Free Notice (Other) - District Court of California - California

Case 5:07-cv-04808-JF

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KURT OSENBAUGH (State Bar No. 106132) DEBORAH YOON JONES (State Bar No. 118127)
WESTON, BENSHOOF, ROCHEFORT,
333 South HOQe Street, Sixteenth Floor Los Angeles, California 90071 Telephone: (213) 576-1000
SA Y AKA KARIT ANI (State Bar No. 240122)

RUBALCAVA & MacCUISH LLP

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Facsimile: (213) 576-1100 kosen baugh(fwbcounsel. com
d j ones(qwbcounsel.com

skari tam (iwbcounsel. com

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Attorneys for Defendant BP WEST COAST PRODUCTS LLC and ATLANTIC RICHFIELD COMPANY

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

14 BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability Com~any; and 15 ATLANTIC RICHFIELD COMPANY, a
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Case No. C07 04808 JF
DEFENDANTS BP WEST COAST

Delaware Corporation,

PLAINTIFF AND COUNTER-

Plaintiff,
v.

PRODUCTS LLC AND ATLANTIC RICHFILED COMPANY'S NOTICE

OF LODGING SECOND AMENDED

COMPLAINT
Crtm: 4

19 COJ::oratio~ NAZIM F A8UIR Y AN, an

STTN ENTERPRISES, INC., a California

individual; ~A YED F AQ IRY AN, an 20 individual; and A V A GLOBAL ENTERPRISES, LLC, a California limited 21 liability company,
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Honorable Jeremy Fogel

Filing Date: September 17,2007

Defendants.

23 AND RELATED COUNTERCLAIM.
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NOTICE OF LODING SECOND AMENDED COMPLAINT

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Plaintiff and Counter-Defendants BP West Coast Products LLC and
Atlantic Richfield Company respectfully requests that the Court enter the Second
Amended Complaint, lodged concurrently with this Stipulation and (Proposed) Order
for Leave to Amend First Amended Complaint and Counterclaim.

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Dated: June 6, 2008

KURT OSENBAUGH DEBORAH YOON JONES
WESTON, BENSHOOF, ROCHEFORT,
SA Y AKA KARIT ANI

RUBALCAVA & MacCUISH LLP

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Sayaka Kariian Attorneys for Defendant BP WEST COAST PRODUCTS LLC and ATLANTIC RICHFIELD COMPANY

Jf/'

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i 187601.

NOTICE OF LODING SECOND AMENDED COMPLAINT

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EXHIBIT A
SECOND AMENDED COMPLAINT

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NOTICE OF LODING SECOND AMENDED COMPLAINT

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KURT OSENBAUGH (State Bar No. 106132) DEBORA YOON JONES (State Bar No. 118127)
WESTON, BENSHOOF, ROCHEFORT,

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SAY AK KAT ANI (State Bar No. 240122)

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

Facsimile: (213) 576-1100
Email: kosenbaugh(iwbcounsel.com

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d j ones(qwbcounsel.com skari tam(iwbcounsel. com

Attorneys for Plaintiff BP WEST COAST PRODUCTS LLC

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UNITED STATES DISTRICT COURT

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

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Case No.: C07 04808 RS

SECOND AMENDED COMPLAINT FOR:

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STTN ENTERPRISES, INC., a California COl)oration; NAZIM F A8UIRY AN, an individual; SAYED FAQl IRY AN, an individual; and MAGHV F AQDIRY AN, an individual; and AVA GLOBAL ENTERPRISE, LLC, a California limited liability company,
Defendants.

(1) DECLARATORY RELIEF UNDER THE PETROLEUM MARKTING PRACTICES ACT
US U.S.C. §§ 2801, et seq.l;

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(2) BREACH OF CONTRACTGASOLINE AGREEMENT; (3) BREACH OF CONTRACTMINI MARKT AGREEMENT; (4) BREACH OF FRANCHISE GUARANTIES; (5) COMMON COUNT - GOODS SOLD AND DELIVERED; (6) UNJUST ENRICHMENT; (7) BREACH OF CONTRACTMINI MART LOAN AGREEMENT;

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(8) BREACH OF MINI MARKT LOAN GUARANTIES; and (9) JUDICIAL FORECLOSURE
Filing Date: September 17,2007

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PlaintiffBP West Coast Products LLC ("BPWCP") alleges as follows:

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SUMMARY OF CLAIMS
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This suit involves BPWCP's former gasoline station and mini BPWCP seeks damages and

market franchise located in Hollister, California.

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declaratory relief based upon Defendants' breaches of the applicable franchise

agreements, breaches of a related loan agreement, and breaches of individual
guaranties.
2. The Defendants breached the franchise agreements by failing to

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pay for over $139,000 worth of ARCO-branded gasoline and failing to operate the
station and sell gasoline product for approximately 15 consecutive days. BPWCP

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bent over backwards to give Defendants multiple opportunities to correct the defaults.

Defendants acknowledged their obligation to pay for the gasoline and BPWCP even
agreed to a payment plan. Nonetheless, Defendants failed to pay for the gasoline and

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failed to operate the station and sell gasoline product for at least 15 consecutive days

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in violation of the franchise agreements. As such, BPWCP terminated the franchise
agreements.
3.
By virte of the franchise breaches, the Defendants have also

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defaulted on a $150,000 loan that was given by BPWCP to the franchisee for purposes

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of refurbishing the mini market store. The loan was secured by the- real propert on
which the gasoline station and mini market were located as well as the fixtures located
thereon. Given the franchise termination and Defendants' loan defaults, the entire

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loan indebtedness has accelerated and is now due. Defendants are required to pay the

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$150,000 loan balance to BPWCP and, to date, they have refused to do so.
Accordingly, BPWCP moves for judicial foreclosure on the $150,000 loan and seeks
damages for breach of the loan agreement and guaranties.

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THE PARTIES
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Plaintiff BPWCP is qualified to do business in California and is a

limited liability company organized and existing under the laws of the State of
Delaware. BPWCP was, at all relevant times hereto, the franchisor for ARCO-

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branded service stations and am/pm mini market convenience stores including the
facility at issue in this litigation.
5.

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BPWCP is informed and believes that defendant STTN

Enterprises, Inc. ("STTN") is, and at all relevant times hereto was, a California

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corporation, which has offices and does business in San Benito County, California.

STTN is the former franchisee for the facility located at 631 San Felipe Road,
Hollster, California 95035 (the "Station").
6. BPWCP is informed and believes that defendant Nazim Faquiryan

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and Sayed Faquiryan are individuals residing in the City of Hollister, County of San

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Benito, State of California. BPWCP is informed and believes that, at all relevant

times hereto, Nazim Faquiryan and Sayed Faquiryan were and are the sole
shareholders of STTN and individual guarantors for the Station franchise. BPWCP is
also informed and believes that Sayed Faquiryan is the father ofNazim Faquiryan.

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7. BPWCP is informed and believes that defendant Maghul
Faquiryan is an individual residing in the City of Hollister, County of San Benito,
State

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of California. BPWCP is informed and believes that, at all relevant times hereto,

Maghul Faquiryan was and is the spouse of Sayed Faquiryan and an individual

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guarantor for the loans related to the Station franchise.
8.

BPWCP is informed and believes that defendant A V A Global

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Enterprises, LLC ("A V A Global") is, and at all relevant times hereto, was and is a

California limited liability company, which has offices and does business in San
Benito County, California.
A V A Global's address, according to the California

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Secretary of State business search website, is 631 San Felipe Road, Hollister,

California (which is the same address as the Station). At all relevant times, STTN
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leased the real property upon which the Station is located ("Real Propert") from
AVA Global Enterprise, LLC ("A V A Global"). AVA Global is the fee simple owner
of the Real Property. BPWCP is informed and believes that individual Defendant
Nazim Faquiryan is one of the two equal shareholders of A VA GlobaL. The other

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50% shareholder of A V A Global is not named individually in this action.

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9. BPWCP is informed and believes that STTN, Nazim Faquiryan,

Sayed Faquiryan, Maghul Faquiryan, and AVA Global, (collectively, "Defendants"),
and each of them, in committing the acts and omissions alleged in this Second

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Amended Complaint acted as agents and servants of the other Defendants, acted
within the scope of their authority as agents and servants of the other Defendants,

acted in concert with the other Defendants with a design and. for the purposes of
injuring BPWCP and of unlawfully benefiting some or all of Defendants, or, in the
alternative, approved and ratified the acts and omissions of the other Defendants or

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third parties, such that each of the Defendants is jointly and severally liable for the
acts and omissions of each other Defendants.

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JURISDICTION AND VENUE
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This action concerns, inter alia, the termination of a service station

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franchise relationship, which is governed by the Petroleum Marketing Practices Act,
15 U.S.C. §§ 2801, et seq. (the "PMPA"). Accordingly, this Court has jurisdiction
over BPWCP's claims, by virtue of 28 U.S.C. § 1331 and 15 U.S.C. § 2805(a), and

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this Court's pendent jurisdiction. Furthermore, this Court has jurisdiction pursuant to
28 U.S.C. § 1331,28 U.S.C. §§ 1338(a) and (b), and 28 U.S.C. § 2201, because this is

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a civil action seeking declaratory relief under the PMP A. The amount in controversy
exceeds the sum or value of $75,000.00.
11. . Venue is proper in the Northern District of California pursuant to
28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise

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to BPWCP's claims occurred in this District; because the subject franchise is located
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in this District; and because BPWCP is informed and believes that the individual
Defendants reside in this District.

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GENERAL ALLEGATIONS
The Franchise A2reements

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12. BPWCP is engaged in the marketing and distribution of motor fuel
in the State of California and elsewhere in the United States. BPWCP currently has

ARCO-branded gasoline stations with am/pm mini market convenience stores located
throughout the Western States. Among its activities, BPWCP sells ARCO-branded

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motor fuels to franchisees and, at certain of its properties, BPWCP offers am/pm mini

market convenience store franchises to be operated concurrently with the gasoline
stations. Pursuant to franchise agreements, BPWCP licenses to its franchisee dealers

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the right to use ARCO's trade names, trademarks, and service marks in connection
with the resale of ARCO-branded motor fuels and the operation of the am/pm mini

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market convenience stores; Franchisee dealers pay a royalty for use of this right.
ARCO is the registered owner of these trademarks, service marks, and trade names
and has the right to enforce any violations thereof. BPWCP has the right to utilize

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these marks in connection with its ARCO and am/pm franchises.
13.

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The franchise relationship between STTN and BPWCP is governed

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by written agreements, principal among them are: (1) a Contract -Dealer Gasoline
Agreement, which includes any and all amendments and addendums ("Gasoline

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Agreement"), and (2) an am/pm Mini Market Agreement, which includes any and all

amendments and addendums ("Mini Market Agreement"). The Gasoline Agreement
and Mini Market Agreement are each effective as of July 11, 2006. True and correct
copies of the Gasoline Agreement and Mini Market Agreement are attached hereto as

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Exhibit A and Exhibit B, respectively, and are incorporated herein as though fully set
forth at length. The Gasoline Agreement and Mini Market Agreement contain an

expiration date of July 12,2026.
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14. On June 20, 2006, Defendants Sayed Faquiryan and Nazim

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Faquiryan each signed a Guaranty Agreement and individually guaranteed the obligations owed by STTN to BPWCP under the Mini Market Agreement and
Gasoline Agreement ("Franchise Guaranties").

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True and correct copies of the

Franchise Guaranties are collectively attached hereto as Exhibit C, and are
incorporated herein as though fully set forth at length.

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15. Effective October 12, 2006, STTN entered into a I-year trial
franchise for gasoline only during the remodeling of the mini market store located at

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the Station. As such, STTN signed an Amendment to the Contract Dealer Gasoline

Agreement ("Amendment to Gasoline Agreement") and a I-year Contract Dealer
Gasoline Agreement, which includes any and all amendments and addendums (" 1-

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year Gasoline Agreement"). True and correct copies of the Amendment and I-year
Gasoline Agreement are attached hereto as Exhibit D and Exhibit E, respectively, and

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are incorporated herein as though fully. set forth at length.

The Mini Market

Agreement, the Gasoline Agreement, the Amendment, the 1 -year Gasoline
Agreement, and the Franchise Guaranties shall be referred to collectively as the
"Franchise Agreements." Paragraph 5 of the Amendment to Gasoline Agreement
provides that all terms and provisions of the Gasoline Agreement, as previously

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amended or supplemented, except those specifically changed by the Amendment to
Gasoline Agreement, shall remain in full force and effect. (Exhibit D; ~ 5.)
16. The purposes of the Franchise Agreements are to provide locations

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at which ARCO-branded petroleum products can be sold to the public by franchisees

such as STTN, and to provide locations where customers of the service stations may
purchase store goods.
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The Franchise Agreements set forth the obligations and

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undertakings required of STTN, which are material to the operation of a BPWCP
franchise. The pertinent provisions of the Franchise Agreements provide, inter alia,

that:
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(a) The franchisee must "exert good faith efforts to carr out the

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provisions of this Agreement following written notice to Buyer from BPWCP of such

failure and fifteen calendar days to cure such failure." (See Gasoline Agreement,
~ 17.1(a), Exhibit A; I-year Gasoline Agreement, ~ 17.1(a), Exhibit E.);
(b)

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The franchisee is also required to "order and make available

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for retail sale all grades of Gasoline which BPWCP offers to Buyer (hereinafter
collectively, "Product"), in amounts sufficient to satisfy all foreseeable retail customer

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demand for Product at the Premises and will at all times have available for sale some
of each grade of Product. . .." (See Gasoline Agreement, Article 2, Exhibit A; I-year

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Gasoline Agreement, Paragraph entitled "Orders" at page 1, Exhibit E.);
(c)
The franchisee is also required to "pay the price specified by

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BPWCP in effect at the time and place of delivery for purchasers of Buyer's class of
trade" and by "electronic funds transfer initiated by BPWCP, wire transfer, cashier's

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check or business check, whichever BPWCP directs, delivered by Buyer at the time

and place as designated by BPWCP." (See Gasoline Agreement, Aricles 5 and 6,
Exhibit A; 1 -year Gasoline Agreement, Aricles 5 and 6, Exhibit E.); and
(d)

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The franchisee is also required to conduct all of its

operations of the Station, including the Mini Market, under the terms and conditions

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of each of the Franchise Agreements. (See Mini Market Agreement, Section 4.05,
Exhibit B.)

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18.

The Loan A2reements
In addition to the requirements concerning operation of

the Station,

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the Franchise Agreements also required STTN to complete a remodel or retrofit of the

Station within nine (9) months of the commencement of the franchise relationship.
(See Gasoline Agreement, Section 1.2, Exhibit A; I-year Gasoline Agreement,

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Section 1.2, Exhibit E; Mini Market Agreement, Section 5.03(a), Exhibit B.) BPWCP

assists its franchisees in complying with these "remodel and retrofit" requirements by
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offering a special loan program to provide funds specifically for completing

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construction and remodeling at its franchise locations. Specific details of the loan
program are described below, however, generally, under BPWCP's loan program if a
franchisee meets certain yearly gallonage and store sale requirements a portion of the
loan is deemed repaid at the end of each year term. Thus, as long as a franchisee sells

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a specified amount of gasoline product and/or store products each year for the
duration of the loan term, the loan payments for that year are deemed repaid.

Furthermore, the franchisee enjoys the use of a remodeled and retrofitted station

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which, in turn, attracts more customers and therefore generates more income and
profit for the franchisee.
19. On February 12, 2007, BPWCP and STTN entered into two Loan

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Agreements, whereby BPWCP agreed to loan STTN the total sum of $475,000 to be
used toward BPWCP-approved capital improvements for the Station.

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The am/pm Mini Market Loan A2reement
20. The first loan agreement - - the "am/pm Mini Market Loan

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Agreement" - - provided a base loan in the amount of $ 1 50,000 to fund the costs
associated with pre-approved modifications and/or equipment and improvements to

the am/pm Mini Market (hereinafter, "Store Loan Agreement"). The Store Loan
Agreement also included an additional $75,000 that BPWCP could -elect to disburse
for refreshing and refurbishing the am/pm Mini Market on the eleventh anniversary of
the base loan disbursement. A true and correct copy of the Store Loan Agreement is

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attached hereto as Exhibit F, and is incorporated herein as though fully set forth at
length.
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Pursuant to the Store Loan Agreement, the loan was interest-free

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but was conditioned upon Defendants' agreement to pay five percent (5%) of the
loaned amount each year over the course of 20 years, or alternatively, sell
merchandise in the ampm Mini Market in the Anual Guaranteed Amount of at least
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$960,000 each year. If Defendànts sold $960,000 in gross sales of merchandise in the

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am/pm Mini Market in a year, BPWCP would deem the loan payment for that year as
repaid.
22. In addition, pursuant to the terms of the Store Loan Agreement, the

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loan funds were to be disbursed directly to the third parties who were retained to
complete the con~truction, remodeling and retrofitting. To ensure that all conditions

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for disbursement were met, STTN and BPWCP entered into a Disbursement
Agreement that sets forth the terms and conditions governing disbursements of

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funding. The Disbursement Agreement is specifically referenced in the Store Loan
Agreement, and a true and correct copy is attached hereto as Exhibit G, and is

incorporated herein as though fully set forth at length. The Disbursement Agreement
provides, in pertinent part, that:

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"Construction Loan Proceeds wil be disbursed from time to

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time upon receipt by BP West Coast Products LLC or its
designee of Pay Vouchers, executed by (STTN) and
Contractor, accompanied by original detailed invoices, . . .

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and BP West Coast Products LLC or its designee have the
right to withhold. payment on any and all Pay Vouchers if
supporting documentation reasonably requested is not

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provided. This may include original invoices, job inspection
card copy, IRS form W -9, appropriate lien releases for labor
and/or materials, receipts, photos, revised cost breakdown

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and

Affidavit

and

Certification

of Completion

of

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Builder/Contractor. "
(See Disbursement Agreement, Paragraph 3, Exhibit G.) As such, the Store Loan

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Agreement did not call for a lump sum payment to the Defendants but rather release
of funds were contingent upon (a) specified work being completed at the Station, and
(b) documentation to support payment of

that work by STTN.
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23. STTN agreed to the terms of the Store Loan Agreement, and
Nazim Faquiryan and Sayed Faquiryan signed all necessary loan paperwork on behalf

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of STTN. The Store Loan Agreement was secured by a recorded Deed of Trust with
Assignment of Rents, Security Agreement and Fixture Filing ("Deed of Trust") on the

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real property upon which the Station was located ("Real Propert"). AVA Global, as
the owner of the Real Propert, executed the Deed of Trust dated March 2, 2007 and

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recorded on March 9, 2007, which irrevocably granted BPWCP the power of sale of
all of A V A Global's right, title and interest in the Real Propert. A true and correct

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copy of the Deed of Trust is attached hereto as Exhibit H, and is incorporated herein
as though fully set forth at length. A V A Global, BPWCP and STTN also entered into

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a "Consent to Encumbrance of Tenant's Interest" dated March 2, 2007 and recorded
on March 9, 2007 ("Consent to Encumbrance"). The Consent to Encumbrance created

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a leasehold mortgage encumbering STTN's leasehold estate in the Lease and Real
Propert ("Leasehold Mortgage").

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A true and correct copy of the Consent to

Encumbrance is attached hereto as Exhibit I, and is incorporated herein as though
fully set forth at length. In addition, STTN executed a Promissory Note evidencing
the Store Loan. A true and correct copy of the executed Promissory Note is attached
hereto as Exhibit J and is incorporated herein as though fully set forth at length.
24. BPWCP's secured interest in the Real Propert is second only to
senior lienholder Excel National Bank who maintains a first deed of

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trust on the Real

Propert in the amount of approximately $ 1 ,987,000.
25. In addition, the Store Loan Agreement was secured by a UCC-l

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Financing Statement ("UCC-l ") on the personal property located on or affixed to the

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Real Property or the Improvements and other property more fully described in the
attachments to the UCC-l. A true and correct copy of the UCC- 1 is attached hereto as
Exhibit K, and is incorporated herein as though fully set forth at length.
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May 29,2007, the full amount of $150,000 was funded and
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disbursed for Defendants' benefit pursuant to the Store Loan Agreement.
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The Gasoline Loan A2reement
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The second loan agreement - - the "Gasoline Loan Agreement" - -

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in the amount of $250,000 was to fund costs associated with the pre-approved
modifications and/or equipments and improvements which pertain to the gasoline
sales-related aspects of the Station (i.e., dispensers, canopy, etc.). Disbursement of
the funds under the Gasoline Loan Agreement was contingent upon STTN abiding by
requirements similar to those applicable to the Store Loan Agreement. However,

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STTN failed to provide sufficient financial documents, including proof of any
payment by STTN of any construction-related expenditures, required back-up invoices
and/or lien releases, all of which are requirements of the Gasoline Loan Agreement

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and related Disbursement Agreement. As a result of STTN's failures to abide by the
terms of the Gasoline Loan Agreement and related Disbursement Agreement, BPWCP

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has not disbursed (and wil not be disbursing) any monies under the Gasoline Loan to
STTN.

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The Loan Guaranties
28. Defendants Sayed Faquiryan, Maghul Faquiryan (Sayed

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Faquiryan's spouse), and Nazim Faquiryan each signed a Guaranty Agreement and

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individually guaranteed the loan obligations owed by STTN to BPWCP under the
Store Loan Agreement ("Loan Guaranties"). True and correct copies of the Loan

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Guaranties are collectively attached hereto as Exhibit L, and are incorporated herein
as though fully set forth at length.

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STTN Breached the Franchise A2reements
29. Among other things, STTN was required, pursuant to the Franchise
Agreement, to maintain adequate supplies of gasoline for sale and make payments for
gasoline deliveries. (See Gasoline Agreement, Aricle 2, Exhibit A; 1 -year Gasoline
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Agreement, Paragraph entitled "Orders" at page 1, Exhibit E.) Payment for gasoline

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product was accomplished by way of an electronic funds transfer ("EFT") from
STTN's bank account.
30.

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However, as of January 29, 2007, BPWCP began requiring STTN

to present a cashier's check in order to receive gasoline product because numerous
EFT requests pertaining to gasoline deliveries were returned for insufficient funds by

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STTN's bank. In other words, STTN failed to pay BPWCP for the gasoline product
that had been delivered.

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31.

When a franchisee is found to be in violation of the Franchise

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

12
13

based upon STTN's repeat operational violations for failure to accept gasoline
delivery and to make payment for gasoline that was delivered and payable upon
receipt. True and correct copies of all Defaults pertaining to STT's failure to pay for
gasoline product deliveries are attached hereto as Exhibit M and are incorporated

14
15

16

17
18

herein as though fully set forth at length.

32. STTN readily admits that they owe the money to BPWCP for

19

varrous gasoline deliveries. Indeed, Nazim Faquiryan and Sayed Faquiryan
acknowledged and agreed to in writing in a letter dated May 4, 2007, that they wil
pay $30,000 per month until the total outstanding balance of the gasoline debt is paid
in fulL. A true and correct copy of the letter agreement to pay the gasoline

20
21

22
23

debt signed

by Nazim Faquiryan and Sayed Faquiryan is attached hereto as Exhibit N and is
incorporated herein as though fully set forth at length.

24
25

33. To date, STTN has failed to pay for the gasoline. The current
outstanding balance for the gasoline product that Defendants failed to reimburse

26 27
28

BPWCP for gasoline product delivered is One Hundred Thirty-Nine Thousand, Nine
Hundred Fift Dollars and Eighty-Seven Cents ($139,950.87).
15
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SECOND AMENDED COMPLAINT

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34.

In addition to Defendants' failure to sell gasoline, commencing on

2
3

August 23, 2007 through at least September 6, 2007, STTN failed to operate the
Station and sell gasoline product for at least 15 consecutive days in violation of the
Franchise Agreements.

4
5

6

BPWCP Terminates the STTN Franchise
35.

7
8

Given STTN's continuing breach of the Franchise Agreements,

BPWCP sent a Notice of Termination letter dated September 6, 2007, to STTN,
advising that the Franchise Agreements would be immediately terminated

9
10
1 1

("Termination Notice").
length.
36.

A true and correct copy of the Termination Notice is

attached hereto as Exhibit 0 and is incorporated herein as though fully set forth at

12
13

The Termination Notice referenced the 20-year Gasoline

14
15

Agreement and Mini Market Agreement entered into on July 11, 2006 (collectively,

"20-year Agreements," and which are attached hereto as Exhibits A and B). As plead
earlier, the Gasoline Agreement was amended per the Amendment to Gasoline
Agreement (Exhibit D) and I-year Gasoline Agreement (Exhibit E).
37.
The essential elements of the PMP A notice requirement under

16 17 18 19

Section 2804( c) provide that the manner and form of notification shall contain:
(a) A statement of intention to terminate the franchise and the

20
21

reasons for termination;
(b) (c)

22
23

The date on which such termination takes effect; and

The statutory summaries prepared and published in the

24
25

Federal Register and required under Section 2804(d).

38. BPWCP's Termination Notice properly and adequately (1) advises

26 27 28

STTN of the grounds for termination of the gasoline and convenience store franchise,
(2) provides a clear statement of the intent to terminate, (3) specifies the termination
13
SECOND AMENDED COMPLAINT

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date, and (4) includes asummary statement of

the Petroleum Marketing Practices Act,

2
3

15 U.S.C. §§ 2801, et seq. (the "PMPA").
39. The Franchise Agreements provide that BPWCP may terminate the

4
5

Franchise Agreements for various reasons which include, but are not limited to, the
following:
- (a) Failure to exert good faith efforts to carr out the provisions

6 7
8

of the Franchise Agreements following written notice and opportunity to cure (See
Gasoline Agreement, Section 17.1(a), Exhibit A; I-year Gasoline Agreement, Section
1 7.1

9
10
11

(a), Exhibit E.);
(b)

Failure to timely pay all sums due to which BPWCP is
(h), Exhibit E.);

legally entitled (See Gasoline Agreement, Section 17.1 (h), Exhibit A; I-year Gasoline
Agreement, Section 1 7.1

12
13

(c)

Failure to operate the Premises for seven (7) consecutive

14
15

calendar days, or lesser period, which constitutes an unreasonable period of time (See

Gasoline Agreement, Section 17.1(i), Exhibit A; I-year Gasoline Agreement, Section
1 7.1

16 17
18

(i), Exhibit E.);
(d)
Breach of any material provision of the Gas Agreement,

including without limitation, "Buyer's failure to order and make available for sale

19

quantities of each grade of Product which are sufficient to satisfy foreseeable
customer demand." (See Gasoline Agreement, Section 17.1(0), Exhibit A; I-year
Gasoline Agreement, Section 17.1 (0), Exhibit E.); and
(e)

20
21

22
23

Termination of anyone other franchise agreement (e.g., Gas

Agreement) when there is "Concurrent Operations at the Premises," in which

24
25

"Concurrent Operations" is defined as the operation of the am/pm Mini Market in
conjunction with another or more than one other BPWCP franchise. (See Sections
4.05 and 18.05 of

26
27 28

the Mini Market Agreement, Exhibit B.)

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SECOND AMENDED COMPLAINT

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40. The pertinent provisions of

the Petroleum Marketing Practices Act,

2
3

28 U.S.C. §280 1, et seq. ("PMP A") allow, inter alia, for termination upon the
occurrence of the any of

the following:

4
5
material provision of

(a) Failure by the franchisee to comply with a reasonable and
the franchise (28 U.S.C. § 2802(b )(2)(A));

6 7
8
out the provisions of

(b)

Failure by the franchisee to exert good faith efforts to carr

the franchise (28 U.S.C. § 2802(b )(2)(B));

(c)

Occurrence of an event which is relevant to the franchise

9 10
1 1

relationship as a result of which termination of the franchise relationship is reasonable
(28 U.S.C. § 2802(b)(2)(C)); and

(d)

Failure by the franchisee to operate the marketing premises
time (28 U.S.C. §2802(c)(9)J.

12
13

for 7 consecutive days, or such lesser period which under the facts and circumstances
constitutes an unreasonable period of

14
15

41.

Furthermore, given Defendants' long-standing debt owed to

BPWCP for unpaid gasoline, their failure to operate the Station and sell gasoline for at
least 15 consecutive days, and the numerous opportunities given by BPWCP to

16 17
18

Defendants to cure the defaults, the termination was effective immediately as it was
not reasonable for BPWCP to provide any additional notice to STTN. (28 U.S.C. §
2804(b ).)

19

20
21

42. The Franchise Agreements provide that STTN wil owe BPWCP

certain sums upon termination. Specifically, Aricle 19.01(d) of the Mini Market
Agreement states that, upon termination, STTN shall owe BPWCP liquidated
damages. (See Exhibit B.)

22
23

24
25

43. Accordingly, BPWCP terminated the Franchise Agreements on the
grounds that STTN:
(a) failed to have any gasoline products available for sale to the

26 27
28

motoring public for at least 15 consecutive days, despite the fact that BPWCP sent
STTN a total of

twelve Defaults for failure to offer all grades of gasoline for sale (true
18

15
SECOND AMENDED COMPLAINT

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1

and correct copies of which are included in Exhibit M and are dated August 24
through 31, 2007 and September 1 through 4, 2007); and

2
3

(b) failed to timely pay BPWCP for gasoline products in a
timely manner, 'incurring an outstanding balance of $126,194.77, as of September 6,
2007, for gasoline product deliveries that are due and payable at the time of delivery.

4
5

6
7
8

STTN Defaulted on the Store Loan A2reement
44.
In addition to the Franchise Agreement breaches, STTN also

9

defaulted on the Store Loan Agreement. Pursuant to the Store Loan Agreement,

10
11

STTN must repay the outstanding balance of the loan in full to BPWCP within 30
days of the occurrence of an "Event of Default." Paragraph 4 of the Loan Agreement

12
13

provides the pertinent "Events of Default," which include, but are not limited to, the
following:
(a)

14
15

"The (Mini Market Agreement) is terminated by either

Lender or Borrower prior to the end of its stated term" (See Store Loan Agreement,
Section 4.5, Exhibit F.);
(b)
A default or "Event of Default" shall have occurred under

16
17 18

any of the other Loan Documents" (See Store Loan Agreement, Section 4.10, Exhibit
F.);
(c)

19

20
21

"The Borrower fails to sell Products continuously at the

Facility. . . . " (See Store Loan Agreement, Section 4.4, Exhibit F.); or
(d) "The failure by the Borrower to make any payments of

22
23

principal of or interest and any other indebtedness secured by the Propert, or there
shall occur any other event that would permit the holder of such indebtedness to

24
25

accelerate the maturity thereof." (See Store Loan Agreement, Section 4.12, Exhibit
F.J.
45. In the Termination Notice, BPWCP demanded that STTN repay
the outstanding balance of the Store Loan within 30 days of the termination

26 27
28

16
19
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2
3

(October 5,2007), pursuant to the Store Loan Agreement and Promissory Note. As of September 5, 2007, the outstanding balance on the Store Loan Agreement was
$ 1 50,000.00. (See Termination Notice, Exhibit 0.)

4
5

46. To date, STTN has failed and refused to pay the outstanding
balance due pursuant to the Store Loan Agreement.

6 7
8

FIRST CLAIM FOR RELIEF
(Declaratory Relief Under The Petroleum Marketing Practices Act)
(By Plaintiff BPWCP Against STTN Enterprises, Inc.) 47. The allegations of paragraphs 1 through 46 above are incorporated
herein by reference as though fully set forth herein.
48.

9

10
11

12
13

There presently exists an actual controversy within this Court's

jurisdiction between BPWCP, on the one hand, and STTN, on the other hand, in that
BPWCP asserts that:

14
15

16 17
18 19

(a) STTN's franchise and the franchise relationship with BPWCP were terminated pursuant to Termination Notice dated September 6, 2007
(Exhibit 0);

(b)

Pursuant to the Petroleum Marketing Practices Act, 15

U.S.C. Section 2802, and the terms of the Franchise Agreements between the parties,
BPWCP was entitled to terminate STTN's franchise at the Station;
(c)

20
21

BPWCP's grounds for terminating STTN's franchise were

22
23

legitimate and non-discriminatory; and
(d)

The Termination Notice was delivered on the earliest date

24
25

reasonably practicable, and were otherwise reasonable under 15 U.S.C. § 2804(b).

49. BPWCP is informed and believes and on that basis alleges, that
STTN disputes each ofBPWCP's aforementioned assertions.
50.

26
27 28

Defendants disagree with the above, and moreover, threatened to
17
SECOND AMENDED COMPLAINT

pursue legal remedies against BPWCP in a letter from Defendants sent to BPWCP and
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dated September 12, 2007. A true and correct copy of this letter is attached hereto as
Exhibit P.

2
3

51. By reason of STTN's conduct as described above, BPWCP is

4
5

entitled to a declaratory judgment under 28 U.S.C. Section 2201, stating that:
(a) The relationship between STTN and BPWCP was that of a

6 7
8

franchise relationship as defined and provided by Section 2801 of the PMP A;

(b) STTN's failure to discharge and comply with the terms,
conditions and obligations of the Franchise Agreements is detailed in the Termination

9
10
11

Notice (Exhibit 0), constituted a failure to comply with provisions of the franchise
which were

reasonable and materially significant, a failure to carr out the provisions

of the franchise, and constituted events which were relevant to the franchise

12
13

relationship, the result of which the franchise termination by BPWCP was reasonable
under the PMP A;

14
15

(c)

Under the PMPA, BPWCP lawfully terminated STTN's

franchise and franchise relationship concerning the Franchise;
(d)

16
17 18

Under the terms of the Franchise Agreements, BPWCP

lawfully terminated STTN's franchise and franchise relationship concerning the
Franchise;
(e)

19

Under the terms of the Mini Market Agreement, BPWCP

20
21

lawfully terminated STTN's franchise and franchise relationship- concerning the
Station;
(f)

22
23

The Termination Notice was reasonable and appropriate

under 15 U.S.C. § 2802(b)(2)(A) (failure by the franchisee to comply with any

24
25

provision of the franchise which is both reasonable and materially significant to the
franchise relationship); Section 2802(b)(2)(B) (failure by the franchisee to exert good
faith efforts to carr out the provisions of the franchise); Section 2802(b)(2)(C) (the

26 27
28

occurrence of an event which is relevant to the franchise relationship and as a result of
18
SECOND AMENDED COMPLAINT

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which termination of the franchise is reasonable); and Section 2802( c )(9) (failure by

2
3

the franchisee to operate the marketing premises for 7 consecutive days);
(g)
Pursuant to 15 USC § 2804(b), BPWCP's Notice of

4
5

Termination callng for the termination effective immediately was proper because it
would not have been reasonable for BPWCP to furnish 90 days notification;

6 7
8
19.01(d) of

. (h) BPWCP is entitled to liquidated damages under Article
the Mini Market Agreement; and
(i)

BPWCP is entitled to collect any and all other sums due

9
10
11

pursuant to the Franchise Agreements between the parties.

SECOND CLAIM FOR RELIEF
(Breach of Gasoline Agreement)

12
13

(By P,laintiff BPWCP Against STTN Enterprises, Inc.)

14
15

52. The allegations of paragraphs 1 through 51 above are incorporated
hereip by reference as though fully set forth herein.
53. BPWCP has fully performed all of its requirements pursuant to the

16
17 18

parties' Gasoline Agreement.
54.
STTN has breached multiple provisions of

the Gasoline Agreement

19

by, inter alia:
(a) Failing to have any gasoline products available for sale to

20
21

the motoring public for at least 15 consecutive days. In fact, STTN had taped off the

22
23

Station dispensers from any use by customers, and did not sell any gasoline from
August 23,2007 through at least September 6,2007; and
(b)

24
25

Failing to timely pay BPWCP for gasoline products in a

timely manner. As of September 6, 2007, STTN had an outstanding balance of One

26
27
28

Hundred Twenty-Six Thousand, One Hundred Ninety-Four Dollars and SeventySeven Cents ($126,194.77) for gasoline product deliveries that were due and payable
19
SECOND AMENDED COMPLAINT

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at the time of delivery. In fact, STTN issued several checks that were returned by
STTN's bank because STTN had insufficient funds.
55. As a proximate result of STTN's breach, BPWCP has been

2
3

4
5

damaged in an amount to be determined at trial, but no léss than One Hundred Thirt-

Nine Thousand, Nine Hundred Fift Dollars and Eighty-Seven Cents ($139,950.87),

6
7
8

which is the tot3;l outstanding amount due for gasoline product delivered to the
Station, and after applying Defendants' security deposit and other advance payments
as of

May 23,2008.

9
10
11

THIRD CLAIM FOR RELIEF
(Breach of Mini Market Agreement)
(By Plaintiff BPWCP Against STTN Enterprises, Inc.) 56. The allegations of paragraphs 1 through 55 above are incorporated
herein by reference as though fully set forth.

12
13

14
15

herein.

57. BPWCP has fully performed all of its requirements pursuant to the

16 17
18

Mini Market Agreement.
58.

STTN has breached Section 4.05 of the Mini Market Agreement

by, inter alia, breaching the Gasoline Agreement, as described in full in the second
claim for relief. Section 4.05 requires that all "Concurrent Operations at the

19

20
21

Premises" be conducted and governed by the terms and conditions and provisions of
the applicable Franchise Agreement, i.e., the Gasoline Agreement. (See Mini Market
Agreement, Section 4.05 Exhibit B.J
59.

22
23

As a proximate result of STTN's breach, BPWCP has been

24
25

damaged in an amount to be determined at triaL.
60. In addition, the Mini Market Agreement contains a liquidated

26 27
28

damages provision. Aricle 19.01(d) of the Mini Market Agreement provides that
"Operator shall pay to (BWPCP) at the time of

termination, as liquidated damages and
20
SECOND AMENDED COMPLAINT

not as penalty, the greater of: (a) the total minimum royalty fee which would have
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been payable under the (Mini Market Agreement) from the date of termination of the
(Mini Market Agreement) through the end of the term provided for in the (Mini
Market Agreement); or (b) for each month from the date of termination of the (Mini
Market Agreement) through the end of the term provided in the (Mini Market
Agreement), the actual average royalty fee for any months that the Store was

2
3

4
5

6 7
8

operational prior to termination of the (Mini Market Agreement)." Given BPWCP's

termination of the Mini Market Agreement effective September 6, 2007, the total
amount due to BPWCP for liquidated damages is Two Hundred Thirty-Five Thousand
and Zero Cents ($235,000.00).

9 10
11

FOURTH CLAIM FOR RELIEF
(Breach of Franchise Guaranties)

12
13

14
15

(By Plaintiff BPWCP Against Nazim FaquiryaD and Sayed Faquiryan.)
61. The allegations of paragraphs 1 through 60 above are incorporateq
herein by reference as though fully set forth herein.

16
17
18

62. Sayed Faquiryan and Nazim Faquiryan each executed and
delivered to BPWCP the Franchise Guaranties, guaranteeing any and all indebtedness

19

of STTN with respect to both the Store Loan Agreement and the Gasoline Loan
Agreement. (See Franchise Guaranties, Exhibit C.)
63. STTN is currently indebted to BPWCP in an amount of not less

20
21

22
23

than $139,950.87. BPWCP has made demands for payment of this sum on Sayed
Faquiryan and Nazim Faquiryan, who have, to date, failed to make these payments.
As such, Sayed Faquiryan and Nazim Faquiryan are in breach of

24
25

the obligations under

the Franchise Guaranties. Sayed Faquiryan and Nazim Faquiryan are also liable for

26 27
28

liquidated damages in the amount of $235,000.00 owed to BPWCP pursuant to th~

Mini Market Agreement and according to proof.
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FIFTH CLAIM FOR RELIEF
(Common Count: Goods Sold and Delivered)
(By Plaintiff BPWCP Against STTN Enterprises, Inc., Nazim Faquiryan, and Sayed Faquiryan.)
64. The allegations of paragraphs 1 through 63 above are incorporated
herein by reference as though fully set forth herein.
65. On or about September 5, 2007, at 631 San Felipe Road, Hollister,
California 95035, Defendants became indebted to BPWCP in the sum of

2
3

4
5

6 7
8

One Hundred

9
10
11

Thirty-Nine Thousand, Nine Hundred Fift Dollars and Eighty-Seven Cents

($139,950.87) for gasoline sold by BPWCP and delivered to STT. 66. BPWCP has repeatedly demanded payment from Defendants. The

12
13

last demand was made on September 6,2007. (See Exhibit 0.)
67. No payment has been made by Defendants to BPWCP, and there is

14
15

now due BPWCP and owed from Defendants at least the principal sum of One
Hundred Thirty-Nine Thousand, Nine Hundred Fifty Dollars and Eighty-Seven Cents
($139,950.87).

16 17
18

SIXTH CLAIM FOR RELIEF
(Unjust Enrichment)

19

20
21

(By Plaintiff BPWCP Against STTN Enterprises, Inc., Nazim Faquiryan, and Sayed Faquiryan.)
68. The allegations of paragraphs 1 through 67 above are incorporated
herein by reference as though fully set forth herein.
69. STTN, as well as Nazim Faquiryan and Sayed Faquiryan as

22
23

24
25

guarantors, obtained the benefit of receiving deliveries of gasoline in that they have

26 27
28

not paid for the gasoline but have been able to sell and profit from the gasoline that
was delivered by BPWCP.

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70. On May 4, 2007, Nazim Faquiryan and Sayed Faquiryan sent a
letter agreement to BPWCP, promising that STTN would make monthly payments of
Thirty Thousand Dollars ($30,000) by certified check payable to BPWCP on or before

2
3

4
5

the 15 day of each month beginning June 20, 2007 until the total outstanding balance
owed for the gasoline delivered has been paid off. (See Exhibit N.)

6
7
8

71. . Despite reaping such benefits and agreeing to make monthly
installments, Defendants stil have not made any payments to BPWCP for the gasoline
product.
72. As set forth in the above-paragraphs, Defendants' failure to

9
10
1 1

compensate BPWCP constitutes unjust enrichment and has damaged BPWCP in the
amount of at least One Hundred Thirty-Nine Thousand, Nine Hundred Fifty Dollars

12
13

and Eighty-Seven Cents ($139,950.87), plus interest.

14
15

SEVENTH CLAIM FOR RELIEF
(Breach of Store LoaD Agreement)

16
17 18

(By Plaintiff BPW CP Against STTN Enterprises, Inc., Nazim Faquiryan, and Sayed Faquiryan.)

73. The allegations of paragraphs 1 through 72 above are incorporated
herein by reference as though fully set forth herein.
74. BPWCP has fully performed all of its requirements pursuant to the

19

20
21

Store Loan Agreement.

22
23

75. STTN breached Aricle 4 of the Store Loan Agreement by failing

to repay the outstanding balance of the Store Loan in full to BPWCP within 30 days
of the occurrence of an Event of Default. The Store Loan Agreement requires STTN
to repay the outstanding balance of the Store Loan within 30 days of

24
25

the occurrence of

26 27
28

an Event of Default. The termination of the Franchise Agreements is an Event of

Default. (See Store Loan Agreement, Section 4.5, Exhibit F.)
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SECOND AMENDED COMPLAINT
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76. As of September 5, 2007, the day before the date of termination,
STTN's outstanding balance due on the Loan was $150,000.00. Pursuant to the Store

2
3

Loan Agreement, the loan balance was due to BPWCP no later than October 5,2007.
To date, the loan balance on the Store Loan has not been repaid by Defendants.
77. As a result of STTN's breach of the Store Loan Agreement,

4
5

6
7
8

BPWCP has been damaged in the amount of $ 1 50,000, plus interest. In addition, the

Store Loan Agreement provide that Nazim Faquiryan, Sayed Faquiryan, and Maghul

Faquiryan wil reimburse BPWCP on demand for all expenses, including reasonable

9 10
11

attorneys' fees incurred by BPWCP in collecting or enforcing the Store Loan
Agreement, together with interest thereon.
(See Aricle 9.9 of the Store Loan

Agreement, Exhibit F.) It has become necessary for BPWCP to engage the law firm

12
13

of Weston, Benshoof, Rochefort, Rubalcava & MacCuish LLP to bring this action,
and BPWCP is entitled to further and additional sums for reasonable attorneys' fees
herein.

14
15

16 17
18

EIGHTH CLAIM FOR RELIEF
(Breach of Loan Guaranties)

19

(By Plaintiff BPWCP Against Nazim Faquiryan, Sayed Faquiryan, and Maghul Faquiryan.)
78. The allegations of paragraphs 1 through 77 above- are incorporated
herein by reference as though fully set forth herein.

20
21

22
23

79. Nazim Faquiryan, and Sayed Faquiryan, and Maghul Faquiryan (as

Sayed Faquiryan's spouse), each executed and delivered to BPWCP the Loan
Guaranties, guaranteeing any and all indebtedness of STTN with respect to the Loan

24
25

Agreements. (See Loan Guaranties, Exhibit L.) As such, Nazim Faquiryan, Sayed
Faquiryan, and Maghul Faquiryan, as individual guarantors, are liable for damages as
provided by the Store Loan Agreement in the amount of $ 1 50,000.00 plus interest.
24
SECOND AMENDED COMPLAINT
1194164.1

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28

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80.

STTN is currently indebted to BPWCP in an amount of not less

2
3

than One Hundred Fifty Thousand Dollars ($ 1 50,000). BPWCP has made demands
for payment of this sum on Sayed Faquiryan, Nazim Faquiryan, and Maghul
Faquiryan, who have, to date, failed to make these payments.

4
5

As such, Sayed

Faquiryan and Nazim Faquiryan are in breach of the obligations under the Loan

6

Guaranties. Moreover, Sayed Faquiryan and Nazim Faquiryan are liable for
liquidated damages owed to BPWCP pursuant to the Mini Market Loan Agreement at

7
8

the time of the occurrence of an Event of Default and according to proof. Nazim

9 10
1 1

F aquiryan, Sayed F aquiryan, and Maghul F aquiryan have breached the Loan
Guaranties.
81.

As a result of the breaches of the Loan Guaranties, BPWCP has
In addition, the Loan Guaranties provide that Nazim Faquiryan,

12
13

been damaged in an amount of not less than $150,000 plus interest.
82.

14
15

Sayed Faquiryan, and Maghul Faquiryan wil reimburse BPWCP on demand for all
expenses, including reasonable attorneys' fees incurred by BPWCP in collecting or

16
17
18

enforcing the Loan Guaranties, together with interest thereon. (See Article 7 of the
Loan Guaranties, Exhibit L.) It has become necessar for BPWCP to engage the law

firm of Weston, Benshoof, Rochefort, Rubalcava & MacCuish LLP to bring this
action, and BPWCP is entitled to further and additional sums for reasonable attorneys'
fees herein.

19

20
21

22
23

24
25

26 27
28
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1194164.1

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NINTH CLAIM FOR RELIEF
(Unified Judicial Foreclosure)

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(By Plaintiff BPWCP Against STTN Enterprises, Inc., and AVA Global Enterprise, LLC.)
83. The allegations of paragraphs 1 through 82 above are incorporated
herein by reference as though fully set forth herein.
84.

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To secure, in part, Defendants' obligations under the Store Loan

Agreement (Exhibit F), Promissory Note (Exhibit J), and Loan Guaranties (Exhibit L),

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and as part of the same transaction, A V A Global, as the owner of the Real Propert,

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executed the Deed of Trust dated March 2, 2007 and recorded on March 9, 2007,
which irrevocably granted BPWCP the power of sale of all of ABA Global's right,
title and interest in the Real Property. A true and correct copy of the Deed of Trust is

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attached hereto as Exhibit H, and is incorporated herein as though fully set forth at
length.

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AVA Global, BPWCP and STTN also entered into a "Consent to

Encumbrance of Tenant's Interest" dated March 2,2 007 and recorded on March 9,
2007 ("Consent to Encumbrance"). The Consent to Encumbrance created a leasehold
mortgage encumbering STTN's leasehold estate in the Lease and Real Propert

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("Leasehold Mortgage"). A true and correct copy of the Consent to Encumbrance is attached hereto as Exhibit I, and is incorporated herein as though fully set forth at
length. In addition, STTN executed a Promissory Note evidencing the Store Loan. A
true and correct copy of the executed Promissory Note is attached hereto as Exhibit J
and is incorporated herein as though fully set forth at length.
85. In addition, Defendants made, executed and delivered to BPWCP,

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as beneficiary, a UCC-l (Exhibit K), by the terms of which Defendants conveyed a

security interest in the personal propert located on or affixed to the Real Propert or
the Improvementsthereon for the benefit ofBPWCP, as beneficiary. The UCC-L was

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filed on May 7, 2007 with the California Secretary of State.
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86.

BPWCP is now, and at all times material to this action was, the

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lawful beneficiary of the Promissory Note, the holder of the beneficial interest under
the Deed of Trust, and the holder of the beneficial interest under the UCC-1.
87.

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Excel National Bank, has, or claims to have, some interest in the

Real Property or some part of it by reason of a senior lien.

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88. The Store Loan Agreement provides that Defendants must repay
the outstanding balance of the loan in full to BPWCP within 30 days of

the occurrence

of an "Event of Default." (See Store Loan Agreement, ~ 4, Exhibit F.) The
termination of

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the franchise relationship between STTN and BPWCP on September 6,

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2007 constituted such a defined "Event of Default." (See Store Loan Agreement,
§ 4.5, Exhibit F.)

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89. The Promissory Note provides that, if a default or "Event of
Default" (as defined in the Store Loan Agreement, Exhibit F) occurs, then the Note
"shall become immediately due and payable without notice of default, presentment or

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demand for payment, protest or notice of nonpayment or dishonor, or other notices or
demands of any kind or character." (See Promissory Note, ~ 9, Exhibit 1.)

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90. The Loan Guaranties provide that, if the Defendants default in the

full and timely payment of any installment due under the Loan Agreement, the entire
amounts owed to BPWCP wil become immediately payable and due upon demand by
BPWCP. (See Loan Guaranties, ~ 6, Exhibit L.).

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91. BPWCP has fully performed under the Loan Obligation
Agreements. On or about September 6, 2007 and September 12, 2007, BPWCP made
a demand upon Defendants for the payment of

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these amounts due on October 6, 2007,

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but Defendants have wholly failed, neglected, and refused to make those payments.
(See Exhibits 0 and P.)
92.
As a result of such failure and default under Store Loan

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Agreement, Promissory Note, and the Loan Guaranties by Defendants, BPWCP has
exercised its right to declare the entire sum due from Defendants immediately due and
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payable. The total amount now due under the Store Loan Agreement, Promissory

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Notes, and Loan Guaranties consists of the principal sum of at least One Hundred and
Fifty Thousand Dollars ($150,000), excluding interest and attorneys' fees with respect
thereto.
93. Furthermore, by the provisions of the Loan Guaranties (Exhibit L;

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Paragraph 1), the Store Loan Agreement (Exhibit F), and the Secured Promissory

Note (Exhibit J), Defendants agreed that, if any action were initiated to enforce the

Loan Guaranties or Loan Agreement, Defendants would pay the sum fixed by the
Court as BPWCP's attorneys' fees and court costs, and that these charges would also
be secured by the Deed of Trust recorded against the Real Property and by the UCC- 1

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filed against the personal property located on the Real Property. Because of the
defaults by the Defendants, it has become necessary for BPWCP to emplòy Weston
Benshoof Rochefort

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Rubalcava & MacCuish, LLP to commence and prosecute this

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foreclosure action. The reasonable value of services of counsel in this action should
be determined by the Court at the time of triaL. As a result of Defendants' default,

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BPWCP is entitled to enforce the Store Loan Agreement, Promissory Note and Loan
Guaranties by, among other things, an unified judicial foreclosure of the Deed of

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Trust

as to all of the Defendants' rights in the Real Property, and of the UCC-L as to all of
the Defendants' rights in the personal propert located on the Real Propert, through
public sale thereof by the proper judicial officer for proceeds up to $ 1 50,000 plus

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interest and attorneys' fees.
94. BPWCP may hereafter be required to expend additional sums to

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protect its security in the Real Property described in the Deed of Trust and its security

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in the personal property located on the Real Property described in the UCC-1. In the
Deed of Trust and the UCC- 1, Defendants agreed to pay all such sums expended by

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BPWCP. BPWCP wil amend this First Amended Complaint to allege the nature and
amounts of such sums if BPWCP is required to make such additional expenditures.
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PRAYERS FOR RELIEF:

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WHREFORE, BPWCP prays that judgment be entered in its favor as
follows:

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AS TO THE FIRST CLAIM FOR DECLARATORY RELIEF:
1. For a declaration that under the PMPA, BPWCP lawfully

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terminated STTN's franchise and franchise relationship pertaining to the Station and
the other requested findings set forth in that claim; and
AS TO THE SECOND CLAIM FOR BREACH OF GASOLINE AGREEMENT:

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2. That BPWCP have judgment against STTN Enterprises, Inc. for

damages arising out of breach of the Gasoline Agreement, in an amount according to

proof, but not less than One Hundred Thirty-Nine Thousand, Nine Hundred Fift
Dollars and Eighty-Seven Cents ($139,950.87); and

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AS TO THE THIRD CLAIM FOR BREACH OF MINI MARKT AGREEMENT:
3.

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That BPWCP have judgment against STTN Enterprise, Inc. for

damages arising out of breach of the Mini Market Agreement, in an amount according

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to proof including, but not limited to, liquidated damages as provided in the
Agreements in the amount of $235,000.00; and

AS TO THE FOURTH CLAIM FOR BREACH OF FRANCHISE GUARNTIES:
4. For a declaration that Nazim Faquiryan and Sayed Faquiryan, as

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guarantors, are each liable for the same amounts due to BPWCP by STTN Enterprise,

Inc. with respect to the Franchise Agreements and that a deficiency judgment may be
ordered against each of them for those sums;
5.

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F or general damages and interest thereon calculated at the

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applicable statutory rates; and
AS TO THE FIFTH CLAIM FOR GOODS SOLD AND DELIVERED:
6.
For the sum of

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One Hundred Thirt-Nine Thousand, Nine Hundred

Fifty Dollars and Eighty-Seven Cents ($139,950.87);
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7.

For interest on the sum of One Hundred Thirt-Nine Thousand,
F or costs of suit incurred; and

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Nine Hundred Fifty Dollars and Eighty-Seven Cents ($139,950.87) as allowed by law;
8.

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AS TO THE SIXTH CLAIM FOR UNJUST ENRCHMNT:

9. F or general damages and interest thereon calculated at the
applicable statutory rate; and

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AS TO THE SEVENTH CLAIM FOR BREACH OF CONTRACT - MINI

MART LOAN AGREEMENT:
10.
For a

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judgment in favor ofBPWCP and against STTN Enterprises,

Inc. for damages arising out of breach of the Store Loan Agreement, in an amount
according to proof, but in no event less than $150,000.00, plus interest;
11.

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F or reasonable attorneys' fees and costs incurred herein; and

AS TO THE EIGHTH CLAIM FOR BREACH OF MINI MAT LOAN
GUARANTIES:
12.

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For a declaration that Nazim Faquiryan, Sayed Faquiryan, and

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Maghul Faquiryan, as guarantors, are liable for the same amounts due to BPWCP by
STTN Enterprise, Inc. with respect to the Loan Agreement and that a deficiency

judgment may be ordered against her for those sums;
13.

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F or general damages and interest thereon calculated at the

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applicable statutory rates;
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F or reasonable attorneys' fees and costs incurred herein; and

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AS TO THE NINTH CLAIM FOR UNIFIED JUDICIAL FORECLOSUR:
15. For a judgment in favor of BPWCP and against STTN, A V A

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Global, Sayed Faquiryan, Nazim Faquiryan, and Maghul Faquiryan for the sum of
$ 1 50,000;
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Costs of this action and attorneys' fees that the Court considers

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reasonable;
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17. For additional sums, if any, that BPWCP hereafter expends to

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protect its security interest in the Real Property described in the Deed of Trust, and its
security interest in the personal propert located on the Real Propert described in the

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UCC-l, together with interest at the legal annual rate, according to proof;

18. For a judgment determining that the rights, claims, ownership,

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liens, titles, and demands of the Defendants are subject, subsequent, and subordinate
to BPWCP's Deed of

Trust and to BPWCP's UCC-l;
19. For an Order that the Deed of Trust (Exhibit H) and the UCC-l

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(Exhibit K) be foreclosed upon and that judgment be entered for sale of the Real
Property and the personal property located on the Real Property, according to law, by

the Sheriff of Orange County or a receiver to be appointed by the Court; that the
proceeds of the sale be applied initially to the senior lienholder in the amounts owed
thereto; that the next $150,000 of the proceeds of the sale be applied in payment of

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the

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amounts due to BPWCP under the Loan Guaranties; and that Defendants, and all
persons claiming under them subsequent to the execution ofBPWCP's Deed of

Trust,

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as lien claimants, judgment creditors, claimants under a junior deed of trust,

purchasers, encumbrancers, or otherwise, be barred and foreclosed from all rights,

claims, interests, or equity of redemption in the Real Propert when time for
redemption has elapsed;
20. For judgment and execution against STTN, A V A Global, Nazim

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Faquiryan, Sayed Faquiryan, and Maghul Faquiryan for any deficiency that may
remain after applying the proceeds of the sale of the Real Property to the senior

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lienholder, and after applying the proceeds of the sale of the personal property on the
Real Property, properly applicable to the satisfaction of the amounts found due by the
Court under the prayers applicable to the seventh and eighth causes of action;
21.

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For an order permitting BPWCP or any other party to this action to

become a purchaser at the foreclosure sale, that the Sheriff or receiver execute a deed
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to the purchaser of the Real Property at the sale, and that the purchaser be let into

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possession of the Real Property on production of the Sheriff s or receiver's deed;
AS TO ALL CAUSES OF ACTION:
31.

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That BPWCP recover its costs of suit and reasonable attorneys'

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fees pursuant to 15 U.S.C. § 2805(d)(3); and

32. That BPWCP recover such other and further relief as the Court
deems. appropriate.

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DATED: June _,2008

KURT OSENBAUGH

DEBORA YOON JONES SAYAKA KATANI

WESTON, BENSHOOF, ROCHEFORT,

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RUBALCAVA & MacCUISH LLP

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Sayaka Karitani Attorneys for Plaintiff BP WEST COAST PRODUCTS LLC

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EXHIBIT A TO SECOND AMENDED COMPLAINT

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Customer Acct #0996439 Facility #82461 Category: NT

CONTRACT DEALER GASOLINE AGREEMENT

This Contra t Dealer Gasoi~e Agreement (this" Agrcement") is made and entered into as of the If day

of. , JI , ("Effective Date")by and between BP West Coast
Products LLC, a elaware limited liability company, ("BPWCP"), and STTN i:nterpris~s. 1m:.