FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEVRON U.S.A. INC., No. 09-56427
Plaintiff-Appellee,
D.C. No.
v.
8:07-cv-00818-
M&M PETROLEUM SERVICES, INC., a DOC-AN
corporation,
Defendant-Appellant.
CHEVRON U.S.A. INC., a
corporation; CHEVRON PRODUCTS
COMPANY, FKA ChevronTexaco
Products Company, a division of
No. 09-56686
Chevron U.S.A., Inc.,
Plaintiffs-counter-defendants- D.C. No.
Appellees, 8:07-cv-00818-
DOC-AN
v.
OPINION
M&M PETROLEUM SERVICES, INC., a
corporation; MANSOOR GHANEEIAN,
Defendants-counter-claimants-
Appellants.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted September 2, 2011*
Pasadena, California
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
17283
17284 CHEVRON U.S.A. v. M&M PETROLEUM SERVICES
Filed September 12, 2011
Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman
CHEVRON U.S.A. v. M&M PETROLEUM SERVICES 17285
COUNSEL
Murray Robertson, Law Offices of Murray Robertson, APC,
Tustin, California, for the appellant.
Robert C. Phelps, Glynn & Finley, LLP, Walnut Creek, Cali-
fornia, for the appellee.
17286 CHEVRON U.S.A. v. M&M PETROLEUM SERVICES
OPINION
SILVERMAN, Circuit Judge:
As a general rule, only a franchisee may recover attorney
fees under the Petroleum Marketing Practices Act. However,
15 U.S.C. § 2805(d)(3) authorizes a district court to award
attorneys’ fees to a franchisor—against a franchisee—if the
franchisee is found to have brought a frivolous PMPA action.
In this case, Chevron U.S.A., the franchisor, brought suit for
declaratory judgment against one of its franchised dealers,
M&M Petroleum Services, Inc. M&M responded with a coun-
terclaim of its own, a counterclaim that was not only found to
be frivolous, but the product of perjury and other misconduct.
We hold that had M&M merely defended Chevron’s suit, it
could not have been held liable for attorneys’ fees. However,
in affirmatively bringing a counterclaim that was reasonably
found to be frivolous, M&M opened itself up to liability for
attorneys’ fees.
Factual Background1
Chevron U.S.A. sells gasoline to consumers through
Chevron-branded retail service stations. Some Chevron-
branded retail service stations are owned and operated by
Chevron and others are owned and/or operated by indepen-
dent dealers that enter into franchise agreements to sell Chev-
ron branded-gasoline under the Chevron brand. M&M
Petroleum is an independent dealer that operated a Chevron-
brand service station in Newport Beach, California under
franchising agreements with Chevron. Mansoor Ghaneeian is
a fifty percent shareholder in M&M and M&M’s designated
dealer of record. M&M’s Newport Beach station has become
increasingly profitable under Ghaneeian’s operation.
1
The factual background section is drawn from the district court’s Find-
ings of Fact and Conclusions of Law, which neither party has challenged.
CHEVRON U.S.A. v. M&M PETROLEUM SERVICES 17287
Until July 2005, M&M paid a fixed monthly rent to Chev-
ron. Starting in July 2005, M&M agreed to pay Chevron the
greater of either the fixed monthly rent or a percentage of its
reported daily sales. In May 2007, Chevron audited M&M’s
books and records to determine whether M&M had paid all
rent due under its franchise agreements. M&M’s bookkeeper
at the time, Afsaneh Ehsani, told Chevron’s auditor that
M&M maintained a second set of financial records that accu-
rately reflected actual sales. M&M did not produce to Chev-
ron’s auditors this second set of records, which included
calculations of unreported revenue and cash payments to
M&M’s employees, Ghaneeian, and Ghaneeian’s family.
Based on the documents that he was able to review, Chev-
ron’s auditor reported discrepancies between M&M’s actual
sales and the amounts reported by M&M to Chevron and to
California and federal taxing authorities. Treating this as a
breach of the dealer agreements and grounds for termination
of the agreements under the PMPA, Chevron brought a
declaratory judgment action against M&M.
Chevron sought a declaration from the district court that
Chevron’s termination of M&M’s franchise was in accor-
dance with the franchise agreements and the PMPA. M&M
responded by filing a counterclaim that is “essentially the mir-
ror image of Chevron’s claim for declaratory relief,” alleging
that Chevron’s attempt to terminate M&M’s franchise did not
comply with the PMPA. After a six-day bench trial, the dis-
trict court issued Findings of Fact and Conclusions of Law.
The district court ruled that Chevron’s termination of M&M’s
franchise was proper under 15 U.S.C. §§ 2802(b)(2)(A) and
(C). The district court found, inter alia, that M&M failed fully
and accurately to report its sales to Chevron, created “secret”
books and records as part of efforts to knowingly and inten-
tionally misrepresent income to Chevron, failed to maintain
required records, failed to provide documents required for
audits, and lied about the existence of the “secret” books and
records—each grounds justifying Chevron’s termination of
the Dealer Agreements. The district court also found M&M’s
17288 CHEVRON U.S.A. v. M&M PETROLEUM SERVICES
pretext argument (i.e. that Chevron was merely using this liti-
gation to gain the station at issue for free) as well as M&M’s
counterclaim that Chevron violated the PMPA by terminating
the Dealer Agreements wholly without merit. In so finding,
the district court noted that it was “gravely concerned about
Chevron’s general practice of attempting to reacquire [inde-
pendently operated] stations.” Nonetheless, the court empha-
sized that
evidence was not presented that proves that Chevron
brought the instant lawsuit merely as a pretext for
acquiring the station for free. . . . [C]onsiderable evi-
dence has been presented to this Court that
Ghaneeian engaged in heinous practices, such as
likely underreporting the Station’s revenue to both
the state and federal government, as well as Chevron
itself. Ghaneeian’s practices have harmed Chevron
financially and, if Ghaneeian is allowed to continue
to operate the Station, hold the potential to signifi-
cantly harm Chevron’s reputation as they will consti-
tute a validation of Ghaneeian’s deception and
dishonesty. It is on that basis that Chevron brought
the instant lawsuit.
Chevron then brought a motion for attorneys’ fees and
costs. The district court reversed its earlier ruling that Chev-
ron could recover fees as a matter of contract under a provi-
sion of an agreement with M&M; the court held that the
PMPA attorneys’ fees provision, 15 U.S.C. § 2805(d), pre-
empts the attorneys’ fees provision of the agreement. The dis-
trict court then considered whether Chevron, the franchisor,
nevertheless could recover attorneys’ fees from M&M, the
franchisee, under section 2805(d)(3), which provides that “the
court may, in its discretion, direct that reasonable attorney and
expert witness fees be paid by the franchisee if the court finds
that [an action brought by the franchisee pursuant to section
2805(a)] is frivolous.”
CHEVRON U.S.A. v. M&M PETROLEUM SERVICES 17289
The district court acknowledged that the PMPA “contem-
plates suits in which the franchisee instigates a frivolous law-
suit against the franchisor by alleging the franchisor has
violated the PMPA,” but ruled that franchisors should still be
able to recover attorneys’ fees “in [the] rare circumstances
[that] a franchisor, in response to a franchisee that maintains
a frivolous position with respect to the termination of the par-
ties’ agreement, [has] to resort to the courts in order to effec-
tuate the termination.” The district court held that M&M’s
pretext argument and counterclaim were not merely “merit-
less,” as the court stated in its Findings of Fact and Conclu-
sions of Law, but “frivolous” within the meaning of 15 U.S.C.
§ 2805(d)(3). The district court specifically noted that “M&M
had not introduced any evidence that would support a claim
that the termination was pretextual” and that “the case pres-
ented clear-cut and overwhelming grounds for terminating the
Dealer Agreements under pursuant to [the PMPA], and
[M&M] did not raise any difficult issues of statutory interpre-
tation.” Furthermore, the district court found that M&M and
Ghaeenian’s “repeated and systemic acts of fraud and wrong-
doing, including spoliation of evidence and perjury” weighed
in favor of awarding attorneys’ fees to Chevron.
Jurisdiction
The district court exercised jurisdiction over Chevron’s
action seeking a declaration that it complied with the PMPA
in terminating its agreements with M&M under 28 U.S.C.
§§ 1331, 2201 and 2202. The district court’s exercise of fed-
eral question jurisdiction was proper because a significant
question of federal law under the PMPA would have been
presented had M&M initiated the suit. See Standard Ins. Co.
v. Saklad, 127 F.3d 1179, 1181 (9th Cir. 1997) (“A person
may seek declaratory relief in federal court if the one against
whom he brings his action could have asserted his own rights
there.”); see also Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 19 (1983) (“Federal courts have
regularly taken original jurisdiction over declaratory judgment
17290 CHEVRON U.S.A. v. M&M PETROLEUM SERVICES
suits in which, if the declaratory judgment defendant brought
a coercive action to enforce its rights, that suit would neces-
sarily present a federal question.”)
Standard of Review
We review de novo the district court’s interpretation of 15
U.S.C. § 2805 to allow for awards of attorneys’ fees to
franchisors as well as franchisees. See Mustang Mktg., Inc. v.
Chevron Prods. Co., 406 F.3d 600, 606 (9th Cir. 2005). “A
grant or denial of attorney’s fees under the PMPA is reviewed
for abuse of discretion.” Rawoof v. Texor Petroleum Co., 521
F.3d 750, 760 (7th Cir. 2008) (citing Four Corners Serv. Sta-
tion, Inc. v. Mobil Oil Corp., 51 F.3d 306, 315 (1st Cir.
1995)).
Discussion
I. The District Court Did Not Err in Ruling That 15
U.S.C. § 2805(d) Allows for an Award of Attorneys’
Fees to a Franchisor When a Franchisee Files a Frivo-
lous Counterclaim.
M&M contends that the district court erred in ruling that
the PMPA allows Chevron to recover attorneys’ fees from
M&M because, it argues, that 15 U.S.C. § 2805(d) does not
allow franchisors to recover attorneys’ fees unless the franchi-
see files a frivolous initial complaint. M&M’s argument fails
because its counterclaim is no less a “civil action” within the
meaning of section 2805(a) than the initial complaint and fil-
ing a frivolous action (whether complaint or counterclaim)
under 2805(a) opens M&M up to liability for attorneys’ fees
under section 2805(d)(3).
[1] In the absence of a frivolous complaint or counterclaim
brought by a franchisee under 15 U.S.C. § 2805(a) alleging a
violation of the PMPA by a franichsor, a court may not award
attorneys’ fees to a franchisor under the PMPA. See Interstate
CHEVRON U.S.A. v. M&M PETROLEUM SERVICES 17291
Petroleum Corp. v. Morgan, 249 F.3d 215, 219-220 (4th Cir.
2001) (en banc). Thus, if M&M had not brought a counter-
claim against Chevron, our analysis would end there because
M&M’s pretext defense to Chevron’s claim, even if frivolous,
does not qualify as a civil action in and of itself. See Mer-
chants’ Heat & Light Co. v. James B. Clow & Sons, 204 U.S.
286, 289-90 (1907) (distinguishing a defense from a counter-
claim).
[2] However, M&M did bring a counterclaim alleging that
Chevron’s attempt to terminate M&M’s franchise was not in
compliance with the requirements of 15 U.S.C. § 2802. The
key question then is whether M&M’s counterclaim qualifies
as a civil action within the ambit of the PMPA. See 15 U.S.C.
§ 2805(a) (providing that a franchisee may bring a “civil
action” against a franchisor for violations of section 2802). It
does. A counterclaim is “in effect, a new suit, in which
[M&M] was plaintiff and [Chevron] was defendant.” Roberts
Min. & Mill. Co. v. Schrader, 95 F.2d 522, 524 (9th Cir.
1938) (citing Merchants’ Heat & Light Co., 204 U.S. at 289).
That the proceedings were initiated by Chevron’s complaint
and M&M’s counterclaim encompassed the exact same sub-
ject matter as the initial complaint is of no moment because
“the defendant, if he elects to sue upon his claim in the action
against him, assumes the position of an actor and must take
the consequences.” Merchants’ Heat & Light Co., 204 U.S. at
290. Not content to simply defend against Chevron’s declara-
tory judgment suit, M&M chose to assert a counterclaim of its
own and caused Chevron to defend it. Therefore, by filing its
counterclaim, M&M, a franchisee, maintained a civil action
against Chevron, a franchisor, within the meaning of 15
U.S.C. § 2805(a), and opened itself up to liability for attor-
neys’ fees under 15 U.S.C. § 2805(d)(3) in the event the coun-
terclaim proved frivolous.
II. The District Court Did Not Abuse Its Discretion in
Ruling That M&M’s Counterclaim Was Frivolous.
[3] The term “frivolous” characterizes an action “that is
both baseless and made without a reasonable and competent
17292 CHEVRON U.S.A. v. M&M PETROLEUM SERVICES
inquiry.” Townsend v. Holman Consulting Corp., 929 F.2d
1358, 1362 (9th Cir. 1990) (en banc). “A frivolous case is one
that is groundless . . . with little prospect of success; often
brought to embarrass or annoy the defendant.” Rodriguez v.
United States, 542 F.3d 704, 709 (9th Cir. 2008) (alteration in
original) (internal quotation marks omitted).
[4] Overwhelming evidence supported the district judge’s
finding that M&M’s counterclaim was frivolous. In addition
to finding that M&M kept a “secret” set of books and records
designed to hide revenue from Chevron and taxing authori-
ties, the district court also found that Ghaneeian engaged in
“willful and persistent misconduct” throughout the litigation,
including perjury and spoliation of evidence. M&M does not
challenge the district court’s ruling that Ghaneeian perjured
himself or that he was responsible for the spoliation of evi-
dence. M&M contends that Ghaneeian’s testimony supported
its claim of pretext; however, perjured testimony simply can-
not constitute a sufficient evidentiary basis to defeat a finding
of frivolousness. Cf. Union Planters Bank v. L & J Dev. Co.,
115 F.3d 378, 385-86 (6th Cir. 1997) (“Consistent with the
purposes behind Rule 11, we hold that litigants cannot avoid
sanction under the rule simply by defeating summary judg-
ment on the basis of false evidence.”). M&M also appears to
contend that questions about the credibility of Ehsani, one of
Chevron’s key witnesses, supports a ruling that M&M’s coun-
terclaim was nonfrivolous; however, those doubts do not offer
a meaningful factual basis for M&M’s counterclaim, particu-
larly in the face of overwhelming evidence regarding M&M’s
wrongdoing.
[5] The subtraction of Ghaneeian’s testimony and Ehsani’s
dubious credibility leaves M&M with only Chevron’s past
course of dealing. The district court acknowledged that evi-
dence of Chevron’s past conduct caused the court to “articu-
late[ ] a generalized concern for franchisor takeovers of
franchisee operations and an increase in vertical monopolies.”
The district court correctly distinguished those generalized
CHEVRON U.S.A. v. M&M PETROLEUM SERVICES 17293
concerns from the facts motivating Chevron’s present termi-
nation action, which is supported by detailed findings regard-
ing M&M’s practices of keeping two sets of books and
records, under-reporting revenue to Chevron and taxing
authorities, and refusing to turn over books and records to
Chevron in accordance with its franchise agreements. There-
fore, the district court did not abuse its discretion in determin-
ing that M&M’s counterclaim was frivolous and awarding
attorneys’ fees to Chevron under 15 U.S.C. § 2805(d)(3).
Conclusion
The district court did not err in determining that Chevron
was eligible to recover attorneys’ fees under the PMPA based
on M&M’s counterclaim, nor did the district court abuse its
discretion in determining that M&M’s counterclaim was friv-
olous and awarding attorneys’ fees to Chevron under 15
U.S.C. § 2805(d)(3).
AFFIRMED.