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The People Ex Rel. Sacramento Metropolitan Air Quality Management v. Atik Aman et al

March 6, 2012

THE PEOPLE EX REL. SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT, PLAINTIFF AND RESPONDENT,
v.
ATIK AMAN ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 06AS02948)

The opinion of the court was delivered by: Mauro , J.

P. ex rel. Sacramento Metro. Air Quality Management Dist. v. Aman

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Sacramento Metropolitan Air Quality Management District (the District) sued defendants Atik and Rangina Aman for violations of District rules after the Amans sold gasoline at their gas station without an operating permit, and continued receiving fuel deliveries without upgrading their vapor recovery equipment as required by law. The trial court entered judgment against the Amans in the amount of $169,750.

On appeal, the Amans contend (1) the trial court erred in excluding evidence of the Amans' financial condition, (2) the penalty is excessive and arbitrary, (3) the Amans detrimentally relied on the District's implicit authorization for the Amans to continue receiving gasoline deliveries without an equipment upgrade, and (4) as asserted for the first time in their reply brief, the trial court failed to consider the Amans' ability to timely complete the equipment upgrade.

We conclude (1) the trial court did not abuse its discretion in precluding the Amans from introducing evidence of their financial condition during closing argument after they had violated two court orders to produce such evidence in discovery and failed to offer any such evidence during their case-in-chief; (2) the penalty was not arbitrary or excessive and the trial court did not abuse its discretion in carefully considering the evidence and imposing a penalty that falls at the low end of the range specified by law; (3) the District was not equitably estopped to seek a penalty against the Amans because the District did not mislead the Amans, but instead warned them about their legal obligations, and the trial court found the Amans were not credible in claiming to have relied on the District; and (4) the argument that the Amans raised for the first time in their reply brief is forfeited.

We will affirm the judgment.

BACKGROUND

The Amans purchased a Valero gas station on Stockton Boulevard in Sacramento. In the course of negotiating the purchase, the seller, Dr. Bains, handed them a plastic bag containing various licenses, permits and tags that Bains represented were the station's necessary operating permits. The plastic bag did not contain a District operating permit. Dr. Bains testified that "it was mentioned" that the station would require an environmental upgrade and that the purchase price was reduced by at least $25,000 due to the required upgrade. Atik denies that the upgrade was mentioned during purchase negotiations and he denies that the purchase price was reduced based on the upgrade requirement.

After purchasing the station, Atik changed the record of ownership for each permit in the plastic bag. The Amans did not visit the District office because a District operating permit was not in the plastic bag.

The Amans took possession of the gas station in March 2005. District rule 201 requires every gasoline station to have a District operating permit. The Amans sold gasoline at their station for 79 days before obtaining a District operating permit.

In addition, the law required the Amans to install new vapor recovery equipment by April 1, 2005. (Health & Saf. Code, §§ 41950 et seq.;*fn1 District rule 448) The upgrade was known as a phase I enhanced vapor recovery (EVR) upgrade, and involved a vapor recovery system used when receiving gasoline into a gas station's underground storage tanks.

The District issued an order of noncompliance to the Amans on May 24, 2005 because they did not have a District operating permit and they had not upgraded to the required vapor recovery system. When Atik received the order of noncompliance he applied for an operating permit. The Amans obtained a District operating permit two days later, on May 26, 2005.

The operating permit authorized the Amans to sell only the fuel already contained in their two 10,000 gallon storage tanks. Condition 6 in the permit expressly stated that they could not accept additional fuel ...


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