Filed 4/20/21 Khosravan v. Exxon Mobil Corp. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MALEKEH KHOSRAVAN,

Plaintiff and Appellant,

v.

EXXON MOBIL CORPORATION

et al.,

Defendants and 

Respondents.

 B304346

 (Los Angeles County

 Super. Ct. No. 19STCV20678)

APPEAL from the judgment of the Superior Court of 

Los Angeles County, Maurice A. Leiter, Judge. Affirmed.

Weitz & Luxenberg, Benno Ashrafi and Josiah Parker for 

Plaintiff and Appellant.

Dentons US, Jayme C. Long, Justin Reade Sarno, 

Alexander B. Giraldo; Gibson, Dunn & Crutcher, Theodore J. 

Boutrous, Jr., Joshua S. Lipshutz and Joseph R. Rose for 

Defendants and Respondents Exxon Mobil Corporation and 

ExxonMobil Oil Corporation.
2

King & Spalding, Peter A. Strotz and Anne M. Voigts for 

Defendants and Respondents Chevron Corporation, Chevron 

U.S.A. Inc., and Texaco, Inc.

__________________________

Malekeh Khosravan1 appeals from a judgment entered 

after the trial court granted the motions for summary judgment 

filed by defendants Chevron Corporation, Chevron U.S.A. Inc.,

and Texaco, Inc. (Chevron defendants), and Exxon Mobil 

Corporation and ExxonMobil Oil Corporation (Exxon defendants). 

Malekeh and her husband Gholam Khosravan brought claims for 

negligence, premises liability, and loss of consortium, alleging

Khosravan contracted mesothelioma caused by exposure to 

asbestos while he was an Iranian citizen working for the National 

Iranian Oil Company (NIOC) from the late 1950s to 1980 in 

facilities controlled by defendants.

2 The trial court concluded the 

Chevron and Exxon defendants did not owe a duty of care to 

Khosravan.

On appeal, Malekeh contends the Chevron and Exxon 

defendants owed Khosravan a duty of care based on their 

predecessors’ control over the Abadan refinery in which 

Khosravan worked and a 1954 contractual agreement between

1 During the pendency of this appeal, Gholam Khosravan

died. On June 10, 2020 we granted Malekeh Khosravan’s motion

to be substituted in place of Gholam Khosravan as his successor 

in interest. To avoid confusion, we refer to Gholam Khosravan as 

Khosravan and Malekeh by her first name.

2 It is undisputed that mesothelioma is a cancer associated 

with exposure to asbestos.
3

the Iranian government and a consortium of international oil 

companies, including defendants’ predecessors (the Agreement). 

Malekeh also asserts the Chevron and Exxon defendants,

through their predecessors, owed a duty to protect refinery 

workers like Khosravan from asbestos exposure based on a 

special relationship between the predecessor companies and the 

refinery workers arising from the Agreement. Alternatively, 

Malekeh contends the Chevron and Exxon defendants owed 

refinery workers a duty of care arising from a special relationship 

between defendants’ predecessors and the Iranian companies 

that operated the refinery.

During the pendency of this appeal, we decided Sabetian v. 

Exxon Mobil Corporation (2020) 57 Cal.App.5th 1054, 1075

(Sabetian), in which we held defendants’ predecessors3 did not 

owe a duty of care to protect refinery workers from asbestos 

hazards at the Abadan refinery. (Id. at p. 1075.) We concluded

neither the Agreement nor the plaintiffs’ evidence was sufficient 

to create a triable issue of fact that defendants’ predecessors 

exercised direct control over day-to-day refinery operations. (Id. 

at pp. 1072-1075.) We invited the parties in this case to file 

supplemental letter briefs addressing the significance of our

decision in Sabetian, which they have done. We conclude the 

Chevron and Exxon defendants did not owe a duty of care to 

Khosravan, and we affirm.

3 Sabetian involved the same defendants who are parties to 

this action; the plaintiffs were a former Iranian refinery worker 

at the Abadan refinery who later contracted mesothelioma and 

his wife. (Sabetian, supra, 57 Cal.App.5th at p. 1060.) 
4

FACTUAL AND PROCEDURAL BACKGROUND

A. The Agreement4

In 1951 the government of Iran nationalized its oil assets, 

assuming control from the Anglo-Iranian Oil Company, which 

was majority-owned by the government of Great Britain. In 1952

Iran formed NIOC to own and supervise all of Iran’s oil assets. 

To afford access to global oil markets and avoid possible influence

from the former Union of Soviet Socialist Republics, the United 

States “devised a plan in which it ‘enlisted’ American oil 

companies as its ‘instruments of foreign policy’ to help get the 

Iranian oil industry back on its feet.”5

In 1954 American oil companies Gulf Oil Corporation, 

Socony-Vacuum Oil Company, Inc., Standard Oil Company of 

New Jersey, Standard Oil Company of California, and the Texas 

Company, and European oil companies Anglo-Iranian Oil 

Company, Ltd., N.V. de Bataafsche Petroleum Maatschappij, and 

Compagnie Francaise des Pétroles (collectively, the consortium 

members) entered into the Agreement with Iran and NIOC.

Defendants Chevron Corporation and Chevron U.S.A., Inc. are

successors in interest to Standard Oil Company of California and 

Gulf Oil Corporation. Defendant Texaco, Inc., is the successor of 

the Texas Company. The Exxon defendants are successors in 

4 This discussion is based on undisputed facts taken from 

evidence submitted in connection with the summary judgment 

motions.

5 It is undisputed the Agreement principally covered the 

Abadan refinery. Consistent with the practice of the parties, we 

use “Abadan refinery” to refer generally to the facilities covered

by the Agreement.
5

interest to Socony-Vacuum Oil Company, Inc., and Standard Oil 

Company of New Jersey.

The Agreement consists of two parts, the first among the 

consortium members, Iran, and NIOC and the second among

Iran, NIOC, and the Anglo-Iranian Oil Company, Ltd. Only part 

I is at issue in this case. The recitals for part I provided, 

“WHEREAS, both the Government of Iran and [NIOC] desire to 

increase the production and sale of Iranian oil, and thereby to 

increase the benefits flowing to the Iranian nation . . . , but 

additional capital, experienced management, and technical skills 

are required in order to produce, refine, transport and market . . .

oil in quantities sufficient to effect this increase in a substantial 

amount . . . [¶] WHEREAS, the international oil [consortium 

members] are in a position and are willing to supply such capital, 

management and skills; and [¶] . . . are in a position to market 

substantial quantities of Iranian oil . . . throughout a large part 

of the world over a considerable period of time, to the mutual 

benefit of the Iranian nation and themselves . . . [¶] . . . the 

Parties are agreed that said companies should undertake the 

operation and management of certain of the oil properties . . . of 

the Government of Iran and [NIOC], including the Abadan 

refinery, as hereinafter set forth . . . [¶] [¶] . . . negotiations 

have been amicably carried out with the object of assuring to the 

Government of Iran and [NIOC], on the one hand, a substantial 

export market for Iranian oil and a means of increasing the 

material benefits to and prosperity of the Iranian people, and to 

the companies, on the other hand, the degree of security and the 

prospect of reasonable rewards necessary to justify the 

commitment of their resources and facilities to the reactivation of 

the Iranian oil industry.”
6

Article 3, section A of the Agreement provided that to carry 

out the “functions of exploration, producing, refining, 

transportation and the other functions specified in” the 

Agreement, the consortium members incorporated the “Operating 

Companies” under the laws of the Netherlands. The Agreement 

defined the Operating Companies as the Iranian Oil Exploration 

and Producing Company (IOEPC) and Iranian Oil Refining 

Company (IORC). The consortium members incorporated a 

holding company, Iranian Oil Participants Ltd. (IOP), which 

wholly owned IOEPC and IORC. Each consortium member 

formed at least one wholly owned subsidiary, each of which 

purchased 7 to 8 percent of IOP’s shares. In article 3, section A of 

the Agreement, the consortium members “jointly and severally 

guarantee[d] the due performance by the Operating Companies of 

their respective obligations under this Agreement.”

Article 4 of the Agreement listed and “strictly limited” the 

“rights, powers and obligations of the Operating Companies as 

well as the nature and extent of the supervision to be exercised 

by Iran and NIOC . . . to what is clearly stated in this Article.” 

(Art. 4, § J.) Section A, paragraph (1) provided IOEPC the right

to explore, drill for, produce, extract, process, store, transport, 

and ship crude oil and natural gas. Section A, paragraph (2)

provided for IORC to have the right to refine and process crude 

oil and natural gas produced by IOEPC.

Article 4, section F sets forth “[t]he obligations of the 

Operating Companies to Iran and NIOC.” These obligations 

included the duty “to conform with good oil industry practice and 

sound engineering principles applicable and appropriate to 

operations under similar conditions in conserving the deposits of 

hydrocarbons, in operating the oilfields and refinery and in 
7

conducting development operations.” (Agreement, art. 4, § F, 

¶ (1).) The Operating Companies were obligated “to carry on 

such exploration operations as are economically justifiable with a 

view to providing sufficient reserves to support the rate of 

production of oil” (id., § F, ¶ (2)); “to maintain full records” and 

“accounts” of their activities (id., § F, ¶ (3)); “to minimize the 

employment of foreign personnel” (id., § F, ¶ (4)); and “to prepare 

in consultation with NIOC plans and programs for industrial and 

technical training and education and to cooperate in their 

execution . . . to replace foreign personnel as soon as reasonably 

practicable” (id., § F, ¶ (5)). Article 4, section I further provided, 

“[T]he Operating Companies shall determine and have full and 

effective management and control of all their operations,” subject 

to supervision of their operations by Iran and NIOC as set forth 

in sections F and G.

Article 5, section A of the Agreement stated, “Iran and 

NIOC undertake that neither of them, and no person other than 

the Operating Companies, shall at any time . . . carry out . . . any 

of the functions specified in [p]aragaphs (1) and (2) of Section A of 

Article 4 of this Agreement” (defining the rights of IOEPC and 

IORC to exploration, production, and refining). Article 7 of the 

Agreement granted the Operating Companies the right to 

“exclusive use” of certain lands owned by NIOC and Iran for 

“their operations under [the] Agreement.”6 Under Article 17 of 

the Agreement, NIOC retained authority over all “non-basic 

6 It is undisputed NIOC owned and operated the Abadan 

refinery prior to execution of the Agreement, and the Agreement’s 

grant of authority to the Operating Companies constituted a 

transfer of control over the functions in article 4 from NIOC to 

the Operating Companies.
8

operations,” including medical and health services, industrial and 

technical training and education, and housing.

Article 18 provided consortium members “shall” purchase 

crude oil and “may” purchase natural gas from NIOC for resale in 

Iran for export. Consortium members were permitted to assign 

their rights and obligations to purchase crude oil and natural gas 

to their subsidiaries, referred to as “Trading Companies.” Under 

article 20 of the Agreement, the consortium members guaranteed 

certain oil production and export quantities on an annual basis.

The Agreement contemplated a 25-year lifespan, but in

1973 Iran assumed operations from IORC and IOEPC. IORC’s 

employees were transferred to a new entity formed by NIOC, Oil 

Services Company of Iran, which assumed operation of the

Abadan refinery.

B. The Complaint

Khosravan and Malekeh filed this action on June 13, 2019

against the Chevron and Exxon defendants and others, alleging 

causes of action for negligence, strict liability, premises liability, 

negligent joint venture, alter ego, fraud, and loss of consortium. 

The complaint alleged the Chevron and Exxon defendants are the 

successors in interest to consortium members that were 

signatories to the Agreement. The complaint alleged further 

Khosravan was exposed to products containing asbestos while he 

worked at the Abadan refinery and other Iranian facilities from 

approximately the 1940s to the late 1970s. In March 2019

Khosravan was diagnosed with mesothelioma caused by his

exposure to asbestos at these facilities. The complaint alleged 

the predecessors to the Chevron and Exxon defendants, as 

consortium members, contributed “capital, management and 
9

skills in the operation and management of the oil properties of 

[NIOC], specifically the . . . oil refinery in Abadan, Iran.”

Further, the predecessor companies had “full and effective control 

of the [Abadan] refinery . . . in order to operate that refinery in 

conformity with good oil industry practice and sound engineering 

principles applicable to that industry.”

C. The Chevron and Exxon Defendants’ Motions for Summary 

Judgment

The Chevron and Exxon defendants separately moved for 

summary judgment. They argued they owed no duty of care to 

Khosravan because they did not own, possess, or control the 

facilities in which Khosravan alleged he was exposed to asbestos.

The Chevron defendants filed a declaration of Frank G. 

Soler, the senior subsidiary governance liaison for Chevron 

Corporation, who stated the Chevron defendants’ predecessors 

“did not ever own, lease, maintain, manage, control, or supervise” 

the Abadan refinery. Soler averred a separate corporate entity 

facilitated requests from the Operating Companies to the 

consortium members “for skilled personnel.” Employees of the 

consortium members sent to work at the Abadan refinery were 

“seconded,” meaning “their employment with the [consortium 

member] oil company terminated and such employees were then 

formally employed by IORC and/or IOEPC.”

The Chevron defendants also filed a declaration of former 

Texaco, Inc., employee Carter B. Conlin, in which Conlin averred 

he worked at the Abadan refinery from 1958 to 1963. At the 

refinery, Conlin supervised approximately 20 engineers, 
10

including “seconded employees” from other oil companies.7

Conlin and the other seconded employees he supervised were 

“employed and paid by IORC for all work performed at the 

Abadan [r]efinery.” Conlin and the employees Conlin supervised 

did not take direction or payment from “their past oil company 

employers or any oil company subsidiaries.” The Chevron 

defendants filed excerpts from deposition testimony from Conlin

in Alkhas v. A.W. Chesterton Company (Super. Ct. L.A. County, 

2014, No. BC473745), in which he testified employees loaned by 

consortium members to IORC were thereafter treated as 

employees of IORC.

8

D. The Khosravans’ Opposition to Defendants’ Motions for 

Summary Judgment

The Khosravans opposed the Chevron and Exxon 

defendants’ motions, arguing the Agreement and defendants’ 

control over operations at the Abadan refinery created a duty of 

care owed by the Chevron and Exxon defendants to Khosravan to 

protect him from asbestos exposure.9 The Khosravans filed 

7 From 1958 to 1960, Conlin held the position of section head 

of the oil conversion processes section of the process engineering 

department for IORC at the Abadan refinery. From 1960 to 

1963, he held the position of technical advisor for catalytic 

reforming in the refining operations department for IORC at the 

Abadan refinery.

8 The Exxon defendants also relied on the Soler declaration

and the Conlin deposition transcript filed by the Chevron 

defendants.

9 The Khosravans abandoned their strict liability, negligent 

joint venture, and alter ego claims during the summary judgment 
11

multiple declarations and excerpts of deposition testimony with 

their oppositions.

Dr. Neill Weaver stated in his deposition in Altimore v.

Quigley Company, Inc. (District Ct. Galveston County, Texas, 

2013, No. 03CV0588) he worked from 1951 to 1973 as a physician 

for Esso Standard Oil Company, an Exxon predecessor.10 

Dr. Weaver identified a 1937 document entitled “Dust Producing 

Operations in the Production of Petroleum Products and 

Associated Activities,” which made suggestions for control and 

suppression of asbestos dust. When asked about Esso’s asbestos 

practices, Dr. Weaver testified that when he began working in 

Esso’s Baton Rouge, Louisiana refinery in 1951, “measures were 

in effect for the control of exposures throughout the refinery and 

the medical surveillance program for the workers potentially 

exposed to asbestos was in operation and had been in operation 

for decades.” 

Bruce Larson, who testified as Exxon Mobil Corporation’s

person most qualified in Shahabi v. A.W. Chesterton Company

(Super. Ct. L.A. County, 2012, No. BC421531), was asked, “Do 

you agree that Exxon and Mobil had employees in high level 

proceedings by failing to oppose summary adjudication of those 

claims. The Khosravans did not dispute IOP, IORC, and IOEPC 

“observed their corporate form and were adequately capitalized,” 

“each held regular meetings, maintained independent records, 

and had their own officers and directors,” and each “maintained 

separate accounting records, officers, and bank accounts.”

10 Weaver testified he worked for Esso Standard Oil Co., 

which later became Exxon. The Exxon defendants acknowledge 

previously doing business under the name Esso. It is not clear 

from the record which consortium member Esso succeeded.
12

management at the Abadan refinery between 1955 and 1968?” 

He responded, “I think that’s probably correct, yes.” Larson also 

testified it was “certainly possible” that a person with 

management responsibility could cause work practices to be 

followed at the refinery, but he clarified that the Abadan refinery 

“had a patchwork of various jobs represented by Iranian 

nationals, various jobs represented by people from the 

participating companies, and . . . I don’t really know how control 

was exercised in a situation like that.” Larson testified he

believed Exxon employees who worked at the Abadan refinery 

would be paid by the “holding company,” not Exxon, and he was 

not aware of Exxon or Mobil “exercis[ing] any direct control over 

anybody” working at the Abadan refinery.

Testifying as Exxon Mobil Corporation’s person most 

qualified in Enayati v. A.W. Chesterton Company (Super. Ct. L.A.

County, 2009, No. BC400729), Larson testified he had no direct 

knowledge of the health and safety practices of the Abadan 

refinery during the period from 1954 to the 1980s. But he stated 

it had “always been at least the policy of Exxon and Mobil 

that . . . the same rules and regulations that apply domestically

apply to overseas facilities. So I’m assuming that—and this is an 

assumption . . . [¶] . . . that comparable safety procedures and 

programs would be in place at [the Abadan] refinery as they 

would have been elsewhere.” Larson affirmed he based his 

assumption on his experience with the standard operating 

procedures of the company.

Daniel Agopsowicz testified as the person most qualified for 

the Exxon defendants in his deposition in Sabetian v. Air & 

Liquid Systems Corporation (Super. Ct. L.A. County, 2018, 

No. BC699945). When asked whether the Exxon defendants 
13

agreed “[i]t is part of good oil industry practice to ensure that the 

people on the refinery floor are kept safe,” Agopsowicz replied, 

“Yes.” When asked whether the Exxon defendants’ predecessors

“believe[d] at the time of signing [the Agreement] that [they] had 

an obligation to ensure that the Abadan [r]efinery was operated 

appropriately,” Agopsowicz replied, “If they signed [the 

Agreement], then they would agree with this, yes.”11

Soler testified as the person most qualified for the Chevron 

defendants in Sabetian v. Air & Liquid Systems Corporation 

(Super. Ct. L.A. County, 2018, No. BC699945). Soler was asked 

in his deposition whether the statement made by Standard Oil of 

California (the predecessor of Chevron U.S.A., Inc.) in its 1964 

annual report was true that “[t]he Iranian oil consortium has 

operated Iran’s principal oil[] producing, refining, and 

transportation facilities for the past ten years.” Soler responded, 

“It’s a statement that was made by the company to stockholders.”

The Khosravans also attached a copy of a booklet entitled 

“Working with the Operating Companies in Iran 1958” (Iran 

booklet) issued by Socony Mobil Oil Company, Inc. (an affiliate of 

consortium member Socony-Vacuum Oil Company, Inc., the 

predecessor in interest to the Exxon defendants) to Socony’s

employee Charles Schroeder. Schroeder was transferred to Iran 

to work for the operating companies from 1958 to 1960. The

booklet explained IORC and IOEPC had conducted “production 

and refining of oil in Southern Iran in accordance with the 

Agreement . . . . [¶] The joint Head Office of these two Operating 

11 It appears from the question and answer that this 

testimony was in the context of questions about the Agreement. 

However, the record does not contain the prior page of the 

deposition transcript.
14

Companies is located in Teheran, from which all activities of the 

Companies are directed.” A section entitled “Terms and 

Conditions of Employment” stated, “Employees on loan 

assignment from a Member Company will remain employed by 

such Member Company but will be subject to these conditions for 

the period of their Company Service, unless otherwise provided in 

these conditions.” The booklet further stated the operating 

companies would pay the salaries of “loan employees,” with 

monthly deductions from the total salary paid for “Iranian 

income tax and electricity tax or for services provided by the 

[operating companies],” unless alternative arrangements were 

made between the Operating Companies and the consortium 

member or its affiliated company. With regard to “operational 

requirements,” the booklet stated, “Whether he is directly 

engaged by the [Operating Companies] or on loan assignment 

from a Member Company, the employee shall give his whole time 

services to the [Operating Companies] . . . , in accordance with 

the orders and directions from time to time given to him by the 

[Operating Companies] . . . , and will work and reside in such 

places as the [Operating Companies] may from time to time 

require, and will abide by all applicable rules, regulations and 

other practices of the [Operating Companies] . . . from time to 

time in effect.”

The Khosravans attached excerpts of Conlin’s deposition 

testimony in Sarooie v. Asbestos Corporation Limited (Super. Ct. 

L.A. County, 2015, No. BC529503). Conlin was asked, based on 

the Iran booklet’s statement that loan employees “will remain 

employed” by the consortium member or affiliate company while 

on loan to the Operating Companies, whether Conlin was 

employed by Texaco when he worked for IORC at the Abadan 
15

refinery. Conlin responded, “It appears so, according to this 

definition.” When asked whether this “was the same definition 

you were working under when you were in Iran,” Conlin 

responded, “Yeah. The main two stipulations were that we would 

have the right to come back to a job of equal status, and that our

benefit plans would remain in effect.”

The Khosravans did not dispute the facts set forth in the 

Exxon defendants’ undisputed material facts that Khosravan was 

“employed by” NIOC or IORC, and not by the Exxon defendants 

or their predecessors.

12 Nor did the Khosravans dispute “IORC 

conducted the ‘basic’ refining functions” at the Abadan refinery.

Likewise, the Khosravans did not dispute that the predecessors 

to the Chevron defendants did not “select, procure, manufacture, 

distribute, sell, or install any asbestos-containing products or 

equipment” at the Iranian facilities. The Khosravans also did not 

dispute that IOP did not operate any Iranian oil facilities.

E. The Trial Court’s Ruling and Entry of Judgment

On December 6, 2019 the trial court granted the Chevron 

and Exxon defendants’ motions for summary judgment. In its 

written ruling, the court found the Khosravans failed to raise a 

triable issue of fact regarding “whether [d]efendants owned or 

12 The Khosravans disputed whether Khosravan was ever 

supervised or directed by an employee of the Exxon defendants or 

their predecessors, but they did not cite to any evidence that 

supported their contention other than the Agreement. Further, in 

response to the Exxon defendants’ separate statement, the 

Khosravans contended the seconded employees “remained 

employed by the [c]onsortium member,” citing to the testimony of 

Agopsowicz and Conlin, as well as the Iran booklet.
16

controlled the Abadan oil refinery, or any other Iranian site, 

where [Khosravan] claims that he was exposed to asbestos”; 

“whether [Khosravan] was an intended beneficiary under the 

Government Agreement; whether the Government Agreement

created a special relationship between [d]efendants, and/or their 

predecessors, and [Khosravan]; and whether [d]efendants 

negligently performed their obligations under the Government 

Agreement.”13

On December 24, 2020 the trial court entered a judgment of 

dismissal in favor of the Chevron and Exxon defendants. The 

Khosravans timely appealed.

DISCUSSION

A. Standard of Review on Summary Judgment

Summary judgment is appropriate only if there are no 

triable issues of material fact and the moving party is entitled to 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); 

Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618 (Regents); Delgadillo v. Television Center, Inc. 

(2018) 20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s 

decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were 

made and sustained.”’ [Citation.] We liberally construe the 

evidence in support of the party opposing summary judgment and 

resolve doubts concerning the evidence in favor of that party.”’” 

13 In ruling on the motions for summary judgment, the trial 

court appears to have overruled all evidentiary objections made 

by the parties. The parties do not renew their objections on 

appeal, and we do not consider them.
17

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; 

accord, Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 

607 (Valdez).)

A defendant moving for summary judgment has the initial 

burden of presenting evidence that a cause of action lacks merit 

because the plaintiff cannot establish an element of the cause of 

action or there is a complete defense. (Code Civ. Proc., § 437c, 

subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 853; Valdez, supra, 33 Cal.App.5th at p. 607.) If the 

defendant satisfies this initial burden, the burden shifts to the 

plaintiff to present evidence demonstrating there is a triable 

issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); 

Aguilar, at p. 850; Valdez, at p. 607.)

B. Principles of Contract Interpretation

“‘The rules governing the role of the court in interpreting a 

written instrument are well established. The interpretation of a 

contract is a judicial function. [Citation.] In engaging in this 

function, the trial court “give[s] effect to the mutual intention of 

the parties as it existed” at the time the contract was executed. 

[Citation.] Ordinarily, the objective intent of the contracting 

parties is a legal question determined solely by reference to the 

contract’s terms. [Citations.]’” (Brown v. Goldstein (2019) 

34 Cal.App.5th 418, 432; accord, State of California v. 

Continental Ins. Co. (2012) 55 Cal.4th 186, 195; Sabetian, supra, 

57 Cal.App.5th at p. 1069.) “‘Extrinsic evidence is admissible, 

however, to interpret an agreement when a material term is 

ambiguous. [Citations.]’” (Brown, at p. 432; accord, Sabetian, at 

p. 1069.)
18

“The law has long distinguished between a ‘covenant’ which 

creates legal rights and obligations, and a ‘mere recital’ which a 

party inserts for his or her own reasons into a contractual 

instrument. Recitals are given limited effect even as between the 

parties.” (Emeryville Redevelopment Agency v. Harcros Pigments, 

Inc. (2002) 101 Cal.App.4th 1083, 1101; accord, Hunt v. United 

Bank & Trust Co. (1930) 210 Cal.108, 115 [“Recitals or preambles 

prefixed to an agreement may or may not have binding force. If 

they form part of the operative covenants of the instrument in 

such a way as to show it was designed and intended that they 

should form part of it, they will be so construed.”]; O’Sullivan v. 

Griffith (1908) 153 Cal. 502, 506 [“A covenant or warranty is 

never implied from a mere recital.”]; Sabetian, supra, 

57 Cal.App.5th at p. 1069.) However, “[i]f the operative words of 

a grant are doubtful, recourse may be had to its recitals to assist 

the construction.” (Civ. Code, § 1068;

14 see Sabetian, at p. 1069; 

Golden West Baseball Co. v. City of Anaheim (1994) 

25 Cal.App.4th 11, 38 [language labeled “recital” was actually 

covenant because it contained operative promise and recourse to 

language was necessary to identify real property subject to the 

agreement].)

14 All further undesignated statutory references are to the 

Civil Code.
19

C. The Khosravans Failed To Raise a Triable Issue of Fact as 

to Their Negligence and Premises Liability Claims15

1. Duty of care

“The elements of a negligence claim and a premises liability 

claim are the same: a legal duty of care, breach of that duty, and 

proximate cause resulting in injury.” (Kesner v. Superior Court

(2016) 1 Cal.5th 1132, 1158 (Kesner); accord, Castellon v. U.S. 

Bancorp (2013) 220 Cal.App.4th 994, 998.) “Recovery in a 

negligence action depends as a threshold matter on whether the 

defendant had ‘“a duty to use due care toward an interest of [the 

plaintiff’s] that enjoys legal protection against unintentional 

invasion.”’” (Southern California Gas Leak Cases (2019) 

7 Cal.5th 391, 397; accord, Sabetian, supra, 57 Cal.App.5th at 

p. 1070.)

15 The Chevron and Exxon defendants argue we should not 

reach the merits of Malekeh’s arguments on appeal because the 

law of the case doctrine applies to bar relitigation of the issues in 

light of the Court of Appeal’s unpublished decision in Malek v. 

Chevron U.S.A. Inc. (Nov. 14, 2019, B270957) [nonpub. opn.] 2019 

WL 6001030, noting the Malek case and this case were 

coordinated as part of LAOSD Asbestos Cases. (Nov. 14, 2019, 

B270957) [nonpub. opn.] 2019 WL 6001030. “‘“The doctrine of 

‘law of the case’ deals with the effect of the first appellate 

decision on the subsequent retrial or appeal: The decision of an 

appellate court, stating a rule of law necessary to the decision of 

the case, conclusively establishes that rule and makes it 

determinative of the rights of the same parties in any subsequent 

retrial or appeal in the same case.”’” (Leider v. Lewis (2017) 

2 Cal.5th 1121, 1127.) Khosravan was not a party to the Malek

appeal and, therefore, we do not apply the law of the case 

doctrine.
20

“In general, each person has a duty to act with reasonable 

care under the circumstances.” (Regents, supra, 4 Cal.5th at

p. 619; accord, Vasilenko v. Grace Family Church (2017) 3 Cal.5th 

1077, 1083 (Vasilenko).) As section 1714 provides, “Everyone is 

responsible, not only for the result of his or her willful acts, but 

also for an injury occasioned to another by his or her want of 

ordinary care or skill in the management of his or her property or 

person, except so far as the latter has, willfully or by want of 

ordinary care, brought the injury upon himself or herself.” “‘[I]n 

the absence of a statutory provision establishing an exception to 

the general rule of . . . section 1714, courts should create one only 

where “clearly supported by public policy.”’” (Kesner, supra, 

1 Cal.5th at p. 1143; accord, Regents, supra, 4 Cal.5th at p. 628 

[“The court may depart from the general rule of duty . . . if other 

policy considerations clearly require an exception.”]; Cabral v. 

Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).)

In determining whether an exception to section 1714 

applies, courts consider “the foreseeability of harm to the 

plaintiff, the degree of certainty that the plaintiff suffered injury, 

the closeness of the connection between the defendant’s conduct 

and the injury suffered, the moral blame attached to the 

defendant’s conduct, the policy of preventing future harm, the 

extent of the burden to the defendant and consequences to the 

community of imposing a duty to exercise care with resulting 

liability for breach, and the availability, cost, and prevalence of 

insurance for the risk involved.” (Rowland v. Christian (1968) 

69 Cal.2d 108, 113 (Rowland); accord, Kesner, supra, 1 Cal.5th at 

p. 1143.)

A defendant’s control over property is sufficient to create a 

duty of care owed to persons using the property. (Alcaraz v. Vece
21

(1997) 14 Cal.4th 1149, 1162, 1166 [affirming reversal of 

summary judgment because there were triable issues of fact as to 

landlord’s control of strip of city land where landlord had 

“maintained the lawn . . . and, subsequent to the incident at 

issue, constructed a fence surrounding the entire lawn”]; 

Sabetian, supra, 57 Cal.App.5th at p. 1071; Annocki v. Peterson 

Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [trial court 

should have allowed plaintiff to plead that defendant restaurant 

failed to warn patrons leaving the restaurant that only a right 

turn could safely be made from its parking lot although accident 

occurred on adjacent roadway].)

“Premises liability ‘“is grounded in the possession of the 

premises and the attendant right to control and manage the 

premises”’; accordingly, ‘“mere possession with its attendant right 

to control conditions on the premises is a sufficient basis for the 

imposition of an affirmative duty to act.”’” (Kesner, supra, 

1 Cal.5th at p. 1158; accord, Taylor v. Trimble (2017) 

13 Cal.App.5th 934, 943-944 [“landowners are required ‘to 

maintain land in their possession and control in a reasonably safe 

condition’ [citations], and to use due care to eliminate dangerous 

conditions on their property”].) However, “[a] defendant cannot 

be held liable for the defective or dangerous condition of property 

which it did not own, possess, or control. Where the absence of 

ownership, possession, or control has been unequivocally 

established, summary judgment is proper.” (Isaacs v. Huntington 

Memorial Hospital (1985) 38 Cal.3d 112, 134; accord, Sabetian, 

supra, 57 Cal.App.5th at p. 1071; Seaber v. Hotel Del Coronado

(1991) 1 Cal.App.4th 481 [hotel did not owe duty to patron who 

was struck and killed in a marked crosswalk outside hotel’s 

entrance]; cf. Vasilenko, supra, 3 Cal.5th at p. 1085 [church had 
22

duty toward invitees who crossed public street to get to parking 

lot across the street because the church increased the invitees’ 

exposure to the dangers of the street by placing and maintaining 

the parking lot on the other side of the street].)

“[S]ection 1714 does not . . . impose a presumptive duty of 

care to guard against any conceivable harm that a negligent act 

might cause.” (Southern California Gas Leak Cases, supra, 

7 Cal.5th at p. 399; accord, Sabetian, supra, 57 Cal.App.5th at 

p. 1071; Dekens v. Underwriters Laboratories Inc. (2003) 

107 Cal.App.4th 1177, 1187-1188 [plaintiffs failed to raise a 

triable issue of material fact whether defendant “undertook the 

responsibility to guarantee [decedent’s] safety from cancercausing asbestos through its process of testing and certifying 

small appliances as safe from injury due to fire, electrical shock, 

or injuries from sharp protruding objects”].)

2. The Khosravans failed to raise a triable issue of fact 

as to the Chevron and Exxon defendants’ ownership, 

possession, or control of the Iranian facilities

Malekeh acknowledges the central question is whether the 

Chevron and Exxon defendants (as successors to the consortium 

members) had active supervisory and management control over 

the Abadan refinery premises. Malekeh does not dispute NIOC, 

and later Iran, not the consortium members, owned the facilities 

where Khosravan was exposed to asbestos. However, she

contends the consortium members controlled the sources of 

asbestos at the Abadan refinery where Khosravan was exposed. 

She also argues the Agreement created a duty of care by 

providing for the consortium members to create the Operating 

Companies, to ensure the Operating Companies would use “good 
23

oil industry practice[s],” and to promise to purchase oil for export, 

and guarantee the production and exportation of specified 

quantities of oil.

As we concluded in Sabetian, “[T]he Chevron and Exxon 

defendants’ commitments in the Agreement do not demonstrate 

their control over the Abadan refinery.” (Sabetian, supra, 

57 Cal.App.5th at p. 1072.) We observed, “Article 1 of the 

Agreement defined ‘Operating Companies’ by express reference 

only to IOEPC (the exploration and production company) and 

IORC (the refining company), to the exclusion of the separately 

defined term of ‘[c]onsortium members.’ The Agreement gave 

Iran and NIOC supervisorial authority over the Operating 

Companies, with IORC and NIOC sharing control of the Abadan 

refinery. As discussed, IORC controlled the refining and 

processing of the crude oil and natural gas at the refinery (art. 4, 

§ A, ¶ (2)) and NIOC controlled the ‘non-basic operations,’

including housing, medical and health services, and industrial 

and technical training and education (art. 17, §§ A, ¶ (1), B).” 

Contrary to [plaintiff]’s assertion the Chevron and Exxon 

defendants’ predecessors had effective control over the Abadan 

refinery, the Agreement expressly stated “‘no person other than 

the Operating Companies, shall at any time . . . carry out . . . any 

of the functions’” of exploration, production, and refining, and the 

‘nature and extent of the foregoing rights, powers and obligations 

of the Operating Companies as well as the nature and extent of 

the supervision to be exercised by Iran and NIOC shall be strictly 

limited to what is clearly stated in [article 4].’” (Sabetian, at 

p. 1072.)

We concluded that the consortium members’ or their 

subsidiaries’ ownership of 7 to 8 percent of the shares of IOP, 
24

which in turn owned IOEPC and IORC, was “not sufficient to 

create a duty of care as to refinery workers employed by the 

Operating Companies, . . . absent evidence supporting the

piercing of the corporate veil based on the alter ego doctrine.” 

(Sabetian, supra, 57 Cal.App.5th at p. 1072, citing Mesler v. 

Bragg Management Co. (1985) 39 Cal.3d 290, 300 [to pierce the 

corporate veil, a plaintiff must show “‘(1) that there be such unity 

of interest and ownership that the separate personalities of the

corporation and the individual no longer exist and (2) that, if the 

acts are treated as those of the corporation alone, an inequitable 

result will follow’”] and Curci Investments, LLC v. Baldwin (2017) 

14 Cal.App.5th 214, 220 [“Ordinarily a corporation is considered 

a separate legal entity, distinct from its stockholders, officers and 

directors, with separate and distinct liabilities and obligations.”].)

Further, as in Sabetian, to the extent the consortium 

members controlled IOP, which owned the Operating Companies, 

the Khosravans never presented evidence to support liability of 

IOP as the parent corporation. (See Sabetian, supra, 

57 Cal.App.5th at p. 1073, citing Waste Management, Inc. v. 

Superior Court (2004) 119 Cal.App.4th 105, 110 [“[A] parent 

corporation is not liable for injuries of a subsidiary’s employee in 

the absence of evidence establishing a duty owed by the parent 

corporation to the employee.”].) Here, as in Sabetian, the 

Khosravans abandoned their alter ego claims during the 

summary judgment proceedings.

In Sabetian we also rejected the plaintiffs’ argument that 

the consortium members had the ability to intervene in refinery 

management to meet their obligations under the Agreement 

based on the consortium members’ incorporation of the Operating 

Companies; their joint and several guarantee of the due 
25

performance of the Operating Companies to Iran and NIOC, 

including the commitment “‘to conform with good oil industry 

practice’”; and their guarantee to Iran and NIOC of the 

production and exportation of certain quantities of oil. (Sabetian, 

supra, 57 Cal.App.5th at p. 1073.) Instead, the consortium 

members would satisfy their commitments under the Agreement 

by their creation of independent corporate entities (the Operating 

Companies) to provide the necessary day-to-day management and 

control of the Abadan refinery because “the Agreement tasked 

IORC and NIOC, not the consortium members, with refinery 

operations.” (Ibid.) Further, “IORC’s commitment to conform 

with good industry practice was explicitly stated in the 

Agreement as an obligation to Iran and NIOC, as were the 

consortium members’ guarantees.” (Ibid.)

16

We also reviewed the deposition testimony submitted by 

the plaintiffs in Sabetian (also relied on by the Khosravans) and 

concluded, “The testimony of Larson, testifying as Exxon Mobil 

Corporation’s person most qualified, that ‘there may have been 

some’ Exxon or Mobil employees in high level management 

positions at the Abadan refinery is consistent with defendants’ 

evidence that employees of consortium members who worked at 

16 We also rejected the argument “defendants’ control over the 

Abadan refinery is demonstrated by the recital language in the 

Agreement,” concluding “the recital language referring to the 

willingness of the consortium members to provide their 

management abilities and their agreement to undertake the 

operation and management of the oil facilities was by its own 

terms limited by the specific provisions of the Agreement that 

vested responsibility for operation and control in the Operating 

Companies and NIOC.” (Sabetian, supra, 57 Cal.App.5th at 

pp. 1073-1074.)
26

the Abadan refinery were loaned to the refinery and under the 

control of and paid by IORC. For example, Soler, the senior 

subsidiary governance liaison for Chevron Corporation, declared

that consortium members sometimes provided ‘skilled personnel’

to the Abadan refinery in response to requests from the 

Operating Companies, but these workers were then ‘formally 

employed’ by the Operating Companies, not their former 

consortium member employer. Similarly, Conlin, who in 1958 

was an assistant chief design engineer employed by Texaco, Inc.,

testified that from 1958 to 1963 he was seconded to work at the 

Abadan refinery, at which time he was employed and paid by 

IORC and took direction from IORC, not Texaco, Inc., or other 

American oil companies. Further, Larson testified he was not 

aware of Exxon or Mobil ‘exercis[ing] any direct control over 

anybody’ working at the Abadan refinery.” (Sabetian, supra,

57 Cal.App.5th at p. 25.)

Contrary to Malekeh’s contention in her supplemental 

brief, the additional evidence relied on by the Khosravans did not 

create a triable issue of fact that the consortium members had 

control over operations at the Abadan refinery. Malekeh 

contends the Iran booklet establishes that employees loaned by 

the consortium members or their affiliates remained employees of 

the foreign company while working for the Operating Companies 

in Iran, distinguishing this case from Sabetian. Malekeh also 

relies on Conlin’s deposition testimony in which he acknowledged 

that while he worked for IORC in Iran, he remained an employee

of Texaco, as defined by the Iran booklet, explaining the “main 

two stipulations were that we would have the right to come back 

to a job of equal status, and that our benefit plans would remain 

in effect.” However, the booklet also dictated the loaned
27

employee would work “in accordance with the orders and 

directions from time to time given to him by the [Operating 

Companies] . . . and will abide by all applicable rules, regulations 

and other practices of the [Operating Companies] . . . from time 

to time in effect.” This provision is consistent with Conlin’s 

testimony that workers in the Iranian refinery did not take 

direction from “their past oil company employers or any oil 

company subsidiaries.” Further, neither the booklet nor Conlin’s 

testimony shows that employees of the consortium members who 

were seconded to the Abadan refinery as management employees 

were paid by the consortium members or their work was directed 

or controlled by the consortium members.17

17 Malekeh also relies on Agopowicz’s testimony in which he 

agreed that the Exxon defendants’ predecessors “believe[d] at the 

time of signing [the Agreement] that [they] had an obligation to 

ensure that the Abadan [r]efinery was operated appropriately.” 

But as we concluded in Sabetian, “[T]he consortium members’ 

guarantees were to Iran and NIOC and fall short of evidence 

defendants exercised direct control of day-to-day operations at 

the refinery. Further, although Agopowicz was designated as the 

person most qualified for the Exxon defendants, his testimony 

was not based on personal knowledge of the consortium members’ 

intent in entering into the Agreement, but his reading of the 

Agreement.” (Sabetian, supra, 57 Cal.App.5th at p. 1075, fn. 16.) 

We similarly reject Malekeh’s reliance on the statement of 

Chevron’s predecessor to stockholders in its 1964 annual report 

that “[t]he Iranian oil consortium has operated Iran’s principal 

oil[] producing, refining, and transportation facilities for the past 

ten years,” and her reliance on the Exxon defendants’ admission 

in their separate statement of facts that the consortium members 

“were to play a role in the operation and management of the 

Abadan refinery to ensure availability of ‘sufficient oil products’ 
28

Malekeh’s reliance on the holding in Kesner, supra, 

1 Cal.5th 1132 is misplaced. In Kesner, the Supreme Court held 

that employers and premises owners have a duty to protect 

family members of on-site workers from secondary exposure to 

asbestos carried home on the bodies and clothing of the workers. 

(Id. at p. 1140.) The Kesner court started from the premise that 

under section 1714, “‘the general duty to take ordinary care in 

the conduct of one’s activities’ applies to the use of asbestos on an 

owner’s premises or in an employer’s manufacturing processes” 

(Kesner, at p. 1144), but it considered the Rowland factors to 

determine “‘whether a categorical exception to that general rule 

should be made’ exempting property owners and employers from 

potential liability to individuals who were exposed to asbestos by 

way of employees carrying it on their clothes or person.” (Id. at 

p. 1145, quoting Cabral, supra, 51 Cal.4th at p. 774.) The Kesner 

court concluded it was “entirely foreseeable” that workers would 

bring asbestos dust home at the end of the day if adequate 

precautions were not taken, and, therefore, “[t]he foreseeability 

factors weigh in favor of finding a duty.” (Kesner, at p. 1149.)

Unlike the allegations in Kesner, there is no evidence the 

Chevron and Exxon defendants operated or controlled the 

Abadan refinery or the sources of asbestos at the refinery, 

thereby imposing on them a duty under section 1714 to protect 

‘to market substantial quantities of Iranian oil . . . .’” In context, 

both statements refer to the consortium members’ creation of the 

Operating Companies to operate and manage the Abadan 

refinery, their provision of seconded employees to the Operating 

Companies, and their ownership interest in IOP. This evidence 

also falls short of evidence showing defendants exercised direct 

control of the day-to-day operations at the refinery.
29

refinery workers like Khosravan from exposure to asbestos. (See 

Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at 

p. 134.) Khosravan was employed by NIOC and IORC on 

premises operated by NIOC and IORC. This is in contrast to the 

allegations at issue in Kesner that the defendant’s predecessors 

were “engaged in active supervisory control and management of 

asbestos sources” at the workplace. (Kesner, supra, 1 Cal.5th at 

p. 1161.)

3. Malekeh failed to raise a triable issue of fact the 

Agreement created a special relationship between 

defendants’ predecessors and Khosravan

Malekeh contends the Chevron and Exxon defendants 

(through their predecessor companies) owed a duty to protect 

refinery workers like Khosravan from asbestos exposure based on 

a special relationship between the consortium members and the 

refinery workers arising from the consortium members’ 

guarantee in the Agreement of the Operating Companies’ “due 

performance” under the Agreement, relying on Biakanja v. Irving 

(1958) 49 Cal.2d 647 (Biakanja) and J’Aire Corp. v. Gregory

(1979) 24 Cal.3d 799 (J’Aire). Under Malekeh’s argument, the 

Chevron and Exxon defendants owed a duty to the refinery 

workers because injury to refinery workers from asbestos 

exposure was reasonably foreseeable under the Agreement. 

Further, Malekeh points to the Operating Companies’ obligation 

to conform to “good oil industry practice and sound engineering 

principles.” We rejected this argument in Sabetian, holding the 

J’Aire factors did not support imposition of liability on the 

Chevron and Exxon defendants. (Sabetian, supra, 

57 Cal.App.5th at p. 1075.)
30

“A duty running from a defendant to a plaintiff may arise 

from contract, even though the plaintiff and the defendant are 

not in privity. [Citations.] Under these circumstances, the 

existence of a duty is not the general rule, but may be found 

based on public policy considerations.” (Lichtman v. Siemens 

Industry Inc. (2017) 16 Cal.App.5th 914, 921 (Lichtman)

[company responsible for maintaining battery backup system for 

traffic signals owed duty of care to plaintiffs who were injured in 

traffic collision during power outage in which traffic signal 

stopped functioning]; J’Aire, supra, 24 Cal.3d at pp. 802, 804-805 

[lessee who operated a restaurant alleged sufficient facts to state 

a cause of action for negligence to recover lost income from 

dilatory performance by contractor hired by owner of building to 

renovate restaurant]; Biakanja, supra, 49 Cal.2d 647, 651 [notary 

public who drafted a will for the decedent owed a duty of care to 

an estate beneficiary who was not in contractual privity with the 

notary public]; see generally Aas v. Superior Court (2000)

24 Cal.4th 627, 637-645 (Aas) [detailing evolving case law],

superseded by statute on other grounds as stated in Rosen v. 

State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1079-1080.)

Under the balancing test articulated in Biakanja and 

J’Aire, in determining whether a duty of care arises from a 

contract in favor of a noncontracting party, the Supreme Court 

considered “[(1)] ‘the extent to which the transaction was 

intended to affect the plaintiff,’ [(2)] ‘the foreseeability of harm to 

[him],’ [(3)] ‘the degree of certainty that the plaintiff suffered 

injury,’ [(4)] ‘the closeness of the connection between the 

defendant’s conduct and the injury suffered,’ [(5)] ‘the moral 

blame attached to the defendant’s conduct,’ and [(6)] ‘the policy of 

preventing future harm.’” (Southern California Gas Leak Cases, 
31

supra, 7 Cal.5th at p. 401, citing J’Aire, supra, 24 Cal.3d at 

p. 804; accord, Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 

838 (Goonewardene);

18 Aas, supra, 24 Cal.4th at p. 644; Stewart, 

supra, 55 Cal.2d at p. 863; see Biakanja, supra, 49 Cal.2d at 

p. 650.)

As we concluded in Sabetian, “the J’Aire factors do not 

support imposition of liability on the Chevron and Exxon 

defendants by virtue of the consortium members’ guarantee in 

article 3 of the Operating Companies’ performance of their 

obligations under the Agreement. Most significantly, under the 

first factor, the Agreement was not intended to affect . . . refinery 

workers, but rather, it was intended to accelerate Iranian oil 

production and exportation to the global market. Indeed, the 

obligations of the Operating Companies most relevant to 

protection of the refinery workers—to conform with good industry 

practice and prepare plans and programs for industrial and 

technical training and education—were specifically owed under 

the Agreement ‘to Iran and NIOC.’ [Khosravan] is unlike the 

plaintiff in J’Aire, a lessee whose restaurant business was 

18 In Goonewardene, supra, 6 Cal.5th at page 838, the 

Supreme Court observed additional “policy considerations that 

may appropriately be considered in determining whether a tort 

duty of care should be recognized or imposed in the absence of 

privity of contract” included whether recognition of the duty of 

care “would (1) impose liability out of proportion to fault, (2) be 

unnecessary in light of the prospect of private ordering [of a 

product or service], and (3) would likely have an adverse effect on 

the availability of [a defendant’s] services.” Because Malekeh has 

not argued that consideration of these additional factors supports 

finding a duty of care, we focus on the factors in the Biakanja and 

J’Aire balancing tests as briefed by the parties.
32

interrupted by a contractor’s renovations to improve the 

restaurant, or the plaintiff in Biakanja, the sole beneficiary of a 

will the notary public negligently failed properly to attest.” 

(Sabetian, supra, 57 Cal.App.5th at p. 1078, citing J’Aire, supra, 

24 Cal.3d at p. 804 and Biakanja, supra, 49 Cal.2d at pp. 648, 

651.)

We reasoned in Sabetian, “Typically, as in J’Aire and 

Stewart, the first two J’Aire factors operate in tandem—because 

the underlying contract was intended to affect the plaintiffs, the 

harm to the plaintiffs as a result of the defendants’ negligence 

was a fortiori foreseeable.” (Sabetian, supra, 57 Cal.App.5th at 

p. 1078.) But we noted that “where a plaintiff is not entitled to 

maintain a breach of contract action based on the third party 

beneficiary doctrine, ‘it would clearly be anomalous to impose tort 

liability, with its increased potential damages [citation], upon 

[the defendant] based upon its alleged failure to perform its 

obligations under its contract with plaintiff’s employer.’” (Id. at 

p. 1079, quoting Goonewardene, supra, 6 Cal.5th at p. 840.) 

Here, as in Sabetian, Khosravan “was not a third party

beneficiary of the Agreement because one of the three required 

elements is missing—that the ‘motivating purpose of the 

contracting parties was to provide a benefit to the third party.’” 

(Sabetian, at p. 1079, quoting Goonewardene, at p. 830.)

We reasoned the foreseeability of harm to refinery workers 

as a result of the consortium members’ failure to protect refinery 

workers did not favor liability, because the Agreement vested 

exclusive power to control day-to-day refinery operations in IORC 

and IOEPC. (Sabetian, supra, 57 Cal.App.5th at p. 1079.) “The 

fact the consortium members committed to ensure the Operating 

Companies performed their obligations under the Agreement 
33

does not mean the consortium members had the power to control 

the day-to-day activities of the refineries. This is unlike the 

situation in J’Aire, in which the contractor had the ability to 

control the extent to which the tenant was harmed by the 

contractor’s conduct under the agreement with the property 

owner. (J’Aire, supra, 24 Cal.3d at p. 804.).” (Sabetian, at 

p. 1079.)

As to the third factor, as in Sabetian, there is a high degree 

of certainty that Khosravan suffered injury due to his exposure to 

asbestos at the Abadan refinery.19 (Sabetian, supra, 

57 Cal.App.5th at p. 1080.) “But the fourth factor, the closeness 

of the connection between consortium members’ conduct and 

[Khosravan]’s injury, is attenuated because IORC and NIOC, not 

the consortium members, controlled day-to-day refinery 

operations. Likewise, the fifth factor, the moral blame attached 

to the consortium members’ conduct, is weak,” absent evidence of 

the consortium members’ negligence in the execution of their 

contractual duties or that they had control over the operations 

that caused the harm. (Ibid.)

“The sixth factor, the policy of preventing future harm, 

similarly does not favor [Malekeh]. Because the consortium 

members were not in a position to control the day-to-day 

operations of the Abadan refinery, they were not in the best 

position to prevent future harm at the refinery. Further, the 

Agreement acknowledged the consortium members were separate 

corporate entities from the Operating Companies, including 

19 On appeal, defendants do not contend Malekeh failed to 

raise a triable issue of fact regarding whether Khosravan’s

mesothelioma was caused by asbestos exposure at the Abadan 

refinery. 
34

IORC. We recognize the important public policy to require 

employers to provide a safe and secure workplace, but there is 

also a public policy recognizing the benefits of allowing 

companies to limit their business risks through the creation of a 

separate corporate entity.” (Sabetian, supra, 57 Cal.App.5th at 

p. 1080.) Here, the consortium members limited their risk by 

creating the Operating Companies. Further, as noted, the 

Khosravans abandoned their argument in the trial court the 

consortium members were the alter egos of IOP or the Operating 

Companies.

Finally, Malekeh’s reliance on Seo v. All-Makes Overhead 

Doors (2002) 97 Cal.App.4th 1193, 1197 (Seo) is misplaced. 

There, a commercial subtenant was injured when he reached his 

arm through an electronic sliding gate to activate a switch to 

close the gate. (Id. at p. 1198.) The Court of Appeal concluded 

the defendant company that had repaired the gate for the 

property owner owed no duty of care to the subtenant to warn of 

design defects unrelated to the repairs performed by the 

defendant. (Id. at pp. 1198-1199.) The Seo court observed, 

however, that an independent contractor may owe a duty to a 

third party where it negligently performs a repair, fails to make a 

requested repair, or assumes the owner’s duty to inspect and 

maintain the equipment and negligently fails to perform, leading 

to injury to the third party. (Id. at p. 1206.) Here, Malekeh has 

not presented evidence showing defendants performed repairs, 

inspections, or maintenance or assumed the responsibility 
35

assigned to IORC and NIOC under the Agreement to inspect or 

maintain the Abadan refinery.20

4. Malekeh failed to raise a triable issue of fact 

defendants’ predecessors had a duty to protect 

Khosravan based on a special relationship between 

defendants’ predecessors and the Operating 

Companies

Malekeh contends the predecessors to the Chevron and 

Exxon defendants owed a duty to Khosravan based on a special 

relationship the defendants had with the Operating Companies

20 Mace v. United States (N.D. Cal., Mar. 23, 2017, No. 15-CV04060-LB) 2017 WL 1102736, relied on by Malekeh, is 

distinguishable for the same reason. In Mace, the National Park 

Service hired the defendant tree services company on two 

occasions to remove visible large seed pods from the park’s trees. 

(Id. at pp. *1-2.) Nineteen months after the tree services 

company completed its second seed pod removal, a park patron 

was injured by a falling pod. (Ibid.) The tree services company 

moved for summary judgment, arguing it owed no duty beyond 

its contractual commitments to remove the seed pods. (Id. at 

p. *6.) The district court denied the motion, finding triable issues 

whether the tree service company had breached a duty of care to 

warn the National Park Service about the dangers of selectively 

pruning seed pods and to recommend safe pruning measures. 

(Id. at p. *10.) Unlike the tree services company in Mace, there is 

no evidence the predecessor companies performed any work for 

NIOC or the Operating Companies that gave rise to Khosravan’s 

asbestos-related injury. Under the Agreement, it was IORC and 

NIOC that assumed the duty to control refinery operations. 

Malekeh has provided no authority for the proposition a party 

that guarantees the performance of another assumes a duty to 

prevent harm to third parties caused by the performance.
36

to protect Khosravan from the intentional misconduct of third 

parties. This contention lacks merit.

“A duty to control, warn, or protect may be based on the 

defendant’s relationship with ‘either the person whose conduct 

needs to be controlled or [with] . . . the foreseeable victim of that 

conduct.’” (Regents, supra, 4 Cal.5th at p. 619 [“a duty to control 

may arise if the defendant has a special relationship with the 

foreseeably dangerous person that entails an ability to control 

that person’s conduct”]; accord, Delgado v. Trax Bar & Grill

(2005) 36 Cal.4th 224, 235 [“A defendant may owe an affirmative 

duty to protect another from the conduct of third parties if he or 

she has a ‘special relationship’ with the other person.”].) “A 

special relationship between the defendant and the victim is one 

that ‘gives the victim a right to expect’ protection from the 

defendant, while a special relationship between the defendant 

and the dangerous third party is one that ‘entails an ability to 

control [the third party's] conduct.’ . . . The existence of such a 

special relationship puts the defendant in a unique position to 

protect the plaintiff from injury. The law requires the defendant 

to use this position accordingly. [Citation.] [¶] Where the 

defendant has neither performed an act that increases the risk of 

injury to the plaintiff nor sits in a relation to the parties that 

creates an affirmative duty to protect the plaintiff from harm . . . 

the defendant owes no legal duty to the plaintiff.” (Brown v. USA 

Taekwondo (Apr. 1, 2021, S259216) __ Cal.5th __ [2021 

WL 1218492, at pp. *5-*6]; accord, Regents, at p. 621.)

In Regents, the Supreme Court considered the “common 

features” of a special relationship. (Regents, supra, 4 Cal.5th at 

p. 620.) The Supreme Court observed, “Generally, the 

relationship has an aspect of dependency in which one party 
37

relies to some degree on the other for protection. . . . [¶] . . . The 

corollary of dependence in a special relationship is control. 

Whereas one party is dependent, the other has superior control 

over the means of protection. ‘[A] typical setting for the 

recognition of a special relationship is where “the plaintiff is 

particularly vulnerable and dependent upon the defendant who, 

correspondingly, has some control over the plaintiff’s welfare.”’” 

(Regents, supra, 4 Cal.5th at pp. 620-621.) Further, “[s]pecial 

relationships also have defined boundaries. They create a duty of 

care owed to a limited community, not the public at large.” (Id. 

at p. 621.) Finally, the court noted that “although relationships 

often have advantages for both participants, many special 

relationships especially benefit the party charged with a duty of 

care,” identifying retail stores and hotels as examples. (Ibid.) 

The Regents court concluded a college has a special 

relationship with its students, observing that college students are 

“dependent on their college communities to provide structure, 

guidance, and a safe learning environment” and “have superior 

control over the environment and the ability to protect students.” 

(Regents, supra, 4 Cal.5th at p. 625.) However, the court limited 

the college’s duty of care to “activities that are tied to the school’s 

curriculum but not to student behavior over which the university 

has no significant degree of control,” explaining the college would

be expected to retain a “measure of control” over the classroom 

environment. (Id. at p. 627.)

Here, as discussed, Malekeh failed to raise a triable issue 

the Chevron and Exxon defendants retained any measure of 

direct control over the Operating Companies. As we observed in 

Sabetian in the context of our analysis of the J’Aire factors, the 

consortium members were not in the best position to prevent 
38

future harm at the refinery. (Sabetian, supra, 57 Cal.App.5th at 

p. 1080.) In the absence of a showing of defendants’ authority to 

exercise control, the trial court properly granted summary 

judgment in favor of the Khosravans. (See Barenborg v. Sigma 

Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 75, 81 

[national fraternity did not have special relationship with its 

local chapter and therefore had no duty to protect student who 

was injured at party held by local chapter, despite national 

fraternity’s adoption of policies governing local chapter and 

ability to discipline chapter for policy violations because it had no 

ability to prevent injury].)

Malekeh’s reliance on our opinion in Brown v. USA 

Taekwondo (2019) 40 Cal.App.5th 1077 (Brown), affd. (Apr. 1, 

2021, S259216) __ Cal.5th __ [2021 WL 1218492], is misplaced. 

There, we concluded the plaintiffs had alleged facts sufficient to 

support a special relationship between the defendant taekwondo

association and its registered taekwondo coach, and on that basis 

we concluded the taekwondo association had a duty to protect 

student athletes from sexual abuse by the coach. (Brown, supra, 

at p. 1094.)21 We reasoned that because the taekwondo 

association had control over the coach through its policies and 

procedures establishing requirements for coaches, it “was 

therefore ‘“‘in the best position to protect against the risk of 

harm’”’ and ‘“meaningfully reduce the risk of the harm that 

21 The Supreme Court in affirming our decision “express[ed] 

no view on the merits of the Court of Appeal’s application of the 

special relationship test to either USAT or USOC. These factdependent issues fall outside the scope of the only question 

presented for our review.” (Brown v. USA Taekwondo, supra, 

__ Cal.5th __ [2021 WL 1218492], at p. *4, fn. 4.) 
39

actually occurred.”’” (Ibid.) Further, we found the Rowland

factors supported “recognition of [the taekwondo association’s]

duty to use reasonable care to protect taekwondo youth athletes 

from foreseeable sexual abuse by their coaches.” (Brown, at 

p. 1101.) However, we concluded the plaintiffs had not alleged 

facts sufficient to establish that the defendant Olympic 

Committee had a special relationship with the coach because the 

allegations did not establish the committee had the ability to 

control the coach’s conduct or was in the best position to protect 

plaintiffs from the coach’s sexual abuse. (Id. at p. 1102.)

Here, the record does not contain any policies and 

procedures or other evidence showing the predecessors to the 

Chevron and Exxon defendants had the ability to control the dayto-day conduct of the Operating Companies in running the 

Abadan refinery, nor has Malekeh presented evidence showing 

defendants’ predecessors had the ability to control the asbestos 

products used at the Abadan refinery or were in the best position 

to protect Khosravan from asbestos exposure. As discussed, it 

was NIOC that owned the refinery and IORC that operated the 

refinery, without any direct control by the predecessor 

companies.
40

DISPOSITION

The judgment is affirmed. Respondents are entitled to 

recover their costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

McCORMICK, J.*

* Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.