Degrandchamp v. Texaco, Inc.

• Decision Date: 26 December 1979
• Citation: 100 Cal.App.3d 424,160 Cal.Rptr. 899
• Parties: Jack A. DeGRANDCHAMP, Plaintiff and Appellant, v. TEXACO, INC., a corporation, Michael Kline, and Does I through C (100), inclusive, Defendants and Respondents. Civ. 55853.
• Court: California Court of Appeals Court of Appeals

Page 899

160 Cal.Rptr. 899

100 Cal.App.3d 424

Jack A. DeGRANDCHAMP, Plaintiff and Appellant, v. TEXACO, INC., a corporation, Michael Kline, and Does I through C (100), inclusive, Defendants and Respondents.

Civ. 55853.

Court of Appeal, Second District, Division 3, California.

Dec. 26, 1979.

Hearing Denied Feb. 20, 1980.

Hatch & Parent, and S. Timothy Buynak, Jr., Santa Barbara, for plaintiff and appellant.

David G. Yetter, Los Angeles, for defendant and respondent Texaco, Inc.

POTTER, Acting Presiding Justice.

Plaintiff Jack A. DeGrandchamp appeals from a summary judgment in favor of defendant Texaco, Inc., on plaintiff's first cause of action for declaratory relief. The complaint includes eight causes of action which, according to paragraph I of the first cause of action, all "grew out of the same set of facts, events, and circumstances," and were joined "due to the fact that on the trial of each of said causes of action, common issues of law and fact will arise. . . ."

Paragraphs I through XVI of the first cause of action describe circumstances giving rise to a controversy between plaintiff and defendant as to the latter's obligations as a party to a sublease and franchise arrangement executed on or about June 15, 1972, covering a gasoline service station in the County of Santa Barbara. The lease-franchise arrangement was continued or renewed for a period of three years by written agreements executed on or about May 12, 1975. Regulations of the Santa Barbara County Air Pollution Control District adopted in September 1974 required that installation of vapor recovery systems at gasoline service stations be completed by June 1, 1976, and prohibited operation of gasoline service stations not so equipped.

The gravamen of the first cause of action is that by entering into the sublease franchise arrangement, defendant impliedly covenanted "to comply with all laws, regulations, rules and orders of governmental bodies, and to construct improvements necessitated thereby. . . ." Plaintiff contends that this covenant obligated defendant to install the vapor recovery system at its own expense. Defendant contends to the contrary that it had no such obligation. The system was not installed, with the result that no gasoline could be pumped or delivered after the deadline. The relief sought in the first cause of action is a declaration of the parties' rights in accordance with plaintiff's contentions.

The second cause of action incorporates all of the factual allegations of the first cause of action (including its conclusory allegation of the implied covenant) and charges that defendant's failure to install the required system was a breach of such covenant causing damage in the form of loss of business profits.

The third cause of action incorporates the allegations of the first and second causes of action with respect to the implied covenant and its breach and alleges damages resulting from "emotional distress, anxiety, disappointment, loss of business reputation, and other distress. . . ."

The fourth cause of action reincorporates all the foregoing allegations concerning defendant's failure to install the vapor recovery system and invokes the provisions of California Business and Professions Code section 20999.1 limiting terminations, cancellations or refusals to renew existing franchises of gasoline station operators without legitimate business reasons. It is alleged that defendant's termination of gasoline deliveries to plaintiff was in breach of the implied covenants of the lease franchise agreement and a violation of its legal obligation not to terminate the relationship without good cause.

The fifth cause of action incorporates the allegations of the first cause of action relating to the lease-franchise agreements. It further alleges that in January 1976, plaintiff entered into an oral agreement to sell his gas station business for $17,500 and that defendant's agent tortiously interfered with this contractual relationship by indicating that the price was excessive. As a result of this interference, the transaction was not consummated, thereby causing plaintiff damage.

The sixth cause of action does not seek relief against defendant Texaco.

The seventh cause of action reincorporates all of the factual allegations of the first, second, third, fourth and fifth causes of action, and alleges that all such conduct was part and parcel of a systematic campaign on the part of defendant to interfere with plaintiff's quiet and peaceful possession of the gasoline station property "with the aim and object of forcing Plaintiff to abandon his lease . . . ." Further acts pursuant to such campaign are then detailed.

The eighth cause of action reincorporates all the factual allegations of the first, second, third and fourth causes of action and charges that Texaco instituted a selective program for the installation of vapor recovery systems whereby it "has combined with certain larger profit gasoline service station businesses" to give them a competitive advantage by refusing to make such installations in lower volume stations, thereby "to create and carry out restrictions on trade or commerce . . . ."

The ninth cause of action reincorporates all of the factual allegations of the first, second and third causes of action and alleges that defendant falsely and fraudulently represented that it would fully perform its obligations under the lease and franchise arrangement, and that these allegations were false in that "Defendant TEXACO, INC. did not intend to fully perform all their obligations under said written lease agreement and franchise arrangement." Compensatory and punitive damages for fraud are sought.

After substantial discovery and pretrial proceedings, plaintiff moved for summary judgment on its first cause of action for declaratory relief. Testimony and documentary evidence bearing on the issue whether defendant was obligated to install the vapor recovery system was submitted by plaintiff and by defendant, and both oral and written argument was submitted. Upon submission of the matter, the court made its order that the rights of the parties with respect to the declaratory relief cause of action were as set forth in findings of fact and conclusions concurrently filed. These conclusions were:

"1. The court declares that Texaco did not have an obligation or responsibility to Plaintiff pursuant to the terms of the Lease or Agreement of Sale, or pursuant to any implied covenant to procure and install a vapor recovery system at Plaintiff's service station or to bear the cost of procuring and installing same.

"2. Plaintiff's Motion for Summary Judgment on his First Cause of Action of the First Amended Complaint for Declaratory Relief is hereby denied.

"3. Defendant Texaco is awarded Summary Judgment on Plaintiff's First Cause of Action of his Amended Complaint for Declaratory Relief."

Thereafter, the parties entered into a stipulation for severance and order thereon which as approved by the court provided:

"1. Severance of the First Cause of Action in the Complaint filed herein from the remainder of said Complaint will be (conducive) to expedition, economy, and the furtherance of convenience of the parties and the Court;

"2. The First Cause of Action in the claim on file herein be severed from the remainder of said Complaint, effective as of the date the order hereinbelow is signed; and,

"3. The summary judgment awarded Defendant TEXACO, INC. on the First Cause of Action in the Complaint on file herein, which was awarded by the above entitled court in judgment, signed and filed concurrently herewith, be deemed an appealable final judgment; and,

"4. Pending appeal of this judgment to final determination, further processing of this case for trial within the Santa Barbara County Superior Court will be stayed."

Pursuant to this stipulation and order, the court entered judgment on plaintiff's first cause of action, declaring that "Defendant Texaco Inc. did not have an obligation or responsibility to Plaintiff pursuant to the terms of the Lease or the Agreement of Sale, pursuant to any implied covenant, or pursuant to the rules of the Santa Barbara County Air Pollution Control District, to procure and install a vapor recovery system at Plaintiff's service station or to bear the cost of procuring and installing same, . . . ."

Thereafter, the action was dismissed as to another defendant, and the judgment was entered. Pursuant to paragraph 4 of the stipulation for severance, further proceedings in the case by way of trial setting conference were conducted at which "the case was taken off calendar, subject to the filing of a new At Issue Memorandum." ¹

The threshold question posed by this appeal is whether the summary judgment on the first cause of action is an appealable judgment or order. As our Supreme Court stated in Collins v. Corse (1936) 8 Cal.2d 123, 124, 64 P.2d 137, 138: "If it is not an appealable order, it is the duty of this court on its own motion to dismiss the appeal."

The stipulation that the judgment "be deemed an appealable final judgment" cannot confer jurisdiction upon this court. In Phillips v. Phillips (1953) 41 Cal.2d 869, 874, 264 P.2d 926, 929, our Supreme Court said: "As this court stated in Spencer v. Troutt, 133 Cal. 605, 65 P. 1083, 'the want of jurisdiction in this court over a premature appeal is absolute, and, as consent cannot confer jurisdiction, the defect cannot be waived.' (Citations.)"

The purported final judgment in this case disposed of only one cause of action between plaintiff and defendant. Seven other causes of action between the same parties remain undisposed of. The general rule precludes piecemeal disposition of several counts in a complaint. That rule is stated by our Supreme Court in Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701-702, 128 P.2d 357, 360:

"There cannot be a separate judgment as to one count in a complaint containing several...