Exxon v. Superior Court (Koutney)

EXXON CORPORATION, Petitioner, v. SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; SHIRLEY CHENG KOUTNEY, et al., Real Parties in Interest. No. H015001 (Santa Clara County Super. Ct. No. CV 735811) California Court of Appeal Sixth Appellate District Filed February 13, 1997
THE COURT:

        It is ordered that the opinion filed herein on January 17, 1997, shall be modified as follows:

        1. Page 7, line 5, the phrase "price fixing" shall be deleted and the phrase "price discrimination" shall be inserted;

        2. Page 8, footnote 4, the third line from the bottom, the phrase "price-fixing" shall be deleted and the phrase "price discrimination" shall be inserted;

        3. Page 22, footnote 11 shall be deleted and replaced with the following footnote:

                "Plaintiffs argue that a summary adjudication of this point does not dispose of an entire cause of action and is therefore not a proper subject of summary adjudication under the new statute. (Code Civ. Proc., § 437c, subd. (f)(1).) However, plaintiffs pleaded their case by combining causes of action. Exxon remains entitled to present summary adjudication motions that dispose of allegations which would have formed a single cause of action if properly pleaded. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855.)"

        4. The disposition shall be deleted and the following disposition shall be inserted:

                "Let a peremptory writ of mandate issue as prayed, directing the respondent court to vacate its order denying summary adjudication to Exxon, and to make new and different orders granting the motions for summary adjudication as to the following claims: second cause of action (Cartwright Act -- Vertical Restraint); third cause of action (Cartwright Act -- Monopolization); sixth and seventh causes of action (Fraud and Negligent Misrepresentation -- Price), including any claims of gasoline price overcharging; those parts of the fourth and eleventh causes of actions alleging tortious interference with economic opportunity and breach of the covenant of good faith and fair dealing; and those parts of the tenth cause of action for breach of contract concerning any claims arising out of the discontinuation of acceptance of the Exxon credit card and arising out of oral promises to remodel stations. Costs to petitioner."

        This modification does not affect the judgment.

        The petition for rehearing is denied.




        Exxon Corporation v. Superior Court (Koutney), No. H015001, filed January 14, 1997 by Wunderlich, J.

        The full text of this case appears 97 Daily Journal DAR 558, January 16, 1997.


98 Daily Appellate Report