                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 21 2012

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

PARAMOUNT FARMS                                  No. 11-15518
INTERNATIONAL LLC,
                                                 D.C. No. 1:08-cv-01027-LJO-SKO
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

VENTILEX B.V.,

              Defendant - Appellee.



PARAMOUNT FARMS                                  No. 11-15670
INTERNATIONAL LLC,
                                                 D.C. No. 1:08-cv-01027-LJO-SKO
              Plaintiff - Appellee,

  v.

VENTILEX B.V.,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted November 6, 2012
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and BYBEE, Circuit Judges.

      Paramount Farms International LLC appeals the district court’s decision

dismissing its ostensible authority and implied warranty claims as legally

insufficient, and excluding certain testimony elicited from a compound question

and hearsay evidence. “We review the district court’s conclusions of law

following a bench trial de novo and its findings of fact for clear error.” Navajo

Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (en banc); see

also Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994) (“In reviewing a

judgment following a bench trial, this court reviews the district court’s findings of

fact for clear error and its legal conclusions de novo. The same standard applies to

the district court’s involuntary dismissal of a claim under Rule 52(c).” (internal

citations omitted)). We review the district court’s evidentiary rulings for “abuse of

discretion, and the appellant is additionally required to establish that the error was

prejudicial.” Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004).

“When the trial court excludes evidence, failure to make a timely invocation of the

grounds for the admission of the evidence renders the issue reviewable only for




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plain error.” Hudspeth v. Comm’r, 914 F.2d 1207, 1215 (9th Cir. 1990). The facts

are known to the parties. We affirm.

      First, Paramount Farms argues that the district court erred by concluding that

ostensible authority could not be established, based on its proffer of evidence. We

disagree. In its proffer, Paramount Farms provided meager circumstantial evidence

that one of Ventilex B.V.’s officers had knowledge of email traffic between

Ventilex USA and Paramount Farms. No direct evidence showed that Ventilex

B.V.’s officer had actual knowledge of the guarantee contained in the email.

Moreover, the proffer was devoid of evidence regarding Ventilex B.V.’s prior

practice of providing guarantees that would have signaled to Paramount Farms that

Ventilex USA could bind Ventilex B.V. to such a guarantee. Thus, the evidence

supporting Paramount Farm’s ostensible agency claim was insufficient. See C.A.R.

Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480–81 (9th Cir.

2000); Am. Cas. Co. v. Krieger, 181 F.3d 1113, 1121–23 (9th Cir. 1999).

      Second, Paramount Farms argues that the district court abused its discretion

by excluding testimony elicited from a compound question, because the question

was neither compound nor ambiguous and confusing, and only a general objection

as to form was lodged during the deposition. We disagree. The question was

compound and the district court did not abuse its discretion by finding that the


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question was ambiguous and confusing, especially since the witness was

unavailable to testify. Likewise, the district court did not abuse its discretion by

excluding the testimony because the specific ground for objection was apparent

from the context, even though at the deposition only a general objection as to form

was lodged. See United States v. O’Brien, 601 F.2d 1067, 1071 (9th Cir. 1979)

(citing Fed. R. Evid. 103(a)(1)(B)).

      Third, Paramount Farms argues that the district court erred by excluding

certain evidence as hearsay, because the statements were not hearsay, but rather

constituted a verbal act, and regardless were subject to the hearsay exception for

party admissions or statements relevant to a party’s state of mind. We disagree.

At trial, Paramount Farm’s counsel admitted that the evidence was hearsay.

Furthermore, even if it was not hearsay, the trial judge—presiding over the bench

trial—found that the evidence was only valuable if admitted for the truth-of-the-

matter; thus, the decision was not prejudicial. See Harper v. City of L.A., 533 F.3d

1010, 1030 (9th Cir. 2008). Likewise, it was not plain-error for the court to fail to

provide Paramount Farms with potential exceptions for its hearsay evidence. See

In re Oracle Corp. Secs. Litig., 627 F.3d 376, 386 (9th Cir. 2010) (“We cannot

declare that the district court reached an illogical or implausible result by excluding

apparent hearsay or documents without sufficient foundational support as the rules


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of evidence prescribe, or that the district court otherwise exceeded the permissible

bounds of its discretion by failing to comb through the voluminous record

searching for evidentiary bases to introduce the evidence at issue. That was

Plaintiffs’ obligation.”).

      Fourth, Paramount Farms argues that the district court erred by dismissing

its implied warranty claim as legally insufficient, because the district court failed to

consider the direct dealings that Paramount Farms had with Ventilex B.V. We

disagree. Vertical privity, or in other words, privity of contract, is required to

sustain an implied warranty claim in California. Cardinal Health 301, Inc. v. Tyco

Elecs. Corp., 87 Cal. Rptr. 3d 5, 23 (Cal. Ct. App. 2008); U.S. Roofing, Inc. v.

Credit Alliance Corp., 279 Cal. Rptr. 533, 538 (Cal. Ct. App. 1991); Burr v.

Sherwin Williams Co., 268 P.2d 1041, 1048 (Cal. 1954). In some circumstances,

“direct dealings” can satisfy the vertical privity requirement. Cardinal Health, 87

Cal. Rptr. 3d at 23–25. Ventilex B.V., however, never assumed the position of

Ventilex USA, entered into a contract with Paramount Farms, nor engaged in

significant “direct dealings” with Paramount Farms before it contracted with

Ventilex USA to purchase a Ventilex system. The district court did not err;

Paramount Farms’ implied warranty claim was legally insufficient.




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      Finally, Ventilex B.V. cross appeals the district court’s denial of its motion

for attorneys’ fees. Ventilex B.V. concedes, however, that its cross appeal was

filed late. We do not exercise our discretion to hear Ventilex B.V.’s untimely cross

appeal. See Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1298–1300

(9th Cir. 1999).

      Therefore, in appeal No. 11-15518 we AFFIRM the district court’s decision

and we DISMISS as untimely cross-appeal No. 11-15670.




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