Hatem Mshalabi; Pyramid Gold, Inc. v. Atlantic Richfield Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HATEM M SHALABI; PYRAMID
GOLD, INC.,
Plaintiffs - Appellants,
v.
ATLANTIC RICHFIELD COMPANY;
BP CORPORATION NORTH
AMERICA, INC., individually and as
successor-in interest to Atlantic Richfield
Company; BP PRODUCTS NORTH
AMERICA, INC., individually and as
successor-in-interest to Atlantic Richfield
Company; BP WEST COAST
PRODUCTS, LLC, a Delaware limited
liability company,
Defendants - Appellees.
No. 12-36029
D.C. No. 2:11-cv-00505-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted June 3, 2014
Seattle, Washington
FILED
JUN 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.
Appellant Hatem Shalabi appeals the district court’s grant of summary
judgment in favor of BP West Coast Products, LLC (“BP”). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Shalabi’s common law fraud and negligent misrepresentation claims fail
because Shalabi cannot show that he justifiably relied on BP’s statements that the
gas station property contained “no contamination.” Shalabi received multiple
copies of an environmental report clearly stating that some contamination existed
on the property. As the district court observed, Shalabi also signed multiple
documents that likewise undercut his justifiable reliance argument, including the
Second Amendment to the real estate sales agreement (“RESA”) which provided,
“The parties agree and acknowledge that the results contained in the
Environmental Report do not disclose the presence on the Real Estate of any Pre-
Closing Contamination requiring corrective action pursuant to Agency directive.”
Moreover, Section 13 of the RESA provided that Shalabi was “buying the Real
Estate solely in reliance on [his] own investigation.” Thus, even if Shalabi relied
on the literal interpretation of BP’s statements—and believed the property was
devoid of all contaminants—such reliance would be unreasonable under the
circumstances. See Skagit State Bank v. Rasmussen, 745 P.2d 37, 39 (Wash. 1987)
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(“[A] party whose rights rest upon a written instrument which is plain and
unambiguous . . . cannot claim to have been misled concerning its contents.”).
We also affirm the district court’s grant of summary judgment on Shalabi’s
fraud claims brought under Washington’s Gasoline Dealer Bill of Rights Act
(“GDBRA”). See Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1039 n.3 (9th Cir.
2008) (summary judgment may be affirmed on any ground supported by the
record). Like Shalabi’s common law claims, justifiable reliance is an element of
fraud alleged under the GDBRA. See Kirkham v. Smith, 106 Wash. App. 177, 183
(2001) (justifiable reliance is an element of fraud claims brought under
Washington’s Franchise Investment Protection Act (“FIPA”)); Wash. Rev. Code
Ann. § 19.120.902 (describing the legislature’s intent that the GDBRA be
interpreted consistent with FIPA). Shalabi’s GDBRA claims, therefore, fail as a
matter of law because, as discussed above, Shalabi cannot show that he reasonably
relied on BP’s alleged misrepresentations.
AFFIRMED.
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