                                                                            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                           NOT FOR PUBLICATION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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