FILED
NOT FOR PUBLICATION NOV 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KENNETH BOSINGER, No. 08-55682
individually and d/b/a K-TRONICS,
D.C. No. 3:07-cv-01102-IEG-RBB
Plaintiff - Appellant,
v. MEMORANDUM *
BELDEN CDT, INC., a Missouri based
corporation doing business in California,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted October 9, 2009 **
Pasadena, California
Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON ***,
Senior District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
Plaintiff Kenneth Bosinger appeals the district court’s order granting
summary judgment in favor of Belden CDT, Inc. on Bosinger’s claims for breach
of contract, violations of California’s Unfair Competition Law, breach of the
implied covenant of good faith and fair dealing, and unjust enrichment. We affirm.
Pursuant to Section 1670.5 of the California Civil Code, a court may refuse
to enforce a contract or individual clause if it finds, as a matter of law, that the
contract or provision was unconscionable at the time it was made. California
courts have established that “[u]nder California law, a contract provision is
unenforceable due to unconscionability only if it is both procedurally and
substantively unconscionable.” Shroyer v. New Cingular Wireless Services, Inc.,
498 F.3d 976, 981 (9th Cir. 2007). The provision at issue here was not.
Substantive unconsionability “focuses on the terms of the agreement and
whether those terms are so one-sided as to shock the conscience.” Davis v.
O’Melveny & Myers, 485 F.3d 1066, 1075 (9th Cir. 2007) (emphasis in original).
The undisputed facts indicate that Bosinger had a continual and meaningful
responsibility to service his accounts after the initial sales and that any future sales
and subsequent commissions were a product of such service. A contract provision
terminating his commissions after thirty days is not “unduly harsh or oppressive”
as to “shock the conscience.” Id. at 1076; see Am. Software, Inc. v. Ali, 54 Cal.
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Rptr. 2d 477, 481 (Ct. App. 1996) (holding a contract clause was not substantively
unconscionable which terminated a salesperson’s right to commissions thirty days
post-termination where the sales representative had an “ongoing responsibilities to
‘service’ the account once the sale is made” and the contract involved risks on both
sides.)
“Procedural unconscionability analysis focuses on oppression or surprise.
Oppression arises from an inequality of bargaining power that results in no real
negotiation and an absence of meaningful choice, while surprise involves the
extent to which the supposedly agreed-upon terms are hidden in a prolix printed
form drafted by the party seeking to enforce them.” Nagrampa v. MailCoups, Inc.,
469 F.3d 1257, 1280 (9th Cir. 2006) (internal citations and quotation marks
omitted). Bosinger, a salesperson familiar with contracts, read and signed multiple
versions of the contract containing the same commission-termination clause and
was aware of the clause. He also negotiated with Belden and its predecessors over
other contract clauses. As the contract provision was not procedurally or
substantively unconscionable, Bosinger’s claim for breach of contract failed.
The Unfair Competition Law, California Business and Professions Code
(“UCL”) sections 17200 through 17209, prohibits “unfair competition” defined as
“unlawful, unfair or fraudulent business act[s] or practice[s] and unfair, deceptive,
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untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Bosinger
claims that Belden’s failure to pay his post-termination commissions constituted a
violation of the Wholesale Sales Representatives Contractual Relations Act of
1990. The WSRCRA requires companies to enter into written sales agreements
with sales representatives who are not employees of the company and to pay
commissions as established in the written sales agreements. Cal. Civ. Code §§
1738.13, 1738.15. The contract was in writing, it complied with the statutory
requirements, and Belden paid Bosinger commissions in accordance with the
written contract. Belden did not violate the WSRCRA, and thus no cause of action
arose under the UCL.
There is no claim under California law for breach of the implied covenant of
good faith and fair dealing arising from the termination of an at-will employment
relationship. Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1110 (Cal. 2000). The
California Supreme Court has explicitly rejected the extension of the “special
relationship” imposing a heightened duty beyond the insurance context. Foley v.
Interactive Data Corp., 765 P.2d 373, 395 (Cal. 1988). Bosinger was an at-will
independent contractor for Belden, so he did not have a tort cause of action based
on the implied covenant of good faith and fair dealing.
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In California there is no cause of action for unjust enrichment; it is a
“general principle, underlying various legal doctrines and remedies, rather than a
remedy itself.” Melchior v. New Line Prods., Inc., 106 Cal. Rptr. 2d 347, 357 (Ct.
App. 2003) (internal quotation marks omitted). Bosinger argues that “unjust
enrichment” is the basis of his claim of fraudulent inducement. See Oakland
Raiders v. Oakland-Alameda County Coliseum, Inc., 51 Cal. Rptr. 3d 144, 150 (Ct.
App. 2006) (a claim of fraudulent inducement requires “fraudulent representations
of another party”). In a declaration signed after his deposition, Bosinger claimed
that his supervisor at Belden induced him to sign the contract by falsely promising
him the contract would be reviewed in six months. Bosinger’s deposition states,
however, that the only deceptive action on the part of Belden was to terminate
Bosinger within a few months of entering into the Representative Agreement. A
party may not create an issue of fact by affidavit contradicting prior deposition
testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991).
Bosinger freely entered into the contract and understood its terms. The District
Court thus correctly held Bosinger did not have a claim of unjust enrichment based
on fraudulent inducement.
AFFIRMED.
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