Opinion
E072486 E073078
06-21-2022
KARAMBIR BHULLAR et al., Plaintiffs and Appellants, v. MIDLAND OIL GROUP, LLC, et al., Defendants and Respondents. KARAMBIR BHULLAR et al., Plaintiffs and Appellants, v. TESORO REFINING & MARKETING COMPANY, LLC, Defendant and Respondent.
Richards, Watson &Gershon, T. Peter Pierce, Steven A. Nguy, Saskia T. Asamura; Pacheco &Neach, Rod Pacheco and Brian Neach for Plaintiffs and Appellants. Browne George Ross, Dennis S. Ellis, Lori Sambol Brody and Serli Polatoglu for Defendant and Respondent Tesoro Refining &Marketing Company. Cummins &White, James R. Wakefield, Siobhan M. Bishop and Fred M. Whitaker; Wakefield &Associates and James R. Wakefield for Defendants and Respondents Midland Oil Group and Jatinderpal Dhaliwal.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. CIVDS1719400 Wilfred J. Schneider, Jr., Judge. Affirmed.
Richards, Watson &Gershon, T. Peter Pierce, Steven A. Nguy, Saskia T. Asamura; Pacheco &Neach, Rod Pacheco and Brian Neach for Plaintiffs and Appellants.
Browne George Ross, Dennis S. Ellis, Lori Sambol Brody and Serli Polatoglu for Defendant and Respondent Tesoro Refining &Marketing Company.
Cummins &White, James R. Wakefield, Siobhan M. Bishop and Fred M. Whitaker; Wakefield &Associates and James R. Wakefield for Defendants and Respondents Midland Oil Group and Jatinderpal Dhaliwal.
OPINION
McKINSTER ACTING P. J.
In these consolidated appeals, plaintiffs Karambir Bhullar, Sahaara Properties, LLC, and Sahaara Oil, Inc. (collectively Bhullar) appeal from separate summary judgments entered for defendants Tesoro Refining &Marketing Company LLC (Tesoro) (case no. E073078) and Midland Oil Group LLC (Midland) and Jatinderpal Dhaliwal (Dhaliwal) (case no. E072486). The trial court found there were no triable issues of material fact, and that Bhullar could not succeed on its causes of action for: (1) breach of contract against Tesoro; (2) violation of Business and Professions Code section 21148, subdivision (b), against all defendants; (3) recission based on economic duress against all defendants; (4) interference with a prospective economic advantage against all defendants; (5) violation of the unfair competition law (UCL) (Bus. &Prof. Code, § 17200 et seq.) against all defendants; and (6) breach of fiduciary duty against Tesoro and Dhaliwal.
The trial court found that all six causes of action turned on whether Tesoro properly exercised a right of first refusal (ROFR) under the franchise agreements between the parties for the operation of a gas station/mini-mart in Ontario, California. The trial court ruled, and we agree, that Tesoro's exercise of the ROFR in no way breached the franchise agreements or applicable law, and the exercise of the ROFR did not support either of Bhullar's theories of liability against the defendants. We, therefore, affirm the judgments.
I. FACTS
In 2003, Bhullar and Dhaliwal, brothers-in-law, formed a partnership to acquire and operate retail gasoline stations in Southern California. To that end, the partners formed three legal entities, including Midland. Between 2003 and 2009, the partners purchased and operated seven gasoline stations, including an ARCO station and AM/PM mini-mart located on Haven Avenue in Ontario (hereafter Haven ARCO) that was owned and operated by Midland.
The franchise operating agreements for the Haven ARCO station had previously been entered into between BP West Coast Products LLC (BP West) and U.S. Petro, Inc. (US Petro). At the time, Dhaliwal was the managing member and franchise designee for U.S. Petro and, on August 11, 2008, he signed two agreements on its behalf: (1) a "Contract Dealer Gasoline Agreement" (hereafter gas agreement) and (2) an "ampm Mini Market Agreement" (hereafter mini-mart agreement).
Section 18 of the gas agreement governs "Assignment, Right of First Refusal and Successors In Interest." Paragraph 18.1 states, in relevant part: "Buyer [i.e., U.S. Petro] will not sell, . . . assign, give or otherwise transfer, any interest in this Agreement, its franchise relationship with [BP West] or its ownership, leasehold or subleasehold interest in the real property or improvements that constitute the Premises, to any individual or entity other than [BP West], without first complying with Paragraph 18.2 below and obtaining [BP West's] prior written consent to such transfer, which consent shall not be unreasonably delayed or withheld." Paragraph 18.2, titled "Right of First Refusal," provides in turn: "In return for valuable consideration, [US Petro's] receipt of which is hereby acknowledged, . . . upon receiving or extending any final offer to acquire any or all of [US Petro's] interest in this Agreement, its franchise relationship with [BP West], or its ownership, leasehold or subleasehold interest in the real property or improvements that constitute the Premises, whether conveyed through a business broker or directly, . . . [US Petro] shall offer such interest to [BP West], in writing, at the same price and on the same other terms as those contained in the final offer ...."
Similarly, article 17 of the mini-mart agreement governs assignments and transfers. Paragraph 17.01 provides, in relevant part: "This Agreement is personal as between Operator[, i.e., U.S. Petro,] and BP [West] and this Agreement is entered into in reliance and in consideration of the personal qualifications, and representations made with respect thereto, of [US Petro] ....Accordingly, [US Petro] may not sell . . ., transfer or assign this Agreement or any of [US Petro's] rights, duties or obligations hereunder or [US Petro'] interest in the real property and improvements, in whole or in part, without [BP West's] consent, which shall not be unreasonably withheld or delayed, and without first offering [BP West] the right to purchase the same (the 'Right of First Refusal') on the same terms and conditions as the proposed assignment or transfer, except as may otherwise be expressly provided below. If [BP West] and [US Petro] are also parties to a Contract Dealer Gasoline Agreement, [US Petro] must comply with all provisions of those Agreements as well." In turn, paragraph 17.07 provides: "[US Petro's] formation or dissolution of an Entity or adding or deleting any Owner, shall be considered a transfer of this Agreement."
Midland assumed U.S. Petro's franchise rights on January 4, 2009. And, in 2012, Tesoro purchased the Haven ARCO station from BP West and became the successor franchisor. Dhaliwal was the agent for Midland's various ARCO franchise agreements, including those for the Haven ARCO. Bhullar, who practiced veterinarian medicine, was not an active participant in the operation of that gas station or of Midland. In fact, for most of the relevant period, Bhullar did not complete franchisee training for the minimart and, therefore, he could not operate the store.
In 2012, Bhullar filed an action for damages and to dissolve his partnership with Dhaliwal on the grounds Dhaliwal was allegedly embezzling profits from their jointly owned entities. The partners agreed to submit the case to binding arbitration, and they stipulated that, among other things, the Haven ARCO had an appraised value of $5.35 million. In addition, the parties stipulated that, if the arbitrator awarded the Haven ARCO station to Bhullar, the parties had 180 days to obtain consent from the franchisor (i.e., Tesoro) for Bhullar to become the new franchisee. On May 24, 2016, the arbitrator dissolved the partnership and, inter alia, awarded the Haven ARCO station to Bhullar and ordered Bhullar and Dhaliwal to inform Tesoro of the award.
On June 2, 2016, Bhullar's attorney e-mailed in-house counsel for Tesoro to inform her of the arbitration award. Because a simple distribution of the stations between Bhullar and Dhaliwal would result in "substantial taxes," he presented a reorganization plan. Bhullar's attorney stated his belief that, because Bhullar and Dhaliwal "are already the Arco franchisees who are splitting apart, I don't believe there is a ROFR process." However, he asked Tesoro's attorney to "let me know if you disagree and, if so, how we should present you with the necessary information so that you may make a decision."
Based on his review and familiarity with the gas and mini-mart agreements, Dhaliwal concluded the arbitrator's award of the Haven ARCO to Bhullar was a change of ownership that triggered Tesoro's ROFR. Therefore, on June 6, 2016, he e-mailed Tesoro on behalf of Midland, requested consent to transfer the Haven ARCO station to Bhullar, and offered Tesoro the right to purchase the station on the same terms. He attached the stipulation from the arbitration and the arbitrator's award, which valued the gas station at $5.35 million. Similarly, Dhaliwal submitted requests for consent/right of first refusal for other gas stations awarded by the arbitrator.
On July 1, 2016, Tesoro e-mailed Bhullar's and Midland's attorneys and requested additional information to decide whether to exercise the ROFR. At no time did Bhullar's attorney object that Tesoro was improperly exercising the ROFR for the Haven ARCO station. Six days later, Tesoro informed Midland, its attorney, and Bhullar's attorney that it would exercise its ROFR for the Haven ARCO station at the appraised value set forth in the stipulation and arbitration award. Again, Bhullar did not specifically object.
For almost a year after Tesoro exercised its ROFR, Bhullar's attorney worked to transfer the Haven ARCO station to Tesoro and negotiated various terms of the escrow and transfer. Bhullar did not object that Tesoro had no such ROFR, and he signed escrow instructions wherein he agreed and acknowledged that Tesoro had exercised its ROFR to acquire the gas station. Moreover, in a letter to Bhullar's lender, his attorney acknowledged Tesoro had exercised its ROFR to purchase the Haven ARCO station and that the cash payment for the station would be used toward paying Bhullar's matured loans.
Tesoro eventually paid Bhullar $5.35 million (plus an additional amount for inventory) for the Haven ARCO station. In August 2017, Bhullar's attorney agreed to proceed with the closing of escrow, and on September 28, 2017, a grant deed was recorded conveying the underlying real property to Tesoro.
II. PROCEDURAL BACKGROUND
Bhullar filed this lawsuit on October 4, 2017. The operative second amended complaint filed on February 27, 2018, alleged six causes of action: (1) breach of contract against Tesoro; (2) violation of Business and Professions Code section 21148, subdivision (b), against all defendants; (3) economic duress against all defendants; (4) interference with a prospective economic advantage against all defendants; (5) unlawful business practices in violation of the UCL against all defendants; and (6) breach of fiduciary duty against Tesoro and Dhaliwal. These causes of action were entirely predicated on Bhullar's allegations that the ROFR under the gas agreement was never triggered by the arbitrator's award of the Haven ARCO station to Bhullar, and that the defendants' wrongful actions forced him to sell the station for less than the amount he had been offered for the gas station by a third party after Tesoro exercised the ROFR. Inter alia, Bhullar prayed for damages and recission of the contract to sell the Haven ARCO to Tesoro.
The parties conducted extensive discovery and litigated various discovery motions. In October 2018, Tesoro informed Bhullar that it intended to move for summary judgment and asked Bhullar to identify witnesses whom he needed to depose to oppose the motion. Bhullar did not respond directly but sought to depose five witnesses, including Dhaliwal. Tesoro produced those witnesses for deposition and sought to ensure Bhullar could complete discovery before an opposition to the summary judgment motion would be due. In addition, Tesoro produced over 13,000 pages of documents to Bhullar.
Dhaliwal and Midland filed their motion for summary judgment on November 8, 2018, with a scheduled hearing date of January 23, 2019. Tesoro filed its separate motion for summary judgment on November 9, 2018, with a scheduled hearing date of January 24, 2019. In support of both motions, Dhaliwal submitted declarations in which he stated, "At no point in time, be it before I sent my June 6, 2016 e-mail [i.e., his e-mail informing Tesoro about the arbitrator's award] or afterward, did I meet with, speak with, conspire, or collude with anyone at Tesoro to harm the Plaintiff."
Defendants commenced a deposition of Dhaliwal on January 3, 2019. During the deposition, Bhullar's attorney asked Dhaliwal a series of questions about other business enterprises unrelated to the Haven ARCO station. Dhaliwal was instructed by his attorney to not answer the questions because they were not reasonably calculated to lead to the discovery of admissible evidence in this lawsuit and they related to separate litigation between the parties. Bhullar's attorney refused to make an offer of proof to establish the questions were relevant and stated he would move to compel Dhaliwal to answer. The deposition was canceled.
On January 7, 2019, Bhullar filed a motion to compel Dhaliwal to appear for deposition and answer questions. The same day, he filed ex parte applications to continue the hearings on defendants' motions for summary judgment. Bhullar argued that "evidence produced in this action" (1) contradicted Dhaliwal's statement in his declaration that he had not met with or conspired with Tesoro to harm Bhullar and (2) showed bad faith on the part of Dhaliwal. Bhullar further argued that Dhaliwal's testimony about business ventures, other than the Haven ARCO, was "vital" to opposing Tesoro's summary judgment motion because it would establish that Dhaliwal acted in bad faith and with bias against Bhullar when he (Dhaliwal) notified Tesoro of the arbitrator's award and that the award triggered Tesoro's ROFR. In supporting declarations, Bhullar's attorney indicated his office had contacted Dhaliwal's attorney on December 4, 2018, to request available dates to depose Dhaliwal in the first week of January 2019.
Tesoro filed a written opposition to the ex parte application, arguing Bhullar's attorney had asked questions in his deposition that were only relevant to Dhaliwal's credibility. Because a trial court may not deny a defense motion for summary judgment solely on the grounds of credibility (see Code Civ. Proc., § 437c, subd. (e)), Tesoro argued the questions posed to Dhaliwal during his deposition were irrelevant and his refusal to answer them did not constitute good cause for a continuance.
After hearing arguments on January 8, 2019, the trial court found good cause had not been shown for a continuance of the summary judgment motions and denied Bhullar's ex parte applications.
In his opposition to both Dhaliwal's and Tesoro's motions for summary judgment, Bhullar once more argued the trial court should continue the hearings. He argued he had diligently moved to compel Dhaliwal's appearance for deposition and to compel him to answer questions.
After hearing oral argument on the motions on January 23 and 24, 2019, the trial court granted them. In separate written rulings filed January 25, 2019, the court noted that, although Bhullar had submitted declarations indicating he had been unable to adequately depose Dhaliwal, Bhullar had not articulated "what evidence Dhaliwal may provide that [was] necessary to oppose" the motions. Therefore, the court found no good cause existed for a continuance. In addition, the court noted Bhullar had offered no explanation of how the summary judgment motions could be continued and still allow sufficient time to depose Dhaliwal before the scheduled trial date of February 25, 2019.
With respect to the first cause of action, the trial court found Tesoro had not breached the franchise agreements. The court ruled the gas and mini-mart agreements "both contained provisions giving Tesoro the right of first refusal when the franchise was sought to be sold, assigned, or transferred." Because the arbitrator's award of the Haven ARCO to Bhullar was a transfer for purposes of those agreements, "Tesoro rightfully exercised its right of first refusal." The court rejected Bhullar's argument that the agreements were governed by Business and Professions Code section 20029, subdivision (c), and that Tesoro's ROFR was only triggered if there had been a "'bona fide purchase offer'" to purchase the Haven ARCO. The court noted that section "does not preclude the parties' contractual agreement to extend the right of first refusal to agreements to assign or transfer." Moreover, the court ruled Business and Professions Code section 21148, subdivision (a), which specifically applies to petroleum franchises, contemplated a ROFR and, as a more specific provision, governed the matter.
On Bhullar's second cause of action, the trial court ruled Tesoro had not violated section 21148, subdivision (b), of the Business and Professions Code because it had not unreasonably withheld consent to a sale, transfer, or assignment of the Haven ARCO to another person for the purpose of diminishing the market value of the franchise. The court ruled Tesoro had not withheld consent to a sale or transfer but, instead, properly exercised its ROFR to purchase the franchise itself, something contemplated by the franchise agreements and by statute. Because Tesoro purchased the Haven ARCO for the same value given to it by the arbitrator, there was no statutory violation. The court also ruled Midland and Dhaliwal had not aided and abetted Tesoro in violating Business and Professions Code section 21148, subdivision (b), because, even assuming there had been an underlying statutory violation, Midland and Dhaliwal were required by the arbitration award to inform Tesoro of the award of the Haven ARCO to Bhullar.
Because Bhullar's third cause of action for economic duress was entirely predicated on Tesoro's alleged wrongful conduct in exercising the ROFR and predicated on Midland's and Dhaliwal's alleged wrongful conduct in informing Tesoro of the arbitrator's award and offering the Haven ARCO to Tesoro under the ROFR, the trial court ruled defendants were entitled to summary judgment. Again, the court ruled Tesoro properly exercised its ROFR under the franchise agreements, and Midland and Dhaliwal acted properly by informing Tesoro of the arbitrator's award (as required by the award itself) and offering the Haven ARCO to Tesoro as mandated by the terms of the agreements.
Likewise, because it had already ruled Tesoro had properly exercised its ROFR under the terms of the franchise agreements, the trial court ruled Tesoro, Midland, and Dhaliwal had not interfered with Bhullar's prospective economic advantage as alleged in the fourth cause of action. Although Bhullar introduced evidence that he had received an offer to purchase the Haven ARCO for more than the appraised value included in the arbitration award, that offer was made after Tesoro had already exercised its ROFR, so Tesoro was not required to give consent to Bhullar accepting the third-party offer.
As for Bhullar's fifth cause of action for unlawful business practices, the trial court ruled defendants had not committed an unlawful or unfair act. Again, the court reiterated that Tesoro properly exercised its ROFR under the franchise operating agreements and the exercise of the ROFR did not violate applicable law. Moreover, the court ruled there was no evidence of fraud. Similarly, the court ruled Midland and Dhaliwal had not acted unlawfully or unfairly when, in accordance with franchise agreements and the arbitration award, Dhaliwal properly informed Tesoro about the award to Bhullar of the Haven ARCO and offered the station Tesoro under the terms of the ROFR.
Last, the trial court ruled defendants did not breach a fiduciary duty to Bhullar. Because Dhaliwal was obligated by the franchise agreements (and by the arbitration award) to notify Tesoro of the award of the Haven ARCO to Bhullar, which triggered Tesoro's ROFR, Dhaliwal did not breach his fiduciary duty to Bhullar by complying with those obligations. And, because Dhaliwal did not breach his fiduciary duty to Bhullar, the court ruled Tesoro could not be held liable for aiding and abetting such a nonexistent breach of duty.
The trial court entered separate judgments for defendants on February 8, 2019 (Midland &Dhaliwal) and April 30, 2019 (Tesoro), and dismissed Bhullar's second amended complaint. Bhullar timely appealed the judgments.
III. DISCUSSION
A. Standard of Review.
Code of Civil Procedure section 437c, subdivision (c), provides that summary judgment is to be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A defendant "moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may meet this burden either by showing one or more elements of a cause of action cannot be established or by showing there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.)
If the defendant's prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co, supra, 25 Cal.4th at p. 850.) "[T]o meet that burden, the plaintiff '. . . shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action ....'" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) Ultimately, the moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, at p. 850.)
"'"Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] '"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
"We owe the superior court no deference in reviewing its ruling on a motion for summary judgment; the standard of review is de novo. [Citation.] Furthermore, '[i]t is axiomatic that we review the trial court's rulings and not its reasoning.'" (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.) "'We affirm the trial court's decision [granting summary judgment] if it is correct on any ground the parties had an adequate opportunity to address in the trial court, regardless of the reasons the trial court gave.'" (Wolf v. Weber (2020) 52 Cal.App.5th 406, 410.)
"Furthermore, our review is governed by a fundamental principle of appellate procedure, namely, that '"[a] judgment or order of the lower court is presumed correct,"' and thus, '"error must be affirmatively shown."' [Citation.] Under this principle, plaintiff bears the burden of establishing error on appeal, even though defendants had the burden of proving their right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised and supported in plaintiff's brief." (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 423.)
B. The Trial Court Properly Granted Summary Judgment for Tesoro on Bhullar's Cause of Action for Breach of Contract.
In the second amended complaint, Bhullar alleged Tesoro breached the gas agreement (1) by exercising its ROFR upon receiving notice of the arbitrator's award because the ROFR was only triggered by a third party offer to purchase or sell the Haven ARCO, and (2) by not giving consent to Bhullar to accept a third party offer to purchase the gas station for considerably more money than the value contained in the arbitrator's award or offering to purchase the station from Bhullar at that higher value, under the terms of the ROFR. We conclude the trial court properly granted summary judgment for Tesoro on this claim.
"[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.) The parties disagree about how to interpret the language of the franchise operating agreements, with respect to whether Tesoro properly exercised a ROFR. In the absence of a conflict in extrinsic evidence (none was admitted here), interpretation of a contract is a legal question we review de novo. (Gilkyson v. Disney Enterprises, Inc. (2021) 66 Cal.App.5th 900, 915.)
A contract must be interpreted to give effect to the mutual intention of the parties at the time they entered into the contract. (Civ. Code, § 1636.) The language of a contract must govern its interpretation if the language is "clear and explicit" and does not result in an absurdity. (Id., § 1638.) If possible, the intent of the parties is ascertained from the writing alone. (Id., § 1639.) The language of a contract must be interpreted as a whole. (Id., § 1641.) Unless the parties used words in a "technical sense," the language of a contract is understood in its "ordinary and popular sense." (Id., §§ 1644-1645.) And, "[s]everal contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together." (Id., § 1642.) "[C]ourts have 'construe[d] together several documents concerning the same subject and made as part of the same transaction [citations] even [if] the documents were not executed contemporaneously [citation] and do not refer to each other.'" (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 759.)
As indicated, ante, paragraph 18.1 of the gas agreement provided (after Midland assumed the franchise from U.S. Petro and Tesoro purchased the Haven ARCO from BP West): "[Midland] will not sell, . . . assign, give or otherwise transfer, any interest in this Agreement, its franchise relationship with [Tesoro] or its ownership, leasehold or subleasehold interest in the real property or improvements on that constitute the Premises, to any individual or entity other than [Tesoro], without first complying with Paragraph 18.2 below and obtaining [Tesoro's] prior written consent to such transfer, which consent shall not be unreasonably delayed or withheld." (Italics added.) Paragraph 18.2 provided: "[U]pon receiving or extending any final offer to acquire any or all of [Midland's] interest in this Agreement, its franchise relationship with [Tesoro], or its ownership, leasehold or subleasehold interest in the real property or improvements that constitute the Premises, whether conveyed through a business broker or directly, . . . [Midland] shall offer such interest to [Tesoro], in writing, at the same price and on the same other terms as those contained in the final offer ...."
Similarly, paragraph 17.01 of the mini-mart agreement provided: "[Midland] may not sell . . ., transfer or assign this Agreement or any of [Midland's] rights, duties or obligations hereunder or [Midland's] interest in the real property and improvements, in whole or in part, without [Tesoro's] consent, which shall not be unreasonably withheld or delayed, and without first offering [Tesoro] the right to purchase the same (the 'Right of First Refusal') on the same terms and conditions as the proposed assignment or transfer, except as may otherwise be expressly provided below." (Italics added.) Paragraph 17.07 defined the term "transfer" to include "[Midland's] formation or dissolution of an Entity or adding or deleting any Owner." (Italics added.)
As indicated, the second amended complaint alleged Tesoro breached the gas agreement because that agreement did not contemplate exercising the ROFR under the circumstances of this case. Bhullar did not plead that Tesoro also breached the mini-mart agreement. However, on appeal Bhullar discusses both franchise agreements and argues Tesoro's exercise of a ROFR under either agreement was not permitted under the circumstances of the arbitrator's award of the Haven ARCO to Bhullar. Tesoro argues, and we agree, that the gas and mini-mart agreements "concern the same subject and transaction and are inexorable intertwined." Therefore, each agreement cannot be interpreted in isolation.
Despite addressing both franchise operating agreements in his briefs on appeal, citing the general rule that issues on summary judgment are framed by the pleadings (e.g., White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 354 ["The pleadings play a key role in a summary judgment motion."]), Bhullar argues the mini-mart is irrelevant because he did not plead breach of that agreement in his second amended complaint. But the issue of how to properly interpret the gas agreement was a question of law for the trial court (in the absence of extrinsic evidence), and the rules of interpretation required the trial court to consider the mini-mart agreement when interpreting the gas agreement. (Civ. Code, § 1642.) Moreover, Bhullar addressed both agreements in his opposition to Tesoro's motion and argued a "plain reading" of the agreements demonstrated Tesoro's ROFR had not been triggered. Therefore, we too must analyze the mini-mart agreement.
The gas agreement expressly contemplated that Tesoro, the successor franchisor, and Midland, the successor franchisee, would enter into separate agreements including one for the operation of a convenience store on the premises of the Haven ARCO station. The mini-mart agreement provided that, if Midland operated the mini-mart in connection with a gasoline station, it was contractually required to "simultaneously execute" a gas agreement with Tesoro. And the mini-mart agreement expressly provided that, if Tesoro and Midland had in fact entered into a gas agreement, "[Midland] must comply with all provisions of those Agreements as well." In other words, an event that triggered Midland's contractual duty to comply with the ROFR provision of the mini-mart agreement would trigger Midland's duty to comply with the ROFR provision under the gas agreement.
The plain, unambiguous language of the gas and mini-mart agreements fully supports the trial court's conclusion that Tesoro properly exercised its contractual ROFR under the circumstances of this case and, consequently, that it did not breach either agreement. True, the ROFR contained in paragraph 18.2 of the gas agreement would appear to only address the circumstance of Midland "receiving or extending any final offer" to purchase the Haven ARCO. The arbitrator's award of the gas station to Bhullar was clearly not a "final offer" to purchase the gas station. However, paragraph 18.1, which governs any transfer, expressly mandated compliance with the terms of the ROFR if Midland tried to "sell, . . . assign, give or otherwise transfer" any of its interests in the gas station "to any individual or entity other than [Tesoro]." (Italics added.) We must harmonize those paragraphs. (Civ. Code, § 1641.) And, the mini-mart agreement clearly and expressly provided that Tesoro's ROFR was triggered if Midland tried to "transfer" ownership of the Haven ARCO; broadly defined the term "transfer" to include formation or dissolution of an entity and/or the addition or deletion of an owner; and required Midland to comply with the parallel ROFR under the gas agreement.
Bhullar argues the franchise agreements are ambiguous with respect to whether Tesoro could exercise a ROFR under the circumstances of this case. Bhullar did not argue in the trial court that the agreements were ambiguous. On the contrary, he argued Tesoro's ROFR was not trigged under a "plain reading" of the franchise agreements. Therefore, his ambiguity argument is forfeited. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676; Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873.)
The arbitrator's award dissolving Bhullar's and Dhaliwal's partnership and awarding the Haven ARCO to Bhullar was undoubtedly a transfer of ownership from Midland to Bhullar and triggered Tesoro's ROFR. Under the plain terms of the franchise agreements, Midland was required to offer the Haven ARCO to Tesoro on the same terms of the proposed transfer. Because Tesoro purchased the station for the same appraised value contained in the stipulation and arbitration award, i.e., the same terms as the proposed transfer, Tesoro satisfied that requirement. It matters not that Bhullar received a more generous offer to buy the station after Tesoro had already properly exercised the ROFR. Therefore, we agree with the trial court that Tesoro's exercise of its contractual ROFR was not a breach of either franchise agreement. (C. Robert Nattress &Associates v. Cidco (1986) 184 Cal.App.3d 55, 65 ["[I]f the right of first refusal was effectively exercised, there was no breach of contract."].)
Bhullar argues that, contrary to the trial court's ruling, Business and Professions Code section 21148, subdivision (a), did not authorize Tesoro to exercise the ROFR under the circumstances of this case. In granting Tesoro's motion for summary judgment, the trial court ruled that the statute, by "implication," recognizes "the franchisor's right of first refusal might arise on an agreement to sell, transfer, or assign the franchise." The trial court was correct.
Division 8, chapter 7.8 of the Business and Professions Code governs fair practices in retail gasoline and petroleum products franchises. (Bus. &Prof. Code, § 21140 et seq.) Section 21148, subdivision (a), provides five exclusive bases for a franchisor to refuse to consent to the sale of a gas station by the current franchisee to a third party. (Id., subd. (a)(1)-(5).) "[S]ection 21148 forges a compromise between the competing interests of petroleum franchisors and franchisees. The absolute right of franchisors under prior law to prevent assignment of franchises gave way to the public policy favoring a freer market for petroleum franchises, while protecting the franchisor's ability to insure that the prospective assignee possesses the qualifications to operate the franchise successfully." (California Service Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44, 55.)
Among other reasons, a franchisor may withhold consent to the sale of a gasoline franchise if "[t]he franchisee has not offered in writing to sell, transfer, or assign the franchise to the franchisor on terms and conditions which are the same as those of the sale, transfer, or assignment of the franchise to the proposed purchaser; and the franchisee has not allowed the franchisor at least 30 days in which to either accept or decline the franchisee's written offer, prior to the sale, transfer, or assignment of the franchise to the proposed purchaser." (Bus. &Prof. Code, § 21148, subd. (a)(5).) On its face, this provision only applies when the franchisor withholds consent to a sale. That is patently not what occurred here. Once the arbitrator awarded the Haven ARCO to Bhullar, Dhaliwal-as mandated by the award itself-informed Tesoro of the award and, pursuant to the terms of the franchise agreements, offered the station to Tesoro under the same terms. Tesoro did not refuse to consent to the transfer of the station to Bhullar under the arbitrator's award but, instead, exercised its ROFR as expressly provided in the agreements.
The legislative history of the bill that enacted Business and Professions Code section 21148 demonstrates it "'allow[s] an independent gas station dealer to realize financial reward from the sale, transfer or assignment of the business,'" but it "'does not . . . give carte blanche control to the dealer. [The bill] mandates first option for purchase shall be to the franchisor ....'" (Dameshghi v. Texaco Refining &Marketing, Inc. (1992) 3 Cal.App.4th 1262, 1278, italics added, disapproved on another ground by Trope v. Katz (1995) 11 Cal.4th 274, 292.) Section 21148, subdivision (a)(5), "create[d] two statutory entitlements to which the terms of [a petroleum franchise] contract are necessarily subject: first, a statutory right on the part of [the franchisee] to make available the opportunity to his franchisor . . . to purchase the station on the same terms and conditions as [a third party buyer] had offered; and second, a statutory right on the part of [the franchisor] to refuse to consent to [the franchisee's] proposed transaction with the third party . . ., and a related right in [franchisor] to make the same deal as was offered to the third party ...." (Dameshghi, at p. 1279.) In other words, section 21148 in no way limited Tesoro from properly exercising its ROFR once it was informed of the impending transfer of ownership of the Haven ARCO station from Midland to Bhullar under the terms of the arbitrator's award.
In sum, we conclude the trial court properly granted summary judgment on Bhullar's cause of action for breach of contract.
C. The Trial Court Properly Granted Summary Judgment for All Defendants on Bhullar's Cause of Action for Violation of Business and Professions Code Section 21148 , Subdivision (b).
Bhullar's second cause of action alleged Tesoro's exercise of the ROFR violated Business and Professions Code section 21148, subdivision (b), and that Midland and Dhaliwal aided and abetted in that violation. The trial court correctly granted summary judgment on this claim.
Business and Professions Code section 21148, subdivision (b), provides: "Notwithstanding the terms of any franchise, a franchisor may not withhold its consent to the sale, transfer, or assignment of the franchise by the franchisee to another person for the purposes of diminishing the market value of the franchise." A franchisee harmed by a violation of that section may recover treble damages, reasonable attorney fees, and costs. (Bus. &Prof. Code, § 21140.4.)
The trial court ruled "there was no withholding of consent" and that, instead, Tesoro "exercised its right to acquire Haven Arco." The trial court also ruled that, even if Tesoro had committed a statutory violation, Midland and Dhaliwal were not liable for aiding and abetting the violation because they were required by the franchise agreements and by the arbitration award to inform Tesoro of the impending transfer of ownership and they were required to offer the Haven ARCO to Tesoro under the terms of the ROFR.
Bhullar essentially concedes his statutory claim depends entirely on whether the trial court correctly ruled that Tesoro did not refuse to consent to the transfer of the station from Midland to Bhullar. As we have already held, ante, with respect to Bhullar's cause of action for breach of contract, the trial court correctly ruled that Tesoro properly exercised its ROFR under the franchise agreements and did not withhold its consent to a transfer of the Haven ARCO from Midland to Bhullar. Therefore, Tesoro did not violate Business and Professions Code section 21148, subdivision (b).
Likewise, Midland and Dhaliwal are not liable for a statutory violation under an aiding and abetting theory. "A defendant is liable for aiding and abetting another in the commission of an intentional tort, including a breach of fiduciary duty, if the defendant '"'knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act.'"'" (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 343, italics added.) Because Bhullar cannot prove a predicate violation by Tesoro, he cannot prove that Midland and Dhaliwal aided and abetted it.
D. The Trial Court Properly Granted Summary Judgment for All Defendants on Bhullar's Cause of Action for Recission of the Sale of the Haven ARCO Station to Tesoro.
In his third cause of action, Bhullar pleaded he was induced to sell the Haven ARCO to Tesoro under economic duress and he is entitled to damages and rescission of that contract. The trial court properly granted summary judgment on this claim.
The doctrine of economic duress is an available theory for rescinding a contract. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644.) "Economic duress requires an unlawful or 'wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator's pressure.' [Citation.] 'Examples of such "wrongful acts" include "[t]he assertion of a claim known to be false or a bad faith threat to breach a contract or to withhold a payment ...."'" (Hester v. Public Storage (2020) 49 Cal.App.5th 668, 679.)
The trial court ruled Tesoro was entitled to judgment on Bhullar's claim of economic duress because he could not prove a wrongful act. We agree. Tesoro did not assert a contractual right it knew to be false or threaten to breach its franchise agreements with Midland in bad faith. (Hester v. Public Storage, supra, 49 Cal.App.5th at p. 679.) Instead, as we have already held, Tesoro properly asserted its ROFR as expressly provided in the franchise agreements and as permitted by statute. Without more, "[t]he exercise of a legal right does not constitute unlawful duress or compulsion under the law of this state." (Goldstone-Tobias Agency, Inc. v. Barbroo Enterprises Productions, Inc. (1965) 237 Cal.App.2d 720, 724.)
The trial court also ruled Midland and Dhaliwal had not engaged in wrongful conduct that would support recission of the contract. However, Bhullar's arguments on appeal about this cause of action focus entirely on the trial court's ruling for Tesoro. As indicated, ante, the trial court's ruling is presumed correct, and Bhullar has the affirmative burden of proving error. Because Bhullar failed to address the order on his third cause of action in favor of Midland and Dhaliwal, we must affirm it. (Arnold v. Dignity Health, supra, 53 Cal.App.5th at p. 423.)
E. The Trial Court Properly Granted Summary Judgment for All Defendants on Bhullar's Cause of Action for Intentional Interference with a Prospective Economic Advantage
The second amended complaint pleaded that almost a year after Tesoro exercised its ROFR to purchase the Haven ARCO station, Bhullar received a third party offer to purchase the gas station for substantially more than the appraised value contained in the arbitration award. Because Tesoro ignored this third party offer to Bhullar and proceeded to purchase the station at the appraised price (i.e., on the same terms as the transfer required by the arbitrator's award), Bhullar alleged Tesoro intentionally interfered with a prospective economic advantage. And Bhullar pleaded that Midland and Dhaliwal interfered with the third party offer by informing Tesoro of the arbitrator's award. The trial court correctly granted summary judgment for defendants on this cause of action.
The elements of a claim for interference with a prospective economic advantage are: "'"(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant."'" (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)
"[A] plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove as part of its case-in-chief that the defendant's conduct was 'wrongful by some legal measure other than the fact of interference itself.'" (Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1153.) In other words, "the third element also requires a plaintiff to plead intentional wrongful acts on the part of the defendant designed to disrupt the relationship." (Id. at p. 1154.) "[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard." (Id. at p. 1159.)
The franchise agreements did not condition Tesoro's exercise of the ROFR to consideration of subsequent offers to purchase the Haven ARCO from Bhullar, and Bhullar cites no authority to the contrary. As the trial court correctly ruled, Tesoro properly exercised its ROFR once it was notified of the impending transfer from Midland to Bhullar per the arbitrator's award, and Tesoro was not required (contractually or otherwise) to give its consent to Bhullar accepting a third party offer to buy the station that Bhullar received almost one year later. "[T]he exercise of contractual rights . . . is not wrongful conduct actionable as intentional interference with prospective economic relations." (Arntz Contracting Co. v. St. Paul Fire &Marine Ins. Co. (1996) 47 Cal.App.4th 464, 480.)
Likewise, the trial court correctly ruled that Midland and Dhaliwal properly informed Tesoro (as required by the franchise agreements and the arbitrator's award) of the impending transfer of the gas station to Bhullar from Midland. Therefore, Bhullar cannot prove a wrongful act and the trial court correctly entered judgment for defendants on the fourth cause of action.
F. The Trial Court Properly Granted Summary Judgment for All Defendants on Bhullar's Cause of Action for Violation of the UCL.
In the second amended complaint, Bhullar alleged defendants engaged in unlawful, unfair, and fraudulent conduct and are liable for damages under the UCL. Once more, we find the trial court properly granted summary judgment for defendants.
In his briefs on appeal, Bhullar argues the trial court erred by concluding he could not prove Tesoro engaged in unlawful or unfair conduct. He does not, however, argue the trial court erred when it ruled that he could not establish Tesoro engaged in fraudulent conduct for purposes of the UCL. Likewise, Bhullar makes no reasoned argument why the trial court erred by granting summary judgment for Midland and Dhaliwal on this cause of action. Therefore, Bhullar has forfeited any challenge to those portions of the trial court's rulings on the fifth cause of action. (Arnold v. Dignity Health, supra, 53 Cal.App.5th at p. 423.)
"The UCL prohibits unfair competition, defined as 'any unlawful, unfair, or fraudulent business act or practice.' ([Bus. &Prof. Code,] § 17200.) The statute's 'purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.'" (Abbott Laboratories v. Superior Court (2020) 9 Cal.5th 642, 651.) "'By proscribing "any unlawful" business practice, [Business and Professions Code] "section 17200 'borrows' violations of other laws and treats them as unlawful practices" that the [UCL] makes independently actionable.'" (Rose v. Bank of America, N.A. (2013) 57 Cal.4th 390, 396.)
The sole predicate statutory violation alleged in the second amended complaint was Tesoro's violation of Business and Professions Code section 21148, subdivision (b). To repeat, we conclude Tesoro properly exercised its contractual ROFR to purchase the Haven ARCO when it was informed of the arbitrator's award. Tesoro did not refuse to consent to the transfer of the gas station from Midland to Bhullar, so Tesoro did not violate Business and Professions Code section 21148, subdivision (b). Therefore, the trial court correctly ruled that Bhullar cannot establish a predicate unlawful act to support his UCL claim.
As the trial court noted, Bhullar did not allege that Midland and Dhaliwal committed a predicate statutory violation.
The "unfair" prong of the UCL authorizes a cause of action if the plaintiff can demonstrate the objectionable act, while not unlawful, is "unfair" within the meaning of the UCL. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182.) Outside the commercial context of a plaintiff who claims to have suffered injury from a direct competitor, "a business practice is 'unfair' if (1) the consumer injury is substantial; (2) the injury is not outweighed by any countervailing benefits to consumers or competition; and (3) the injury could not reasonably have been avoided by consumers themselves." (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1376.)
As the trial noted, Tesoro's supposedly "unfair" conduct for purposes of the UCL claim was its exercise of the ROFR and refusal to give consent to the transfer of the Haven ARCO from Midland to Bhullar under the arbitration award. For the same reason that Bhullar cannot prove a predicate statutory violation under the "unlawful" prong of the UCL, he cannot establish "unfair" conduct either and the trial court correctly granted judgment for Tesoro on the fifth cause of action.
G. The Trial Court Properly Granted Summary Judgment for All Defendants on Bhullar's Cause of Action for Breach of Fiduciary Duty.
In his sixth cause of action, Bhullar alleged Dhaliwal, as his business partner, owed him a fiduciary duty and breached that duty by informing Tesoro of the arbitrator's award and offering the Haven ARCO to Tesoro pursuant to the ROFR. And, Bhullar alleged Tesoro aided and abetted Dhaliwal in breaching his fiduciary duty. The trial court correctly granted judgment for defendants on this cause of action.
"The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages." (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.) To repeat, "A defendant is liable for aiding and abetting another in the commission of an intentional tort, including a breach of fiduciary duty, if the defendant '"'knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act.'"'" (Nasrawi v. Buck Consultants LLC, supra, 231 Cal.App.4th at p. 343.)
As with Bhullar's other causes of action, his claim for breach of fiduciary duty is dependent on his assertion that "Tesoro enjoyed no right of first refusal to begin with" and, Dhaliwal acted with bad faith when he informed Tesoro of the arbitrator's award. The trial court ruled Dhaliwal did not breach a fiduciary duty to Bhullar because Midland was obligated under the terms of the franchise agreements (and under the arbitrator's award) to notify Tesoro of the award of the Haven ARCO station to Bhullar and to offer the station to Tesoro under the ROFR.
For the same reasons stated, ante, we agree with the trial court. Dhaliwal properly complied with contractual obligations under the franchise agreements (and with his obligation under the arbitrator's award), and Tesoro properly exercised its ROFR as expressly provided in the franchise agreements (and as permitted by statute). Moreover, Bhullar himself (through his attorney) was the first party to notify Tesoro of the arbitrator's award and bring up the subject of Tesoro's ROFR under the franchise agreements. Simply put, defendants did not breach or aid and abet a breach of a fiduciary duty to Bhullar.
H. The Trial Court's Denial of Bhullar's Request to Continue the Summary Judgment Hearings, If Error, Was Harmless.
Last, Bhullar argues the trial court erred by denying his requests to continue the hearings on the summary judgment motions so he could depose Dhaliwal. We find no prejudice.
"If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due." (Code Civ. Proc., § 437c, subd. (h).)
"The nonmoving party seeking a continuance 'must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.'" (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) "The decision to grant or deny a continuance request under section 437c, subdivision (h), is vested in the trial court's discretion [citation], and the court's ruling is reviewed for an abuse of discretion. [Citation.] Continuance requests under section 437c, subdivision (h), are to be liberally granted. [Citation.] '[T]he interests at stake are too high to sanction the denial of [such] a continuance [request] without good reason.' [Citation.] These interests include the importance of deciding cases on their merits rather than on procedural deficiencies." (Braganza v. Albertson's LLC (2021) 67 Cal.App.5th 144, 152.)
As he did in the trial court, Bhullar argues he made a showing of good cause to continue the hearings on the summary judgment motions because testimony from Dhaliwal would be vital to proving he acted in bad faith and with the intent to harm Bhullar when he, Dhaliwal, notified Tesoro of the arbitration award. Even assuming Bhullar had made a satisfactory showing of good cause for a continuance, he has failed to establish the error was prejudicial. (Cal. Const., art. VI, § 13 [judgment may not be reversed on appeal unless error caused miscarriage of justice]; Code Civ. Proc., § 475 [no judgment shall be reversed unless error is prejudicial, appealing party suffered substantial injury, and different result would have been probable]; see Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [trial court's implicit denial of request to continue summary judgment motion, if error, was harmless].)
We hasten to add that Bhullar made no showing "why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly require[d] the court to grant the continuance." (Braganza v. Albertson's LLC, supra, 67 Cal.App.5th at p. 156, italics added.) Bhullar's ex parte applications and oppositions to the summary judgment motions made no effort to explain why he waited until December 4, 2018, to select a date to depose Dhaliwal in the first week of January 2019. Discovery had been ongoing for over a year when, in October 2018, Tesoro informed Bhullar that it would be moving for summary judgment. Bhullar did not immediately seek to depose Dhaliwal. It was only after Dhaliwal, Midland, and Tesoro filed their motions on November 8 and 9, 2018- with hearing dates scheduled for January 23 and 24, 2019-that Bhullar sought to depose Dhaliwal. In any event, the trial court did not expressly address whether Bhullar had been diligent, and we do not affirm the denial of the continuance requests on that basis. (See Code Civ. Proc., § 437c, subd. (m)(2).)
Bhullar argues he was prejudiced by the denial of his continuance requests because the trial court relied on the portion of Dhaliwal's declaration that he (Bhullar) sought to impeach at deposition. True, in the statement of facts for its order granting summary judgment for Midland and Dhaliwal, the trial court found there was no triable issue of material fact that Dhaliwal had no communication with Tesoro before he (Dhaliwal) e-mailed Tesoro about the arbitrator's award, and there was no evidence "of collusion between Tesoro and Dhaliwal." But we must affirm the summary judgment if it is correct on any ground the parties had an opportunity to address. (Wolf v. Weber, supra, 52 Cal.App.5th at p. 410.)
As we have concluded with respect to all of Bhullar's causes of action, the trial court correctly ruled that Dhaliwal properly discharged his duty under the franchise agreements and the arbitrator's award to inform Tesoro of the award of the Haven ARCO station to Bhullar, and Tesoro properly exercised its ROFR to purchase the station on the same terms of the arbitrator's award. Even if the court had not relied upon Dhaliwal's assertion in his declaration that he did not collude with Tesoro before informing it of the arbitrator's award, or even if the court had concluded that fact was in dispute, the trial court was still correct when it ruled there was no material dispute of fact that defendants were entitled to summary judgment on all causes of action. Therefore, we must conclude that, even if the trial court erred when it denied Bhullar's requests to continue the summary judgment hearings so he could depose Dhaliwal and ask him pertinent questions to disprove that portion of the declaration, the error was harmless.
IV. DISPOSITION
The judgments are affirmed. Defendants shall recover their costs on appeal.
We concur: RAPHAEL J., MENETREZ J.