Silver Valley Propane v. Lamanco, Inc.

Filed 8/21/06 Silver Valley Propane v. Lamanco, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed in part, reversed in part, remanded with directions.

Elbert W. Muncy, Jr., for Plaintiff and Appellant Silver Valley Propane, Inc.

Law Offices of Fletcher, White & Adair and Paul S. White, for Defendants/Appellants/Respondents.

Plaintiff Silver Valley Propane (SVP) appeals from a postjudgment order granting a new trial on damages following a jury verdict in favor of SVP and against defendants Louie Laymance (Laymance), Julie White (White), Lamanco, Inc. dba Kelly Gas (Lamanco/KELLY), Kellie Robinson (Mrs. Robinson), Lloyd Robinson (Mr. Robinson), K&L Gas (K&L), Collette Davis (Mrs. Davis), Leland Davis (Mr. Davis) and Skyfire Propane (SKYFIRE) based on their violation of the California Unfair Practices Act (UPA; Bus. & Prof. Code, § 17001, et seq.^[1]). Defendants also appeal from the judgment raising several issues.

PROCEDURAL BACKGROUND AND FACTS

Larry Charette (Charette) started SVP in 1993. SVP is a retailer of propane serving the Barstow-Newberry Springs-Yermo-Daggett area (the BNSYD Area). The BNSYD Area has a customer base of approximately 2,500 of which SVP has 1,700 to 1,800 customers, or approximately 64 to 68 percent of the relative market share. SVP also services the Lucerne Valley-Apple Valley area (the LVAV area).

For the past 20 years, Laymance has operated various retail propane companies. In 1989, he started Lamanco/KELLY because he was considering retirement and wanted to set up a business for his daughter, White, so she could earn a living. Laymance owns 80 percent of the company and White and her husband own the remaining 20 percent. Lamanco/KELLY is a retailer of propane servicing the LVAV area.

When White began receiving requests to service the BNSYD Area, Lamanco/KELLY expanded to that area. However, shortly after Lamanco/KELLY began competing against SVP, Charette began harassing them by calling on the phone, following the Lamanco/KELLY employees, and making it clear that he did not want Lamanco/KELLY in the area. White grew tired of dealing with Charette and decided to pull Lamanco/KELLY out of the Barstow market. Complaining about the stress she felt from Charette's actions, White asked her sister, Mrs. Robinson, if she was interested in starting her own company in the Barstow area.

In the summer of 2001, Laymance formed K&L for his daughter, Mrs. Robinson. Lamanco/KELLY owns 70 percent of K&L, and Mr. and Mrs. Robinson own the remaining 30 percent. K&L is a propane retailer servicing basically the same geographic area as SVP. For one year prior to forming K&L, Lamanco/KELLY serviced the area served by K&L. K&L is based in Barstow on property leased from Lamanco/KELLY. K&L began soliciting customers by offering a new customer value package.

Mrs. Davis is White's daughter, and Laymance's granddaughter. Lamanco/KELLY owns 70 percent of SKYFIRE, and Mr. and Mrs. Davis own the remaining 30 percent. SKYFIRE is a propane retailer servicing the same geographic area as Lamanco/KELLY. Mr. Davis works part-time for Lamanco/KELLY.

Lamanco/KELLY provided the startup capital for K&L and SKYFIRE. Lamanco/KELLY's pricing structure is similar to its competitors. However, K&L's and SKYFIRE's pricing structure is 25 to 33 percent lower than KELLY (approximately 30 to 50 cents per gallon). SVP's expert opined that K&L and SKYFIRE were selling propane â€