Opinion
A144947
03-29-2018
R.A.T. OIL, INC., Plaintiff and Appellant, v. SAFEWAY, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. RG10544518, VG08387771)
This is an appeal from judgment after the trial court granted the motion for summary judgment or, alternatively, summary adjudication in favor of defendant Safeway, Inc. (hereinafter, Safeway) and against plaintiff R.A.T. Oil, Inc. (hereinafter, plaintiff) in a case brought under California's Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) and Cartwright Act (§ 16700 et seq.). The judgment followed the trial court's rejection of plaintiff's claims that Safeway unlawfully and unfairly engaged in below-cost and loss leader sales and conspired with an unnamed party, Chevron USA, Inc., to, among other things, monopolize and fix prices in the retail fuel market located in the City of Morgan Hill. For reasons discussed below, we affirm the trial court's judgment.
Unless otherwise stated, all statutory references herein are to the Business and Professions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the original complaint in this matter on November 1, 2010, asserting four causes of action under the Unfair Practices Act (hereinafter, UPA), section 17000 et seq., and the Unfair Competition Law (hereinafter, UCL), section 17200 et seq. On July 29, 2011, the parties stipulated to consolidate for all purposes except trial this case with an earlier filed case, Dixon Gas Club, LLC v. Safeway, Inc. (Dixon), as well as two other cases filed in Alameda County that have since been voluntarily dismissed.
On July 29, 2015, this court affirmed the judgment reached in favor of Safeway after a bench trial in the related Dixon case. (Dixon Gas Club, LLC v. Safeway, Inc. (July 29, 2015, A139283 [nonpub. opn.].)
On October 8, 2014, the third amended complaint (Complaint)—to wit, the operative complaint—was filed by plaintiff asserting the following three causes of action against Safeway: below-cost sales in violation of the UPA (§ 17043); unlawful loss leader sales in violation of the UPA (§ 17044); and horizontal agreement or conspiracy by Safeway and an unnamed coconspirator, Chevron USA, Inc. (Chevron), in violation of the Cartwright Act (§ 16720).
Section 17043 makes it unlawful "for any person engaged in business within this State to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition." (§ 17043.)
Section 17044, in turn, makes it unlawful "for any person engaged in business within this State to sell or use any article or product as a 'loss leader' as defined in Section 17030 of this chapter." (§ 17044.)
A "loss leader" under the UPA means "any article or product sold at less than cost: [¶] (a) Where the purpose is to induce, promote or encourage the purchase of other merchandise; or [¶] (b) Where the effect is a tendency or capacity to mislead or deceive purchasers or prospective purchasers; or [¶] (c) Where the effect is to divert trade from or otherwise injure competitors." (§ 17030.)
A fourth cause of action for engaging in secret rebates in violation of section 17045 was later stricken from the Complaint by the trial court.
The record reflects that plaintiff operated a retail fuel station and convenience store just off Highway 101 in the City of Morgan Hill. In 2004, there were 11 retail fuel stations in Morgan Hill, three of which were Chevron stations. At that time, Chevron controlled over 40 percent of the market, while plaintiff controlled about 8.4 percent. Plaintiff set the daily price of its fuel by surveying the prices offered by its competitors in Morgan Hill (usually about eight competitors were surveyed daily) in order to set a competitive price based upon prevailing market conditions.
Safeway, a large grocery chain, had, in turn, operated hundreds of retail fuel stations in the United States, including dozens in Northern California, since 2002. In 2005, Safeway began operating a retail fuel station adjacent to its grocery store in Morgan Hill, about 2.3 miles from plaintiff's station and about one mile from Highway 101. According to plaintiff's market analysis expert, Jacob M. Marder, Safeway gained control of about 24.2 percent of the Morgan Hill retail fuel market in a short span of time, and, as a result, plaintiff's share of the gasoline market dropped from 8.4 percent to 4.8 percent between 2004 and 2006. Plaintiff also lost market share to Safeway in the diesel fuel market after 2005, with plaintiff losing half of its overall market share between 2004 and 2006 despite the overall growth during this time in Morgan Hill's diesel fuel market.
A. Safeway's General Price Structure.
Until late 2006, every day, Safeway's Morgan Hill employees surveyed the prices charged by certain of its competitors in the local retail fuel market and reported these prices to the corporate fuel department, which would then set the fuel price at Safeway's Morgan Hill station. Safeway Morgan Hill did not consider plaintiff to be one of its competitors in this market and, thus, did not include plaintiff's prices in its daily survey.
In late 2006, as Safeway's retail fuel program continued to grow nationwide, the company implemented a new pricing system that involved setting daily prices at individual stations according to a proprietary computer program (hereinafter, PriceNet). Generally speaking, PriceNet calculated price sensitivities for all grades of fuel sold at Safeway retail stations using inputs including Safeway's volumes, costs and competitive pricing history.
Until August 1, 2012, Safeway offered two types of fuel prices: a "street price," meaning the price available to any person purchasing fuel at one of its stations, and a "Club Card price," meaning the price charged to any person holding a Safeway Club Card. The "Club Card price" was always 3 cents per gallon lower than the street price. Effective August 1, 2012, however, Safeway discontinued the 3-cent-per-gallon Club Card discount at all of its stations.
B. Safeway's Pricing Strategies and Promotions.
Until late 2006, Safeway had two alternative strategies for setting its street price. Its primary strategy involved setting the street price 2 cents per gallon above the low-priced local competitor (according to its daily survey). However, during times when its margins were low, Safeway employed an alternative strategy that involved setting its street price 4 cents per gallon above the low-priced local competitor. As a practical matter, Safeway's primary pricing strategy meant street customers paid 2 cents more, and Club Card customers paid 1 cent less, than the price per gallon charged by the low-priced competitor. Safeway's alternative strategy, in turn, meant that during times when its margins were low, street customers paid 4 cents per gallon more, and Club Card customers paid 1 cent more, than the price per gallon charged by the low-priced competitor.
In addition to the Club Card discount program, from 2002 to the present, Safeway would occasionally offer grocery-based fuel promotions to its customers who purchased groceries above a certain threshold value amount. More specifically, these customers would earn a "customer reward" in the form of a discounted fuel price redeemable at Safeway fuel stations. Safeway implemented this discount program to boost its grocery sales in order to remain competitive with other major grocery retailers, like Costco and Albertson's, most of which offered comparable fuel promotion programs.
C. The Safeway-Chevron Program.
In August 2012, Safeway partnered with Chevron to offer another grocery-based discounted fuel program, which was initially limited to Southern California and eventually expanded to Northern California and elsewhere. This joint corporate program permitted Safeway customers to earn points by purchasing groceries, which could then be redeemed for fuel price reductions at Chevron retail stations, including, starting in 2013, Chevron's Morgan Hill stations (hereinafter, Safeway-Chevron program). Safeway entered into this partnership as a way to stimulate grocery sales nationwide. Chevron, in turn, "was interested in selling more motor fuel for its nationwide network of fuel stations . . . ."
The Safeway-Chevron program generally worked, first, by leaving to individual Chevron dealers the decision of whether to participate by inviting Safeway's grocery customers to redeem at the dealer's station fuel rewards of up to 20 cents per gallon when purchasing fuel. (In contrast, Safeway grocery customers could redeem fuel rewards of up to $1 per gallon at Safeway's fuel stations.) If the Chevron dealer opted to participate in this program, Safeway would reimburse the dealer for the cost of the redeemed award, less a 3.5-cent-per-gallon service fee covering Safeway's program-related technical costs. The program's marketing and advertising costs were shared by Safeway and Chevron. The individual Chevron dealer, in turn, was solely responsible for setting the fuel prices charged to its customers.
In Morgan Hill, Chevron operated three retail fuel stations, each of which began participating in the Safeway-Chevron program in March 2013. According to plaintiff, Safeway and the three Chevron stations in Morgan Hill controlled about 55 percent of the gasoline market in 2013. However, according to plaintiff's expert Jacob M. Marder, discounted fuel sales under the Safeway-Chevron program constituted a de minimis percentage (between 4.47 and, at most, 5.68 percent) of total gasoline sales (approximately 2,345,000 gallons per month) in Morgan Hill for the time period of March 2013 to December 2013.
D. Safeway's Motion for Summary Judgment or Adjudication.
On October 10, 2014, Safeway moved for summary judgment or, in the alternative, summary adjudication as to 11 separate issues, four of which pertained to the UPA causes of action and seven of which pertained to the Cartwright Act cause of action. In so moving, Safeway argued, inter alia, that there was no genuine dispute of material fact regarding the absence of a wrongful purpose by Safeway to injure competitors or destroy competition in the Morgan Hill retail fuel market within the meaning of the UPA (§§ 17043, 17044), or regarding any damages or antitrust injury sustained by plaintiff as a result of Safeway's alleged Cartwright Act violations.
On December 31, 2014, the trial court granted Safeway's motion in full in a 32-page written order (hereinafter, order). More specifically, before granting summary judgment in favor of Safeway, the court granted summary adjudication as to each of the 11 issues raised by Safeway and sustained its evidentiary objections to key components of plaintiff's evidence, including the opinions of its economics expert, Andy Saberi. Judgment was thus entered in Safeway's favor on January 14, 2015, and, following the trial court's denial of its motion for new trial, plaintiff timely appealed.
DISCUSSION
Plaintiff challenges the trial court's grant of summary judgment in favor of Safeway, reasoning that numerous disputed issues of material fact exist as to its UPA and Cartwright Act claims, such that a full trial on the merits is warranted. In so arguing, plaintiff contends the trial court erroneously relied upon its findings of fact in the separate (but related) case mentioned above, Dixon, without focusing on the particular case at hand.
The rules governing our review of plaintiff's contentions are well established. A defendant moving for summary judgment has the burden of showing that a cause of action has no merit by demonstrating one or more elements of the cause of action cannot be established or that a complete defense to that cause of action exists. (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the defendant successfully meets this burden, the plaintiff then has the burden of setting forth specific facts showing the existence of one or more triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) The trial court shall grant the defendant's summary judgment motion if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
" 'An issue of fact can only be created by a conflict of evidence. It is not created by "speculation, conjecture, imagination or guess work." [Citation.] Further, an issue of fact is not raised by "cryptic, broadly phrased, and conclusory assertions" [citation], or mere possibilities [citation].' [Citation.] A genuine issue of material fact exists if, and only if, the evidence would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. [Citation.]" (Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 183.)
On appeal, this court reviews the grant of summary judgment de novo. In doing so, we apply the same legal standards as the trial court to determine whether there exists any genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 390.) Further, we must accept as true all facts demonstrated by the losing party's evidence, as well as reasonable inferences drawn from those facts and evidence, while resolving all evidentiary doubts and ambiguities in the losing party's favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769; see also Hulett v. Farmers Ins. Exchange (1992) 10 Cal.App.4th 1051, 1060 ["The presence of inferences supporting a judgment in favor of plaintiff is sufficient to defeat a summary judgment in favor of defendant"].) I. UPA Claims (§§ 17043, 17044).
We quickly dispose of plaintiff's initial argument that the trial court reversibly erred by "relying" on findings of fact made in Dixon, a separate lawsuit consolidated with this one for all purposes except trial before we affirmed judgment in Safeway's favor in 2015. In making this argument, plaintiff points to one particular statement by the trial court in its 32-page order addressing plaintiff's reliance on certain deposition testimony from Safeway's Director of Pricing & Promotion, Corporate Fuel, Glenda Marie Park. Specifically, the trial court stated: "The court is familiar with all of this evidence because it was presented in great detail during the first trial, and this evidence was summarized in paragraphs 9 through 11 of the June 11, 2013 Statement of Decision ('SOD') in Dixon." According to plaintiff, this statement proves the trial court " 'pre-judged' " this case based on Dixon without assessing its own particular merit. However, to the contrary, the trial court's 32-page order, with its extensive analysis of the parties' respective evidence and discussion of the applicable law, speaks for itself. While plaintiff plucks from this lengthy decision one remark to argue the trial court simply recycled its Dixon findings to decide this case, read as a whole the document reflects the court's reasoned analysis based upon the particular evidentiary record at hand. Indeed, after lengthy discussion of the relevant evidence, the court confirmed as much: "The court is not relying on the earlier [Statement of Decision] or the Dixon trial testimony but is focused on the current record. The earlier decision is referenced only for its more thorough analysis of Cel-Tech's application." And, given that plaintiff stipulated to the consolidation of this case with Dixon for all purposes but trial, it can hardly claim surprise that the trial court considered pricing policy evidence from Safeway's corporate representative relevant to both cases.
See footnote 2, ante, page 2.
In any event, the trial court's acknowledgement of familiarity with certain evidence under these circumstances hardly establishes error, much less reversible error. It is well established that, on appeal, we must presume the trial court's judgment or order is correct, and indulge all intendments and presumptions to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, given plaintiff's failure to meet its burden on appeal to affirmatively show error based on the trial court's reliance on Dixon, the first argument for reversal fails. (Ibid.)
Plaintiff's second argument with respect to its UPA causes of action is that the trial court disregarded evidence in the form of the deposition testimony of Glenda Marie Park, Safeway's designated person most knowledgeable on Safeway's pricing practices which, plaintiff claims, sufficed to create a material dispute of fact regarding its below-cost and loss leader sales. According to plaintiff, Park's testimony proved beyond dispute that Safeway's Morgan Hill station sold fuel below cost or as a loss leader. However, as the trial court correctly advised plaintiff, the UPA does not prohibit all below-cost or loss leader sales. Rather, it prohibits such sales only when undertaken with the wrongful purpose of "injuring competitors or destroying competition." (§ 17043; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1991) 20 Cal.4th 163, 175 (Cel-Tech) [holding that the UPA's purposefulness requirement applies to below-cost sales (§ 17043) and loss leader sales (§ 17044)].) This limitation, the California Supreme Court explains, reflects the need to balance concerns regarding unfair pricing with protection of free markets: "Courts must be particularly cautious in evaluating claims that a competitor's prices are too low. Pricing practices are not unfair merely because a competitor may not be able to compete against them. Low prices often benefit consumers and may be the very essence of competition." (Cel-Tech, supra, 20 Cal.4th at p. 189.)
Thus, returning to the identified evidence, plaintiff accurately notes that Park confirmed Safeway's fuel prices, under certain circumstances, were below cost. However, Park clarified that this reflected Safeway's need to respond to market fluctuations rather than to any corporate purpose of injuring competitors or harming competition. Otherwise stated, Safeway's pricing strategies, which, as described ante (at pp. 3-5), depended on market conditions, were designed to enable the company to remain competitive, to maximize profitability, and to leverage its fuel prices to increase grocery sales, all of which are valid purposes under Cel-Tech. (Cel-Tech, supra, 20 Cal.4th at p. 189; see also Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 456 ["The intent or purpose of the below-cost sale is at the heart of the statute, and distinguishes the violation from a below-cost pricing strategy undertaken for legitimate, nonpredatory business reasons"].) As Park explained: "The company's core focus is its grocery stores. And the goal of the fuel group is to maximize traffic in its main store, not necessarily to maximize revenue per gallon of gas sold. As a result, prices can vary, depending on what is happening in the market. Margins can even be negative—losing money per gallon. Each fuel station has a strategy of what to do if the margin is positive or negative."
Plaintiff's argument also disregards the report offered by its own expert, Jacob M. Marder, which indicates that, from 2008 to 2013, Safeway's street price was on average higher than the price offered at Morgan Hill's lowest priced retail fuel station, with prices 5 cents higher per gallon for regular and premium gasoline, as well as diesel fuel, and 6 cents higher per gallon for mid-grade gasoline. Moreover, according to Marder: "Use of the 3 [cent] per gallon Club Card discount alone would not make Safeway's prices the cheapest in the market (on average)" during this time frame.
Finally, plaintiff makes much of testimony from Safeway's Chairman of the Board, Robert Lynn Edwards, that one of the company's objectives was "to make a profit in the fuel business[.]" According to plaintiff, this evidence proves Safeway's objectives were not entirely innocent. This, again, ignores the lesson of Cel-Tech that corporate self-interest and profit-seeking are not illegal. Rather, what our law is concerned with, and thus prohibits, are deliberate efforts by a corporation to injure or destroy competition without regard for resulting anticompetitive impact. (Cel-Tech, supra, 20 Cal.4th at p. 189; Bay Guardian Co. v. New Times Media LLC, supra, 187 Cal.App.4th at p. 454 ["To prove a violation of section 17043, the cases have declared that a plaintiff must allege and prove two elements: (1) below-cost sales undertaken for the purpose of injuring competitors or destroying competition that (2) have resulted in a competitive injury"].)
Thus, in light of the undisputed evidence of Safeway's legitimate business reasons for setting fuel prices at its Morgan Hill station and, more importantly, the lack of any evidence tending to prove Safeway harbored an illegal business purpose, we affirm the grant of Safeway's motion for summary adjudication as to the UPA causes of action.
II. The Cartwright Act Cause of Action.
Plaintiff's final argument is that the trial court committed reversible error by making factual determinations in the face of disputed evidence with respect to its Cartwright Act claims. The Cartwright Act claims were premised on plaintiff's theory that it suffered harm as a result of the Safeway-Chevron program, rolled out in Morgan Hill in 2013, through which Safeway would "pay rebates to Chevron" in exchange for the mutual agreement not to deal with each other's competitors. According to plaintiff, the Safeway-Chevron program "changed the composition of the market" by increasing market concentration of Safeway and its Chevron affiliates and thereby "reduc[ing] competition by lowering the market shares of the competing stations." Plaintiff catalogued Safeway's Cartwright Act violations as: (1) conspiracy (with Chevron) to monopolize, (2) price-fixing, (3) tying, (4) group boycott, and (5) exclusive dealing. The trial court summarily adjudicated each of these alleged violations in Safeway's favor before granting in full its summary judgment motion.
On appeal, Safeway contends the trial court correctly ruled in its favor in this regard because plaintiff failed to offer any competent evidence to prove compensable damage or antitrust injury, an essential element of each Cartwright Act claim. In addition, Safeway contends the trial court correctly granted summary adjudication in its favor as to each alleged Cartwright Act violation because there is no competent evidence to prove the company engaged in conspiracy to monopolize, price-fixing, tying, group boycott or exclusive dealing. We agree with Safeway's first contention—that there has been no showing in this case of any compensable damage or antitrust injury suffered by plaintiff within the meaning of the Cartwright Act—and, on that dispositive ground alone, affirm the trial court's judgment. We will explain.
As Safeway notes, to prevail on a Cartwright Act claim, a plaintiff must prove that the defendant's anticompetitive conduct proximately caused compensable damage or "antitrust injury" to the plaintiff. "[S]ection 16750, subdivision (a), provides a private right of action, for treble damages, interest, and, where appropriate, injunctive relief, to '[a]nyone who is injured in his or her business or property' by a violation of the Cartwright Act. The 'fact of damage' is thus an element of the cause of action, and a precondition of standing to bring it. . . . [I]n some cases, notably those of price-fixing, this element—not the amount of compensable damage, but the fact of damaging impact on the plaintiff . . .—may be established by presumption or inference." (California Dental Assn. v. California Dental Hygienists' Assn. (1990) 222 Cal.App.3d 49, 61, fn. omitted, italics added; Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1148 [" 'Any person who is injured in his or her business or property by reason of anything forbidden or declared unlawful' by the Cartwright Act may sue for treble damages," second italics added.) "The exact parameters of 'antitrust injury' under section 16750 have not yet been established through either court decisions or legislation. However, as quoted above, [courts have] generally defined 'antitrust injury' as the 'type of injury the antitrust laws were intended to prevent, and which flows from the invidious conduct which renders defendants' acts unlawful.' [Citation.]" (Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1234.)
Here, plaintiff has offered no admissible evidence of any injury or compensable damage sustained by reason of any act or acts by Safeway prohibited or made unlawful by the Cartwright Act. To the contrary, in opposing Safeway's motion, plaintiff relied upon discovery responses found by the trial court to be "factually devoid," with the result that the burden shifted from the moving party, Safeway, back to plaintiff to prove the existence of a triable issue of material fact. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 ["a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to [Code of Civil Procedure] section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact"].)
Plaintiff does not challenge the trial court's factually devoid finding with respect to its discovery responses. Instead, plaintiff directs us to the deposition testimony of its expert, Andy Saberi, the part owner, officer and director of R.A.T. Oil, " 'that the Safeway-Chevron program proximately caused damages to Plaintiff' " in the form of "substantial losses of market share and gallonage [that are] undisputable." However, Safeway correctly points out the trial court sustained its objections to this testimony after concluding: "[Saberi] offers his opinion of damage based on his personal views of how a Chevron customer would think, but he fails to back that up with any analysis or explanation of the data submitted showing that Plaintiff gained market share and its profitability increased after the Safeway-Chevron Program was introduced. [Citation.] His testimony itself is objectionable as speculative and lacking in foundation (see rulings in Part VI below), but in any event it is insufficient to create a material dispute of fact where the only objective evidence (i.e., that on market share and profitability) contradicts it." Again, plaintiff has not raised any challenge on appeal to the trial court's ruling that Saberi's testimony was speculative and without foundation, with the result that we disregard it for purposes of this appeal. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 ["trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative"]; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [when reviewing an order on a summary judgment motion, we " ' "consider[] all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained" ' "].)
Finally, plaintiff relies upon the report of its expert, Jacob M. Marder, which plaintiff insists constitutes "objective evidence in the record" that its "market share was basically, fundamentally, cut in half." In so arguing, plaintiff ignores the undeniable fact that the market share and gallonage loss that plaintiff describes occurred between 2004 (the year Safeway entered the retail fuel market) and 2006. The Safeway-Chevron program, however, was not rolled out in Morgan Hill until 2013, making Marder's market loss data unhelpful on the issue of whether plaintiff sustained antitrust injury as a result of this program. (See Marsh v. Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 495 [" 'the " 'antitrust laws . . . were enacted for "the protection of competition, not competitors" ' " [Citation.] They "do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws" ' "].) In fact, our review of Marder's report and testimony reveals no analysis or discussion regarding any negative impact on price, output or quality in the Morgan Hill retail fuel market due to the Safeway-Chevron program, which is what the law requires to prove antitrust injury. (Ibid.) As noted in the order, this circumstance may be because plaintiff belatedly added its Cartwright Act cause of action "well after the damage analysis had been done for the UPA causes of action. Apparently no attempt was made to go back and expand the analysis to cover the period after the implementation of the Safeway-Chevron Program."
Thus, we are left with the circumstance, noted in the order, that the only competent evidence before the trial court in ruling on Safeway's motion disproves plaintiff's claim to have sustained compensable damage or antitrust injury for purposes of the Cartwright Act. Specifically, Marder concluded that, between 2011 (pre-rollout of Safeway-Chevron program) and 2013 (post-rollout of Safeway-Chevron program), there was an increase in the estimated monthly sales of gasoline in Morgan Hill. Marder also concluded the Safeway-Chevron program coincided with an overall gain of market share by retail stations other than Safeway and Chevron, as well as a decrease in Chevron's overall market share. These facts belie plaintiff's claim of antitrust injury.
Plaintiff also directs us to its allegations in the Complaint. It goes without saying, however, that a party may not rely upon its own pleadings as evidence to oppose a motion for summary judgment. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7.)
Accordingly, the trial court's judgment must stand. Simply put, even accepting as true all facts demonstrated by plaintiff's evidence and resolving all evidentiary doubts and ambiguities in its favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 768-769), no genuine dispute of material fact exists with respect to plaintiff's claims, such that judgment in Safeway's favor was indeed warranted (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, supra, 150 Cal.App.4th at p. 390).
As mentioned above, given the absence of any triable issue of fact as to the damages or injury element of plaintiff's Cartwright Act cause of action, we may affirm the trial court's order without addressing the five specific categories of conduct that, according to plaintiff, constitute Cartwright Act violations (to wit, conspiracy to monopolize, tying, price fixing, group boycott, and exclusive dealing). --------
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Siggins, J.