Free Declaration in Support - District Court of California - California

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

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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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6

Company; and ATLANT IC )
RICHFIELD COMPANY, a Delaware)

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8

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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) ) ) ) ) )

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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Q.

The San

Felipe location? Felipe and
301 Ga teway Dr i ve

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3
4

A.
Q.

The San

both.

Did 301 Gateway become an Arco
No.

station?
a 76

A.
Q.

5 6
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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.

19

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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8

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.
13

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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8

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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11

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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14

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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4

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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14

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.

19

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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4

in this letter,

this Exhibit E, does it

discuss the 25 percent payments that you would get -A.
Q.

5

No.
-- periodically?

6
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8

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,

10
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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

19

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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24

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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7
8

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.

15

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

19

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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24

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
8 9

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.

10 11
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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14

problem.

Not before.
Q.

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

15

A.
Q.

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Do you remember the date, approximately?

A. Q.

I don't recall it.
Was it 2006?
2007 .

2007?

19

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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24

identification. )
BY MS. JONES:
Q.

25

If you would please take a look at that
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documen t,

and confirm for me that it is your signature on

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page 14.
A.
Q;

Yes,

it is.

Did you read this document before you signed

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8

it?
A.
Q.

No.
Have you ever read this document?

A.
Q.

After, yes.
In the 2007 time frame?

9

10
11

A.
Q.

Yes.
After the issues arose concerning funding?

12

A.
Q.

Yes.
Prior to signing this document which is

13
14

Exhibit H, did you ever ask any questions from BP
concerning the document?
A.

15

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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,

20
21 22

number?
A.
Q.
I did.

So if you had any ques t ions, you could havè
Yes.

23
24

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

13
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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21

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.

5 6 7
8

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?

9

10 11 12

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
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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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1 2 3
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.

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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