                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 19 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WILLIAM J. TUMA,                              No. 11-57162
DBA Tuma and Associates,
                                              D.C. No. 3:08-cv-00792-BTM-CAB
              Plaintiff - Appellant,

  v.                                          MEMORANDUM*

EATON CORPORATION,
FDBA Cutler-Hammer, Inc.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                      Argued and Submitted February 4, 2014
                               Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**

       William Tuma appeals the district court’s decision that Eaton Corp. was not

liable to pay him commissions on orders that Watkins Corp. placed after his

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John R. Tunheim, District Judge for the U.S. District
Court for the District of Minnesota, sitting by designation.
Manufacturer’s Representative Agreement (“MRA”) was terminated. Under the

principles of California law that apply to employment contracts, we must affirm

the district court’s grant of summary judgment in favor of Eaton.

      First, the plain language of the MRA provides that Eaton is not required to

pay Tuma commissions on orders accepted after the tail period, and a thirty-day

tail period is not unconscionable under California law. Am. Software, Inc. v. Ali,

54 Cal. Rptr. 2d 477, 480–81 (Ct. App. 1996). Even if Tuma was the procuring

cause of Watkins’s orders, he cannot claim commissions on this ground, because

the contract did not provide that he would receive commissions on orders placed

after the tail period. See Zinn v. Ex-Cell-O-Corp., 149 P.2d 177, 180–81 (Cal.

1944). Additionally, Tuma cannot establish that Eaton prevented him from

performing under the MRA, because Eaton had a contractual right to terminate it.

Kline v. Johnson, 263 P.2d 494, 496 (Cal. Ct. App. 1953).

      Nor did Eaton violate the implied covenant of good faith and fair dealing. In

California, the implied covenant “cannot impose substantive duties or limits on the

contracting parties beyond those incorporated in the specific terms of their

agreement.” Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1110 (Cal. 2000). Eaton had

the right to terminate Tuma in 2007 and did not deprive him of benefits that he had




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already earned. See id. at 1112 n.18; see also Balzer/Wolf Assocs., Inc. v. Parlex

Corp., 753 F.2d 771, 774–75 (9th Cir. 1985).

      Finally, Tuma is not entitled to recover damages under California’s

Independent Wholesale Sales Representatives Contractual Relations Act, Cal. Civ.

Code § 1738.10 et seq. The Act allows a sales representative to recover damages if

a wholesaler fails to set out in writing how commissions will be calculated. Id.

§ 1738.13(b)(1). But Eaton terminated Tuma before he became entitled to any

commissions on Watkins’s orders, so Tuma may not recover under the Act even if

the MRA failed to specify how commissions are to be calculated in all

circumstances.

      AFFIRMED.




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