Opinion
B161837.
7-24-2003
KHALILI THABET, Plaintiff and Appellant, v. MOBIL CORPORATION, Defendant and Respondent.
Stanley W. Hodge and Arshak Bartoumian for Plaintiff and Appellant. Weston, Benshoof, Rochefort, Rubalcava & MacCuish, John M. Rochefort and John D. Arya for Defendant and Respondent.
Khalili Thabet operated a Mobil gasoline service station (the station) for many years. In 1999 he agreed to sell the business to George Hawatmeh for $ 215,000. On the day escrow was scheduled to close, Hawatmeh balked at paying the contract price because Thabet had purportedly failed to preserve the businesss goodwill and property. The parties renegotiated their agreement and completed the sale for $ 190,000.
Following the conclusion of the transaction, Thabet filed suit against Mobil Corporation dba Mobil/Exxon Corporation, alleging a Mobil representative had used threats and interference to induce Hawatmeh to demand a reduction in the price of the business. The trial court granted summary judgment in favor of Mobil, finding as one of its grounds that Thabets claims were time barred under the contractual limitations period in the franchise agreement between Mobil and Thabet. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Thabets franchise agreement with Mobil contained the basic terms and conditions regarding Thabets purchase of products from Mobil and his operation of the station. The franchise agreement contained a contractual limitations period: "All claims by Franchise Dealer against Mobil of any kind, whether or not arising out of this Agreement, are barred unless Franchise Dealer gives Mobil notice within 90 days after the event, act or omission to which such claim relates. Even if Franchise Dealer provides timely notice of a claim, any claim by Franchise Dealer is barred unless asserted by the commencement of a lawsuit naming Mobil as a defendant in a court of competent jurisdiction within 12 months after the event, act or omission to which the claim relates."
On November 19, 1999 Thabet and Hawatmeh signed escrow instructions providing for Hawatmehs purchase of the station, including Thabets personal property and the businesss goodwill. On August 9, 2000 Thabet executed an agreement terminating his franchise relationship with Mobil, effective September 4, 2000. In order to take over the station as a Mobil dealer, Hawatmeh entered into a three-year franchise agreement with Mobil, effective September 5, 2000.
On September 4, 2000 Hawatmeh, Thabet and Mobil representative Carl Fox arrived at the station to execute the documents necessary to effect a "changeover" by which Hawatmeh would replace Thabet as owner of the station and Mobils franchisee. At that meeting Hawatmeh informed Thabet he no longer wished to purchase the business at the contract price of $ 215,000 because Thabet had failed to maintain the station in good condition, had undermined the goodwill of the business and had removed security cameras and door locks that were to be included in the sale. Hawatmeh demanded a reduction of $ 40,000 from the original price; Thabet refused to close escrow on those terms.
Fox overheard the conversation between Hawatmeh and Thabet and reminded Thabet that, regardless of whether the sale to Hawatmeh closed, Thabet had already signed an agreement terminating his franchise as of September 4, 2000. Thabet and Hawatmeh ultimately agreed to reduce the purchase price by $ 25,000. Hawatmeh took over operation of the station on September 6, 2000.
Thabet filed suit against Mobil on September 12, 2001, alleging causes of action for tortious interference with business contract, intentional interference with business advantage, and fraud. Mobil moved for summary judgment. After a hearing on August 1, 2002, the trial court granted the motion and entered judgment in favor of Mobil. This appeal followed.
Because we affirm based on the contractual limitations period, we need not address the merits of Thabets tort claims.
Because Thabet admittedly discovered all the facts underlying his claim no later than September 6, 2000 and did not file suit against Mobil until September 12, 2001, his action was time-barred. Summary judgment was properly granted. court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612, 957 P.2d 1313.) In the trial court, once a moving defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . . (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)" (Merrill v. Navegar,Inc. (2001) 26 Cal.4th 465, 476-477.)
Thabet acknowledged at his deposition that all Mobils tortious acts occurred before September 6 and answered "yes" to the question, "And you were aware of all of ExxonMobils alleged wrongful conduct by September 6, 2000 at the latest; correct?"
In opposition to Mobils motion for summary judgment, Thabet proffered a declaration that contradicted the admission in his deposition testimony. The trial court properly held the declaration testimony was inadmissible to create a triable issue of fact. (Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1493, fn. 4; see DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, 112 Cal. Rptr. 786, 520 P.2d 10.)
In reviewing the evidence, we strictly construe the moving partys evidence and liberally construe the opposing partys and accept as undisputed only those portions of the moving partys evidence that are uncontradicted. "Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors. [Citation.]" (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839; see also Katz v. Chevron Corp. (1994) 22 Cal.App.4th 1352, 1365 ["doubts as to the propriety of granting the motion should be resolved in favor of the opposing party"].)
2. The Undisputed Facts Establish Thabets Claims Are Barred by the Contractual Limitations Period
Under California law parties may agree to a provision shortening the statute of limitations, "qualified, however, by the requirement that the period fixed is not in itself unreasonable or is not so unreasonable as to show imposition or undue advantage. [Citations.]" (Capehart v. Heady (1962) 206 Cal. App. 2d 386, 388, 23 Cal. Rptr. 851; see Beeson v. Schloss (1920) 183 Cal. 618, 622-623, 192 P. 292; Hambrecht & Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1548.) Although other jurisdictions had held that a statute of limitations may not be shortened or waived, "such is not the rule in this state, where such statutes are regarded as statutes of repose, carrying with them, not a right protected under the rule of public policy, but a mere personal right for the benefit of the individual, which may be waived. [Citations.] We are unable to perceive that any distinction can be made upon the ground of public policy between the right of a party to waive the plea of the statute of limitations as a defense to an action, and his right to waive a portion of the time granted by the statute for the commencement of an action." (Tebbets v. Fidelity and Casualty Co. (1909) 155 Cal. 137, 139, 99 P. 501 [holding on demurrer that six-month contractual limitations period was not unreasonable]; accord, Beeson, at pp. 622-623 [contractual provision shortening the statute of limitations "violates no principle of public policy, provided the period fixed be not so unreasonable as to show imposition or undue advantage"].)
"Except as restricted by statute, California courts accord contracting parties substantial freedom to modify the length of the statute of limitations." (Hambrecht & Quist Venture Partners v. American Medical Internat., Inc., supra, 38 Cal.App.4th at p. 1548.) "A contractual limitations period requiring a plaintiff to commence an action within 12 months following the event giving rise to a claim is a reasonable limitation which generally manifests no undue advantage and no unfairness. [Citations.]" (Han v. Mobil Oil Corp. (9th Cir. 1995) 73 F.3d 872, 877 [applying California law and enforcing the one-year limitations period in Mobils franchise agreement].)
Thabet contends, without citation to authority, that the limitations period in the franchise agreement did not survive the termination of the franchise agreement and therefore does not bar his claim. Thabets premise is incorrect: Contractual provisions relating to dispute resolution may, if the parties so intend, survive termination of the contract itself. (Ajida Technologies, Inc. v. Roos Instruments,Inc. (2001) 87 Cal.App.4th 534, 545 ["a partys contractual duty to arbitrate disputes may survive termination of the agreement giving rise to that duty"]; Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 685 [same].)
In this case both the franchise agreement and the mutual termination agreement provide that the limitations period survives termination of the franchise agreement. Paragraph 3 of the mutual termination agreement provides, "The termination of the Franchise Agreement, franchise and franchise relationship is without prejudice to any accrued rights of [Mobil]." Paragraph 15.1 of the franchise agreement provides, "Upon the termination or nonrenewal of this Agreement, the Franchise and the Franchise Relationship, . . . Franchise Dealer shall [P] . . . [P] (d) comply with all provisions of this Agreement that expressly or by reasonable implication apply to Franchise Dealers conduct after termination or nonrenewal." It is not reasonable to assume Mobil intended to allow a plaintiff with whom it had severed its relationship to have a longer period to bring suit involving the franchise relationship than a party with whom a franchise agreement was still in existence. Accordingly, the limitations provision applies to the events at issue in Thabets complaint, even if they allegedly occurred after the franchise agreement was terminated.
The limitations period expressly applies to "all claims . . . of any kind" between Thabet and Mobil, "whether or not arising out of this Agreement." That language encompasses both contract and tort claims. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 608, 951 P.2d 399.)
DISPOSITION
The judgment of the trial court is affirmed. Mobil is to recover its costs on appeal.
JOHNSON, J., WOODS, J., we concur.
DISCUSSION
1. Standard of Review
The standard of review on appeal after an order granting summary judgment is well settled. "A trial