United States District Court, E.D. California
MARTINI E RICCI IAMINO S.P.A. CONSORTILE SOCIETA AGRICOLA, an Italian Company, Plaintiff.
TRINITY FRUIT SALES COMPANY, INC., a California Corporation, and DOES 1-20, Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 35)
ANTHONY W. ISHII, Senior District Judge.
This case stems from the provision of kiwi fruit from Plaintiff Martini E Ricci Iamino S.P.A. ("M&R") to Trinity Fruit Sales Company, Inc. ("Trinity"). The active complaint is the First Amended Complaint ("FAC"). This Court previously granted summary judgment in favor of Trinity on three of the FAC's five causes of action, and then gave Trinity permission to file a second motion for summary judgment on the two remaining causes of action. See Doc. Nos. 32, 34. Trinity now moves for summary judgment on the account stated and book account causes of action. For the reasons that follow, the Court will grant the motion and close this case.
M&R is an Italian company that grows kiwi fruit on its property in Italy. See PUMF 1. Andrea Martini ("Martini") is the Vice President of M&R. PUMF 2. Gary Raden ("Raden") and Stefano De Nadai ("De Nadai") worked together and were something between an agent and broker for M&R. See Raden Depo. 8:15-10:10, 66:11-66:18. Raden explained that they solicit the product from producers/suppliers and negotiate the sales with the receivers. See id. at 8:15-20, 9:21-10:10. Raden is located in the United States, and De Nadai is located in Italy. See id. at 7:8-8:2, 9:21-10:4. Raden and De Nadai were involved in the solicitation of fruit from M&R for the transaction with Trinity. See id. at 10:2-10:19. Martini worked with De Nadai on a regular basis, and De Nadai was aware of the general terms under which M&R sold kiwis, including the prices M&R expected for various sizes and quantities. PUMF 4. Martini has characterized Raden and De Nadai as independent sales people who are not employees of M&R. See Martini Dec. ¶ 3. M&R paid Raden and De Nadai fees of 3% for their services, but Trinity paid Raden and De Nadai nothing. See Raden Depo. 66:20-67:1. Raden would typically negotiate with Trinity, pass the order information on to De Nadai, and De Nadai would transmit the order to M&R by e-mail. PUMF 7. De Nadai's e-mail orders were copied to Raden, who would confirm that the e-mail reflected the agreement struck with Trinity. See PUMF 8.
Trinity agreed to market and sell M&R's 2008-2009 kiwi crop on a consignment basis. See Martin E Ricci Iamino S.P.A 2014 Consortile Sociate Agricola v. Trinity Fruit Sales, 2014 U.S. Dist. LEXIS 90604, *30 (E.D. Cal. July 2, 2014); DUMF 2. Generally, there were two types of kiwi shipments involved between M&R and Trinity regarding M&R's 2008-2009 kiwi crop. See Martini Dec. ¶ 4; Initial White Dec. ¶ 9. The first type involved 14 kg. boxes that were to be sold to Trinity's customers Costco and Sam's Club at fixed prices. See id.; PUMF 11. M&R provided 4 loads of the 14 kg. boxes. See White Dec. ¶ 4. The second type involved consignments of 9 kg. boxes of kiwis to be sold on the general market. See Martini Dec. ¶ 4; White Dec. ¶ 9. Martini declares that there was a minimum price expectation for the 9 kg. boxes. See Martini Dec. ¶ 4. Martini declares that the minimum agreed price was memorialized in e-mails between De Nadai and M&R. See id. White declares, however, that there were no fixed or minimum prices for the 9 kg. boxes. See White Dec. ¶ 9; Supp. White Dec. ¶ 8. Raden testified that he did not recall whether any minimum price was established for the 9 kg. consignment loads, but that a seller in Trinity's position has an obligation to achieve the best possible market price. PUMF 14. However, Raden also testified that the price per box which appears on the 9 kg. box consignment orders was a "theoretical price." PUMF 13. Similarly, after acknowledging that the 9 kg. boxes were on consignment, Raden testified that the term "consignment" meant to him that the receiver sells the product at the best price it can get, deducts its costs, and returns the net amount that is left after deductions to the shipper. See Raden Depo. 76:7-25. Raden testified that M&R's invoice amounts (found in the third column of the invoices) were of "no moment" because Trinity did not agree to buy the fruit at an agreed price. See id. at 77:7-78:11.
Of the shipments of M&R kiwis that were inspected by the USDA, all but one received a grade of Number 1. See PUF 32. Only one container (Order No. 12) failed USDA inspection, which had average defects of 9%. See PUF 34. However, each of the USDA reports did indicate some degree of decay. See Trinity Ex. B at Bates Nos. 000073-000080. Additionally, on February 16, 2009, and February 20, 2009, Trinity sent e-mails to Raden and De Nadai regarding severe damage to Order No. 30. See Trinity Ex. B at Bates Nos. 000106-000114. On February 20, 2009, Trinity sent another e-mail to Raden and De Nadai that M&R's kiwis were not holding up well in storage, and that Trinity had been telling De Nadai and Raden this "from the beginning." See id. at Bates No. 000116. White has declared that there were "numerous condition and quality issues" with M&R's kiwis. See Supp. White Dec. ¶ 7.
Trinity marketed and sold the kiwis, accounted to M&R for its handling of all loads, and submitted the net returns to M&R, which were accepted by M&R. See DUMF 4. The price obtained by Trinity was below the minimum price that M&R was anticipating. See Martini Dec. ¶ 4. Martini reviewed liquidation reports, but did not believe that the liquidation reports explained what he believed to be the low returns. See Martini Dec. ¶ 41. In some instances, there were up to 3 liquidation reports, and sometimes the reports were unclear and appeared to be inconsistent with each other. See PUF 18. In Raden's words, "in some instances, there were one, two, and three liquidation reports before we got the accurate thing, and in some cases we never did." PUMF 19. M&R never received a satisfactory explanation as to why the returns were so low. PUF 20.
In March 2009, Trinity's president David White ("White") met with Raden at Trinity's offices in California. DUMF 5. Raden was unhappy with the sales returns for M&R's kiwis, as well as repackaging charges by Trinity that were incurred to address the numerous condition and quality issues with M&R's kiwis. See id. During the meeting, White verbally informed Raden that Trinity disputed any amounts owing to M&R in connection with the sales of M&R's kiwis. See DUMF 7. Additionally, White declares that, while he cannot attest to what M&R may have done, he can "say with certainty that Trinity never agreed to keep a book account' in connection with the handling of [M&R]'s kiwi, nor did [Trinity] keep a book account together with [M&R] or separately." Supp. White Dec. ¶ 16.
Following the meeting, Raden sent an e-mail on March 31, 2009, to White and two Trinity employees. DUMF 6. Raden's e-mail outlined his thoughts about additional amounts that could have been returned to M&R in connection with the kiwi sales. See id. The e-mail had two pages of a spreadsheet-like-chart. See M&R Ex. 20. The spreadsheet described five "Groups" of kiwi loads, and four of the five groups have a column for an "amount due." See id. In pertinent part, Raden's e-mail reads:
[P]lease find attached a chart re-capping our meeting in California. The issues discussed have been broken into Five Categories.
Group One - Costco and Sam Fixed price 5% commission. On the highlighted loads we would ask to see the usda/Deco and repacking slips to verify the repacking of these loads.
Group Two - 9kg vf loads arrived on the East Coast and transferred to the west coast.
Group Three - 9kg vf loads arrived on the West Coast. On the highlighted loads we would ask to verify the sell prices of the liquidation as they are not consistent with the published data for sell prices during the arrival times of the loads. The prices presented are considerably lower than published data.
Group Four - Insurance Claim.... we are hoping that this load was submitted for an insurance claim as the demurrage charges are excessive. If it has not, please have Barthco submit an explanation of the demurrage charges and we will claim against the steamship company.
Group Five - Invoices Due. [A certain invoice] is due now and no deductions for product loss or repacking will be agreed to as this is a 9kg east coast arrival transferred to the west coast.
The last three of the loads invoices are due in May. If there are any deductions for product quality at the time of payment, we would need to see the usda and repacking slips.
The growers are still considering the returns on several other invoices, which I would hope to have back to you later today, Group Six.
Please let us know by the end of the week if the information provided is in accordance with our conversation and acceptable in principle. As many of these invoices are quite old in terms of an acceptable due date, several of the suppliers need this confirmation by the end of the week or they will proceed with claims the first of next week.
We appreciate the help and patience of all parties and hope that we can quickly bring all issues to a conclusion.
Raden testified at his deposition that he could not recall the March 2009 meeting that he referenced in the March 31 e-mail, nor could Raden recall preparing the March 31 e-mail. DUMF 8. Consequently, Raden could not testify that the e-mail summarized an actual agreement between the parties. See id.
On the other hand, White declares that there was never any agreement between Trinity and M&R that additional amounts were due and owing to M&R, nor did Trinity expressly or impliedly agree to pay any additional sums in connection with the sales of ...