Sabetian v. Exxon Mobile Corp.

Filed 10/28/20; Modified and Certified for Publication 11/25/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SORAYA SABETIAN, B297107
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC475956)
v.
EXXON MOBIL
CORPORATION et al.,
Defendants and
Respondents.
APPEAL from the judgment of the Superior Court of
Los Angeles County, John J. Kralik, Judge. Affirmed.
Weitz & Luxenberg, Benno Ashrafi and Josiah Parker for
Plaintiff and Appellant.
Dentons US, Jayme C. Long, Justin Reade Sarno,
Alexander B. Giraldo; Gibson, Dunn & Crutcher, Theodore J.
Boutrous, Jr., Joshua S. Lipshutz and Joseph R. Rose for
Defendants and Respondents Exxon Mobil Corporation and
ExxonMobil Oil Corporation.
King & Spadling, Ashley C. Parrish, Peter A. Strotz,
Steven D. Park and Anne M. Voigts for Defendants and
Respondents Chevron U.S.A. Inc. and Texaco, Inc.
__________________________
Soraya Sabetian 1 appeals from a judgment entered after
the trial court granted the motions for summary judgment filed
by defendants Chevron U.S.A. Inc. and Texaco, Inc. (Chevron
defendants), and Exxon Mobil Corporation and ExxonMobil Oil
Corporation (Exxon defendants). Soraya and her husband
Houshang Sabetian brought claims for negligence, premises
liability, and loss of consortium, alleging Sabetian contracted
mesothelioma caused by exposure to asbestos while he was an
Iranian citizen working for the National Iranian Oil Company
(NIOC) from about 1960 to 1979 in facilities controlled by
defendants. 2 The trial court concluded the Chevron and Exxon
defendants did not owe a duty of care to Sabetian.
On appeal Soraya contends the Chevron and Exxon
defendants owed Sabetian a duty of care based on their
predecessors’ control over the Abadan refinery in which Sabetian
1 During the pendency of this appeal, Houshang Sabetian
died. On July 29, 2020 we granted Soraya Sabetian’s motion to
be substituted in place of Houshang Sabetian as his successor in
interest. To avoid confusion, we refer to Houshang Sabetian as
Sabetian and Soraya by her first name.
2 Mesothelioma is a cancer associated with exposure to
asbestos. The parties dispute the extent to which asbestos
exposure causes testicular mesothelioma, with which Sabetian
was diagnosed.
2
worked and a 1954 contractual agreement between the Iranian
government and a consortium of international oil companies,
including defendants’ predecessors in interest (the Agreement).
Soraya also asserts the Chevron and Exxon defendants, through
their predecessors, owed a duty to protect refinery workers like
Sabetian from asbestos exposure based on a special relationship
between the predecessors and the refinery workers arising from
commitments in the Agreement. 3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Agreement 4
In 1951 the government of Iran nationalized its oil assets,
assuming control from the Anglo-Iranian Oil Company, which
was majority-owned by the government of Great Britain. In 1952
Iran formed NIOC to own and supervise all of Iran’s oil assets.
But NIOC did not have access to the global oil markets. To avoid
possible influence from the former Union of Soviet Socialist
Republics, the United States “devised a plan in which a
consortium of newly-formed international corporations would
operate the Abadan refinery and some of the other Iranian Oil
3 Soraya also contended in her appellate briefing that
Sabetian was a third party beneficiary of the Agreement.
However, at oral argument Soraya’s attorney stated Soraya is no
longer relying on this argument.
4 This discussion is based on undisputed facts taken from
evidence submitted in connection with the summary judgment
motions.
3
Premises, under Iranian supervision.” 5 The United States
invited several major American companies with operations in the
Middle East to participate in an international consortium with
other oil companies.
In 1954 American oil companies Gulf Oil Corporation,
Socony-Vacuum Oil Company, Inc., Standard Oil Company of
New Jersey, Standard Oil Company of California, and the Texas
Company, and European oil companies Anglo-Iranian Oil
Company, Ltd., N.V. de Bataafsche Petroleum Maatschappij, and
Compagnie Francaise des Pétroles (collectively, the consortium
members) entered into the Agreement with Iran and NIOC.
Defendant Chevron is the successor in interest to Standard Oil
Company of California and Gulf Oil Corporation. Defendant
Texaco, Inc., is the successor of the Texas Company. The Exxon
defendants are successors in interest to Socony-Vacuum Oil
Company, Inc., and Standard Oil Company of New Jersey.
The Agreement consists of two parts, the first among the
consortium members, Iran, and NIOC and the second among
Iran, NIOC, and the Anglo-Iranian Oil Company, Ltd. Only part
I is at issue in this case. The recitals for part I provided,
“WHEREAS, both the Government of Iran and [NIOC] desire to
increase the production and sale of Iranian oil, and thereby to
increase the benefits flowing to the Iranian nation . . . , but
additional capital, experienced management, and technical skills
are required in order to produce, refine, transport and market . . .
oil in quantities sufficient to effect this increase in a substantial
5 It is undisputed the Agreement principally covered the
Abadan refinery. Consistent with the practice of the parties, we
use “Abadan refinery” to refer generally to the area covered by
the Agreement.
4
amount . . . [¶] WHEREAS, the international oil [consortium
members] are in a position and are willing to supply such capital,
management and skills; and [¶] . . . are in a position to market
substantial quantities of Iranian oil . . . throughout a large part
of the world over a considerable period of time, to the mutual
benefit of the Iranian nation and themselves . . . [¶] . . . the
Parties are agreed that said companies should undertake the
operation and management of certain of the oil properties . . . of
the Government of Iran and [NIOC], including the Abadan
refinery, as hereinafter set forth . . . [¶] . . . negotiations have
been amicably carried out with the object of assuring to the
Government of Iran and [NIOC], on the one hand, a substantial
export market for Iranian oil and a means of increasing the
material benefits to and prosperity of the Iranian people, and to
the companies, on the other hand, the degree of security and the
prospect of reasonable rewards necessary to justify the
commitment of their resources and facilities to the reactivation of
the Iranian oil industry.”
Article 3, section A of the Agreement provided that to carry
out the “functions of exploration, producing, refining,
transportation and the other functions specified in” the
Agreement, the consortium members incorporated the “Operating
Companies” under the laws of the Netherlands. The Agreement
defined the Operating Companies as the Iranian Oil Exploration
and Producing Company (IOEPC) and Iranian Oil Refining
Company (IORC). The consortium members incorporated a
holding company, Iranian Oil Participants Ltd. (IOP), which
wholly owned IOEPC and IORC. Each consortium member
formed at least one wholly owned subsidiary, each of which
purchased 7 to 8 percent of IOP’s shares. In article 3, section A of
5
the Agreement, the consortium members “jointly and severally
guarantee[d] the due performance by the Operating Companies of
their respective obligations under this Agreement.”
Article 4 of the Agreement listed and “strictly limited” the
“rights, powers and obligations of the Operating Companies as
well as the nature and extent of the supervision to be exercised
by Iran and NIOC . . . to what is clearly stated in this Article.”
(Art. 4, § J.) Section A, paragraph (1) provided IOEPC the right
to explore, drill for, produce, extract, process, store, transport,
and ship crude oil and natural gas. Section A, paragraph (2)
provided for IORC to have the right to refine and process crude
oil and natural gas produced by IOEPC.
Article 4, section F sets forth “[t]he obligations of the
Operating Companies to Iran and NIOC.” These obligations
included the duty “to conform with good oil industry practice and
sound engineering principles applicable and appropriate to
operations under similar conditions in conserving the deposits of
hydrocarbons, in operating the oilfields and refinery and in
conducting development operations.” (Agreement, art. 4, § F,
¶ (1).) The Operating Companies were obligated “to carry on
such exploration operations as are economically justifiable with a
view to providing sufficient reserves to support the rate of
production of oil” (id., § F, ¶ (2)); to maintain full records and
accounts of their activities (id., § F, ¶ (3)); “to minimize the
employment of foreign personnel” (id., § F, ¶ (4)); and “to prepare
in consultation with NIOC plans and programs for industrial and
technical training and education and to cooperate in their
execution . . . to replace foreign personnel as soon as reasonably
practicable” (id., § F, ¶ (5)). Article 4, section I further provided,
“[T]he Operating Companies shall determine and have full and
6
effective management and control of all their operations,” subject
to supervision of their operations by Iran and NIOC as set forth
in sections F and G.
Article 5, section A of the Agreement stated, “Iran and
NIOC undertake that neither of them, and no person other than
the Operating Companies, shall at any time . . . carry out . . . any
of the functions specified in [p]aragaphs (1) and (2) of Section A of
Article 4 of this Agreement” (defining the rights of IOEPC and
IORC to exploration, production, and refining). Article 7 of the
Agreement granted the Operating Companies the right to
“exclusive use” of certain lands owned by NIOC and Iran for
“their operations under [the] Agreement.” 6 Under article 17 of
the Agreement, NIOC retained authority over all “non-basic
operations,” including medical and health services, industrial and
technical training and education, and housing.
Article 18 provided consortium members “shall” purchase
crude oil and “may” purchase natural gas from NIOC for resale in
Iran for export. Consortium members were permitted to assign
their rights and obligations to purchase crude oil and natural gas
to their subsidiaries, referred to “Trading Companies.” Under
article 20 of the Agreement, the consortium members guaranteed
certain oil production and export quantities on an annual basis.
The Agreement contemplated a 25-year lifespan, but in
1973 Iran assumed operations from IORC and IOEPC. IORC’s
employees were transferred to a new entity formed by NIOC, Oil
6 It is undisputed NIOC owned and operated the Abadan
refinery prior to execution of the Agreement, and the Agreement’s
grant of authority to the Operating Companies constituted a
transfer of control over the functions in article 4 from NIOC to
the Operating Companies.
7
Services Company of Iran, which assumed operation of the
Abadan refinery.
B. The Complaint
Sabetian and Soraya filed this action on March 28, 2018
against the Chevron and Exxon defendants and others, alleging
causes of action for negligence, strict liability, premises liability,
negligent joint venture, alter ego, and loss of consortium. The
complaint alleged the Chevron and Exxon defendants are the
successors in interest to consortium members that were
signatories to the Agreement. The complaint alleged further
Sabetian was exposed to products containing asbestos while he
worked at the Abadan refinery and other Iranian facilities from
approximately the 1960’s to the late 1970’s. In January 2017
Sabetian was diagnosed with testicular mesothelioma caused by
his exposure to asbestos at these facilities. The complaint alleged
the predecessors to the Chevron and Exxon defendants, as
consortium members, contributed “capital, management and
skills in the operation and management of the oil properties of
the [NIOC], specifically the . . . oil refinery in Abadan, Iran.”
Further, the predecessor companies had “full and effective control
of the [Abadan] refinery . . . in order to operate that refinery in
conformity with good oil industry practice and sound engineering
principles applicable to that industry.”
8
C. The Chevron and Exxon Defendants’ Motions for Summary
Judgment
The Chevron and Exxon defendants separately moved for
summary judgment. 7 They argued they owed no duty of care to
Sabetian because they did not own, possess, or control the
facilities in which Sabetian alleged he was exposed to asbestos.
The Chevron defendants filed a declaration of Frank G.
Soler, the senior subsidiary governance liaison for Chevron
Corporation, who stated the Chevron defendants’ predecessors
“did not ever own, lease, maintain, manage, control, or supervise”
the Abadan refinery. Soler averred a separate corporate entity
facilitated requests from the Operating Companies to the
consortium members “for skilled personnel.” Employees of the
consortium members sent to work at the Abadan refinery were
“seconded,” meaning “their employment with the [consortium
member] oil company terminated and such employees were then
formally employed by IORC and/or IOEP[C.]”
The Chevron defendants also filed a declaration of former
Texaco, Inc., employee Carter Conlin, in which Conlin averred he
worked at the Abadan refinery from 1958 to 1963. At the
refinery, Conlin supervised 8 approximately 20 engineers,
including “seconded employees” from other oil companies. Conlin
and the other seconded employees he supervised were “employed
7 The Sabetians also moved for summary judgment of their
claims, which the trial court denied.
8 From 1958 to 1960, Conlin held the position of section head
of the oil conversion processes section of the process engineering
department for IORC. From 1960 to 1963, he held the position of
technical advisor for catalytic reforming in the refining
operations department for IORC.
9
and paid by IORC for all work performed at the Abadan
[r]efinery.” Conlin and the employees Conlin supervised did not
take direction or payment from “their previous oil company
employer or any oil company subsidiaries.” The Chevron
defendants filed excerpts from deposition testimony from Conlin
in Alkhas v. A.W. Chesterton Company (Super. Ct. L.A. County,
2014, No. BC473745), in which he testified employees loaned by
consortium members to IORC were thereafter treated as
employees of IORC. 9
D. The Sabetians’ Oppositions to Defendants’ Motions for
Summary Judgment
The Sabetians opposed the Chevron and Exxon defendants’
motions, arguing the Agreement and defendants’ control over
operations at the Abadan refinery created a duty of care owed by
the Chevron and Exxon defendants to Sabetian to protect him
from asbestos exposure. 10 The Sabetians filed multiple
9 The Exxon defendants also relied on the Conlin and Soler
declarations and the Conlin deposition transcript filed by the
Chevron defendants.
10 The Sabetians abandoned their strict liability, negligent
joint venture, and alter ego claims during the summary judgment
proceedings by failing to oppose summary adjudication of those
claims. The Sabetians did not dispute they had “no information
about how” IOP, IORC, IOEPC, or NIOC “were capitalized,
whether they held shareholder meetings, or whether they held
board of director meetings,” “no evidence to support a finding that
IOP, IORC, IOEP[C], [or] the [consortium members] . . . had a
right of joint control and ownership of the Abadan [r]efinery,” and
“no evidence to support piercing the corporate veils” of IOP,
IORC, IOEPC, NIOC, or the consortium members.
10
declarations and excerpts of deposition testimony with their
oppositions.
Dr. Neill Weaver stated in his deposition testimony he
worked from 1951 to 1973 as a physician for Esso Standard Oil
Company, an Exxon predecessor. 11 When asked about Esso’s
asbestos practices, Dr. Weaver testified that when he began
working in Esso’s Baton Rouge, Louisiana refinery in 1951,
“measures were in effect for the control of exposures throughout
the refinery and the medical surveillance program for the
workers potentially exposed to asbestos was in operation and had
been in operation for decades.” Dr. Weaver identified a 1937
document entitled “Dust Producing Operations in the Production
of Petroleum Products and Associated Activities,” which made
suggestions for control and suppression of asbestos dust. The
Sabetians also attached Exxon Mobil Corporation’s responses to
interrogatories, in which it admitted it began warning its
employees of the dangers of asbestos dust as early as 1936.
Bruce Larson, who testified as Exxon Mobil Corporation’s
person most qualified in Shahabi v. A.W. Chesterton Company
(Super. Ct. L.A. County, 2012, No. BC421531), was asked, “Do
you agree that Exxon and Mobil had employees in high level
management at the Abadan refinery between 1955 and 1968?”
He responded, “I think that’s probably correct, yes.” Larson also
testified it was “certainly possible” that a person with
management responsibility could cause work practices to be
11 Weaver testified he worked for Esso Standard Oil Co.,
which later became Exxon. The Exxon defendants acknowledge
previously doing business under the name Esso. It is not clear
from the record which consortium member Esso succeeded.
11
followed at the refinery, but he clarified that the Abadan refinery
“had a patchwork of various jobs represented by Iranian
nationals, various jobs represented by people from the
participating oil companies, and . . . I don’t really know how
control was exercised in a situation like that.” Larson testified he
believed Exxon employees who worked at the Abadan refinery
would be paid by the “holding company,” not Exxon, and he was
not aware of Exxon or Mobil “exercis[ing] any direct control over
anybody” working at the Abadan refinery.
Testifying as Exxon Mobil Corporation’s person most
qualified in Enayati v. A.W. Chesterton Company (Super. Ct. L.A.
County, 2009, No. BC400729), Larson testified he had no direct
knowledge of the health and safety practices of the Abadan
refinery during the period from 1954 to the 1980’s. But he stated
it had “always been at least the policy of Exxon and Mobil
that . . . the same rules and regulations that apply domestically
apply to overseas facilities. So I’m assuming that—and this is an
assumption . . . [¶] . . . that comparable safety procedures and
programs would be in place at [the Abadan] refinery as they
would have been elsewhere.” Larson affirmed he based his
assumption on his experience with the standard operating
procedures of the company.
Daniel Agopsowicz testified in his deposition as the person
most qualified for the Exxon defendants. When asked whether
the Exxon defendants agreed “[i]t is part of good oil industry
practice to ensure that the people on the refinery floor are kept
safe,” Agopsowicz replied, “Yes.” When asked whether the Exxon
defendants’ predecessors “believe[d] at the time of signing [the
Agreement] that [they] had an obligation to ensure that the
Abadan [r]efinery was operated appropriately,” Agopsowicz
12
replied, “If they signed [the Agreement], then they would agree
with this, yes.” 12
In response to the Exxon and Chevron defendants’
undisputed material facts, the Sabetians did not dispute that
Sabetian was employed by NIOC, not by defendants or their
predecessors, and he was never supervised or directed by an
employee of the defendants or their predecessors. Nor did the
Sabetians dispute “IORC was the company that conducted the
basic functions necessary for refining oil and natural gas at the
Abadan [r]efinery.” Likewise, the Sabetians did not dispute that
the Chevron defendants did not “select, procure, manufacture,
distribute, sell, or install any asbestos-containing products or
equipment” at the Iranian facilities. The Sabetians also did not
dispute that IOP did not operate any Iranian oil facilities.
E. The Trial Court’s Ruling and Entry of Judgment
On November 1, 2018 the trial court granted the Chevron
and Exxon defendants’ motions for summary judgment. In its
written ruling, the court found the parties to the Agreement “did
not intend to provide Iranian oil refinery workers with a direct
remedy against the American oil companies sued here.” The
court rejected Sabetian’s argument refinery workers were third
party beneficiaries to the Agreement, reasoning it was “far-
fetched to believe that the parties to the . . . Agreement thought
of the refinery workers at all, except to find a way to limit their
liability to the American companies that were being enlisted to
12 It appears from the question and answer that this
testimony was in the context of questions about the Agreement.
However, the record does not contain the prior page of the
deposition transcript.
13
invest.” The court explained, “There is no other reason for the
complicated structure making clear that the Oil Companies were
shareholders, and not directly responsible for the ownership and
operation of the refineries. It is hard to imagine why the parties
would have made such an effort to limit the liability of the new
investors through complicated corporate structures if their real
intent was to be directly liable to Iranian refinery workers and
other creditors of the operating entities. In sum, there is nothing
in the Agreement or the contemporary writings that indicates an
intent to benefit third parties at all.”
The court also rejected the Sabetians’ argument the recitals
in Part 1 of the Agreement created rights and obligations of the
Chevron and Exxon defendants. Further, the court found the
Agreement was “clear that the ‘Operating Companies’ are
separate entities from the [d]efendants. The corporate forms
should be respected given [the Sabetians’] decision to not submit
evidence regarding the joint-venture and alter-ego claims.” The
court continued, “While the Oil Companies’ predecessors did
guarantee the obligations of the Operating Companies under the
Agreement, there is no evidence that the parties intended that
third parties would have the option of enforcing these
guarantees.” 13
Finally, the court found the other evidence submitted by
the Sabetians did not support their position because “[n]one of it
[was] contemporaneous with the execution of the Agreement, or
[was] informative of the underlying intent of the Agreement.”
13 In ruling on the motions for summary judgment, the trial
court overruled all evidentiary objections made by the parties.
The parties do not renew their objections on appeal, and we do
not consider them.
14
Further, the former employees’ testimony confirmed IORC
operated the Abadan refinery, which employed the workers and
ran the “safety department,” but the testimony “fail[ed] to
establish that the named [d]efendants owned and operated the
refineries.” The court concluded the predecessor oil companies
“who were IOP shareholders did not owe a duty to Mr. Sabetian
under the . . . Agreement.”
On November 20, 2018 the trial court entered judgments of
dismissal in favor of the Chevron and Exxon defendants. The
Sabetians timely appealed.
DISCUSSION
A. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618 (Regents); Delgadillo v. Television Center, Inc.
(2018) 20 Cal.App.5th 1078, 1085.) “‘“‘“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;
accord, Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600,
607 (Valdez).)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
15
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Valdez, supra, 33 Cal.App.5th at p. 607.) If the
defendant satisfies this initial burden, the burden shifts to the
plaintiff to present evidence demonstrating there is a triable
issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, at p. 850; Valdez, at p. 607.) We must liberally construe
the opposing party’s evidence and resolve any doubts about the
evidence in favor of that party. (Regents, supra, 4 Cal.5th at
p. 618; Valdez, at p. 608.)
B. Principles of Contract Interpretation
“‘The rules governing the role of the court in interpreting a
written instrument are well established. The interpretation of a
contract is a judicial function. [Citation.] In engaging in this
function, the trial court “give[s] effect to the mutual intention of
the parties as it existed” at the time the contract was executed.
[Citation.] Ordinarily, the objective intent of the contracting
parties is a legal question determined solely by reference to the
contract’s terms. [Citations.]’” (Brown v. Goldstein (2019)
34 Cal.App.5th 418, 432; accord, State of California v.
Continental Ins. Co. (2012) 55 Cal.4th 186, 195; Wolf v. Walt
Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-
1126.) “‘Extrinsic evidence is admissible, however, to interpret an
agreement when a material term is ambiguous. [Citations.]’”
(Brown, at p. 432; accord, Wolf, at p. 1126.)
“The law has long distinguished between a ‘covenant’ which
creates legal rights and obligations, and a ‘mere recital’ which a
party inserts for his or her own reasons into a contractual
16
instrument. Recitals are given limited effect even as between the
parties.” (Emeryville Redevelopment Agency v. Harcros Pigments,
Inc. (2002) 101 Cal.App.4th 1083, 1101; accord, Hunt v. United
Bank & Trust Co. (1930) 210 Cal.108, 115 [“Recitals or preambles
prefixed to an agreement may or may not have binding force. If
they form part of the operative covenants of the instrument in
such a way as to show it was designed and intended that they
should form part of it, they will be so construed.”]; O’Sullivan v.
Griffith (1908) 153 Cal. 502, 506 [“A covenant or warranty is
never implied from a mere recital.”]; McDonough v. Chu Chew
Shong (1937) 21 Cal.App.2d 257, 259 [contract to indemnify bail
bondsmen was enforceable because the argued variance between
the bond’s guarantee and the respondent’s criminal offense was
in “a mere recital and form[ed] no part of the contractual
obligation”].) However, “[i]f the operative words of a grant are
doubtful, recourse may be had to its recitals to assist the
construction.” (Civ. Code, § 1068; 14 see Golden West Baseball Co.
v. City of Anaheim (1994) 25 Cal.App.4th 11, 38 [language labeled
“recital” was actually covenant because it contained operative
promise and recourse to language was necessary to identify real
property subject to the agreement].)
C. The Sabetians Failed To Raise a Triable Issue of Fact as to
Their Negligence and Premises Liability Claims
1. Duty of care
“The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
14 All further undesignated statutory references are to the
Civil Code.
17
proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158 (Kesner); accord, Castellon v. U.S.
Bancorp (2013) 220 Cal.App.4th 994, 998.) “Recovery in a
negligence action depends as a threshold matter on whether the
defendant had ‘“a duty to use due care toward an interest of [the
plaintiff’s] that enjoys legal protection against unintentional
invasion.”’” (Southern California Gas Leak Cases (2019)
7 Cal.5th 391, 397.)
“In general, each person has a duty to act with reasonable
care under the circumstances.” (Regents, supra, 4 Cal.5th at
p. 619; accord, Vasilenko v. Grace Family Church (2017) 3 Cal.5th
1077, 1083 (Vasilenko).) As section 1714 provides, “Everyone is
responsible, not only for the result of his or her willful acts, but
also for an injury occasioned to another by his or her want of
ordinary care or skill in the management of his or her property or
person, except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.” “‘[I]n
the absence of a statutory provision establishing an exception to
the general rule of . . . section 1714, courts should create one only
where “clearly supported by public policy.”’” (Kesner, supra,
1 Cal.5th at p. 1143; accord, Regents, supra, 4 Cal.5th at p. 628
[“The court may depart from the general rule of duty . . . if other
policy considerations clearly require an exception.”]; Cabral v.
Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).)
In determining whether an exception to section 1714
applies, courts consider “the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant’s conduct
and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the
18
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.” (Rowland v. Christian (1968)
69 Cal.2d 108, 113 (Rowland); accord, Kesner, supra, 1 Cal.5th at
p. 1143.)
A defendant’s control over property is sufficient to create a
duty of care owed to persons using the property. (Alcaraz v. Vece
(1997) 14 Cal.4th 1149, 1162, 1166 [affirming reversal of
summary judgment because there were triable issues of fact as to
landlord’s control of strip of city land where landlord had
“maintained the lawn . . . and, subsequent to the incident at
issue, constructed a fence surrounding the entire lawn”]; Annocki
v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [trial
court should have allowed plaintiff to plead that defendant
restaurant failed to warn patrons leaving the restaurant that
only a right turn could safely be made from its parking lot
although accident occurred on adjacent roadway].)
“Premises liability ‘“is grounded in the possession of the
premises and the attendant right to control and manage the
premises”’; accordingly, ‘“mere possession with its attendant right
to control conditions on the premises is a sufficient basis for the
imposition of an affirmative duty to act.”’” (Kesner, supra,
1 Cal.5th at p. 1158; accord, Taylor v. Trimble (2017)
13 Cal.App.5th 934, 943-944 [“landowners are required ‘to
maintain land in their possession and control in a reasonably safe
condition’ [citations], and to use due care to eliminate dangerous
conditions on their property”].) However, “[a] defendant cannot
be held liable for the defective or dangerous condition of property
which it did not own, possess, or control. Where the absence of
19
ownership, possession, or control has been unequivocally
established, summary judgment is proper.” (Isaacs v. Huntington
Memorial Hospital (1985) 38 Cal.3d 112, 134; accord, Seaber v.
Hotel Del Coronado (1991) 1 Cal.App.4th 481 [hotel did not owe
duty to patron who was struck and killed in a marked crosswalk
outside hotel’s entrance]; cf. Vasilenko, supra, 3 Cal.5th at
p. 1085 [church had duty toward invitees who crossed public
street to get to parking lot across the street because the church
increased the invitees’ exposure to the dangers of the street by
placing and maintaining the parking lot on the other side of the
street].)
“[S]ection 1714 does not . . . impose a presumptive duty of
care to guard against any conceivable harm that a negligent act
might cause.” (Southern California Gas Leak Cases, supra,
7 Cal.5th at p. 399; accord, Dekens v. Underwriters Laboratories
Inc. (2003) 107 Cal.App.4th 1177, 1187-1188 [plaintiffs failed to
raise a triable issue of material fact whether defendant
“undertook the responsibility to guarantee [decedent’s] safety
from cancer-causing asbestos through its process of testing and
certifying small appliances as safe from injury due to fire,
electrical shock, or injuries from sharp protruding objects”].)
2. The Sabetians failed to raise a triable issue of fact as
to the Chevron and Exxon defendants’ ownership,
possession, or control of the Iranian facilities
Soraya acknowledges the central question is whether the
Chevron and Exxon defendants (as successors to the consortium
members) “had active supervisory control and management over
the premises.” Soraya contends the consortium members
controlled asbestos sources at the Iranian facilities at which
20
Sabetian was exposed to asbestos. She argues the Agreement
itself created a duty of care by providing for the consortium
members to undertake to create the Operating Companies,
ensure the Operating Companies would use “good oil industry
practice,” promise to purchase oil for export, and guarantee the
production and exportation of specified quantities of oil.
But the Chevron and Exxon defendants’ commitments in
the Agreement do not demonstrate their control over the Abadan
refinery. Soraya does not dispute NIOC, and later Iran, not the
consortium members, owned the facilities where Sabetian was
exposed to asbestos. Article 1 of the Agreement defined
“Operating Companies” by express reference only to IOEPC (the
exploration and production company) and IORC (the refining
company), to the exclusion of the separately defined term of
“[c]onsortium members.” The Agreement gave Iran and NIOC
supervisorial authority over the Operating Companies, with
IORC and NIOC sharing control of the Abadan refinery. As
discussed, IORC controlled the refining and processing of the
crude oil and natural gas at the refinery (art. 4, § A, ¶ (2)) and
NIOC controlled the “non-basic operations,” including housing,
medical and health services, and industrial and technical
training and education (art. 17, §§ A, ¶ (1), B). Contrary to
Soraya’s assertion the Chevron and Exxon defendants’
predecessors had effective control over the Abadan refinery, the
Agreement expressly stated “no person other than the Operating
Companies, shall at any time . . . carry out . . . any of the
functions” of exploration, production, and refining, and the
“nature and extent of the foregoing rights, powers and obligations
of the Operating Companies as well as the nature and extent of
21
the supervision to be exercised by Iran and NIOC shall be strictly
limited to what is clearly stated in [article 4].”
That each of the consortium members or their subsidiaries
owned 7 to 8 percent of IOP’s shares, which in turn owned IOEPC
and IORC, is not sufficient to create a duty of care as to refinery
workers employed by the Operating Companies, let alone those
employed by NIOC, like Sabetian, absent evidence supporting the
piercing of the corporate veil based on the alter ego doctrine. (See
Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300 [to
pierce the corporate veil, a plaintiff must show “‘(1) that there be
such unity of interest and ownership that the separate
personalities of the corporation and the individual no longer exist
and (2) that, if the acts are treated as those of the corporation
alone, an inequitable result will follow’”]; Curci Investments, LLC
v. Baldwin (2017) 14 Cal.App.5th 214, 220 [“Ordinarily a
corporation is considered a separate legal entity, distinct from its
stockholders, officers and directors, with separate and distinct
liabilities and obligations.”].) Further, to the extent the
consortium members controlled IOP, which in turn owned the
Operating Companies, the Sabetians never presented evidence to
support liability of IOP as the parent corporation. (See Waste
Management, Inc. v. Superior Court (2004) 119 Cal.App.4th 105,
110 [“[A] parent corporation is not liable for injuries of a
subsidiary’s employee in the absence of evidence establishing a
duty owed by the parent corporation to the employee.”].) As
discussed, the Sabetians abandoned their alter ego claims during
the summary judgment proceedings.
Soraya is correct the consortium members incorporated the
Operating Companies and “jointly and severally guarantee[d] the
due performance by the Operating Companies of their respective
22
obligations under this Agreement.” (Art. 3, § A.) Further, under
the Agreement, “[t]he obligations of the Operating Companies to
Iran and NIOC” included a commitment “to conform with good oil
industry practice.” 15 (Art. 4, § F, ¶ (1).) In addition, under article
20 of the Agreement, the consortium members guaranteed the
Abadan refinery would produce and export certain quantities of
oil. Although Soraya argues these commitments show the
consortium members had some ability to intervene in refinery
management to meet these goals, the consortium members could
have satisfied their commitments, as they argue, by their
creation of independent corporate entities (the Operating
Companies) to provide the necessary day-to-day management and
control of the Abadan refinery. As stated, the Agreement tasked
IORC and NIOC, not the consortium members, with refinery
operations. Further, as discussed below, to the extent the
Chevron and Exxon members’ duty of care owed to refinery
workers flowed from the terms of the Agreement, the Sabetians
had to show Sabetian was an intended beneficiary of the
Agreement. Yet IORC’s commitment to conform with good
industry practice was explicitly stated in the Agreement as an
obligation to Iran and NIOC, as were the consortium members’
guarantees.
Soraya also argues defendants’ control over the Abadan
refinery is demonstrated by the recital language in the
Agreement that the consortium members “are in a position and
15 Although the Chevron and Exxon defendants dispute that
good oil industry practice included ensuring refinery workers
were not exposed to unsafe levels of asbestos, we assume without
deciding that good oil industry practice included such an
obligation.
23
are willing to supply . . . capital, management and skills” and
that the consortium members “should undertake the operation
and management of certain . . . oil properties . . . including the
Abadan refinery, as hereinafter set forth.” Although the recital
language refers to the consortium members undertaking
operation and control of the Abadan refinery, that language is
qualified by the words “as hereinafter set forth.” As discussed,
articles 4 and 5 of the Agreement provided that “no person other
than the Operating Companies, shall at any time . . . carry
out . . . any of the functions” of exploration, production, and
refining, subject to the supervision of NIOC and Iran. The
Agreement divided authority over refinery operations between
the Operating Companies (IORC and IOEPC) and NIOC, and it
vested NIOC and Iran with authority to supervise the operating
companies’ performance. Contrary to Soraya’s position, the
Agreement does not grant the consortium members supervisorial
or managerial control over IORC, IOEPC, NIOC, or the Abadan
refinery. Thus, the recital language referring to the willingness
of the consortium members to provide their management abilities
and their agreement to undertake the operation and
management of the oil facilities was by its own terms limited by
the specific provisions of the Agreement that vested
responsibility for operation and control in the Operating
Companies and NIOC. (See Hunt v. United Bank & Trust Co.,
supra, 210 Cal. at p. 115.) Moreover, the parties’ recitals are
antecedent to the Agreement’s proclamation, “NOW
THEREFORE, it is hereby agreed by and between [Iran and
NIOC] and [the consortium members],” indicating the parties did
not intend the recitals to have a binding effect.
24
Finally, the other evidence submitted by the Sabetians also
did not create a triable issue of fact that the consortium members
had control over operations at the Abadan refinery. The
testimony of Larson, testifying as Exxon Mobil Corporation’s
person most qualified, that “there may have been some” Exxon or
Mobil employees in high level management positions at the
Abadan refinery is consistent with defendants’ evidence that
employees of consortium members who worked at the Abadan
refinery were loaned to the refinery and under the control of and
paid by IORC. For example, Soler, the senior subsidiary
governance liaison for Chevron Corporation, declared that
consortium members sometimes provided “skilled personnel” to
the Abadan refinery in response to requests from the Operating
Companies, but these workers were then “formally employed” by
the Operating Companies, not their former consortium member
employer. Similarly, Conlin, who in 1958 was an assistant chief
design engineer employed by Texaco, Inc., testified that from
1958 to 1963 he was seconded to work at the Abadan refinery, at
which time he was employed and paid by IORC and took
direction from IORC, not Texaco, Inc., or other American oil
companies. Further, Larson testified he was not aware of Exxon
or Mobil “exercis[ing] any direct control over anybody” working at
the Abadan refinery. The Sabetians did not submit any evidence
showing employees of the consortium members who were
seconded to the Abadan refinery as management employees were
paid by the consortium members or their work was directed or
controlled by the consortium members. 16
16 Soraya also relies on Agopowicz’s testimony in which he
agreed that the Exxon defendants’ predecessors “believe[d] at the
25
Soraya’s reliance on the holding in Kesner, supra, 1 Cal.5th
1132 is misplaced. In Kesner, the Supreme Court held that
employers and premises owners have a duty to protect family
members of on-site workers from secondary exposure to asbestos
carried home on the bodies and clothing of the workers. (Id. at
p. 1140.) The Kessner court started from the premise that under
section 1714, “‘the general duty to take ordinary care in the
conduct of one’s activities’ applies to the use of asbestos on an
owner’s premises or in an employer’s manufacturing processes”
(Kessner, at p. 1144), but it considered the Rowland factors to
determine “‘whether a categorical exception to that general rule
should be made’ exempting property owners and employers from
potential liability to individuals who were exposed to asbestos by
way of employees carrying it on their clothes or person.” (Id. at
p. 1145, quoting Cabral, supra, 51 Cal.4th at p. 774.) The
Kessner court concluded it was “entirely foreseeable” that
workers would bring asbestos dust home at the end of the day if
adequate precautions were not taken, and, therefore, “[t]he
foreseeability factors weigh in favor of finding a duty.” (Kesner,
at p. 1149.)
Unlike the defendants in Kesner, there is no evidence the
Chevron and Exxon defendants operated or controlled the
time of signing [the Agreement] that [they] had an obligation to
ensure that the Abadan [r]efinery was operated appropriately.”
But as discussed, the consortium members’ guarantees were to
Iran and NIOC and fall short of evidence defendants exercised
direct control of day-to-day operations at the refinery. Further,
although Agopowicz was designated as the person most qualified
for the Exxon defendants, his testimony was not based on
personal knowledge of the consortium members’ intent in
entering into the Agreement, but his reading of the Agreement.
26
Abadan refinery or the sources of asbestos at the refinery,
thereby imposing on them a duty under section 1714 to protect
refinery workers like Sabetian from exposure to asbestos. (See
Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at
p. 134.) Sabetian was employed by NIOC on premises operated
by NIOC and IORC. This is in contrast to the allegations at issue
in Kesner that the defendant’s predecessors were “engaged in
active supervisory control and management of asbestos sources”
at the workplace. (Kesner, supra, 1 Cal.5th at p. 1161.)
3. Soraya failed to raise a triable issue of fact the
Agreement created a special relationship between
defendants’ predecessors and Sabetian
Soraya contends the Chevron and Exxon defendants
(through their predecessor companies) owed a duty to protect
refinery workers like Sabetian from asbestos exposure based on a
special relationship between the consortium members and the
refinery workers arising from the consortium members’
guarantee in the Agreement of the Operating Companies’ “due
performance” under the Agreement, relying on Biakanja v. Irving
(1958) 49 Cal.2d 647 (Biakanja) and J’Aire Corp. v. Gregory
(1979) 24 Cal.3d 799 (J’Aire). Under Soraya’s argument, the
Chevron and Exxon defendants owed a duty to the refinery
workers because injury to refinery workers from asbestos
exposure was reasonably foreseeable under the Agreement.
Further, Soraya points to the Operating Companies’ obligation to
conform to “good oil industry practice and sound engineering
principles.” Defendants respond it was IORC and NIOC that had
a special relationship with refinery workers like Sabetian under
the Agreement based on their control of the Abadan refinery, not
27
the consortium members, and therefore the Agreement did not
create a duty on the part of the consortium members. The
Chevron and Exxon defendants have the better argument. 17
“A duty running from a defendant to a plaintiff may arise
from contract, even though the plaintiff and the defendant are
not in privity. [Citations.] Under these circumstances, the
existence of a duty is not the general rule, but may be found
based on public policy considerations.” (Lichtman v. Siemens
Industry Inc. (2017) 16 Cal.App.5th 914, 921 (Lichtman)
[company responsible for maintaining battery backup system for
traffic signals owed duty of care to plaintiffs who were injured in
traffic collision during power outage in which traffic signal
stopped functioning].) The Supreme Court has recognized
negligence claims by third parties against contractors based on a
special relationship arising from the contract between the
contractor and the owner of the property, applying the six-factor
balancing test the Supreme Court articulated in Biakanja, supra,
49 Cal.2d 647 to determine whether a notary public who drafted
a will for the decedent owed a duty of care to an estate
beneficiary who was not in contractual privity with the notary
17 Soraya does not argue, and we do not reach, whether the
predecessors to the Chevron and Exxon defendants owed a duty
based on a special relationship with Sabetian to protect him from
the criminal conduct of third parties. (Regents, supra, 4 Cal.5th
at p. 619 [“a duty to control may arise if the defendant has a
special relationship with the foreseeably dangerous person that
entails an ability to control that person’s conduct”]; accord,
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 [“A
defendant may owe an affirmative duty to protect another from
the conduct of third parties if he or she has a ‘special relationship’
with the other person.”].)
28
public. (See J’Aire, supra, 24 Cal.3d at pp. 802, 804-805 [lessee
who operated a restaurant alleged sufficient facts to state a cause
of action for negligence to recover lost income from dilatory
performance by contractor hired by owner of building to renovate
restaurant]; Stewart v. Cox (1961) 55 Cal.2d 857, 859 (Stewart)
[upholding homeowner’s judgment for property damage against
subcontractor who was not in privity with the homeowner for the
negligent application of concrete inside a swimming pool, causing
a leak that damaged the pool and house]; see generally Aas v.
Superior Court (2000) 24 Cal.4th 627, 637-645 (Aas) [detailing
evolving case law], superseded by statute on other grounds as
stated in Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th
1070, 1079-1080.)
Under the Biakanja and J’Aire balancing tests, in
determining whether a duty of care arises from a contract in
favor of a noncontracting party, the Supreme Court considered
“[(1)] ‘the extent to which the transaction was intended to affect
the plaintiff,’ [(2)] ‘the foreseeability of harm to [him],’ [(3)] ‘the
degree of certainty that the plaintiff suffered injury,’ [(4)] ‘the
closeness of the connection between the defendant’s conduct and
the injury suffered,’ [(5)] ‘the moral blame attached to the
defendant’s conduct,’ and [(6)] ‘the policy of preventing future
harm.” (Southern California Gas Leak Cases, supra, 7 Cal.5th at
p. 401, citing J’Aire, supra, 24 Cal.3d at p. 804; accord,
Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 838
(Goonewardene); 18 Aas, supra, 24 Cal.4th at p. 644; Stewart,
18 In Goonewardene, supra, 6 Cal.5th at page 838, the
Supreme Court observed additional “policy considerations that
may appropriately be considered in determining whether a tort
29
supra, 55 Cal.2d at p. 863; see Biakanja, supra, 49 Cal.2d at
p. 650.) 19
In J’Aire, the Supreme Court concluded as to the first
factor that because the purpose of the contract between the
property owner and the contractor was to renovate the heating
and ventilation systems at the lessee’s business premises (a
restaurant), the work “could not have been performed without
impinging” on the lessee’s business, and therefore the contractor’s
“performance was intended to, and did, directly affect [the
plaintiff].” (J’Aire, supra, 24 Cal.3d at p. 804.) With respect to
the second factor, the J’Aire court held “it was clearly foreseeable
that any significant delay in completing the construction would
adversely affect [the lessee’s] business beyond the normal
disruption associated with such construction. [The lessee] alleges
this fact was repeatedly drawn to [the contractor’s] attention.”
duty of care should be recognized or imposed in the absence of
privity of contract” included whether recognition of the duty of
care “would (1) impose liability out of proportion to fault, (2) be
unnecessary in light of the prospect of private ordering [of a
product or service], and (3) would likely have an adverse effect on
the availability of [a defendant’s] services.” Because Soraya has
not argued that consideration of these additional factors supports
finding a duty of care, we focus on the factors in the Biakanja and
J’Aire balancing tests as briefed by the parties.
19 The Supreme Court in Southern California Gas Leak Cases,
supra, 7 Cal.5th at page 401 explained the J’Aire and Biakanja
balancing tests apply a subset of the factors first established in
Rowland, supra, 69 Cal.2d at page 113 to determine whether a
defendant owes a duty of care to the plaintiff. For simplicity, we
refer to the “J’Aire factors,” as the Supreme Court did in Aas,
supra, 24 Cal.4th at page 646.
30
(Id. at pp. 804-805.) As to the third and fourth factors, the
complaint “[left] no doubt” the lessee suffered harm as a direct
result of the contractor’s negligence because it was unable to open
its restaurant for a month because of delayed construction, and it
operated without heat and air conditioning for even longer. (Id.
at pp. 802, 805.) As to the fifth factor, the contractor’s “lack of
diligence in the present case was particularly blameworthy since
it continued after the probability of damage was drawn directly to
[its] attention.” (Id. at p. 805.) With respect to the sixth factor,
the J’aire court reasoned there is a public policy to discourage
construction delays, which policy would be advanced by
recognizing a duty of care. (Ibid.) The J’Aire court concluded,
“[T]his court holds that a contractor owes a duty of care to the
tenant of a building undergoing construction work to prosecute
that work in a manner which does not cause undue injury to the
tenant’s business, where such injury is reasonably foreseeable.”
(Id. at p. 808.)
Contrary to Soraya’s argument, the J’Aire factors do not
support imposition of liability on the Chevron and Exxon
defendants by virtue of the consortium members’ guarantee in
article 3 of the Operating Companies’ performance of their
obligations under the Agreement. Most significantly, under the
first factor, the Agreement was not intended to affect Sabetian or
other refinery workers, but rather, it was intended to accelerate
Iranian oil production and exportation to the global market.
Indeed, the obligations of the Operating Companies most
relevant to protection of the refinery workers—to conform with
good industry practice and prepare plans and programs for
industrial and technical training and education—were
specifically owed under the Agreement “to Iran and NIOC.”
31
Sabetian is unlike the plaintiff in J’Aire, a lessee whose
restaurant business was interrupted by a contractor’s
renovations to improve the restaurant, or the plaintiff in
Biakanja, the sole beneficiary of a will the notary public
negligently failed properly to attest. (J’Aire, supra, 24 Cal.3d at
p. 804; Biakanja, supra, 49 Cal.2d at pp. 648, 651.)
Typically, as in J’Aire and Stewart, the first two J’Aire
factors operate in tandem—because the underlying contract was
intended to affect the plaintiffs, the harm to the plaintiffs as a
result of the defendants’ negligence was a fortiori foreseeable.
(See J’Aire, supra, 24 Cal.3d at pp. 804-805 [where defendant’s
performance was intended directly to affect the lessee, “it was
clearly foreseeable that any significant delay in completing the
construction would adversely affect [the lessee’s] business beyond
the normal disruption associated with such construction”];
Stewart, supra, 55 Cal.2d at p. 863 [because the concrete work
was intended for plaintiffs, the property damage to them “was
foreseeable in the event the work was . . . negligently done”]; see
also Chameleon Engineering Corp. v. Air Dynamics, Inc. (1980)
101 Cal.App.3d 418, 422-423 [general contractor alleged
sufficient facts to state negligence claim against supplier of
component parts to subcontractor for delay in provision of parts
where supplier knew intent of its contract with subcontractor was
to provide essential parts general contractor needed, and
therefore it was foreseeable a delay in supplying the parts would
harm general contractor].) Conversely, where a transaction is
not intended to affect the plaintiff, this fact may show the harm
to the plaintiff was not reasonably foreseeable. (See, e.g., Mega
RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1341
[because repair of plaintiff’s mobile home by retailer was not
32
intended to affect manufacturer of component part for mobile
home, it was not reasonably foreseeable the component part
manufacturer would be sued by plaintiff; therefore, retailer did
not owe duty to component part manufacturer]; Ott v. Alfa-Laval
Agri, Inc. (1995) 31 Cal.App.4th 1439, 1455-1456 [where milking
system was not intended to affect plaintiff, defect in system
manifesting 15 years later was not reasonably foreseeable].)
As the Supreme Court observed in Goonewardene, supra,6 Cal.5th at page 840, where a plaintiff is not entitled to
maintain a breach of contract action based on the third party
beneficiary doctrine, “it would clearly be anomalous to impose
tort liability, with its increased potential damages [citation],
upon [the defendant] based upon its alleged failure to perform its
obligations under its contract with plaintiff’s employer.” Here,
Sabetian was not a third party beneficiary of the Agreement
because one the three required elements is missing—that the
“motivating purpose of the contracting parties was to provide a
benefit to the third party.” (Id. at p. 830.)
The foreseeability of harm to refinery workers as a result of
the consortium members’ failure to protect refinery workers
under the Agreement does not favor Soraya. Although it was
foreseeable oil refinery operations could result in asbestos
exposure to refinery workers, the role of the consortium members
must be viewed in the context of the purpose of the Agreement—
to enable Iran to develop its oil resources. To accomplish this
goal, the consortium members created IOP and its subsidiaries,
IORC and IOEPC, and the Agreement in article 4 vested the
power to control day-to-day operations in those companies, not
the consortium members. Further, as discussed, article 5 of the
Agreement prohibited any entity other than the Operating
33
Companies (IORC and IOEPC) from carrying out the assigned
operational functions under the Agreement. The fact the
consortium members committed to ensure the Operating
Companies performed their obligations under the Agreement
does not mean the consortium members had the power to control
the day-to-day activities of the refineries. This is unlike the
situation in J’Aire, in which the contractor had the ability to
control the extent to which the tenant was harmed by the
contractor’s conduct under the agreement with the property
owner. (J’Aire, supra, 24 Cal.3d at p. 804.)
As to the third factor, there is a high degree of certainty
that Sabetian suffered injury due to his exposure to asbestos at
the Abadan refinery. 20 But the fourth factor, the closeness of the
connection between consortium members’ conduct and Sabetian’s
injury, is attenuated because IORC and NIOC, not the
consortium members, controlled day-to-day refinery operations.
Likewise, the fifth factor, the moral blame attached to the
consortium members’ conduct, is weak. “‘Negligence in the
execution of contractual duties is generally held to be morally
blameworthy conduct.’” (Lichtman, supra, 16 Cal.App.5th at
p. 925.) But Soraya did not present any evidence of the
consortium members’ negligence in the execution of their
contractual duties or, as noted, that they had control over the
operations that caused the harm.
20 On appeal, defendants do not contend Soraya failed to raise
a triable issue of fact regarding whether Sabetian’s mesothelioma
was caused by asbestos exposure at the Abadan refinery. For
purposes of our analysis under J’Aire, we assume Soraya has
raised a triable issue as to causation.
34
The sixth factor, the policy of preventing future harm,
similarly does not favor Soraya. Because the consortium
members were not in a position to control the day-to-day
operations of the Abadan refinery, they were not in the best
position to prevent future harm at the refinery. Further, the
Agreement acknowledged the consortium members were separate
corporate entities from the Operating Companies, including
IORC. We recognize the important public policy to require
employers to provide a safe and secure workplace, but there is
also a public policy recognizing the benefits of allowing
companies to limit their business risks through the creation of a
separate corporate entity. (Greenspan v. LADT LLC (2010)
191 Cal.App.4th 486, 512 [“society recognizes the benefits of
allowing persons and organizations to limit their business risks
through incorporation”]; Las Palmas Associates v. Las Palmas
Center Associates (1991) 235 Cal.App.3d 1220, 1249 [same].) Had
the Sabetians presented evidence showing the consortium
members should have been treated as the alter egos of IOP,
which in turn should have been considered the alter ego of IORC,
this would have tipped the balance toward Soraya. But the
Sabetians abandoned this legal argument in the trial court.
Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th
1193, 1197 (Seo), relied on by Soraya, does not support a contrary
result. There, a commercial subtenant was injured when he
reached his arm through an electronic sliding gate to activate a
switch to close the gate. (Id. at p. 1198.) The Court of Appeal
concluded the defendant company that had repaired the gate for
the property owner owed no duty of care to the subtenant to warn
of design defects unrelated to the repairs performed by the
defendant. (Id. at pp. 1198-1199.) The Seo court observed,
35
however, that an independent contractor may owe a duty to a
third party where it negligently performs a repair, fails to make a
requested repair, or assumes the owner’s duty to inspect and
maintain the equipment and negligently fails to perform, leading
to injury to the third party. (Id. at p. 1206.) Here, Soraya has
not presented evidence showing defendants performed repairs,
inspections, or maintenance or assumed the responsibility
assigned to IORC and NIOC under the Agreement to inspect or
maintain the Abadan refinery. 21
On balance the J’Aire factors do not support imposition of
liability on the Chevron and Exxon defendants, especially in light
of the strength of the first factor—Soraya seeks to impose a duty
on the consortium members arising from the Agreement, but the
Agreement was never intended to benefit the refinery workers.
D. The Trial Court Did Not Abuse Its Discretion in Awarding
Discovery Sanctions to the Exxon Defendants
1. Proceedings below
On July 2, 2018, the 10th day of Sabetian’s deposition, the
attorney for the Exxon defendants, Jon Kasimov, asked Sabetian,
“Do you have any information that Exxon[ ]Mobil Corporation
21 Soraya also relies on Harold A. Newman Co. v. Nero (1973)
31 Cal.App.3d 490, 496 for the proposition “a person who has
assumed the contractual duty to perform a service for another
cannot escape his contractual obligation to perform the service in
a competent manner by delegating performance to another.” But
under the Agreement, it was IORC and NIOC that assumed the
duty to control refinery operations. Soraya has provided no
authority for the proposition a party who guarantees the
performance of another assumes a duty to prevent harm to third
parties caused by performance of the service.
36
caused you to be exposed to asbestos?” Sabetian’s attorney Benno
Ashrafi objected and instructed Sabetian not to answer. Ashrafi
explained, “That’s a contention interrogatory. You can propound
an interrogatory and we will respond.”
Kasimov continued to ask a series of questions concerning
the Exxon defendants and their predecessors, to which Ashrafi
instructed Sabetian not to answer, including: “Do you have
information that [the Exxon defendants] misrepresented
anything to you?”; “Do you have any information that [the Exxon
defendants] concealed any information from you?”; “Do you have
any knowledge that [the Exxon defendants] acted with a
conscious disregard for your safety or with intent to harm you?”;
“Do you have any information that [the Exxon defendants]
operated Abadan?”; “Have you worked at any refinery, oil field, or
other facility that you contend was owned or operated by [the
Exxon defendants]?”; “Do you know if [the Exxon defendants]
made, sold or supplied any product used at any of your job sites?”;
“Do you have any information that [the Exxon defendants]
caused you to be exposed to asbestos?” 22 Relying on Rifkind v.
Superior Court (1994) 22 Cal.App.4th 1255 (Rifkind), Ashrafi
asserted the questions should “be propounded as . . . contention
interrogator[ies].”
At a July 26, 2018 informal discovery conference, the trial
court reviewed five of the questions and explained the “questions
22 Kasimov asked some or all of these questions as to Exxon
Mobil Corporation, ExxonMobil Oil Corporation, Exxon
Corporation, Mobil Oil Corporation, Humble Oil Refining
Company, and companies with the names Esso, Enco, Socony,
and Standard Oil. Each time, Ashrafi instructed Sabetian not to
answer.
37
cannot refer to legal contentions for this witness.” The court
continued, “And it’s understood that the questions are to call for
his personal knowledge and not for his contentions or information
that might be possessed by other witnesses or his attorneys. [¶]
With that clarified, I’ve ordered that any objections based on
Rifkind be matters for the record that I will rule on prior to trial,
if necessary; and that the witness is to go ahead and answer the
question[s] to the best of [his] ability.”
When Sabetian’s deposition continued on July 31, 2018,
Ashrafi placed several documents in front of Sabetian, including
a July 12, 2017 order of the Superior Court of Los Angeles, Judge
Steven Kleifield, denying the Exxon defendants’ motion for
summary judgment in the case Kordestani v. 3M Company
(Super. Ct. Los Angeles County, 2017, No. BC519273)
(Kordestani order) and three invoices Ashrafi described as
“reflecting [Exxon]’s supply of materials to the Abadan
[r]efinery.” Kasimov objected, “For you to provide him with
information that is outside of the parameters of this case to try to
lead him and coach him, I think is highly improper.” Kasimov
asked Sabetian, “[D]o you know, based upon your personal
knowledge, whether [Exxon Mobil] Corporation caused you to be
exposed to asbestos?” Ashrafi again objected based on Rifkind.
He explained, “[Sabetian] has given 14 days of testimony about
what he has done in the Abadan [r]efinery. We are not going to
call him to testify about the details of the contract. We believe
the contract makes [Exxon] responsible for the operation of the
Abadan [r]efinery, and as such, any exposure at the Abadan
[r]efinery would be . . . caused by [Exxon].” Sabetian then
answered, “Well, I think the judge’s opinion [in the Kordestani
order] is my personal opinion.” However, after further discussion
38
between counsel, Kasimov asked the question again and Sabetian
responded, “Yes. Definitely. Look at me.”
Kasimov asked, “Do you know whether [Exxon Mobil]
Corporation concealed any information from you?” Ashrafi again
objected under Rifkind. Sabetian then answered, “No.” But after
Ashrafi interjected and told Sabetian, “He is asking if [Exxon]
ever concealed any information,” Sabetian responded, “Concealed,
of course.” Kasimov inquired, “What information?” Sabetian
responded, “Because all of the product, they had asbestos and
they never actually declare . . . anything about asbestos and the
dangers of asbestos.”
Kasimov asked, “Do you have personal knowledge whether
[Exxon Mobil] Corporation either acted or failed to act with a
conscious disregard for your safety?” Sabetian responded, “Yes.”
But when asked “What did they . . . ,” he stated the Kordestani
order “shows that [Exxon] had no regard for safety and especially
never—they have mention about the danger of asbestos.”
Kasimov asked Sabetian if he had any knowledge “[i]ndependent
of the [j]udge’s [o]rder,” to which Ashrafi again asserted an
objection under Rifkind. When Kasimov asked Sabetian for his
answer, Sabetian responded, “[T]hat was my exactly the same
what I said before.” Kasimov claimed Ashrafi had “sandbagged”
him by waiting until the last day of Sabetian’s deposition, then
having Sabetian testify to knowledge “he clearly doesn’t have.”
After a vitriolic exchange between counsel and discussions of
possible stipulations, Kasimov suspended the deposition without
asking all his questions.
On August 3, 2018 the Exxon defendants filed a motion for
terminating, evidence, issue, and monetary sanctions, arguing
Ashrafi improperly coached Sabetian by making inappropriate
39
speaking objections and providing Sabetian with documents after
the trial court had ordered Sabetian to testify from personal
knowledge. The Exxon defendants filed a declaration by
Kasimov, in which he stated that after the July 26, 2018 informal
discovery conference he had “spent time re-wording [his]
questions” to “make it even clearer that the questions seek Mr.
Sabetian’s personal knowledge.” The Exxon defendants
requested $12,790 in monetary sanctions.
At the August 28, 2018 hearing, the trial court stated,
“Reviewing the transcript and knowing the history of this, it’s
apparent to me that Mr. Sabetian does not have any personal
knowledge about the involvement of Exxon or its subsidiaries at
the site.” Addressing Ashrafi, the trial court continued, “I think
by providing [Sabetian] the type of documents you were providing
him, you were encouraging him to make contentions. And the
whole point I think I clarified pretty clearly and actually went on
the record to say it, is that we were just looking for his personal
knowledge here in this deposition. [¶] Providing him these
documents and having him argue from them really did obstruct
the deposition. It sought to evade my order.” The court noted
Sabetian’s deposition responses on July 31, 2018 were “answer[s]
[Sabetian] was trained to give” and “his whole testimony, if he
had anything, it’s completely worthless to [the Exxon
defendants].” The court asked Ashrafi, “Why are you feeding
[Sabetian] what is obviously legal contentions to repeat to [the
Exxon defendants], which results in useless testimony, going
around in circles, and prolonging the deposition until we get to
the point that [Sabetian] has no recollection of ever seeing the
word Exxon, which is what we all know to be true?” The court
admonished Sabetian’s attorneys, “[T]he whole point of my order,
40
and I couldn’t be clearer, was let him answer the question and we
will figure [the Rifkind issue] out later. . . . [¶] . . . If the
question is somehow improper under Rifkind . . . it’s going to be
ruled out.”
On September 20, 2018 the trial court granted in part the
Exxon defendants’ motion for sanctions. The court ordered,
“Plaintiff is deemed to have no personal knowledge as to the
questions he was instructed not to answer during the July 2,
2018 session of his deposition regarding [the Exxon defendants]
and their related companies.” The court further ordered
monetary sanctions against Sabetian and his attorney in the
amount of $2,500.
2. Standard of review and applicable law
Code of Civil Procedure section 2023.030 authorizes a trial
court to impose a range of penalties against “any party engaging
in the misuse of the discovery process,” including monetary and
evidence sanctions (id., subds. (a), (c)). (Accord, Los Defensores,
Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Kayne v. The
Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1475.)
Code of Civil Procedure section 2023.010 provides that
misuses of the discovery process include “[f]ailing to respond or to
submit to an authorized method of discovery” (id., subd. (d)),
“[m]aking, without substantial justification, an unmeritorious
objection to discovery” (id., subd. (e)), “[m]aking an evasive
response to discovery” (id., subd. (f)), and “[d]isobeying a court
order to provide discovery” (id., subd. (g)).
We review the trial court’s imposition of discovery
sanctions for an abuse of discretion. (Stephen Slesinger, Inc. v.
Walt Disney Co. (2007) 155 Cal.App.4th 736, 765; accord, Britts v.
41
Superior Court (2006) 145 Cal.App.4th 1112, 1123 [abuse of
discretion standard of review applies “to review of an order
imposing discovery sanctions for discovery misuse” unless “the
propriety of a discovery order turns on statutory interpretation”].)
“We view the entire record in the light most favorable to the
court’s ruling, and draw all reasonable inferences in support of
it. . . . The trial court’s decision will be reversed only ‘for
manifest abuse exceeding the bounds of reason.’” (Slesinger, at
p. 765; accord, Los Defensores, Inc. v. Gomez, supra,
223 Cal.App.4th at p. 390 [“‘“The power to impose discovery
sanctions is a broad discretion subject to reversal only for
arbitrary, capricious, or whimsical action.”’”].)
In Rifkind, supra, 22 Cal.App.4th 1255, the Court of Appeal
held it was improper for a party to ask “legal contention
questions” at a deposition, which the court defined as “deposition
questions that ask a party deponent to state all facts, list all
witnesses and identify all documents that support or pertain to a
particular contention in that party’s pleadings.” (Id. at p. 1259.)
The Rifkind court clarified it was not addressing “questions at a
deposition asking the person deposed about the basis for, or
information about, a factual conclusion or assertion, as
distinguished from the basis for a legal conclusion.” (Ibid.) It
reasoned it would be “unfair” to “call upon the deponent to sort
out the factual material in the case according to specific legal
contentions, and to do this by memory and on the spot.” (Id. at
p. 1262.) The Rifkind court explained, “If the deposing party
wants to know facts, it can ask for facts; if it wants to know what
the adverse party is contending, or how it rationalizes the facts
as supporting a contention, it may ask that question in an
interrogatory.” (Ibid.)
42
3. The trial court did not abuse its discretion in ordering
monetary and evidence sanctions
Soraya contends the trial court abused its discretion in
ordering monetary and evidence sanctions based on Ashrafi’s
conduct in relation to Sabetian’s deposition. She argues
Kasimov’s questions were improper under Rifkind, and
Sabetian’s review of documents to prepare for the deposition was
an “attempt[] to answer the improper deposition questions as if
they had been properly propounded as contention
interrogatories.” Soraya asserts, “The trial court, upon
determining that the deposition questions were improper under
Rifkind,[23] should not have permitted Exxon to re-ask the same
questions with the limitation that they only need be answered
from personal knowledge.” The trial court did not abuse its
discretion.
At the informal discovery conference, the trial court
ordered Sabetian to answer the questions to the best of his
ability, and then the court would rule on any Rifkind objections
at a later date. Kasimov modified the questions he asked at the
July 31, 2018 deposition to comply with the court’s order that
“the questions are to call for [Sabetian’s] personal knowledge and
not for his contentions or information that might be possessed by
other witnesses or his attorneys.” For example, Kasimov asked
whether Sabetian had personal knowledge “whether [Exxon
Mobil] Corporation caused [him] to be exposed to asbestos.” Had
23 Soraya inaccurately states “the trial court . . . found that
Exxon’s questions were improper under Rifkind.” The trial court
did not make a finding as to whether the questions were
improper.
43
Sabetian worked under a manager who was employed by Exxon
Mobil Corporation, Sabetian could have provided that
information. Or if Sabetian received training materials prepared
by Exxon Mobil Corporation, he could have provided that
information. If he had no personal knowledge, Sabetian could
have simply said so. He did not. Ashrafi again objected based on
Rifkind (which was proper), but then Sabetian answered by
stating the court’s opinion in the Kordestani order was his
“personal opinion.”
As to the question whether he knew if Exxon Mobil
Corporation concealed any information from him, Ashrafi again
objected under Rifkind, and Sabetian answered, “No.” That was
proper. But then Ashrafi interjected, “He is asking if [Exxon]
ever concealed any information,” and Sabetian stated,
“Concealed, of course.” As to Kasimov’s question whether
Sabetian had personal knowledge “whether [Exxon Mobil]
Corporation either acted or failed to act with a conscious
disregard for [Sabetian’s] safety,” Sabetian failed to state
whether he had any personal knowledge, instead responding that
the Kordestani order “shows that [Exxon] had no regard for
safety and especially never—they have mention about the danger
of asbestos.” This caused Kasimov to suspend the deposition
without asking his remaining questions.
Ashrafi defied the trial court’s order. Instead of allowing
Sabetian to testify as to his personal knowledge to the best of his
ability, while preserving his objections under Rifkind, Ashrafi
provided Sabetian documents to use in response to Kasimov’s
questions as though they were contention interrogatories. We
recognize the questions asked Sabetian to state whether he had
personal knowledge of the actions of the Exxon Mobil Corporation
44
defendants and their predecessors, not IORC or NIOC. But to
the extent Sabetian believed this was a disguised contention
interrogatory seeking Sabetian’s legal theory, Ashrafi could have
preserved his objection under Rifkind but still allowed Sabetian
to answer the question by saying he did not have any personal
knowledge. Ashrafi could later seek to exclude Sabetian’s
response from being used at trial. Ashrafi’s efforts to have
Sabetian instead rely on facts and legal conclusions set forth in
the Kordestani order, and Sabetian’s refusal to respond whether
he had any personal information regarding Exxon Mobil’s
involvement, violated the letter and spirit of the court’s order.
The court therefore did not abuse its discretion in sanctioning
Ashrafi and Sabetian for misuse of the discovery process by
“evad[ing]” the trial court’s order and “obstruct[ing]” the
deposition. 24 (See Code Civ. Proc., § 2023.010, subds. (d)-(g).)
DISPOSITION
We affirm the judgment. Respondents are entitled to
recover their costs on appeal.
24 Although the court deemed Sabetian not to have had
personal knowledge as to the questions asked during the July 2,
2018 deposition (not those asked on July 31), this was not an
abuse of discretion because Kasimov was planning on asking all
the questions he asked at the July 2, 2018 deposition, modified to
seek only Sabetian’s personal knowledge. Because Kasimov did
not have an opportunity to ask those questions on July 31, it was
appropriate for the court to deem Sabetian to have no personal
knowledge to the questions that were asked on July 2.
45
FEUER, J.
We concur:
PERLUSS, P. J.
DILLON, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
46
Filed 11/25/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SORAYA SABETIAN, B297107
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC475956)
v.
ORDER MODIFYING AND
EXXON MOBIL CERTIFYING OPINION
CORPORATION et al., FOR PUBLICATION
Defendants and NO CHANGE IN
Respondents. APPELLATE JUDGMENT
THE COURT: ∗
The opinion in the above-entitled matter filed on
October 28, 2020 is modified as follows:
1. The opinion was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports, and it is so ordered.
2. On page 3, after the footnote 3 reference, delete “We
affirm,” and in a new paragraph insert the following:
Contrary to Soraya’s contentions, neither the Agreement nor the
evidence presented by the Sabetians shows the predecessors to
the Chevron and Exxon defendants operated or controlled the
Abadan refinery. Nor did the Agreement create a special
relationship between the predecessor companies and the refinery
workers. A duty to a plaintiff may arise from a contract based on
public policy considerations, but here the two most significant
factors of the six-factor balancing test articulated by the Supreme
Court in J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799 (J’Aire) do
not support imposition of liability on the Chevron and Exxon
defendants. Most significantly, the Agreement was not intended
to affect Sabetian and other refinery workers, but rather, to
accelerate Iranian oil production and exportation to the global
market. In addition, because the predecessor companies had no
ability to control day-to-day operations at the Abadan refinery, it
was not foreseeable that the companies’ conduct would harm
Sabetian and other refinery workers. We affirm.
3. On page 27 replace “J’Aire Corp. v. Gregory (1979)
24 Cal.3d 799 (J’Aire)” with “J’Aire, supra, 24 Cal.3d 799.”
4. On page 33, in the first full paragraph, insert “of”
between “because one” and “the three required elements.”
There is no change in the appellate judgment.
∗
PERLUSS, P. J. FEUER, J. DILLON, J.**
** Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2