United States District Court, E.D. California
MARTINI E RICCI IAMINO S.P.A. -- CONSORTILE SOCIETA AGRICOLA, an Italian Company, Plaintiffs
WESTERN FRESH MARKETING SERVICES, INC., a California Corporation, and DOES 1-20, Defendant
[Copyrighted Material Omitted]
Martini E Ricci Iamino S.P.A. -- Consortile Societa Agricola, citizen of Italian Republic, Plaintiff: David L. Strong, LEAD ATTORNEY, Menekshe Law Firm, Campbell, CA; John R. Campo, LEAD ATTORNEY, Branson, Brinkop, Griffith & Strong, Redwood City, CA.
For Western Fresh Marketing Services, Inc., a California Corporation, Defendant: Lawrence H. Meuers, LEAD ATTORNEY, Meuers Law Firm, P.L., Naples, FL; Steven E Nurenberg, PHV, LEAD ATTORNEY, PRO HAC VICE, Meuers Law Firm, P.l., Naples, FL.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(Doc. No. 24)
SENIOR DISTRICT JUDGE.
This case stems fro the provision of kiwi fruit from Plaintiff Martini E Ricci Iamino S.P.A. (" M& R" ) to Western Fresh Marketing Services, Inc. (" Western" ). The active complaint is the First Amended Complaint (" FAC" ). M& R alleges five causes of action against Western in the FAC: (1) breach of contract under the United Nations Convention for the International Sale of Goods (" CISG" );  (2) breach of written contract; (3) price of goods; (4) account stated; and (5) open book account. Western now moves for summary judgment. For the reasons that follow, Western's motion will be granted.
Western has been in continuous existence since 1994 and is a year-round supplier of imported and domestic fruit. DUMF 1. M& R is an agricultural consortium located in Italy, that is engaged in producing and shipping kiwi fruit for sale in North America and other parts of the world. See DUMF 5; PUMF 24. Andrea Martini (" Martini" ) is the Vice-President of M& R. See PUMF 25. Gary Raden (" Raden" ) is the owner and individual manager of RadenGrp, LLC (" RadenGrp" ), a limited liability company with its principal place of business in Big Sky, Montana. DUMF 2. RadenGrp has been in continual existence since 1971 and serves as a sales agent in North America for fruit and wine producers in Europe and North Africa. Id. RadenGrp works in conjunction with a partner agent in Europe, Stefano De Nadai (" De Nadai), to solicit product from producers and shippers, and to negotiate sales of the product to North American customers. See DUMF 4. 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 of kiwi. See PUMF 26. De Nadai is not an employee of M& R, rather De Nadai and Raden are independent sales people. See Martini Dec. ¶ 3.
De Nadai would inform Raden about the M& R kiwis available and the terms under which M& R would be willing to sell and ship them. See id. In late 2008, Western was contacted by Raden with a proposal for Western to market and sell M& R's kiwi fruit during the 2008-2009 kiwi fruit season. DUMF 6. RadenGrp negotiated a deal with Western to sell M& R's kiwi fruit in the United States during the 2008-2009 season. DUMF 7. RadenGrp negotiated the deal and acted on behalf of M& R. See Raden Dec. ¶ ¶ 5, 14; DUMF 5.
Western paid no fees to Raden or De Nadai in connection with the 2008-2009 M& R kiwis, nor was Western ever asked to do so. See Kragie Dec. ¶ 9. Raden communicated directly with Western employees concerning the M& R kiwis, and De Nadai would then communicate the orders to Martini in the form of an e-mail outlining the terms of the proposed sale. See Martini Dec. ¶ 3; Kragie Dec. ¶ 5
Under the agreement, M& R agreed to pay Western an 8% sales commission and reimburse Western for all of its sales expenses. DUMF 10. Western agreed to collect the sales proceeds from its customers, deduct its commissions and expenses, accurately account for all sales and deductions, and remit the net proceeds to M& R. DUMF 11. None of the shipments of kiwi fruit were purchased by Western from M& R, nor did Western offer to purchase any of the shipments. DUMF 13.
George Kragie (" Kragie" ), Western's president, described the agreement as follows:
[M& R] and [Western] reached a deal wherein [Western] agreed to receive and sell [M& R]'s kiwi fruit on an open consignment basis. [Western] retained full authority to set the sales prices of the kiwi fruit based on the kind and quality of the shipments received and the market conditions existing at the time.
The agreement did not call for [Western] to market and sell [M& R]'s kiwi fruit at fixed or agreed prices, nor did [Western] agree to remit specific net sales returns to [M& R]. In fact, had [M& R] insisted that [Western] remit specific net sales returns, [Western] would not have entered into the agreement to market and sell [M& R's] fruit.
. . . .
[Western] agreed to collect the sales proceeds from its customers, deduct commissions and expenses, accurately account for all sales and deductions, and remit the net proceeds to [M& R].
Kragie Dec. ¶ ¶ 6-7, 10. This is consistent with Raden, who described the M& R/Western agreement in pertinent part as follows:
. . . [Western] agreed to receive and sell [M& R]'s kiwi fruit on an open consignment basis, meaning that [Western] had
full authority to set the sales prices of the kiwi fruit based on the kind and quality of the shipments received and the market conditions existing at the time. None of the shipments of kiwi fruit were required to be sold by [Western] at fixed or agreed upon prices, nor was there an expectation under the agreement that [Western] would remit specific net sales returns to [M& R].
. . . .
[Western] had a duty to collect the sales proceeds from its customers, deduct all expenses, accurately account for all sales and expenses, and remit the net proceeds to [M& R].
. . . .
Each of the 10 containers was shipped to [Western] on an open consignment basis; none of the shipments of kiwi fruit were direct sales to [Western].
Raden Dec. ¶ ¶ 6, 8, 10. Further, in an e-mail to Kragie, De Nadai stated " I was personally in charge to transmit and confirm orders to packers, so I can confirm that on all my written confirmations to [M& R], it was clearly stated that shiments [sic] were intended on an open consignment basis to [Western], as to some other receivers." Western Ex. 000034. In contrast, however, Martini has declared that: " [M& R] shipped kiwi to [Western] during the 2008-2009 [season] pursuant to an understanding that [Western] would obtain a minimum price as indicated in order e-mails . . . and reiterated in invoices . . . " Martini Dec. ¶ 4.
For each of the 10 shipment orders, an e-mail was sent from De Nadai to Martini, and Raden was a " cc" recipient. See Raden Dec. Ex. 1; M& R Exs. A to J. Each of the 10 e-mails has a section that lists a number of pallets for different sizes of kiwis, and a number in United States dollars. See id. Martini declares that the dollar figure is the minimum price per box. See, e.g., Martini Dec. ¶ ¶ 10, 11; see also PUMF 27. Each of the 10 e-mails also expressly states " open consignment." See Raden Dec. Ex. 1.
Pursuant to the agreement, M& R shipped 10 ocean containers of kiwi fruit to Western. Raden Dec. ¶ 9. Each of the shipments included a pro forma invoice, which is an invoice required by the United States Customs and Border Protection Agency for examination, classification, and appraisal of imported goods. See DUMF 20. With the exception of Order 75, the pro forma invoices have a U.S. dollar figure that corresponds to the per box U.S. dollar figure in the e-mails from De Nadai to Martini. Cf. Raden Ex. 1 with M& R Exs. 000007, 000020, 000034, 000049, 000064, 000081, 000096, 000109, 000125, and 000142.
According to Kragie, the shipments received at Western's warehouse were of inferior quality, with extensive hail and sunburn damage, as well as " shrivel." See Kragie Dec. ¶ 13. Some of the shipments appeared to have been packed so that good quality fruit was on the top layers and poor quality fruit was on the bottom layers. See Kragie Dec. ¶ 15. Western was required to repack such fruit in order to make it marketable to customers. See id. Some of the fruit that was delivered to Western's customers was rejected. See id. at ¶ 16. Five of the shipments (Order Nos. 23, 45, 46, 66, and 77) received a U.S. No. 1 grade and did not fail the United States Department of Agriculture (" USDA" ) inspection. See Martini Dec. ¶ ¶ 8, 16, 20, 24, 32. The remaining five shipments (Order Nos. 24, 75, 78, 83, and 84) failed to meet the minimum standards for importation ...