Precise Aerospace Mfg., Inc. v. Mag Aerospace Industries, LLC ( 2019 )

FILED
NOT FOR PUBLICATION
OCT 08 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRECISE AEROSPACE Nos. 18-55353 and 18-55356
MANUFACTURING, INC., a California
corporation; ROXANNE ABDI, D.C. No.
2:17-cv-01239-RGK-JC
Plaintiffs-Appellants,
v. MEMORANDUM*
MAG AEROSPACE INDUSTRIES, LLC,
DBA Zodiac Water & Waste Aero
Systems,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted September 13, 2019
Pasadena, California
Before: RAWLINSON, OWENS, and BENNETT, Circuit Judges.
Precise Aerospace Manufacturing, Inc. (Precise) and Roxanne Abdi (Abdi,
and together, Appellants) appeal the dismissal of and the denial of leave to amend
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
their claim brought under the California Unruh Civil Rights Act (Unruh claim)
against MAG Aerospace Industries, LLC, doing business as Zodiac Water & Waste
Aero Systems (MAG), the denial of their application to reopen discovery and
continue scheduling deadlines, and the grant of summary judgment in favor of
MAG on Appellants’ remaining claims.1
We review the dismissal of a claim under Federal Rule of Civil Procedure
12(b)(6) de novo, see United States ex rel. Anita Silingo v. WellPoint, Inc., 904
F.3d 667, 676 (9th Cir. 2018), and the denial of leave to amend for an abuse of
discretion. See Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018).
Denial of a request for a continuance is reviewed for an abuse of discretion. See
Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1062-63 (9th Cir. 2019).
We review de novo a grant of summary judgment, viewing the evidence in
the light most favorable to the nonmoving party and evaluating “whether there are
any genuine issues of material fact and whether the district court correctly applied
the substantive law.” Freedom From Religion Found., Inc. v. Chino Valley Unified
Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1142 (9th Cir. 2018) (per curiam) (citation
omitted).
1
MAG abandoned its cross-appeal, 18-55356, as indicated in its
briefing and during argument.
2
1. The district court did not err in dismissing the Unruh claim for
Appellants’ failure to allege sufficient facts to infer that discriminatory motivation
was not just possible, but plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The allegation that Gil Lenhard (Lenhard), an executive at MAG, crudely
told Abdi that she “had to put [her] balls on the table and take [a] risk,” did not
raise a plausible inference of discriminatory motive. See Mackey v. Bd. of Trs. of
Cal. State Univ., 31 Cal. App. 5th 640, 663 (2019) (noting that a “mere offensive
utterance” cannot sustain an Unruh Act claim in the context of employment
discrimination) (citation and internal quotation marks omitted). See also Ramirez
v. Wong, 188 Cal. App. 4th 1480, 1488 (2010) (noting that a “vulgar and highly
offensive statement” did not rise to the level of harassment on the basis of sex)
(citation omitted). The remaining general allegations, including that Lenhard “had
and continues to have a serious problem with women[,]” made “further harassing
and bullying telephone calls to Ms. Abdi[,]” and discriminated against his own
employees “based on Zodiac’s female employees’ sex,” were properly construed
by the district court as legal conclusions. See Ramirez, 188 Cal. App. 4th at 1488
(deeming conclusory an allegation that the defendant “on more than [one]
occasion” committed similar sexist acts in violation of the Unruh Act). Neither did
the district court abuse its discretion in denying leave to amend. Even assuming
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the pleading of inconsistent theories is permissible, Appellants’ theory that MAG
never intended to honor its commitments failed to state a plausible claim under the
Unruh Act. See id. at 1485 (observing that the plaintiffs did not state a claim under
the Unruh Act because they failed to alleged “discriminatory behavior”) (citation
omitted). Because amendment to assert this theory would have been futile, the
district court acted within its discretion in denying leave to amend. See Andrews v.
Sirius XM Radio Inc., 932 F.3d 1253, 1263 (9th Cir. 2019) (concluding that there
was no abuse of discretion where amendment would be futile).
2. The district court acted within its broad discretion in denying
Appellants’ application to reopen discovery and to continue the motion and trial
deadlines. See Singh, 925 F.3d at 1076 (upholding the denial of a continuance
where the plaintiff did not identify specific facts that further discovery would have
revealed).
3. The district court committed no error in granting summary judgment
on the breach of contract claim, as the statute of frauds rendered any oral
agreement unenforceable, and the contract did not fall into the “specially
manufactured goods” exception. See Western Chance No. 2, Inc. v. KFC Corp.,
957 F.2d 1538, 1542 (9th Cir. 1992); see also Cal. Com. Code §§ 2201(1), (3)(a).
Accordingly, the grant of summary judgment on the breach of the covenant of
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good faith and fair dealing must also stand. See Xin Liu v. Amway Corp., 347 F.3d
1125, 1138 (9th Cir. 2003) (concluding that breach covenant of good faith and fair
dealing claim fails where there are no contract terms to support the covenant).
The district court also properly found that the fraudulent inducement
exception to the economic loss doctrine did not apply. Even resolving all disputes
in favor of Appellants, the evidence failed to demonstrate a triable issue of fact
regarding fraudulent intent. MAG’s retention of the toilet plans reasonably
protected its intellectual property from those invited to the workshop who would
not subsequently work on the project, and all invitees signed a non-disclosure
agreement. The internal email statement that there were “no hard promises, just
hard POs” in the industry, was made after the commencement of litigation. See
Tenzer v. Superscope, Inc., 39 Cal. 3d 18, 30 (1985) (explaining that plaintiff must
establish that defendant lacked intent to honor its contractual promises when made
to succeed on a fraudulent inducement claim).
AFFIRMED.
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