The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion for summary judgment (Doc. # 15) or, in the alternative, for summary adjudication of claims or defenses filed by Defendant ExxonMobil Corporation.
On August 6, 2007, Plaintiff Mazen Hindi filed a complaint against Defendant ExxonMobil Corporation in the California State Superior Court in San Diego, California. (Doc. # 15-3). On August 22, 2007, ExxonMobil removed the case to this Court pursuant to 28 U.S.C. §§ 1332 & 1441(b). (Doc. # 1). On June 18, 2008 ExxonMobil filed a motion for summary judgment or in the alternative for summary adjudication on claims or defenses. (Doc. # 15). On August 6, 2008, Hindi filed a response in opposition to ExxonMobil's motion for summary judgment. (Doc. # 22). On August 11, 2008, ExxonMobil filed a reply in support of the motion for summary judgment. (Doc. # 24).
Plaintiff Hindi has operated a gasoline service station as a franchisee of Defendant ExxonMobil since 1995. (Hindi Deposition, Doc. # 15-5, Ex. A at 8, 11). Hindi leases the station premises, located at 902 Third Avenue, Chula Vista, California, from ExxonMobil. (Id. at 8, 11-12). On March 8, 2004, a field retail coordinator of ExxonMobil sent Hindi a written letter informing Hindi that if he "continue[d] to have interest in purchasing your location please write us a letter and we be [sic] happy to entertain the request. Subject to management approval I believe such a request would receive favorable attention at this point in time." (Doc. # 22-3, Ex. 2). On March 9, 2004, Hindi sent a letter to ExxonMobil to "show my intent to purchase the property at my location, 902 third ave in the city of Chula Vista." (Doc. # 15-6, Ex. B-1); (Doc. # 22-4, Ex. 3).
On March 21, 2004, ExxonMobil sent an offer via certified mail to Hindi to sell the land, building, and all equipment described on Exhibits A and B to the attachment Terms and Conditions of Sale contract . . . for $742,538.00 subject to the terms and conditions set forth in the Contract." (Doc. # 15-6, Ex. B); (Doc. # 22-5, Ex. 4). The offer stated that "a certified or cashier's check payable to ExxonMobil Corporation in the amount of $37,126.90 must accompany your written acceptance of this offer and will be applied toward the full purchase price at the time of closing." (Doc. # 15-6, Ex. B); (Doc. # 22-5, Ex. 4). The offer stated that it would "expire at 12 noon on June 20, 2004 . . ." (Doc. # 15-6, Ex. B); (Doc. # 22-5, Ex. 4).
On June 7, 2008, ExxonMobil sent a notice to Hindi via express mail stating, "ExxonMobil has not received from you an acceptance of the offer or the earnest money. The purpose of this notice is to inform you [Hindi] that ExxonMobil hereby rescinds the offer effective immediately." (Doc. # 15-6, Ex. B); (Doc. # 22-7, Ex. 6). Hindi received the notice of rescission in the mail on June 8, 2004. (Doc. # 15-5, Ex. A at 43-44). On June 8, 2004, before receiving the notice from ExxonMobil, Hindi sent a certified check for $37,126.90 and letter of acceptance to ExxonMobil via express mail. (Doc. # 15-5, Ex. A at 63); (Doc. # 15-6, Ex. B); (Doc. # 22-20, Ex. 19). ExxonMobil received the check and letter of acceptance in the mail on June 9, 2004. (Doc. # 15-6, Ex. B-9); (Doc. # 22-20, Ex. 19). On June 16, 2004, ExxonMobil returned Hindi's deposit check via express mail. (Doc. # 22-21, Ex. 20). Hindi deposited the check into his bank account. (Doc. # 15-5, Ex. A at 189).
Hindi testified at his deposition that immediately after reading the notice of rescission on June 8, 2004, he called an ExxonMobil representative and "asked him regarding the letter if he knew anything about it. He said no, he will find out." (Doc. # 15-5, Ex. A at 47). Hindi testified that a "week or two later" the representative called Hindi and said "yeah, they're stopping the offer, and it's an environmental issue." (Doc. # 15-5, Ex. A at 47).
ExxonMobil and Hindi had continuing contacts regarding the status of the property and a forthcoming contract throughout 2005 and 2006. Ultimately, the parties were unable to negotiate a contract for the sale of the station premises and equipment. Hindi has operated the gas station throughout the attempted negotiations and continues its operation to date. (Doc. # 15-5, Ex. A at 8).
On August 6, 2007, Hindi filed the complaint in this case against Defendant ExxonMobil alleging (1) breach of contract, (2) fraud, (3) breach of the covenant of good faith and fair dealing, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress. (Complaint, Doc. # 15-3). Hindi seeks compensatory, incidental and punitive damages; specific performance or imposition of a constructive trust ordering transfer of the station premises according to the terms of the original contract; and reasonable attorneys' fees. (Id. ¶ 47).
Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248. The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). The moving party may meet this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23.
Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). In order to make this showing, the non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is ...