                             NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                        JAN 30 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 SUN PACIFIC MARKETING                             No. 12-17378
 COOPERATIVE, INC.,
                                                   D.C. No. 1:06-cv-01404-AWI-
              Plaintiff - Appellant,               GSA

    v.
                                                   MEMORANDUM*
 DIMARE FRESH, INC.,

              Defendant - Appellee.

                     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.
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

                                           2
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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