AAA Oil, Inc. v. Famu Corp. CA2/1

Filed 12/22/15 AAA Oil, Inc. v. Famu Corp. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

AAA OIL, INC., B261083

Plaintiff, Cross-defendant, and (Los Angeles County Respondent, Super. Ct. No. NC059036)

v.

FAMU CORPORATION,

Defendant, Cross-complainant, and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Ross M. Klein, Judge. Affirmed. Gary Eugene Beeks for Defendant, Cross-complainant, and Appellant. Gaba Law Corporation, Rodolfo Gaba and Christopher Overton for Plaintiff, Cross-defendant, and Respondent. _________________________________

Defendant and cross-complainant Famu Corporation (Famu) appeals from a judgment after trial in favor of plaintiff and cross-defendant AAA Oil, Inc. (AAA). Famu contends the judgment must be reversed because it met its burden of proof on its cross-complaint. We disagree and affirm. BACKGROUND AAA sued Famu for breach of contract and several common counts based upon Famu’s failure to pay for fuel products AAA delivered to Famu pursuant to a contract. Famu cross-complained, seeking damages for AAA’s failure to deliver the amount of fuel provided in the contract and for which AAA charged Famu, charging above-market prices, delivering “Regular” fuel into “Plus” and “Premium” tanks, damaging Famu’s turbines by dropping absorbent towels into the tanks, and abruptly stopping fuel supplies to Famu, causing it to close for three days. The case was tried by the court, without a reporter. Two witnesses testified for AAA and three for Famu. The trial court found in favor of AAA and against Famu on both the complaint and the cross-complaint. In its written decision, the court first found that Famu had failed to pay three invoices from AAA for delivered fuel, totaling $83,436.69. The court rendered judgment in favor of AAA in the total amount of $103,825.32. With respect to claims in the cross-complaint, the court found Famu had not met its burden of proof and therefore rendered judgment for AAA on the cross-complaint. The court explained: “The Court finds that there was no compelling direct or circumstantial evidence to prove that the Plaintiff’s gasoline delivery driver accidentally or intentionally put a cloth towel in Defendant’s underground storage tank. [¶] The Court finds that if the Plaintiff’s driver transferred the delivered gasoline into the wrong tank, it was at the request of the Defendant or the Defendant’s employees. [¶] The Defendant claims he lost weekend gas-sales profits because the Plaintiff refused to make further gasoline deliveries until the Defendant paid for past deliveries. This claim fails for two independent reasons: The lost profits amounts are speculative; and the Defendant