $400,000.
The balance is coming from Sayed.
to the New Year's.
And that was the prior
sure enough
15
And January 2nd,
16
17
18
Fortune-Ratliff showed up for the construction.
Q.
Other than Ken Wickerham saying that you have
to have -- show some good faith and start construction, did
anyone else at BP tell you that you were required to start
construction before the loan was funded?
A.
Q.
19
20
21 22
No.
Has BP ever lied to you or anyone from BP .
23
24
lied to you?
A.
Q.
Regarding what?
Regarding any
25
thing concerning thi s San Fel i pe,
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station.
MR. MICHAEL:
over today,
I mean.
2 3
4
Well, other than what we've gone
MS. JONES:
He's made a fraud claim.
So I think
.5
6 7
8
I'm entitled to know what facts he knows in terms of, or
what he's claiming at least or stating.
Q.
So do you believe that --
MR. MICHAEL:
He's been testifying all day about
9
things that BP said they were going to do that they didn't
10
11
12
do.
Do you want him to go back over all that?
MS. JONES:
I want him to summarize what lies you
13
14
think BP made to you.
MR. MICHAEL:
Well,
I'll
object.
The questions
15
have been as ked.
It calls for a narrative and summary.
16
17 18
I f you can think of anything else, go ahead and
testify to it.
THE WITNESS:
That's all I testified to.
19 20
21 22
BY MS. JONES:
Q.
Okay.
So 11m going to summarize for you,
then, and ask you if there's anything else.
Am I cor r e c tin un d e r s tan din g t hat you bel i eve' B P
lied to you about the funds that were going to be paid to
23
24
you f rom the loan?
A.
25
Yes.
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Q.
Is it your understanding that BP lied to you-
2 3
4
about how quickly those funds would be paid to you?
A.
Q;
Yes.
Was there ever a situation or ever a
.5
6 7
8
conversation or anything in writing from BP guaranteeing
you that the loans would be paid out wi thin a certain time
frame?
A.
Q.
No.
9
Other than what we've discussed today, lS
10 11 12
there anything else that BP did which you considered them
lying to you?
A.
Q.
That i S all we -- that i s all even I know.
13
14
Do you think that BP hid from you the fact
..
that there were different allocations for the $400,000?
A.
Q.
Wha t do you mean by tha t?
15
16
17 18
Do you think that they hid from you the fact
that the loans -- let me back up.
You had an understanding that the loan was for
19 20 21
22
$400,000. .r
And you testified that in May of 2007, you
learned for the first time from Cile McDonnell, tha t the re
was some allocation that some portion of the loan would be
al loca ted to the gas, and some would be al loca ted to the
"l
23
24
store.
Do/ you believe that anyone at BP lied to you
25
about how the loan was going to be allocatedJ
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A.
Q.
Yes.
Okay.
2
3
4
Bas ed upon what?
A.
My understanding when we signed the
agreement, that let ter on May 2006, didn i t say anything
5
6
about allocation.
In my understanding that money is coming toward
7
8
the remodeling to make the satisfaction of the requirement
of Arco and AM PM,
Q.
and never had any allocation.
9
Now, does it say in the commitment letter
--
10
11
that the $400,000 is for the store?
A.
I didn i t have the exhibi t, but the way it i s
12 13
14
my understanding from the letter, that go for store -- it's
my understanding from until those allocation came up, was
going toward whatever the way of funding, it going toward
funding me to paying the $400,000 for remodel.
Q.
15
16
17
18
Do you think that BP lied to you about the
process of how you were supposed to get the money funded in terms of the fact that you had to do a voucher process and
do a disbursement agreement?
A.
Q.
19 20 21 22
No.
Can you think of any other things that you
feel were lies by BP other than what we've discussed?
23
24
(01 SCUSS ION HELD OFF RECORD.)
BY MS. JONES:
Q.
25
Mr. Faquiryan,
after you i ve had an
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opportunity to speak with your counsel, do you have
anything to add in terms of any purported lies by BP?
A.
Q ~
2 3
4
Yes.
And what are those?
5
6
A.
My understanding according to Ken Wickerham
and other staff, by signing agreement and provide all the
document after recording the deed of trust by Arco, get 25 percent of that money they promised.
And by
I will
7
8
9
completion of 25 percent of proj ect, then I get another 25
10
11 12
percent. By completion of 50 percent, I get another 25 percent; by completion of another 75 percen t, I get 100
percent paid.
Q.
And that never compl y .
But you understood that in order to get those
13
14
paymen t s, you had to provide all the requi red documents,
15
r igh t?
A.
Q.
16
17
18
Yes.
And you understood that any tax liens on the
property had to be cleared before you got any payments;
19
correct?
A.
Q.
20
21
I understand, yes.
And you understood that before you got any
22
payments,
you would also have to clear up any title issues
owne r ;
23
24
tha t you had wi th regard to the former
A.
Q.
correct?
Yes.
And you also understood that before that loan
25
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would fund or any payments would be made, that Omni
Financial would have to correct its documents; correct?
A.
2 3
4
Yes.
But my understanding too, I provide all
i
the documentation on or before March 12 when Arco record
their deed of trust and give them a
.5
6 7
8
clear title and satisfy
all those questions you asked, and they record deed of i' ..
I
trust.
So it means I satisfy them, and give them the
9
documentation you ask -- they ask.
Q.
10
11 12
Okay.
But you also understood that before
paying you any moneys, you had to be clear of any
mechanic's liens filed against you;
A.
correct?
We
13
14
Mechanic's liens happen after the fact.
went -- it's when they record deed of trust, was clear the
property from everything.
15
You mention all those questions
16
17 18
you asked on March 12, 2007.
Q.
Okay.
But let me ask you the question:
Before they could actually give you any money, though,
your
19
property had to be clear of any mechanic's liens.
.
20
21
A.
Was clear by March 12 when they record it.
And give them the ALTA title report, title insurance by
ti tle company.
22
Everything was free and clear.
And there's
23
24
a copy of the deed of trust should be in your file, which
is Arco recorded on March 12, 2007.
Q.
25
Do you know in your complaint, .it says that
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EXHIBIT A
55
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..
Customer Acct #0996439 Facility #82461 Category; NTI
CONTRACT DEALER GASOLINE AGREEMENT
This Contra t Dealer Gasoline Agreement (this "Agreement") is made and entered into as of
the II day
of . , ~ , ("Effective Date~')by and between BP West Co::st
Products LLC, a elaware limited liability company, ("BPWCP"), and '
STTN Enterprises. Inc. , a California Corporation ("Buyer").
(state whether a sole proprietorship, partership, corporation or limited liabjJi~ company (LLC); if
partership, the names of all partners and State of organization; if corpor.tion, the State of incorporation; if an LLC, the State of organization)
BPWCP maintains a place of business at 4 Centeroointe Drive. in the City of La Palma. in the State of Californa. Buyer's principal place of business is located at 631 San FeJipe Road in the CitY of Hollister, in the State of CA with
the ZIP code 95035. Ths Agreement constitues a "franchie" as deffned in the Petroleum Marketing Practices Act, 15 D.S.C. §§ 2801-2806 ("PMPA").
Recitals
A. BPWCP markets motor fuels comprising gasolines and gasoline containg materials bearg the
ARCOCI trademark and other identifyng symbols (herein collectively, "Gasoline").
B. Buyer owns or leases from a thd party real propert and improvements which Buyer would like to
operate as a retail facility selling, Gasoline to end users. The property and improvements are located at 631 San Felipe Road, in the City or Town of Hollister in the State of CA with the ZIP code 95035 (The "Premises").
NOW, THEREFORE, the parties hereto agree as follows:
1. Term. Tliis Agreement shall be binding upon the parties and effective on the date first set fort
above. Subject to earlier termnation under Paragraph 17.1 below, the "Commencement Date" of ths Agreement shall
begin at 10:00 a.m. on the and the term shall end at 10:00 a.m. on the Ifno Commencement Date is set forth at the time
this Agreement is executed, the Commencement Date shan be established by BPWCP by notice to Buyer as the date the Premises are ready to receive Gasoline delivery, which notice shall also set forth the expiration date which shall be at 10:00 a.m. on the first day after the () 120th or rXXl 240th full calendar month following the Commencement Date. If no time is checked, the box for i 20th shall be deemed checked. In addition, BPWCP may, at its discretion, extend the term of this Agreement for a period of up to 180 days by giving wrtten notice to Buyer before the end of the term.
1.2 Construction or Raze and Rebuild. If this Agreement is for Premises that require new constrction
of an ARCO branded gasoline facility or the rnzing and rebuilding of an ARCa branded retail fací1ty, Buyer win
promptly undertake such new constrction or rebuiJding and complete such constrction or rebuiJding and be ready to receive Gasoline delivery withn 24 month, in the case of New Constrction, or 12 months, in the case of a Razing and Rebuilding, of the Effective Date of this Agreement. If ths Agreement is for Premises that requie remodelig or retrofit, Buyer will promptly undertake such work and complete such remodeling or retrofit and be ready to receive Gasoline delivery within rune months of the Effective Date. '
2. Orders. Buyer win order and make available for retail sale all grades of Gasoline which BPWCP
offers to Buyer (hereinafter collectively, "Product"), in amounts suffcient to satisfy all foreseeable retail customer
demand for Product at the Premises and wil at all rimes have available for sale some of each grade of
Product, subject
ARCO 40-WR1(4/2006) CDGA
1 of 18
BP 02830
56
Case 5:07-cv-04808-JF
Document 46-2
Filed 07/03/2008
Page 56 of 65
only 10 allocation of Product by BPWCP in a manner determined in BPWCP's sole discretion in Buyer's
geographic area. BPWCP wiIJ use its best efforts (a /ill Buyer's orders; however, BPWCP may discontinue
teen (15) calendar days' prior wwitten notice to Buyer. At BPWCP's sole discretion, BPWCP reserves the right to provide ARCO branded motor fuels solely through.
sale of any grade of Product at any time upon /if
an automatic Gasoline ordering and delivery system and to not accept individual orders placed by Buyer.
Buyer agrees 'to accept and pay for such Pro