                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 01 2012

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

DAVID J. SHOEMAKER,                              No. 11-15371

              Plaintiff - Appellant,             D.C. No. 2:10-cv-0125-KJM-KJN

  v.                                             MEMORANDUM*

COUNTY OF GLENN; GLENN
COUNTY BOARD OF SUPERVISORS,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                        Argued and Submitted July 20, 2012
                            San Francisco, California

Before:       TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

       Plaintiff David J. Shoemaker appeals the district court’s decision dismissing

his action with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Shoemaker sued

Glenn County and its Board of Supervisors (the “Board”) under 42 U.S.C. § 1983,

alleging deprivation of his constitutionally-protected property interest in continued


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
employment as County Administrative Officer. Shoemaker additionally alleged

that his termination without cause constituted a breach of his employment contract

under California law. The district court determined that Shoemaker’s contract

unambiguously created an at-will employment relationship which, under California

law, was terminable without cause. We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm.

      We review de novo the district court’s decision to grant a motion to dismiss

under Rule 12(b)(6). Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,

1030 (9th Cir. 2008). “We accept factual allegations in the complaint as true and

construe the pleadings in the light most favorable to the nonmoving party,” but

“we need not accept as true conclusory allegations that are contradicted by

documents referred to in the complaint.” Id. at 1031. “Dismissal of a case without

leave to amend is improper unless it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” Gompper v. VISX, Inc., 298

F.3d 893, 898 (9th Cir. 2002) (internal quotation marks omitted). On issues

requiring the application of California law, we must apply the law as we believe

the California Supreme Court would apply it. Gravquick A/S v. Trimble

Navigation Int’l, 323 F.3d 1219, 1222 (9th Cir. 2003). Because the parties are




                                         2
familiar with the facts of this case, we repeat them here only to the extent

necessary to resolve the issues raised on appeal.

      1.     The language of Shoemaker’s employment contract explicitly and

unambiguously stated that he served “at the will of the Board” and could be

terminated without cause with 120 days’ notice. The parties expressly contracted

for an at-will relationship and, as a result, the default rule laid out in Cal. Labor

Code § 2924 regarding employment contracts for a specified term did not apply to

the agreement. See Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1101 (Cal. 2000).

Shoemaker’s argument that there was an implied contractual term restricting the

Board’s termination rights fails, because express contractual terms control over

implied contractual terms when the two are in conflict. Metoyer v. Chassman, 504

F.3d 919, 936-37 (9th Cir. 2007). Here, the contract expressly provides that

Shoemaker “serves at the will of the Board”; therefore, any implied provision to

the contrary is nugatory. Because the Board was entitled to terminate Shoemaker

at any time without cause, and the notice required by the contract was given, the

Board did not breach the employment contract.

      2.     Moreover, because Shoemaker had no entitlement to continued

employment under state law, his termination was not a deprivation of a




                                            3
constitutionally-protected property interest. See Bd. of Regents v. Roth, 408 U.S.

564, 567-77 (1972). Thus, his claim under § 1983 fails.

      3.     Shoemaker has not suggested any amendment to his complaint that

would have saved his case from dismissal on these grounds. The district court,

therefore did not abuse its discretion in denying Shoemaker leave to amend.

      4.     Shoemaker’s equitable estoppel contention was not raised before the

district court. None of the exceptions to the rule of waiver applies in this case;

therefore, the contention is waived and we decline to reach its merits. See Ruiz v.

Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012).

      AFFIRMED.




                                          4
