Plastic-View Int'l Inc. v. Eastman Chemical Co. , 706 F. App'x 375 ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLASTIC-VIEW INTERNATIONAL, No. 16-55284
INC.; PLASTIC VIEW ATC, INC.,
D.C. No.
Plaintiffs-Appellants, 2:14-cv-07295-DDP-MRW
v.
MEMORANDUM*
EASTMAN CHEMICAL COMPANY; CP
FILMS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted November 15, 2017
Pasadena, California
Before: NGUYEN and HURWITZ, Circuit Judges, and LOGAN,** District Judge.
Plastic-View International, Inc. and Plastic View ATC, Inc. (collectively
“Plastic View”) appeal the district court’s order dismissing their second amended
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Steven Paul Logan, United States District Judge for
the District of Arizona, sitting by designation.
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We have
jurisdiction under 28 U.S.C. § 1291, and review the district court’s order de novo.
Lloyd v. CVB Fin. Corp., 811 F.3d 1200, 1205 (9th Cir. 2016). We affirm.
1. In order to show that a contract existed between the parties, a plaintiff
must plead “some basis for concluding that the parties engaged in a process of
offer and acceptance, rather than inconclusive negotiations.” Steiner v. Mobil Oil
Corp., 569 P.2d 751, 760 (Cal. 1977). At most, Eastman’s alleged emails
amounted to an invitation for Plastic View to make an offer by ordering specific
quantities of products. Price lists “are not ordinarily intended or understood as
offers to sell.” Restatement (Second) of Contracts § 26 (Am. Law Inst. 1981).
Because Plastic View fails to plead “[c]onduct by both parties which recognizes
the existence of a contract,” Cal. Com. Code § 2207(3), the district court properly
dismissed its breach of contract claim.
2. Plastic View alleges that Eastman promised to supply window film and
shade products, which Plastic View would resell to its customers, based on the
parties’ business relationship of over fifty years. Even assuming that this history
gave rise to an implied distribution agreement, its terms would be “determined by
the parties’ course of conduct.” Varni Bros. Corp. v. Wine World, Inc., 41 Cal.
Rptr. 2d 740, 745 (Ct. App. 1995). Because the parties’ conduct did not suggest
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otherwise, any such implied agreement was terminable at will by either party. See
Cal. Com. Code § 2309(2); Unterberger v. Red Bull N.A., Inc., 75 Cal. Rptr. 3d
368, 373 (Ct. App. 2008).
3. The district court properly dismissed Plastic View’s claim for breach of
the implied covenant of good faith and fair dealing because the second amended
complaint does not plead facts that establish “a contractual relationship between
the parties.” Smith v. City & Cty. of S.F., 275 Cal. Rptr. 17, 23 (Ct. App. 1990).
4. Plastic View’s claim for declaratory relief also fails because there is no
“actual controversy” related to either party’s rights under a contract. 28 U.S.C.A. §
2201.
AFFIRMED.
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