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This case was last updated from Los Angeles County Superior Courts on 01/15/2021 at 10:53:24 (UTC).

FELIPE MIRELES ET AL VS PHILLIPS 66 ET AL

Case Summary

On 03/19/2013 FELIPE MIRELES filed a Personal Injury - Other Personal Injury lawsuit against PHILLIPS 66. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIA WEINBACH, DUKES, ROBERT A., OKI, DAN THOMAS, BRIAN S. CURREY and GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3381

  • Filing Date:

    03/19/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIA WEINBACH

DUKES, ROBERT A.

OKI, DAN THOMAS

BRIAN S. CURREY

GLORIA WHITE-BROWN

 

Party Details

Plaintiffs and Petitioners

MIRELES FELIPE

MIRELES MARIA

Defendants, Cross Defendants and Not Classified By Court

76/CIRCLE K #5695

76/CIRCLE K#5695

CONOCOPHILLIPS

CONOCOPHILLIPS COMPANY (MSJ GRANTED 1-8)

CONVENIENCE RETAILERS LLC

CONVENIENCE RETAILERS LLC (DOE 1)

DAKAY STEPHEN A.

DOES 1 THROUGH 100

FIELD ENERGY CORPORATION

HUANG NELSON L.

PACIFIC CONVENIENCE & FUELS

PCF ACQUISITION CO. LLC

PCF ACQUISITIONS CO LLC

PHILLIPS 66

PHILLIPS 66 COMPANY

SUBURBAN PROPANE PARTNERS

TMC FRANCHISAE CORPORATION

TMC FRANCHISE CORPORATION

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

CONVENIENCE RETAILERS LLC (DOE 1)

DOES 1 THROUGH 100

PHILLIPS 66 COMPANY

TMC FRANCHISE CORPORATION

Defendants, Cross Plaintiffs and Cross Defendants

CONOCOPHILLIPS

PHILLIPS 66 COMPANY

SUBURBAN PROPANE PARTNERS

39 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

GRASSINI LAWRENCE P. ESQ.

Defendant, Respondent and Cross Plaintiff Attorneys

CANNON ANTHONY L. ESQ.

GRANNIS ESQ. JOHN F.

GRANNIS JOHN F. ESQ.

HOLT CRAIG A. ESQ.

HOLTZ CRAIG A. ESQ.

KRAKAUER FRED LAW OFFICES OF

NELMS ROBERT W.

OSBORN TIMOTHY M.

RONALD C. SPECTER ESQ.

SPECTER RONALD C. ESQ.

SPECTER RONALD

SPANIAC KATHERINE L.

EGAN EUGENE J. ESQ.

NELMS ROBERT WILLIAM

EGAN EUGENE JAMES

Defendant and Respondent Attorneys

CANNON ANTHONY L. ESQ.

GRANNIS JOHN F. ESQ.

HOLT CRAIG A. ESQ.

NELMS ROBERT W.

RONALD C. SPECTER ESQ.

EGAN EUGENE J. ESQ.

Defendant, Cross Defendant and Cross Plaintiff Attorneys

OSBORN TIMOTHY M.

SPECTER ESQ RONALD

RONALD C. SPECTER ESQ.

RODRIGUEZ MARK

KAO CHRIS

ROWLAND TERRY A.

18 More Attorneys Available

 

Court Documents

Declaration - DECLARATION OF ANDREW HAMILL IN SUPPORT OF SUBURBAN PROPANE'S RESPONSES TO REQUEST FOR PRODUCTION (SET THREE))

7/21/2020: Declaration - DECLARATION OF ANDREW HAMILL IN SUPPORT OF SUBURBAN PROPANE'S RESPONSES TO REQUEST FOR PRODUCTION (SET THREE))

Case Management Statement

10/14/2016: Case Management Statement

Legacy Document - LEGACY DOCUMENT TYPE: SECOND AMENDED CROSS-COMPLAINT

2/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: SECOND AMENDED CROSS-COMPLAINT

Order - ORDER ON DEFENDANTS MIL NO 11

3/3/2017: Order - ORDER ON DEFENDANTS MIL NO 11

Request for Judicial Notice

4/7/2017: Request for Judicial Notice

Request - REQUEST FOR JUDICIAL NOTICE

4/13/2017: Request - REQUEST FOR JUDICIAL NOTICE

Notice of Continuance

5/18/2017: Notice of Continuance

Notice of Continuance

5/18/2017: Notice of Continuance

Other - - OTHER - LAW AND MOTION RULING DEPT J

6/5/2017: Other - - OTHER - LAW AND MOTION RULING DEPT J

Minute Order - MINUTE ORDER ENTERED: 2017-07-14 00:00:00

7/14/2017: Minute Order - MINUTE ORDER ENTERED: 2017-07-14 00:00:00

Request for Judicial Notice

8/17/2017: Request for Judicial Notice

Legacy Document - LEGACY DOCUMENT TYPE: Objection Document Filed

1/19/2018: Legacy Document - LEGACY DOCUMENT TYPE: Objection Document Filed

PROOF OF SERVICE OF SUMMONS

4/10/2013: PROOF OF SERVICE OF SUMMONS

DECLARATION OF NELSON L. I{UANG EN SUPPORT OF PHILLIPS 66 COMPANY?S SUMMARY JUDGMENT MOTION ETC

5/28/2014: DECLARATION OF NELSON L. I{UANG EN SUPPORT OF PHILLIPS 66 COMPANY?S SUMMARY JUDGMENT MOTION ETC

MOTION / OPPOSITION / STIPULATION TO TRANSFER COMPLICATED PERSONAL INJURY CASE TO INDEPENDENT CALENDAR COURT AND ORDER

7/1/2014: MOTION / OPPOSITION / STIPULATION TO TRANSFER COMPLICATED PERSONAL INJURY CASE TO INDEPENDENT CALENDAR COURT AND ORDER

NOTICE OF ENTRY OF JUDGMENT OR ORDER

8/27/2014: NOTICE OF ENTRY OF JUDGMENT OR ORDER

NOTICE OF CASE REASSIGMENT AND TRANSFER, ETC. NOTICE OF CASE MANAGEMENT CONFERENCE

10/7/2014: NOTICE OF CASE REASSIGMENT AND TRANSFER, ETC. NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

10/16/2017: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

580 More Documents Available

 

Docket Entries

  • 08/24/2021
  • Hearing08/24/2021 at 08:30 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Jury Trial

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  • 08/16/2021
  • Hearing08/16/2021 at 08:30 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Final Status Conference

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  • 02/19/2021
  • Hearing02/19/2021 at 10:00 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Hearing on Motion to Compel Further Discovery Responses

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  • 11/03/2020
  • DocketNotice (of Ruling on APRO's Motion for Protective Order); Filed by Apro, LLC (Cross-Complainant)

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  • 10/23/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion to Compel (Responses to Special Interrogatories (Set Two) from Cross-Defendant Suburban Propane, LP) - Not Held - Vacated by Court

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  • 10/23/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion for Protective Order - Held - Motion Granted

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  • 10/23/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion to Compel (Form Interrogatories (Set One) from Cross-Defendant Suburban Propane, LP) - Not Held - Vacated by Court

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  • 10/23/2020
  • DocketOrder ([Proposed] Protective Order); Filed by Apro, LLC (Cross-Complainant)

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  • 10/23/2020
  • DocketMinute Order ( (Hearing on Motion for Protective Order)); Filed by Clerk

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  • 10/23/2020
  • DocketOrder (Tentative Ruling); Filed by Clerk

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1,080 More Docket Entries
  • 04/10/2013
  • DocketProof-Service/Summons (served on Nelson L. Huang; ); Filed by Attorney for Pltf/Petnr

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  • 04/10/2013
  • DocketProof of Service (served on Con OC OPhillips Co. ); Filed by Attorney for Pltf/Petnr

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  • 04/10/2013
  • DocketProof-Service/Summons (served on Phillips 66 Company; ); Filed by Attorney for Pltf/Petnr

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  • 04/10/2013
  • DocketProof-Service/Summons (served on TMC Franchise Corp. ); Filed by Attorney for Pltf/Petnr

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  • 03/19/2013
  • DocketComplaint

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  • 03/19/2013
  • DocketSummons Filed

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  • 03/19/2013
  • DocketComplaint; Filed by FELIPE MIRELES (Plaintiff); MARIA MIRELES (Plaintiff)

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  • 03/19/2013
  • DocketSUMMONS

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  • 03/19/2013
  • DocketSummons; Filed by null

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  • 03/19/2013
  • DocketCOMPLAINT FOR PERSONAL INJURIES AND DAMAGES - NEGLIGENCE; LOSS OF CONSORTIUM

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Tentative Rulings

b'

Case Number: BC503381 Hearing Date: July 26, 2021 Dept: J

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HEARING\r\nDATE: Monday, July 26,\r\n2021

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NOTICE: OK

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RE: Mireles\r\nv. ConocoPhillips Company, et al. (BC503381)

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______________________________________________________________________________

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Cross-Defendant Pacific\r\nConvenience & Fuels, LLC’s MOTION TO COMPEL FURTHER RESPONSES TO REQUEST\r\nFOR ADMISSIONS, SET ONE

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Responding Party:\r\nCross-Defendant Suburban Propane, LP

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Tentative Ruling

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Cross-Defendant\r\nPacific Convenience & Fuels, LLC’s Motion to Compel Further Responses to\r\nthe Request for Admissions is GRANTED. Cross-Defendant Suburban Propane, LP is\r\nordered to produce verified further responses to Request for Admissions Nos.\r\n1-95, without objections, within 20 days of the date of the hearing.

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Cross-Defendant\r\nSuburban Propane, LP’s request for additional time to file a motion for\r\nprotective order is denied.

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Background

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This is a personal\r\ninjury action that gives rise to multiple cross-complaints involving breach of\r\ncontract and indemnification claims.

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Plaintiffs\r\nFelipe Mireles (“Felipe”) and Maria Mireles (“Maria”) (collectively “Plaintiffs”)\r\nallege that on October 1, 2011, Felipe went to a 76 gas station to have a\r\npropane tank filled and sustained serious personal injuries caused by a propane\r\nfire. On March 19, 2013, Plaintiffs filed a complaint, asserting causes of\r\naction for:

\r\n\r\n
  1. Negligence

  2. Loss of Consortium

    On September\r\n14, 2016, ConocoPhillips Company (“ConocoPhillips”) and Phillips 66 Company,\r\nindividually and as assignee of ConocoPhillips Company (“Phillips 66”) filed\r\ntheir cross-complaint; the cross-complaint was ordered severed from Plaintiffs’\r\ncomplaint at that time. On February 24, 2017, ConocoPhillips and Phillips 66 filed\r\ntheir Second Amended Cross-Complaint (“SACC”) asserting causes of action\r\ntherein for:

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  1. Breach of Contract (as against Pacific Convenience\r\n& Fuels, LLC [“PCF”])

  2. Breach of Contract (as against Convenience Retailers,\r\nLLC [“CR”])

  3. Breach of Contract (as against Apro, LLC [“Apro”])

  4. Breach of Guaranty (as against Sam and Shireen Hirbod\r\n[“The Hirbods”])

  5. Equitable Indemnity (as against All Cross-Defendants)

    On March 8,\r\n2017, pursuant to the directive of Department 1, the court acted as master\r\ncalendar and ordered the matter transferred to Department 1 for trial\r\nassignment on March 21, 2017, with trial to be heard as to the complaint only.\r\nOn March 23, 2017, Department 1 assigned the case (complaint only) to\r\nDepartment B of the Compton courthouse for trial.

    On May 17,\r\n2017, ConocoPhillips and Phillips 66 dismissed their fifth cause of action as\r\nto Apro only, without prejudice. On May 22, 2017, ConocoPhillips and Phillips\r\n66 dismissed their second cause of action as to CR only, without prejudice. On\r\nMay 25, 2017, a partial dismissal, without prejudice, was filed as to the\r\ncomplaint.

    On June 5,\r\n2017, the court sustained PCF’s, CR’s and The Hirbods’ demurrer to the SACC\r\nwithout leave to amend; on June 15, 2017, the Order of Dismissal as to the\r\naforesaid cross-defendants was filed.

    On August 24,\r\n2017, the court granted Apro’s motion for judgment on the pleadings, without\r\nleave to amend as to the third cause of action in the SACC. On September 19,\r\n2017, the “Order of Dismissal of Causes of Action Alleged in…[SACC] Following\r\nGrant of Motion for Judgment on the Pleadings Without Leave to Amend” was\r\nfiled. On October 12, 2017, Apro filed its “Notice of Entry of Judgment” and\r\nserved same via mail.

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On March 28, 2018, the court granted PCF’s, CR’s and The\r\nHirbods motion for stay of litigation, to the extent that the case was ordered\r\nstayed pending the outcome of the appeals. On December 24, 2018, the remittitur\r\nwas filed with respect to the court’s August 24, 2017 ruling on Apro’s motion\r\nfor judgment on the pleadings.

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On January 23, 2019, PCF filed a cross-complaint, asserting\r\ncauses of action against ConocoPhillips, Suburban Propane, LP (“Suburban”),\r\nField Energy Corporation (“FEC”), Stephen Dakay (“Dakay”) and Roes 1-100 for:

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  1. Breach of Implied Covenant of Good Faith and Fair\r\nDealing

  2. Promissory Estoppel

  3. Breach of Contract

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

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On March 29, 2019, Apro filed a cross-complaint, asserting\r\ncauses of action against ConocoPhillips, Phillips66, Suburban, FEC, Dakay and\r\nRoes 1-100 for:

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  1. Breach of Implied Covenant of Good Faith and Fair\r\nDealing

  2. Promissory Estoppel

  3. Breach of Contract to Indemnify, Defend, Protect

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

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PCF[1] has\r\nfiled four motions to compel further responses from Suburban as follows:

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Hearing Date

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Involved\r\n Discovery

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Reservation\r\n Number

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July 26, 2021

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Request for Admission

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756321125681

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August 3, 2021

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Form Interrogatories

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217431856525

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August 3, 2021

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Special Interrogatories

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741366747499

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This ruling only addresses the first motion.

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The Final Status Conference is set for September 13, 2021.\r\nTrial is set for September 21, 2021.

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Legal Standard

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Failure to timely\r\nrespond to requests for admissions does not result in automatic admissions.\r\nRather, the propounder of the requests for admissions must “move for an order\r\nthat the genuineness of any documents and the truth of any matters specified in\r\nthe requests be deemed admitted, as well as for a monetary sanction” under section\r\n2023.010 et seq. (Code Civ. Proc., § 2033.280, subd. (b).)

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Where responses to\r\nrequests for admissions have been timely served but are deemed deficient by the\r\nrequesting party (e.g., because of objections or evasive responses), that party\r\nmay move for an order compelling a further response. (Id., subd. (a).)

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Discussion

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Although this action\r\ninvolves a number of different parties and different claims, this particular\r\ndiscovery dispute involves PCF and Suburban.

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PCF move to compel\r\nfurther responses from Suburban to its Request for Admissions, Set One (“RFA”),\r\nNos. 1-95. PCF specifically seeks responses to the RFA so that PCF can better\r\ndefend itself against the SACC’s cross-claims against it. PCF’s RFA\r\nfocuses on Suburban’s maintenance of, servicing of, responsibilities for, and\r\nrepair of the propane equipment involved in the flash fire incident that\r\nstarted this litigation. PCF does not\r\nseek monetary sanctions.

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The court determines that PCF has sufficiently met and\r\nconferred. (See Rangel Decl., ¶¶13-18, Exhs. D-F.) The fact that the meet and\r\nconfer letter appears boilerplate is immaterial. The parties spoke via a\r\nteleconference, and the failure to reach a resolution does not demonstrate\r\ninsufficient meet and confer efforts.

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PCF argues that\r\nSuburban’s responses are not responses at all because the responses are\r\nboilerplate objections and a representation that a verification would be\r\nforthcoming. Suburban submitted the following boilerplate response to each of\r\nthe RFA:

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Objection. This request is vague, ambiguous, overbroad, unduly burdensome\r\nand oppressive, unintelligible as phrased, calls for a legal conclusion, calls\r\nfor speculation, is argumentative, lacks foundation, seeks information that is\r\nprotected by the attorney-client privilege and attorney work product doctrine,\r\nseeks information that is equally available to the propounding party and\r\nalready in the possession of the propounding party, is duplicative of\r\npreviously propounded and answered discovery, and, along with the additional 94\r\nrequests in this set, is propounded for the sole purpose of harassment and\r\nannoyance. In addition, this request seeks information that is irrelevant and\r\nnot reasonably calculated to lead to the discovery of admissible evidence. (See\r\nExh. C.)

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(Rangel Decl., Exh. C.)

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In opposition, Suburban contends that this motion is\r\nharassment because all of the sought discovery can be found in the voluminous\r\ndiscovery that was completed in the underlying matter, i.e., Plaintiffs’\r\ncomplaint. In other words, Suburban argues that the RFA is unreasonably\r\ncumulative and duplicative. In any event, because the response contains only\r\nobjections, there is no requirement that Suburban provide a verification.\r\nInstead, PCF should have continued to work with Suburban to reach a compromise\r\ninstead of filing this motion.

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The court disagrees in substantial part.

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Suburban is correct that a response containing only\r\nobjections does not need to be verified. (Code Civ. Proc., § 2033.240, subd.\r\n(a) [“The party to whom the requests for admission are directed shall sign the\r\nresponse under oath, unless the response contains only objections.”].)

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However, the court rejects Suburban’s other arguments.

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Suburban cites no specific authority that it does not need\r\nto respond to PCF’s discovery requests simply because the information is\r\nalready out there if PCF looks for it. The fact that the information may be\r\navailable does not excuse Suburban’s discovery obligations, especially here\r\nwhen there is no demonstration that the RFA is cumulative because Suburban\r\nfails to explain with documents how the RFA is cumulative. (TBG Ins.\r\nServices Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)\r\nSuburban’s declaration is conclusory and unpersuasive. (Osborn Decl., ¶5.)\r\nAdditionally, PCF notes in reply that there are no prior requests for admission\r\nin the underlying matter relating to the issues of the RFA, making Suburban’s\r\nclaim false.

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Finally, the court rejects Suburban’s request for additional\r\ntime to file a motion for a protective order. Suburban cites no supporting\r\nauthority for this request. The nature of the dispute also does not support\r\nthis request. This discovery dispute started no later than March 18, 2021, when\r\nPCF sent a meet and confer letter regarding the discovery dispute. Suburban had\r\nample time to pursue a motion for protective order then. By choosing not to do\r\nso and rest on its opposition, Suburban does not get an unfair reward for its chosen\r\nlitigation tactics. To the extent that Suburban wants a stay of its discovery\r\nobligations while a potential motion for a protective order is pending,\r\nSuburban must make an appropriate application for that relief.

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The motion, then, is granted. Because Suburban fails to\r\naddress the merits of the objections, Suburban does not meet its burden to show\r\nthat any of its objections are meritorious. Therefore, the further responses\r\nmust be without objections.

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[1] There are upcoming hearing dates for two other\r\nmotions filed by other parties to compel further responses from Suburban.

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Case Number: BC503381    Hearing Date: October 23, 2020    Dept: J

HEARING DATE: Thursday, October 23, 2020

NOTICE: OK[1]

RE: Mireles v. ConocoPhillips Company, et al. (BC503381)

______________________________________________________________________________

 

Cross-Complainant Apro, LLC’s MOTION FOR PROTECTIVE ORDER

Responding Party: Cross-Defendants Field Energy Corporation and Stephen Dakay[2]

Tentative Ruling

Cross-Complainant Apro, LLC’s Motion for Protective Order is GRANTED.

Background

Plaintiffs Felipe Mireles (“Felipe”) and Maria Mireles (“Plaintiffs”) allege that on October 1, 2011, Felipe went to a 76 gas station to have a propane tank filled and sustained serious personal injuries caused by a propane fire. On March 19, 2013, Plaintiffs filed a complaint, asserting causes of action for:

  1. Negligence

  2. Loss of Consortium

    On September 14, 2016, ConocoPhillips Company (“ConocoPhillips”) and Phillips 66 Company, individually and as assignee of ConocoPhillips Company (“Phillips 66”) filed their cross-complaint; the cross-complaint was ordered severed from Plaintiffs’ complaint at that time. On February 24, 2017, ConocoPhillips and Phillips 66 filed their Second Amended Cross-Complaint (“SACC”) asserting causes of action therein for:

  1. Breach of Contract (as against Pacific Convenience & Fuels, LLC [“PCF”])

  2. Breach of Contract (as against Convenience Retailers, LLC [“CR”])

  3. Breach of Contract (as against Apro, LLC [“Apro”])

  4. Breach of Guaranty (as against Sam and Shireen Hirbod [“The Hirbods”])

  5. Equitable Indemnity (as against All Cross-Defendants)

  6. On March 8, 2017, pursuant to the directive of Department 1, the court acted as master calendar and ordered the matter transferred to Department 1 for trial assignment on March 21, 2017, with trial to be heard as to the complaint only. On March 23, 2017, Department 1 assigned the case (complaint only) to Department B of the Compton courthouse for trial.

    On May 17, 2017, ConocoPhillips and Phillips 66 dismissed their fifth cause of action as to Apro only, without prejudice. On May 22, 2017, ConocoPhillips and Phillips 66 dismissed their second cause of action as to CR only, without prejudice. On May 25, 2017, a partial dismissal, without prejudice, was filed as to the complaint.

    On June 5, 2017, the court sustained PCF’s, CR’s and The Hirbods’ demurrer to the SACC without leave to amend; on June 15, 2017, the Order of Dismissal as to the aforesaid cross-defendants was filed.

    On August 24, 2017, the court granted Apro’s motion for judgment on the pleadings, without leave to amend as to the third cause of action in the SACC. On September 19, 2017, the “Order of Dismissal of Causes of Action Alleged in…[SACC] Following Grant of Motion for Judgment on the Pleadings Without Leave to Amend” was filed. On October 12, 2017, Apro filed its “Notice of Entry of Judgment” and served same via mail.

On March 28, 2018, the court granted PCF’s, CR’s and The Hirbods motion for stay of litigation, to the extent that the case was ordered stayed pending the outcome of the appeals. On December 24, 2018, the remittitur was filed with respect to the court’s August 24, 2017 ruling on Apro’s motion for judgment on the pleadings.

On January 23, 2019, PCF filed a cross-complaint, asserting causes of action against ConocoPhillips, Suburban Propane, LP (“Suburban”), Field Energy Corporation (“FEC”), Stephen Dakay (“Dakay”) and Roes 1-100 for:

  1. Breach of Implied Covenant of Good Faith and Fair Dealing

  2. Promissory Estoppel

  3. Breach of Contract

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

On March 29, 2019, Apro filed a cross-complaint, asserting causes of action against ConocoPhillips, Phillips66, Suburban, FEC, Dakay and Roes 1-100 for:

  1. Breach of Implied Covenant of Good Faith and Fair Dealing

  2. Promissory Estoppel

  3. Breach of Contract to Indemnify, Defend, Protect

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

The Final Status Conference is set for August 16, 2021. Trial is set for August 24, 2021.

Legal Standard

“The court shall limit scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ Proc., § 2017.020, subd. (a).)

“The court shall restrict the frequency or extent of use of a discovery method . . . if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc., § 2019.030, subd. (a).) “The court may make these determinations pursuant to a motion for a protective order by a party of other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2019.030, subd. (b).)

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may move promptly for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . (5) That a trade secret or other confidential research, development., or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way . . . ” (Code Civ. Proc., § 2031.060, subd. (b).)

Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

Apro moves the court for entry of a protective order allowing the parties to make “Confidential”

and “Attorney’s Eyes Only” (“AEO”) designations with respect to the production, disclosure,

and use of certain documents and information in this matter.

The court determines that Apro has sufficiently met and conferred. (See Rangel Decl., ¶¶3-11, Exhs. M-O.) Apro advises that all parties except FEC/Dakay have agreed to Apro’s proposed protective order.

The court further determines that Apro has shown good cause. Apro explains that several of the parties (i.e., ConocoPhillips, Phillips 66, PCF and Apro) are, or recently were, in the business of owning and operating gas stations and convenience stores in California and across the country and that ConocoPhillips, PCF and Apro, in fact, have at different times each owned the subject 76 station where the accident giving rise to this lawsuit occurred. (Hamill Decl., ¶3.) Several parties to this suit, then, are direct competitors.

Additionally, the transactions, and the indemnity provisions in the related contracts, pursuant to which ownership of the subject 76 station was transferred from ConocoPhillips to PCF and then from PCF to Apro, are the bases for many of the causes of action in ConocoPhillips’ SACC and PCF’s and Apro’s respective cross-complaints. (Id., ¶¶4-6, Exhs. A-D.) ConocoPhillips’ SACC references the June 3, 2015 Assignment, Assumption and Modification Agreement (“Assignment”) in its cause of action against Apro. (Id., ¶7, Exh. D.) The Assignment was part of the transaction pursuant to which Apro purchased the subject 76 station from PCF’s subsidiary, CR. (Id.) Although the Assignment was made public in the underlying matter, there are confidential contractual documents related to the Assignment which Apro intends to produce during discovery which contain Apro’s sensitive business information. (Id., ¶¶9-10.) ConocoPhillips has also expressed a need for a protective order in order to furnish documents responsive to Apro’s Requests for Production, Set Two. (Id., ¶¶13-14, Exhs. G and H.)

The court notes FEC’s and Dakay’s concerns regarding the settlement agreement between ConocoPhillips and Mireles. However, Apro’s proposed protective order does not bar parties from seeking court relief from improper designations. Further, as Apro points out, ConocoPhillips cannot use the settlement agreement “as both the sword they premise their suit upon and a shield with respect to the content of the information.” (Reply, 3:26-28.)

The motion, then, is granted.


[1] The motion was filed (and served via mail) on July 21, 2020, with a “To be Assigned” hearing date. On August 6, 2020, Apro filed (and served via mail and e-mail) a “Notice of Hearing on Apro, LLC’s Motion for Protective Order,” advising therein that the motion had been set for hearing on October 23, 2020 at 10:00 a.m.

[2] The opposition untimely filed (and served via e-mail) on October 9, 2020; it was due on October 2, 2020. The court will consider the opposition on its merits, inasmuch as no objection to same was made.

Case Number: BC503381    Hearing Date: October 16, 2020    Dept: J

HEARING DATE: Friday, October 16, 2020

NOTICE: OK[1]

RE: Mireles v. ConocoPhillips Company, et al. (BC503381)

______________________________________________________________________________

 

Cross-Complainant Apro, LLC’s MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSIONS (SET ONE) FROM CROSS-DEFENDANT SUBURBAN PROPANE, LP

Responding Party: None (unopposed, as of 10/9/20, 11:32 a.m.; due 10/2/20)

Tentative Ruling

See below.

Background

Plaintiffs Felipe Mireles (“Felipe”) and Maria Mireles (“Plaintiffs”) allege that on October 1, 2011, Felipe went to a 76 gas station to have a propane tank filled and sustained serious personal injuries caused by a propane fire. On March 19, 2013, Plaintiffs filed a complaint, asserting causes of action for:

  1. Negligence

  2. Loss of Consortium

    On September 14, 2016, ConocoPhillips Company (“ConocoPhillips”) and Phillips 66 Company, individually and as assignee of ConocoPhillips Company (“Phillips 66”) filed their cross-complaint; the cross-complaint was ordered severed from Plaintiffs’ complaint at that time. On February 24, 2017, ConocoPhillips and Phillips 66 filed their Second Amended Cross-Complaint (“SACC”) asserting causes of action therein for:

  1. Breach of Contract (as against Pacific Convenience & Fuels, LLC [“PCF”])

  2. Breach of Contract (as against Convenience Retailers, LLC [“CR”])

  3. Breach of Contract (as against Apro, LLC [“Apro”])

  4. Breach of Guaranty (as against Sam and Shireen Hirbod [“The Hirbods”])

  5. Equitable Indemnity (as against All Cross-Defendants)

    On March 8, 2017, pursuant to the directive of Department 1, the court acted as master calendar and ordered the matter transferred to Department 1 for trial assignment on March 21, 2017, with trial to be heard as to the complaint only. On March 23, 2017, Department 1 assigned the case (complaint only) to Department B of the Compton courthouse for trial.

    On May 17, 2017, ConocoPhillips and Phillips 66 dismissed their fifth cause of action as to Apro only, without prejudice. On May 22, 2017, ConocoPhillips and Phillips 66 dismissed their second cause of action as to CR only, without prejudice. On May 25, 2017, a partial dismissal, without prejudice, was filed as to the complaint.

    On June 5, 2017, the court sustained PCF’s, CR’s and The Hirbods’ demurrer to the SACC without leave to amend; on June 15, 2017, the Order of Dismissal as to the aforesaid cross-defendants was filed.

    On August 24, 2017, the court granted Apro’s motion for judgment on the pleadings, without leave to amend as to the third cause of action in the SACC. On September 19, 2017, the “Order of Dismissal of Causes of Action Alleged in…[SACC] Following Grant of Motion for Judgment on the Pleadings Without Leave to Amend” was filed. On October 12, 2017, Apro filed its “Notice of Entry of Judgment” and served same via mail.

On March 28, 2018, the court granted PCF’s, CR’s and The Hirbods motion for stay of litigation, to the extent that the case was ordered stayed pending the outcome of the appeals. On December 24, 2018, the remittitur was filed with respect to the court’s August 24, 2017 ruling on Apro’s motion for judgment on the pleadings.

On January 23, 2019, PCF filed a cross-complaint, asserting causes of action against ConocoPhillips, Suburban Propane, LP (“Suburban”), Field Energy Corporation (“FEC”), Stephen Dakay (“Dakay”) and Roes 1-100 for:

  1. Breach of Implied Covenant of Good Faith and Fair Dealing

  2. Promissory Estoppel

  3. Breach of Contract

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

On March 29, 2019, Apro filed a cross-complaint, asserting causes of action against ConocoPhillips, Phillips66, Suburban, FEC, Dakay and Roes 1-100 for:

  1. Breach of Implied Covenant of Good Faith and Fair Dealing

  2. Promissory Estoppel

  3. Breach of Contract to Indemnify, Defend, Protect

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

The Final Status Conference is set for August 16, 2021. Trial is set for August 24, 2021.

Legal Standard

A response to requests for admission is due 30 days after service. (Code Civ. Proc., § 2033.250, subd. (a).) If a party to whom the requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).)

It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

Discussion

Apro moves the court for an order compelling Suburban to provide responses to Apro’s Requests

for Admissions, Set No. One.

Merits

On May 8, 2019, Apro served the subject discovery via electronic service on Suburban. (Hamill Decl., ¶4, Exh. 1.) Suburban took the position that electronic service was invalid and, as such, that it had not been served with the subject discovery; accordingly, on July 3, 2019, Apro re-served the subject discovery on Suburban via mail. (Id., ¶¶5-6, Exh. 2.) After obtaining an extension, Suburban’s responses were due on August 14, 2019. (Id., ¶7, Exh. 3.) On August 14, 2019, Suburban served objection only responses, with a “verification to follow.” (Id., ¶9, Exh. 4.) On September 20, 2019, Apro’s counsel Andrew Hamill sent a letter to Suburban’s counsel Timothy Osborn (“Osborn”), addressing the discovery deficiencies and requesting therein a date and time prior to September 27, 2019 for counsel to meet and confer. (Id., ¶10, Exh. 3.) On November 4, 2019, Hamill and Osborn met and conferred telephonically, during which time Osborn agreed to provide substantive responses to the subject discovery by December 18, 2019. (Id., ¶11, Exh. 5.) On December 18, 2019, Osborn requested a further extension. (Id., ¶12, Exh. 5.) On December 19, 2019, Hamill asked Osborn to confirm that responses to the subject discovery would be provided by January 6, 2020. (Id., ¶13, Exh. 5.) Osborn did not respond. (Id., ¶13.)

On March 5, 2020, Apro’s counsel Lawya Rangel (“Rangel”) asked Osborn to provide substantive, verified responses to the subject discovery by March 13, 2020. (Rangel Decl., ¶8, Exh. 6.) On March 5, 2020, counsel met and conferred telephonically, during which time Suburban was given an extension until April 3, 2020 to provide responses. (Id., ¶9.) Osborn’s office subsequently requested and received further extensions, such that responses to the subject discovery were due on June 19, 2020. (Id., ¶¶10-13, Exh. 7.) Rangel cautioned Osborn’s office in an email dated May 22, 2020 that “[i]f we do not receive substantive verified responses on that date, we plan to file motions to compel on June 30, 2020.” (Id.) On June 19, 2020, Osborn advised Rangel that his office was still in the process of working on the responses, and requested that she “stand down” on her plans to file motions to compel on June 30, 2020. (Id.) The motion was filed July 1, 2020.

At the outset, the court notes that, while labeled a straightforward motion to compel, the instant motion is, in actuality, a motion to compel further responses. The above record reflects that Suburban served objection-only responses on August 14, 2019, stating “verification to follow.” (Hamill Decl., ¶9, Exh. 4.) Objection-only responses, however, need not be verified. (Code Civ. Proc., § 2033.240, subds. (a) and (c); see Blue Ridge Ins. Co. v. Sup. Ct. (Kippen) (1988) 202 Cal.App.3d 339, 344.) The relief requested, then, is moot.

The motion is not accompanied by a California Rules of Court Rule 3.1345, subdivision (a)(1) separate statement or a “concise outline of the discovery request and each response in dispute” in lieu thereof, as permitted by Code of Civil Procedure § 2033.290, subdivision (b)(2).

Even if the court were to overlook the above deficiencies and construe the motion as a motion to compel furthers, the motion would nevertheless be denied as untimely. Code of Civil Procedure § 2033.290, subdivision (c) states that “[u]nless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” Counsels’ communications, as reflected in the attached exhibits, indicated that the motion would be filed on June 30, 2020. (Rangel Decl., ¶14, Exh. 7.) The motion, however, was filed July 1, 2020.


[1] The motion was filed (mail-served on June 30, 2020) on July 1, 2020 , with a “To be Assigned” hearing date. On August 6, 2020, Apro filed (and mail-served) a “Notice of Hearing on Apro, LLC’s Motion to Compel Responses to Requests for Admissions (Set One) from Cross-Defendant Suburban Propane, LP,” advising therein that the motion had been set for hearing on October 16, 2020 at 10:00 a.m.

Case Number: BC503381    Hearing Date: March 12, 2020    Dept: J

HEARING DATE: Thursday, March 12, 2020

NOTICE: OK

RE: Mireles v. ConocoPhillips Company, et al. (BC503381)

______________________________________________________________________________

 

Cross-Defendant Apro, LLC’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Cross-Complainants, ConocoPhillips Company and Phillips 66 Company

Tentative Ruling

Cross-Defendant Apro, LLC’s Motion for Summary Judgment is DENIED.

Background

Plaintiffs Felipe Mireles (“Felipe”) and Maria Mireles (“Plaintiffs”) allege that on October 1, 2011, Felipe went to a 76 gas station to have a propane tank filled and sustained serious personal injuries caused by a propane fire. On March 19, 2013, Plaintiffs filed a complaint, asserting causes of action for:

  1. Negligence

  2. Loss of Consortium

    On September 14, 2016, ConocoPhillips Company (“ConocoPhillips”) and Phillips 66 Company, individually and as assignee of ConocoPhillips Company (“Phillips 66”) filed their cross-complaint; the cross-complaint was ordered severed from Plaintiffs’ complaint at that time. On February 24, 2017, ConocoPhillips and Phillips 66 filed their Second Amended Cross-Complaint (“SACC”) asserting causes of action therein for:

  1. Breach of Contract (as against Pacific Convenience & Fuels, LLC [“PCF”])

  2. Breach of Contract (as against Convenience Retailers, LLC [“CR”])

  3. Breach of Contract (as against Apro, LLC [“Apro”])

  4. Breach of Guaranty (as against Sam and Shireen Hirbod [“The Hirbods”])

  5. Equitable Indemnity (as against All Cross-Defendants)

    On March 8, 2017, pursuant to the directive of Department 1, the court acted as master calendar and ordered the matter transferred to Department 1 for trial assignment on March 21, 2017, with trial to be heard as to the complaint only. On March 23, 2017, Department 1 assigned the case (complaint only) to Department B of the Compton courthouse for trial.

    On May 17, 2017, ConocoPhillips and Phillips 66 dismissed their fifth cause of action as to Apro only, without prejudice. On May 22, 2017, ConocoPhillips and Phillips 66 dismissed their second cause of action as to CR only, without prejudice. On May 25, 2017, a partial dismissal, without prejudice, was filed as to the complaint.

    On June 5, 2017, the court sustained PCF’s, CR’s and The Hirbods’ demurrer to the SACC without leave to amend; on June 15, 2017, the Order of Dismissal as to the aforesaid cross-defendants was filed.

    On August 24, 2017, the court granted Apro’s motion for judgment on the pleadings, without leave to amend as to the third cause of action in the SACC. On September 19, 2017, the “Order of Dismissal of Causes of Action Alleged in…[SACC] Following Grant of Motion for Judgment on the Pleadings Without Leave to Amend” was filed. On October 12, 2017, Apro filed its “Notice of Entry of Judgment” and served same via mail.

On March 28, 2018, the court granted PCF’s, CR’s and The Hirbods motion for stay of litigation, to the extent that the case was ordered stayed pending the outcome of the appeals. On December 24, 2018, the remittitur was filed with respect to the court’s August 24, 2017 ruling on Apro’s motion for judgment on the pleadings.

On January 23, 2019, PCF filed a cross-complaint, asserting causes of action against ConocoPhillips, Suburban Propane, LP (“Suburban”), Field Energy Corporation (“FEC”), Stephen Dakay (“Dakay”) and Roes 1-100 for:

  1. Breach of Implied Covenant of Good Faith and Fair Dealing

  2. Promissory Estoppel

  3. Breach of Contract

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

On March 29, 2019, Apro filed a cross-complaint, asserting causes of action against ConocoPhillips, Phillips66, Suburban, FEC, Dakay and Roes 1-100 for:

  1. Breach of Implied Covenant of Good Faith and Fair Dealing

  2. Promissory Estoppel

  3. Breach of Contract to Indemnify, Defend, Protect

  4. Equitable Indemnity

  5. Contribution

  6. Declaratory Relief

  7. Tort of Another

The Final Status Conference is set for July 20, 2020. Trial is set for July 28, 2020.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

Discussion

Apro moves the court for summary judgment in Apro’s favor and against ConocoPhillips and

Phillips 66 on the third cause of action (i.e., for Breach of Contract) in ConocoPhillips’ and

Phillips 66’s SACC, on the ground that no triable issue of material fact exists and Apro is

therefore entitled to judgment as a matter of law.

Request for Judicial Notice

ConocoPhillips’ and Phillips 66’s Request for Judicial Notice is ruled on as follows: Granted as

to Exhibit C to the Compendium of Evidence (i.e., Respondent’s Answering Brief submitted to

the Court of Appeal in Appeal No. B285752, Second Appellate District, in the appeal styled

ConocoPhillips Company, et al. v. Apro, LLC) and Granted as to Exhibit D to the Compendium

of Evidence (i.e., the Order and Opinion on Appeal issued by the Court of Appeal in Appeal No.

B285752, Second Appellate District, in the appeal styled ConocoPhillips Company, et al. v.

Apro, LLC. )

Evidentiary Objections

ConocoPhillips’ and Phillips 66’s evidentiary objections are ruled on as follows: SUSTAINED in full.

Merits

 

On February 24, 2019, ConocoPhillips and Phillips 66 filed a SACC, asserting a cause of action for Breach of Contract against Apro. ConocoPhillips and Phillips 66 have alleged, in relevant part, as follows: ConocoPhillips is a defendant in the personal injury action styled Mireles, et al. v. ConocoPhillips, et al., filed on or about March 19, 2013 (“Mireles Complaint”), which involves allegations of personal injury damages resulting from a propane fire at the service station located at 551 N. Sunset Boulevard in La Puente (“Subject Property”). (SACC, ¶13.) FEC was the operator of the Subject Property and Dakay was an agent or employee of FEC as of the date of the incident alleged in the Mireles Complaint. (Id., ¶¶14-15.) Suburban was the owner of the owner and supplier of the propane equipment and propane gas at the Subject Property as of the date of the incident alleged in the Mireles Complaint. (Id., ¶16.) CR was the owner of the Subject Property as of the date of the incident alleged in the Mireles Complaint. (Id., ¶17.) PCF, CR, The Hirbods and Apro were at all times the alter ego, successor, assignee, agent servant, employee, and/or representative of each of the other cross-defendants as of the date of the incident alleged in the Mireles Complaint. (Id., ¶18.)

ConocoPhillips and PCF entered into the “Amended And Restated Acquisition Agreement Between Pacific Convenience & Fuels, LLC and ConocoPhillips Company Dated As of January 30, 2009” (the “Acquisition Agreement”), whereby PCF agreed to indemnify and defend ConocoPhillips at ¶ 14.2 for those types of claims asserted against ConocoPhillips in the Mireles Complaint. (Id., ¶19, Exh. 1.) As part of the acquisition, ConocoPhillips also entered into the 2009 Master Branded Reseller Agreement (the “MBRA”) with CR, whereby CR agreed to indemnify and defend ConocoPhillips against any and all claims, suits, actions, or other losses or liabilities. (Id., ¶20.) Phillips 66 entered into an agreement with Apro and CR dated June 3, 2015 styled “Assignment, Assumption & Modification Agreement” (the “Assignment”). (Id., ¶22, Exh. 3.) ConocoPhillips’ assignee of its rights to defense, indemnity, and all other provisions of the aforementioned agreements is Phillips 66. (Id., ¶23.)

The Assignment provides that Apro, as the successor and assignee of all liabilities and obligations of CR, will indemnify and hold ConocoPhillips harmless from any and all liability or damages. (Id., ¶49.) Apro agreed to assume the defense and indemnification obligations as it pertains to CR under the MBRA. (Id.) Pursuant to Section 1..2 of the Assignment, Apro agreed that it “accepts and assumes, all right, title, interest, obligation and liability of Original Operator under the MBNA, with the same force and effect as though Assuming Operator were originally named in the MBNA as a party thereto.” (Id.) Apro’s obligation to indemnify in this case is based on the indemnification obligations of CR contained in the MBRA. (Id.) ConocoPhillips and Phillips 66 have performed and complied with all conditions and obligations required to be performed by them under and pursuant to the Assignment. (Id., ¶50.) Apro has failed and refused to defend and indemnify ConocoPhillips and Phillips 66 and has thus breached the Assignment. (Id., ¶51.) ConocoPhillips and Phillips 66 have been damaged. (Id., ¶52.)

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Apro contends that Apro purchased the Subject Property from CR according to an Amended and Restated Asset Purchase Agreement dated March 11, 2015 (“Asset Purchase Agreement”) that expressly excluded the Mireles Complaint both as a liability and a purchased asset. (Motion, 2:3-5). Apro argues that to effectuate the purchase, the Asset Purchase Agreement required CR to transfer its related third-party contracts such as its MBRA with ConocoPhillips to Apro and that, accordingly, Apro, CR and ConocoPhillips executed an Assignment, Assumption and Modification Agreement (the “Assignment”). (Id., 2:5-8). Apro claims that the Assignment incorporates the Asset Purchase Agreement by reference and expressly confirms that it is “part of an overall agreement defined by, subject to, concurrent to, and conditional upon the closing of the Asset Purchase Agreement; as such, the Assignment only assigns the MBRA with respect to the assets and liabilities transferred by the Asset Purchase Agreement and does not assign liability under the MBRA for the Mireles Complaint. (Id., 2:10-14).

The Asset Purchase Agreement, however, is inadmissible based on the above rulings made as to ConocoPhillips’ and Phillips 66’s evidentiary objections. “To meet the burden of production, the party moving for summary judgment must support that motion ‘by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.’ (Code Civ. Proc., § 437c, subd. (b)(1).) Supporting affidavits or declarations ‘shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.’ (Id. at subd. (d).)” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) The court determines that Apro has failed to meet burden of production, and thus did not shift that burden to ConocoPhillips and Phillips 66. The motion is DENIED.

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