Sineitti v. Conoco Phillips Co.

GINA O. EL SINEITTI, Plaintiff and Appellant,

v.CONOCO PHILLIPS CO., Defendant and Respondent.

A127485

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Filed: August 24, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco County

Super. Ct. No. CGC-06-458663)

INTRODUCTION

Plaintiff Gina El Sineitti appeals from a judgment of the San Francisco Superior Court, dismissing defendant ConocoPhillips Co. (ConocoPhillips) from her action against defendants ConocoPhillips and Tower Energy Group (Tower) for alleged price discrimination under California Business and Professions Code sections 17045 and 21200.¹ Dismissal followed the court's grant of summary judgment in favor of defendant ConocoPhillips. El Sineitti contends she raised triable issues of fact as to her section 21200 price discrimination claim.² We shall conclude the trial court did not err in granting summary judgment as to this claim on the ground that El Sineitti cannot provethe competitive market that she asserts as the basis for her claim. We shall therefore affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND³

El Sineitti was the sole proprietor and operator of a gasoline service station located at 1490 Ocean Avenue in San Francisco. From 2001 through 2007, El Sineitti's station sold Union 76-branded gasoline under an agreement with ConocoPhillips, a refiner and distributor of petroleum fuel products. El Sineitti began leasing her station from ConocoPhillips in 2001. She purchased the station in January 2006. While she was leasing the station from 2001 through 2005, ConocoPhillips supplied El Sineitti with Union 76-branded gasoline for resale at her station. When she purchased the station, El Sineitti agreed to remain a Union 76 station and to purchase her Union 76 fuel exclusively from Tower, an independent wholesaler and distributor. On December 31, 2007, El Sineitti terminated the agreements with ConocoPhillips and Tower, debranded as a Union 76 station, and began purchasing gasoline from independent suppliers.

On December 12, 2006, El Sineitti filed a complaint against Tower, asserting price discrimination claims under sections 17045 and 21200. On June 4, 2008, she filed her first amended complaint naming ConocoPhillips as a defendant. The first amended complaint asserts the same price discrimination claims against ConocoPhillips as she had asserted against Tower: namely, that El Sineitti was unlawfully charged higher prices for gasoline than other Union 76-branded stations. Her claims were premised on the theory that, from 2005 through 2007, her station competed with—and therefore should have been charged the same as—all Union 76 stations located within five miles of her station.⁴

ConocoPhillips answered on July 21, 2008. Thereafter, ConocoPhillips propounded extensive written discovery in the form of interrogatories and document requests and it took El Sineitti's deposition. On April 10, 2009, ConocoPhillips moved for summary judgment, or alternatively for summary adjudication as to each of the causes of action and claims for damages asserted by El Sineitti in the first amended complaint. ConocoPhillips asserted that El Sineitti had failed to raise a triable issue of material fact because she could not show the following essential elements of her section 21200 cause of action: (1) that her relevant competitive market included any station that allegedly received more favorable pricing, (2) that ConocoPhillips gave any of her competitors a "major" or "substantial" pricing advantage that was sustained over a significant period of time, or (3) that her business was injured as a result of ConocoPhillips's alleged acts.⁵

In May and June 2009, El Sineitti deposed two ConocoPhillips representatives and a third-party former employee. ConocoPhillips also made extensive document productions to El Sineitti in connection with those depositions. In June 2009, El Sineitti filed her opposition to ConocoPhillips's summary judgment motion and ConocoPhillips submitted its reply papers.

After a hearing on the motion, the trial court granted summary judgment in favor of ConocoPhillips, finding that ConocoPhillips had presented affirmative admissions by El Sineitti during discovery as to the factual basis of her claims and had identified needed evidence that she did not possess and could not reasonably obtain. Specifically, the court concluded that ConocoPhillips had satisfied its initial burden on summary judgment by producing evidence that El Sineitti did not possess and could not reasonably obtain evidence from which a reasonable juror could conclude she had sustained her burden as to each of the three elements—definition of the relevant competitive market, substantialor major price differentials over time, and actual injury to El Sineitti proximately caused by ConocoPhillips's alleged conduct. Consequently, the burden shifted to El Sineitti to set forth specific facts showing a triable issue of material fact as to each of these elements. The court concluded that El Sineitti had failed to make this showing.

On November 19, 2009, the court filed its statement of decision granting ConocoPhillips's summary judgment motion. Judgment was entered that day, dismissing ConocoPhillips from the action. This timely appeal followed.

I. Summary Judgment Standard of Review

" 'A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." [Citation.]' [Citation.] '[O]nce 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. . . ." [Citation.]' [Citation.]" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252-253 (Nazir).)

" ' " '[W]e take the facts from the record that was before the trial court when it ruled on that motion,' " ' and 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.' " ' " ' (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039, quoting Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206.)" (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 522 (Tverberg).) Where the trial court has failed to rule upon evidentiary objections made in writing before a summary judgment hearing or orally at the hearing, the objection is preserved on appeal.(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517, 531-532⁶ .) "We also ' " 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' " ' [Citations.]" (Tverberg, at p. 522; see Nazir, supra, 178 Cal.App.4th at p. 254.)

II. Price Discrimination

In 1975, the California Legislature passed section 21200 to regulate price discrimination by major distributors of motor fuel. (Shell Oil Co. v. Younger (9th Cir. 1978) 587 F.2d 34, 35.) In language paralleling section 2(a) of the Robinson-Patman Act (15 U.S.C. § 13(a) (1970)), section 21200 prohibits price discrimination where the effect of such discrimination is to lessen competition. (Ibid.)⁷ It provides in relevant part: "It is unlawful for any refiner, distributor, manufacturer, or transporter of motor vehicle fuels or oils engaged in business in this state, either directly or indirectly, to discriminate in price between different purchasers of motor vehicle fuels or oils of like grade and quality, where the effect of such discrimination is to lessen competition, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.

"Upon proof being made, at any hearing on a complaint under this section, that there has been such discrimination in price, the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged with a violation of this section." (§ 21200.)

"Mindful of the purposes of the Act and of the antitrust laws generally, [the United States Supreme Court has] explained that Robinson-Patman does not 'ban all price differences charged to different purchasers of commodities of the grade and quality,' [citation]; rather, the Act proscribes 'price discrimination only to the extent that it threatens to injure competition,' [citation]. Our decisions describe three categories of competitive injury that may give rise to a Robinson-Patman Act claim: primary line, secondary line, and tertiary line. Primary-line cases entail conduct—most conspicuously, predatory pricing—that injures competition at the level of the discriminating seller and its direct competitors. [Citations.] Secondary-line cases, of which this is one, involve price discrimination that injures competition among the discriminating seller's customers . . . ; cases in this category typically refer to 'favored' and 'disfavored' purchasers. [Citations.] Tertiary-line cases involve injury to competition at the level of the purchaser's customers....