Sun Pacific Marketing Cooperative, Inc. v. Dimare Fresh, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUN PACIFIC MARKETING
COOPERATIVE, INC.,
Plaintiff - Appellant,
v.
DIMARE FRESH, INC.,
Defendant - Appellee.
No. 12-17378
D.C. No. 1:06-cv-01404-AWI-
GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted January 15, 2015
San Francisco California
Before: WALLACE, M. SMITH, and FRIEDLAND, Circuit Judges.
Sun Pacific Marketing Cooperative, Inc. appeals from the district court’s
decision holding that Sun Pacific breached its contract with DiMare Fresh, Inc. and
awarding damages to DiMare. The district court found that Sun Pacific’s packing
records were unreliable, and that Sun Pacific therefore had not met its burden of
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FILED
JAN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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proving a product shortage, as would be necessary to invoke the contract’s Act of
God clause. The district court further found that, to the extent DiMare agreed to
modify the contract, it did so while explicitly reserving its right to contest the
invocation of the Act of God clause. We review de novo the district court’s
conclusions of law, including interpretation of contracts and statutes, and we
review findings of facts for clear error. Doe I v. Wal-Mart Stores, Inc., 572 F.3d
677, 681 (9th Cir. 2009); Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.
2002).
The district court did not err by holding that Sun Pacific breached the
contract. Neither party contests the district court’s interpretation that “there was a
‘product shortage’ of a category of tomato when Sun Pacific did not pack enough
to fulfill the Contract quantities.” Sun Pacific’s packing records do not fully
account for all of the tomatoes Sun Pacific shipped, so it was not clear error for the
district court to find that the packing records were unreliable evidence of how
many tomatoes Sun Pacific actually packed. Because Sun Pacific provided no
other credible evidence that it did not pack enough tomatoes, it did not meet its
burden to prove a product shortage. The district court therefore correctly
concluded that Sun Pacific breached the contract by invoking the Act of God

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clause.
The district court also did not err in concluding that DiMare had reserved its
rights under the original contract. Under California law, “[a] party that with
explicit reservation of rights performs or promises performance or assents to
performance in a manner demanded or offered by the other party does not thereby
prejudice the rights reserved.” Cal. Com. Code § 1308. The testimony at trial
supported the district court’s finding that, to the extent DiMare agreed to a contract
modification, it did so while explicitly informing Sun Pacific that it would dispute
Sun Pacific’s invocation of the Act of God clause. The district court did not err in
concluding that this constituted an express reservation of rights to assert the terms
of the original contract.
AFFIRMED.

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