Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

MEMORANDUM^* 

Scrivner and Wilson, Inc. dba S & W Construction, Inc. (S & W) appeals the district court's judgment in favor of Mobil Oil in S & W's breach of contract and fraud actions against Mobil. S & W contends that the district court erred by failing to consider its request to deny or postpone summary judgment while discovery was ongoing. S & W further contends that the district court erred on several grounds by granting summary judgment because there were genuine issues of material fact as to each of its claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Rule 56(f)

S & W contends that the district court erred by failing to consider its request under Fed. R. Civ. P. 56(f) to complete pending discovery before ruling on Mobil's motion for summary judgment. S & W further contends that it was improperly denied Rule 56(f) relief. These contentions lack merit. S & W (1) failed to file an affidavit in support of its 56(f) request; (2) failed to specify adequately the discovery it sought; (3) failed to show how the discovery it sought would reveal a genuine issue of material fact; and (4) failed to show that it diligently pursued discovery. Accordingly, the district court did not abuse its discretion by failing to consider S & W's Rule 56(f) application before deciding Mobil's motion for summary judgment. See Mackey v. Pioneer National Bank, 867 F.2d 520, 523-24 (9th Cir. 1989).

Implied Covenant of Good Faith and Fair Dealing

S & W contends that the district court erred by precluding it from pursuing contract damages for breach of the implied covenant of good faith and fair dealing. Although the district court applied the tort standard in assessing S & W's contractual claims, it correctly concluded that Mobil did not breach the implied covenant of good faith and fair dealing. See Gianelli Distributing Co. v. Beck & Co., 172 Cal. App. 3d 1020, 1036, 219 Cal. Rptr. 203 (1985).

San Ardo Contract

S & W contends that Mobil breached the San Ardo contract by terminating the contract without cause and by not providing S & W with thirty days written notice of termination. The contract did not require cause for termination; it provided for termination by either party upon thirty days written notice. Further, the contract was fully integrated. Thus, parol evidence was inadmissible to supplement or contradict the writing. See Sherman v. Mutual Benefit Life Ins. Co., 633 F.2d 782, 785 (9th Cir. 1980). Mobil provided S & W with the required thirty days notice.

Belridge Contract

S & W contends that Mobil made an oral agreement to assign S & W 100% of the earth moving work at the Belridge site for five years. The statute of frauds prohibits enforcement of the oral agreement because it is either an oral modification of the Belridge contract or a separate oral agreement which should have been in writing. See Cal.Civ.Code Sec. 1624(a) (West Supp.1990); Sorosky v. Burroughs Corp., 826 F.2d 794, 801 (9th Cir. 1987). Accordingly, we find no error.

S & W contends that the district court erred by finding S & W could not prove any damages for breach of the Belridge contract despite the factual issue whether the contract contained an implied-in-fact term requiring cause for termination. This contention also lacks merit. S & W failed to meet its burden to prove the amount and elements of damages it suffered as a result of the alleged breach. See Carpenter Foundation v. Oakes, 26 Cal. App. 3d 784, 799, 103 Cal. Rptr. 368 (1972).

S & W contends that the district court erred by not deciding the issue of Mobil's underpayment to S & W under the Belridge contract. S & W failed to raise this issue below. It is thus precluded from raising it here. See Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1332 (9th Cir. 1981).

Limitation of Damages to Thirty Days

S & W contends that the district court erred by limiting recoverable damages on the Vacuum Truck contract to thirty days. Where as here the contract provides for termination upon thirty days written notice, damages are restricted to thirty days. See Martin v. U-Haul Co., 204 Cal. App. 3d 396, 409, 251 Cal. Rptr. 17 (1988). Thus, the district court properly limited damages to thirty days on the Vacuum Truck contract.

Fraud

S & W contends that the district court erred by finding that S & W failed to present sufficient evidence to support its claims for fraud. Mobil's performance of the contracts for several years before cancelling them diminishes any inference of fraud. See Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362, 1368 (9th Cir. 1981). Because S & W failed to present any evidence of fraud, the district court properly granted Mobil summary judgment on this issue. See Cicone v. URS Corp., 183 Cal. App. 3d 194, 200, 227 Cal. Rptr. 887 (1986).

Punitive Damages

S & W contends that the district court erred by finding S & W could not recover punitive damages. The district court properly granted Mobil summary judgment on S & W's fraud claims, and S & W voluntarily dismissed its remaining tort claims. Punitive damages are not available for actions in contract. Cal.Civ.Code Sec. 3294(a) (West Supp.1990); Tibbs v. Great Am. Ins. Co., 755 F.2d 1370, 1375 (9th Cir. 1985). Because all remaining claims sounded in contract, the district court properly found that S & W could not recover punitive damages. See Cal. Civil Code Sec. 3294(a) (West Supp.1990); Tibbs, 755 F.2d at 1375.

AFFIRMED.