Free Answer to to CounterClaim - District Court of California - California

Case 5:07-cv-04808-JF

Document 27

Filed 12/26/2007

Page 1 of 20

E-Mail: kosenbaugh(âwbcounsel.com
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KURT OSENBAUGH (State Bar No. 106132)

DEBORAH YOON fONES (State Bar No. 178127)

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E-Mail: djones(âwbcounsel.com SAY AKA KARlANI (State Bar No. 240122)
E-Mail: skaritani(âwbcounsel.com

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RUBALCAVA & MacCUISH LLP 333 South Ho~e Street, Sixteenth Floor Los Angeles, California 90071
Telephone: (213) 576-1000
d j ones0)wbcounsel. com

WESTON, BENSHOOF, ROCHEFORT,

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Facsimile: (213) 576-1100 kosenbaugh00wbcounsel.com
skaritann~wbcounsel .com

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Attorneys for Plaintiffs and Counter-Defendants BP WEST COAST PRODUCTS LLC and ATLANTIC RICHFIELD COMPANY UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability COl1pany; and ATLANTIC RICHFIELD COMPANY, a
Plaintiff,
v.

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Case No.: C07 04808 JF

Delaware Corporation,

ANSWER TO COUNTERCLAIM
Honorable Jeremy Fogel

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Filing Date: September 17, 2007

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individual; ~A YED F AOl IRY AN an individual; and MAGHUL F AQUIRY AN, an individual. and A V A GLOBAL ENTERPRISË, LLC, a California limited liability company,

STTN ENTERPRISE~ INC." a California COQJorationc1 NAZIM l' A8U1RY AN, an

Trial--ate: None Discovery Cut-off: None
Motion Cut-off: None

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Defendants.
, ., a a i ornia

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COlJoration; NAZIM FA8UIRY AN, an individual; SAYED F AQl IRY AN, an individual; and MAGHVL FAQUIRY AN, an individual; and AVA GLOBAL ENTERPRISE, LLC, a California limited liability company,
v.

Counterclaimants,

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BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability Com12any; an~; and ATLANTIC RICHFIELD COMPANr, a Delaware Corporation,
Counter- Defendants.
1093750.1

ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

Document 27

Filed 12/26/2007

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ANSWER

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Plaintiffs and Counter-Defendants BP West Coast Products LLC
("BPWCP") and Atlantic Richfield Company ("ARCO") (BPWCP and ARCO
collectively referred to as "Plaintiffs" or "Counter-Defendants") answer the

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Counterclaim of Defendants and Counterclaimants STTN Enterprises, Inc. ("STTN"),

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Nazim Faquiryan, Maghul Faquiryan, Sayed Faquiryan, and AVA Global Enterprises
("AVA")
(all

defendants

collectively

referred

to

as

"Defendants"

or

"Counterclaimants") as follows:

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1.

JURISDICTIONAL STATEMENT

Paragraph 160 of the Counterclaim contains statements and/or
this action.

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conclusions of law for which no answer or response is required. However, BPWCP
admits that this Court has jurisdiction over the subject matter of

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STATEMENT OF FACTS
2.

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Answering paragraph 161 of the Counterclaim, BPWCP lacks

sufficient information or belief to answer the allegations contained in this paragraph
and, based upon such lack of information or belief, denies said allegations.
3. Answering paragraph 162 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
4. Answering paragraph 163 of the Counterclaim, BPWCP admits

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that it entered into a franchise relationship with STTN, effective July 11, 2007,
whereby the Station would be re-branded as an ARCO-branded service station.

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BPWCP further admits that it sent a letter to STTN, dated March 9, 2007, and which

summarizes the terms of a proposed Loan that BPWCP considered making to STTN

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("March 9 Letter"). BPWCP further contends that the March 9 Letter speaks for
itself. Except as expressly admitted herein, BPWCP denies, generally and

specifically, each and every remaining allegation set forth in paragraph 163.
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ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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5.

Answering paragraph 164 of the Counterclaim, BPWCP admits

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that it sent the March 9 Letter to STTN. BPWCP further contends that the March 9
Letter speaks for itself. Except as expressly admitted herein, BPWCP denies,

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generally and specifically, each and every remaining allegation set forth in paragraph
164.
6.

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Answering paragraph 165 of the Counterclaim, BPWCP admits

that it entered into two franchise agreements, a Contract Dealer Gasoline Agreement

and an am/pm Mini Market Agreement, with STTN. BPWCP further admits that
these two franchise agreements referenced in this response were both effective as of

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July 11, 2006. Except as expressly admitted herein, BPWCP denies, generally and
specifically, each and every remaining allegation set forth in paragraph 165.
7. Answering paragraph 166 of the Counterclaim, BPWCP admits

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that it knew the Station was a re-brand, not a new, ground-up facility. BPWCP further

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admits that it worked closely with STTN in the pre-construction phase by approving

site plans, contractors, and architects and by informing STTN of deficiencies,
including missing documentation.

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Except as expressly admitted herein, BPWCP

denies, generally and specifically, each and every remaining allegation set forth in
paragraph 166.

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8.

Answering paragraph 167 of the Counterclaim, BPWCP lacks

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sufficient information or belief to answer the allegations contained in this paragraph
and, based upon such lack of information or belief, denies said allegations.
9. Answering paragraph 168 of the Counterclaim, BPWCP admits
that it and STTN entered into two loan agreements, effective February 12, 2007,

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whereby BPWCP agreed to loan STTN a total of $475,000 to be used toward
BPWCP-approved capital improvements to the Station. Except as expressly admitted

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herein, BPWCP denies, generally and specifically, each and every remaining
allegation set forth in paragraph 168.

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1093750.1

ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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10. Answering paragraph 169 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

1 1. Answering paragraph 170 of the Counterclaim, BPWCP responds

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that this paragraph contains statements to which it lacks sufficient information or
belief to answer the allegations contained in this paragraph and, based upon such lack

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of information or belief, denies said allegations. BPWCP further denies that it
breached its obligations under the 10an agreements or that it refused to comply with
loan agreements.
12.

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Answering paragraph 171 of the Counterclaim, BPWCP lacks

sufficient information or belief to answer the allegations contained in this paragraph
and, based upon such lack of information or belief, denies said allegations.
13. Answering paragraph 172 of the Counterclaim, BPWCP admits
that, as of

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May 29,2007, BPWCP funded and disbursed the full amount of $150,000

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for STTN's benefit under the Store Loan Agreement. BPWCP further admits that, as
a result of STTN's failures to abide by the terms of

the Gasoline Loan Agreement and

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related Disbursement Agreement (as more fully explained in the First Amended
Complaint), BPWCP has not disbursed any monies under the Gasoline Loan to STTN.

Except as expressly admitted herein, BPWCP denies, generally and specifically, each
and every remaining allegation set forth in paragraph l72.
14. Answering paragraph 173 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
15. Answering paragraph 174 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
16. Answering paragraph 175 of the Counterclaim, BPWCP admits

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that, pursuant to the Contract Dealer Gasoline Agreement, STTN was obligated to

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continue purchasing gasoline for the Station, while STTN was making improvements
to the Station. Except as expressly admitted herein, BPWCP denies, generally and

specifically, each and every remaining allegation set forth in paragraph.
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1093750.1

ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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17. Answering paragraph 176 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
18. Answering paragraph 177 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
19. Answering paragraph 178 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
20. Answering paragraph 179 of the Counterclaim, BPWCP admits

that it sent a total of twelve Defaults for failure to offer all grades of gasoline for sale,
to STTN, between August 24, 2007 and September 4, 2007. BPWCP further contends

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that the Default notices speak for themselves. Except as expressly admitted herein,
BPWCP denies, generally and specifically, each and every remaining allegation set
forth in paragraph 179.
21.

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Answering paragraph 180 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
22. Answering paragraph 181 of the Counterclaim, BPWCP contends

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that the Notice of Termination dated September 6, 2007 speaks for itself. Except as
expressly admitted herein, BPWCP denies, generally and specifically, each and every
remaining allegation set forth in paragraph 181.
23. Answering paragraph 182 of the Counterclaim, BPWCP contends

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that the Notice of Termination dated September 6, 2007 speaks for itself. Except as
expressly admitted herein, BPWCP denies, generally and specifically, each and every
remaining allegation set forth in paragraph 182.
24. Answering paragraph 183 of the Counterclaim, BPWCP admits

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that its agents "de-branded" the Station on September 17 and 18, 2007. BPWCP
further advised Defendants to remove all products bearing trademarked and

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proprietary displays and products, which Defendants failed to do, thus prompting

BPWCP and ARCO to file suit for trademark infringement related actions. Except as
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ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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expressly admitted herein, BPWCP denies, generally and specifically, each and every
remaining allegation set forth in paragraph 183.
25. Answering paragraph 184 of the Counterclaim, BPWCP admits
that, as part of

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the de-branding process, BPWCP's agents removed, or covered up, the

registered trademark and proprietary information from the Station to ensure that the
Station could no longer be identified as an ARCO-branded gasoline station or am/pm

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mini-market. BPWCP further advised Defendants to remove all products bearing
trademarked and proprietary displays and products, which Defendants failed to do,

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thus prompting BPWCP and ARCO to file suit for trademark infringement related
actions. Except as expressly admitted herein, BPWCP denies, generally and

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specifically, each and every remaining allegation set forth in paragraph 184.
26. Answering paragraph 185 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

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COUNTERCLAIM I - WRONGFUL TERMINATION/VIOLATION OF PMPA
27.

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Answering paragraph

186 of the Counterclaim, BPWCP

incorporates by reference paragraphs 1 through 26 above.
28. Paragraph 187 of the Counterclaim contains statements and/or

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conclusions of law for which no answer or response is required.
29.

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Paragraph 188 of the Counterclaim contains statements and/or

conclusions of law for which no answer or response is required.
30. Answering paragraph 189 of

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the Counterclaim, BPWCP admits the

allegations of said paragraph.
31.

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Answering paragraph 190 of the Counterclaim, BPWCP denies

each and every allegation of this paragraph.
32. Answering paragraph 191

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of the Counterclaim, BPWCP denies

each and every allegation of this paragraph.

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1093750.1

ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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33. Answering paragraph 192 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
34. Answering paragraph 193 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
35. Answering paragraph 194 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
36. Answering paragraph 195 of the Counterclaim, BPWCP denies

each and every allegation of this paragraph.

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COUNTERCLAIM II-BREACH OF CONTRACT
CONDITIONAL COMMITMENT LETTER
37.

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Answering paragraph 196 of the

Counterclaim,

BPWCP

incorporates by reference paragraphs 1 through 36 above.
38. Answering paragraph 197 of the Counterclaim, BPWCP admits

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that it sent the March 9 Letter to STTN, which summarizes the terms of a proposed
Loan that BPWCP considered making to STTN. BPWCP also admits that STTN, by
and through its officers Nazim Faquiryan and Sayed Faquiryan, signed its acceptance
of the terms and conditions contained in the March 9 Letter. BPWCP further contends
that this March 9 Letter speaks for itself. Except as expressly admitted herein,

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BPWCP denies, generally and specifically, each and every remaining allegation set
forth in paragraph 197.
39.

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Answering paragraph 198 of the Counterclaim, BPWCP denies
of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies

each and every allegation of this paragraph.
40. Answering paragraph 199

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each and every allegation of this paragraph.
41 . Answering paragraph 200

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each and every allegation of this paragraph.

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1093750.1

ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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42. Answering paragraph 201

of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
43. Answering paragraph 202

of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

COUNTERCLAIM III - BREACH OF CONTRACT
STORE LOAN AGREEMENT
44. Answering paragraph 203 of the Counterclaim, BPWCP
incorporates by reference paragraphs 1 through 43 above.
45. Answering paragraph 204 of

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the Counterclaim, BPWCP admits the

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allegations of said paragraph.
46. Answering paragraph 205 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
47. Answering paragraph 206 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
48. Answering paragraph 207 of the Counterclaim, BPWCP responds

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that the Store Loan Agreement speaks for itself. Except as expressly admitted herein,

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BPWCP denies, generally and specifically, each and every remaining allegation set
forth in paragraph 207.
49. Answering paragraph 208

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of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
50. Answering paragraph 209

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each and every allegation of this paragraph.

5 1 . Answering paragraph 210 of the Counterclaim, BPWCP denies
each and every allegation of this paragraph.
52. Answering paragraph 211

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of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
53.

Answering paragraph 212 of the Counterclaim, BPWCP denies

each and every allegation of this paragraph
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1093750.1

ANSWER TO COUNTERCLAIM

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54. Answering paragraph 213 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
55. Answering paragraph 214 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

COUNTERCLAIM IV - BREACH OF CONTRACT
GASOLINE LOAN AGREEMENT
56. Answering paragraph 215 of the Counterclaim, BPWCP
incorporates by reference paragraphs 1 through 55 above.
57. Answering paragraph 216 of

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the Counterclaim, BPWCP admits the

allegations of said paragraph.
58. Answering paragraph 217 of the Counterclaim, BPWCP responds

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that the Gasoline Loan Agreement speaks for itself. Except as expressly admitted
herein, BPWCP denies, generally and specifically, each and every remaining
allegation set forth in paragraph 217.
59. Answering paragraph 218 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
60. Answering paragraph 219 of the Counterclaim, BPWCP responds

that the Gasoline Loan Agreement speaks for itself. Except as expressly admitted
herein, BPWCP denies, generally and specifically, each and every remaining
allegation set forth in paragraph 219.
61. Answering paragraph 220 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
62. Answering paragraph 221

of the Counterclaim, BPWCP denies
of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
63. Answering paragraph 222

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each and every allegation of this paragraph.
64. Answering paragraph 223

each and every allegation of this paragraph.
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1093750.1

ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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65. Answering paragraph 224

of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
66. Answering paragraph 225

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each and every allegation of this paragraph.
67. Answering paragraph 226

of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

COUNTERCLAIM V-BREACH OF CONTRACT
DISBURSEMENT AGREEMENT
68. Answering paragraph 227 of the Counterclaim, BPWCP
incorporates by reference paragraphs 1 through 67 above.
69. Answering paragraph 228 of the Counterclaim, BPWCP admits the

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allegations of said paragraph.
70. Answering paragraph 229 of the Counterclaim, BPWCP responds

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that the Disbursement Agreement speaks for itself. Except as expressly admitted
herein, BPWCP denies, generally and specifically, each and every remaining
allegation set forth in paragraph 229.
71. Answering paragraph 230 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
72. Answering paragraph 231

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of the Counterclaim, BPWCP denies

each and every allegation of this paragraph.
73. Answering paragraph 232

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of the Counterclaim, BPWCP denies
of the Counterclaim, BPWCP denies
the Counterclaim, BPWCP admits the

each and every allegation of this paragraph.
74. Answering paragraph 233

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each and every allegation of this paragraph.
75. Answering paragraph 234 of

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allegations of said paragraph.

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1093750. I

ANSWER TO COUNTERCLAIM

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76. Answering paragraph 235

of the Counterclaim, BPWCP denies
of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
77. Answering paragraph 236

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each and every allegation of this paragraph.
78. Answering paragraph 237

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each and every allegation of this paragraph.

COUNTERCLAIM VI - BREACH OF IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING
79. Answering paragraph 238 of the Counterclaim, BPWCP
incorporates by reference paragraphs 1 through 78 above.
80. Answering paragraph 239 of the Counterclaim, BPWCP admits

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that it entered into various contracts with STTN, as alleged in the First Amended
Complaint. BPWCP further admits that Sayed Faquiryan and Nazim Faquiryan each

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signed a Guaranty Agreement and individually guaranteed the obligations owed by

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STTN to BPWCP under the Mini-Market Agreement and the Gasoline Contract
Dealer Agreement.

In addition, BPWCP admits that Sayed Faquiryan, Maghul

Faquiryan, and Nazim Faquiryan each signed a Guaranty Agreement and individually

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guaranteed the obligations owed by STTN to BPWCP under the Gasoline Loan
Agreement and the Store Loan Agreement. BPWCP also admits that it, AVA Global

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Enterprises, LLC, and STTN entered into an agreement entitled, "Consent to
Encumbrance of

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Tenants Interest," dated March 2, 2007 and recorded March 9, 2007.

Except as expressly admitted herein, BPWCP denies, generally and specifically, each
and every remaining allegation set forth in paragraph 239.
81. Answering paragraph 240 of the Counterclaim, BPWCP admits

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that each contract specified in BPWCP's response to paragraph 239 of the
Counterclaim was executed in the State of California. Except as expressly admitted
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1093750.1

ANSWER TO COUNTERCLAIM

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herein, BPWCP denies, generally and specifically, each and every remainnng
allegation set forth in paragraph 240.
82.

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Paragraph 241 of the Counterclaim contains statements and/or

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conclusions of law for which no answer or response is required.
83. Answering paragraph 242 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph including each and every one of its
subparts.
84.

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Answering paragraph 243 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

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COUNTERCLAIM VII - ACTUAL FRAUD (CAL. CIV, § 1572)
85. Answering paragraph 244 of the Counterclaim, BPWCP
incorporates by reference paragraphs 1 through 84 above.
86. Answering paragraph 245 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
87. Answering paragraph 246 of the Counterclaim, BPWCP contends

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that the loan agreements entered into by BPWCP and STTN speak for themselves.
Except as expressly admitted herein, BPWCP denies, generally and specifically, each
and every remaining allegation set forth in paragraph 246.
88. Answering paragraph 247 of

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the Counterclaim, BPWCP admits the

allegations of said paragraph.
89. Answering paragraph 248 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
90. Answering paragraph 249 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
91. Answering paragraph 250 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.

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92. Answering paragraph 251

of the Counterclaim, BPWCP denies
of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
93. Answering paragraph 252

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each and every allegation of this paragraph.
94. Answering paragraph 253

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each and every allegation of this paragraph.
95. Answering paragraph 254

each and every allegation of this paragraph.

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COUNTERCLAIM VIII - NEGLIGENT MISREPRESENTATION
96. Answering paragraph 255 of the Counterclaim, BPWCP
incorporates by reference paragraphs 1 through 95 above.
97. Answering paragraph 256 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
98. Answering paragraph 257 of the Counterclaim, BPWCP contends

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that the loan agreements entered into by BPWCP and STTN speak for themselves.
Except as expressly admitted herein, BPWCP denies, generally and specifically, each
and every remaining allegation set forth in paragraph 257.
99. Answering paragraph 258 of

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the Counterclaim, BPWCP admits the

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allegations of said paragraph.
100. Answering paragraph 259 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
101. Answering paragraph 260 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
102. Answering paragraph 261 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
103. Answering paragraph 262 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
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1093750.1

ANSWER TO COUNTERCLAIM

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104. Answering paragraph 263 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
105. Answering paragraph 264 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
106. Answering paragraph 265 of the Counterclaim, BPWCP denies

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each and every allegation of this paragraph.
107. BPWCP further alleges that STTN is not entitled to recover any of

the damages, monies, or relief in paragraphs 1 through 5 of STTN's prayer for
judgment from its Counterclaim for Wrongful Termination/Violation of PMP A

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against BPWCP.

108. BPWCP further alleges that STTN is not entitled to recover any of

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the damages, monies, or relief in paragraphs 1 through 4 of STTN's prayer for
judgment from its Counterclaim for Breach of Contract - Conditional Commitment

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Letter against BPWCP.
109. BPWCP further alleges that STTN is not entitled to recover any of

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the damages, monies, or relief in paragraphs 1 through 4 of STTN's prayer for
judgment from its Counterclaim for Breach of Contract - Store Loan Agreement
against BPWCP.

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110. BPWCP further alleges that STTN is not entitled to recover any of

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the damages, monies, or relief in paragraphs 1 through 4 of STTN's prayer for
judgment from its Counterclaim for Breach of Contract - Gasoline Loan Agreement
against BPWCP.

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111. BPWCP further alleges that STTN is not entitled to recover any of

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the damages, monies, or relief in paragraphs 1 through 4 of STTN's prayer for
judgment from its Counterclaim for Breach of Contract - Disbursement Agreement
against BPWCP.

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1 12. BPWCP further alleges that Defendants are not entitled to recover
any of the damages, monies, or relief in paragraphs 1 through 4 of Defendants' prayer
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for judgment from its Counterclaim for Breach of Implied Covenant of Good Faith
and Fair Dealing against BPWCP.

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113. BPWCP further alleges that Defendants are not entitled to recover
any of the damages, monies, or relief in paragraphs 1 through 5 of Defendants' prayer
for judgment from its Counterclaim for Actual Fraud against BPWCP.

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114. BPWCP further alleges that Defendants are not entitled to recover
any of the damages, monies, or relief in paragraphs 1 through 4 of Defendants' prayer
for judgment from its Counterclaim for Negligent Misrepresentation against BPWCP.

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DEMAND FOR JURY
1 15. Defendants have not suffered actual damages and under the PMP A

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are not entitled to a jury triaL. See Chevron Us.A., Inc. v. EI-Khoury, 2002 WL
31256160, at *3 (C.D. Cal. Sept. 23, 2002).

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AFFIRMATIVE DEFENSES
116. Further answering the Counterclaim, and as separate and

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affirmative defenses thereto, BPWCP and ARCO allege as follows:

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FIRST AFFIRMATIVE DEFENSE
1 17. Counterclaimants are not entitled to recover punitive or exemplary

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damages because the Counterclaim fails to allege facts sufficient to state a claim for
punitive damages and because at no time did BPWCP act with wilful disregard of the
requirements of

the PMPA or Counterclaimants rights thereunder.

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SECOND AFFIRMATIVE DEFENSE

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118. Counterclaimants' claims are barred because BPWCP's actions
were reasonable, proper, and lawful, were undertaken with complete business

justification, and complied with the requirements of the PMP A as well as all
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ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

Document 27

Filed 12/26/2007

Page 16 of 20

1

applicable federal and state statutes, common law, and the agreements between the
parties.

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THIRD AFFIRMATIVE DEFENSE

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119. All acts taken or decisions made by BPWCP with respect to the
franchise relationship with Counterclaimants, including the termination, were based
on legitimate, non-discriminatory grounds and complied with all statutes, regulations,
and other laws in effect, and constituted legitimate, business-related reasons.

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FOURTH AFFIRMATIVE DEFENSE

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120. The Counterclaim and all of the claims contained therein are
barred because Counterclaimants are estopped by their conduct from seeking any
relief

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from BPWCP.

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FIFTH AFFIRMATIVE DEFENSE

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121. The Counterclaim and all of the claims contained therein are
barred because Counterclaimants have unclean hands.

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SIXTH AFFIRMATIVE DEFENSE
122. Counterclaimants are not entitled to equitable relief or relief under
the PMP A because their purported claims are barred by laches.

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SEVENTH AFFIRMATIVE DEFENSE

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123. The Counterclaim and all of the claims contained therein are
barred because BPWCP's conduct was not the proximate cause of any damage or
injury alleged to have been suffered by Counterclaimants.

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ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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EIGHTH AFFIRMATIVE DEFENSE

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124. BPWCP performed all conditions, covenants, and promises
required by them on its part to be performed in accordance with the terms and

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conditions of the agreements between the parties.

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NINTH AFFIRMATIVE DEFENSE
125. Counterclaimants failed to perform all conditions, covenants, and

promises required by them to be performed in accordance with the terms and
conditions of the agreements between the parties.

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TENTH AFFIRMATIVE DEFENSE
126. Counterclaimants failed to name ARCO as a "cross-defendant"
under any of the counterclaims. As a result, Counterclaimants' Counterclaim and all

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of the causes of action contained therein fail to state facts sufficient to constitute a
cause of action against ARCO.

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WHEREFORE, BPWCP and ARCO pray that judgment be entered in
their favor as follows:
1.

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That the Counterclaim be dismissed with prejudice;

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2. 3.

That Counterclaimants take nothing by their Counterclaim herein;

That BPWCP and ARCO recover its costs of suit and reasonable

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

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ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

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1

4.

That BPWCP and ARCO recover such other and further relief as

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the Court deems appropriate.

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DATED: December 26, 2007

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KURT OSENBAUGH DEBORAH YOON JONES SAY AKA KARITANI WESTON, BENSHOOF, ROCHEFORT, RUBALCAVA & MacCUISH LLP

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ANSWER TO COUNTERCLAIM

Case 5:07-cv-04808-JF

Document 27

Filed 12/26/2007

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PROOF OF SERVICE
1

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I, Heather Thai, declare:

I am employed in the County of Los Angeles, State of California. I am
over the age of 18 and not a party to the within action. My business address is

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Weston, Benshoof, Rochefort, Rubalcava & MacCuish LLP, 333 South Hope Street, Sixteenth Floor, Los Angeles, CA 90071. I am over the age of eighteen years and not a party to the action in which this service is made.
document(s) in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST

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TO COUNTERCLAIM on the interested parties in this action by enclosing the

On December 26,2007, I served the document(s) described as ANSWER

~

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BY MAIL: I am "readily familiar" with this firm's practice for the collection and the processing of correspondence for mailing with the United States Postal
Service. In the ordinary course of business, the correspondence would be

deposited with the United States Postal Service at 333 South Hope Street, Los Angeles, California 90071 with postage thereon fully prepaid the same day on which the correspondence was placed for collection and mailing at the IIrm. Following ordinary business practices, I placed for collection and mailing with
Rubalcava & MacCuish LLP, 333 South Hope Street, Los Angeles, California
90071 .

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the Unitea States Postal Service such envelope at Weston, Benshoof, RocIIefort,

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D

DELIVERY: I deposited such envelo~ in a facility regularly maintained by D FEDERAL EXPRESS D UPS Ð Overnight Delivery r specify name of

BY FEDERAL EXPRESS D UPS NEXT DAY AIR D OVERNIGHT

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courier or driver of U FEDERAL EXPRESS D UPS D OVERNIGHT DELIVERY rspecify name of service:) authorized to receive documents at Weston, Bensnoof, Rochefort, Rubalcava & MacCuish LLP, 333 South Hope
Street, Los Angeles, California 90071 with delivery fees fully provided for.

service: ) with deliveiy fees fully provided for or delivered the envelope to a

D D

BY FACSIMILE: I telecopied a copy of said document(s) to the following
addressee(s) at the following number(s) in accordance with the written

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confirmation of counsel in this action.
California that the above is true and correct.
correct.
(F ederal)
rState) I declare under penalty of perjury under the laws of the State of

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~

I declare under penalty of perjury that the foregoing is true and

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Executed on December 26, 2007, at Los Angeles, California.

~o-l i A /h'
eatner ThaÌ

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Document 27

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BP WEST COAST PRODUCTS LLC v. STTN ENTERPRISES, et al. United States District Court, Northern District Case No. C07 04808 RS

SERVICE LIST
John G. Michael, Esq.

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Baker Manock & Jensen 5260 North Palm Avenue Fourth Floor Fresno, CA 93704

Attorney for Defendants and

ENTERPRISES INC., NAZIM FAQUIRYAN, SAYED FAQUIRYAN, MAGHUL FAQUIRYAN, and AVA GLOBAL ENTERPRISE, LLC

Counterclaimants, STTN

Tel: (559) 432-5400
Fax: (559) 432-5620

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1093750.1