Unpublished Disposition, 872 F.2d 430 (9th Cir. 1983)

MEMORANDUM^* 

Techsonix Corporation appeals the grant of summary judgment in favor of Science Accessories Corporation. We affirm.

Science Accessories Corporation (SAC) manufactures sonic digitizers, devices that measure distance by using sound. SAC designed a sonic digitizer for Techsonix, called the DI-1A. Techsonix incorporated the DI-1A into an estimating system that it sold to the construction industry. The relationship between SAC and Techsonix, although apparently stormy for most of the time, continued for three to four years.

In April, 1986, Techsonix and Marsh Racine sued SAC for breach of contract, alleging that Techsonix had the exclusive right to market SAC's sonic digitizers to the construction industry. The district court granted summary judgment in favor of SAC on all counts of the complaint. Techsonix and Racine now appeal.

STANDARD OF REVIEW

This court reviews a summary judgment de novo, applying the same standard the district court uses. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629-30 (9th Cir. 1987). Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of showing that there is no genuine issue of fact, but once that burden is met, the nonmoving party must respond with specific, factual allegations showing a genuine dispute. Fed. R. Civ. P. 56(e); see Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987) (the opposing party must present significant probative evidence tending to support its claim or defense). Summary judgment is appropriate where the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

ECONOMIC DURESS

The agreement between Techsonix and SAC was memorialized in a series of letters. Techsonix argues that it cosigned the letter of March 8, 1983, under economic duress, so it is not part of the agreement. The district court was correct in considering the terms of this letter, because Techsonix did not provide sufficient evidence to create a genuine issue of material fact regarding its economic duress claim.

Economic duress occurs when a person subject to a wrongful act must succumb to the demands of the wrongdoer or else suffer financial ruin. Sheehan v. Atlanta Int'l Ins. Co., 812 F.2d 465, 469 (9th Cir. 1987). If the plaintiff has a reasonable alternative to succumbing to the pressure, he cannot claim economic duress. See id. Reasonable alternatives include an action for injunctive or declaratory relief to prevent the threat from being carried out, or an action for damages. Nesbitt Fruit Products, Inc. v. Del Monte Beverage Co., 177 Cal. App. 2d 353, 2 Cal. Rptr. 333, 337-38 (1960).

Techsonix presented no evidence of its financial condition, although it alleged impending financial ruin if it did not acknowledge the letter. Similarly, Techsonix did not present evidence to show that it had no reasonable alternatives, such as purchasing substitute digitizers from other manufacturers, or suing for injunctive or declaratory relief or damages. It was not wrongful for SAC to offer its own interpretation of the agreement, even if that interpretation proved incorrect. London Homes, Inc. v. Korn, 234 Cal. App. 2d 233, 44 Cal. Rptr. 262, 266 (1965). As a result, the March 8, 1983, letter is part of the agreement between Techsonix and SAC.

BREACH OF CONTRACT CLAIMS

Breach of Contract for Market Exclusivity

Sales of sonic digitizers by SAC to purchasers in the construction industry did not breach the contract. The agreement, as outlined in the communications between the parties, does not provide market exclusivity to Techsonix. The parol evidence rule prevents Techsonix from presenting evidence of the intent of the parties, or additional terms of the agreement, where it would conflict with the terms of the written contract. See Cal.Com.Code Sec. 2202 (West 1964). Techsonix cannot prevail on this breach of contract claim.

Breach of Contract for Sale of Upgrades

Similarly, Techsonix cannot prevail on its claim for breach of contract for SAC's alleged sales of upgrades of the DI-1A. The agreement provides that SAC will not sell upgrades of the DI-1A that Techsonix has contracted for. The parol evidence rule bars Techsonix from arguing that its intent was different from the express language of the agreement, and Techsonix has presented no evidence that it contracted for any upgrades of the DI-1A.

Breach of Contract for Late Delivery and Defective Products

Techsonix presented insufficient evidence to support a breach of contract claim for late delivery and defective product. The Uniform Commercial Code specifies procedures for rejecting goods, notifying the seller, and giving the seller an opportunity to cure. See Cal.Com.Code Secs. 2601-2608 (West 1964). No details were presented as to when goods were rejected, or when Techsonix notified SAC or requested SAC to cure any of the alleged defects or late deliveries. The broad allegations of Techsonix are insufficient to prevent summary judgment.

THE COVENANT OF GOOD FAITH AND FAIR DEALING

Techsonix's claim that SAC breached the covenant of good faith and fair dealing amounts to a reiteration of its breach of contract claim. Techsonix argues that sales of similar sonic digitizers to the construction industry destroys the value of its contract with SAC. The SAC-Techsonix agreement, as written, is not affected by any sales of sonic digitizers by SAC to any industry, because Techsonix can still order as many DI-1A's as it wants. To claim that the value of the agreement is destroyed by sales of similar sonic digitizers to other purchasers is essentially the same as claiming market exclusivity. Because market exclusivity is not a term of the agreement, this claim fails as well.

REMAINING CLAIMS

Techsonix's remaining claims, including a joint venture or trustee status that invokes fiduciary duties between the parties, unfair competition, unjust enrichment, and a constructive trust claim, are all meritless. Techsonix presented no evidence of the type of profit sharing, or joint control, that characterizes a joint venture. See Connor v. Great Western Savings and Loan Ass'n, 69 Cal. 2d 850, 447 P.2d 609, 73 Cal. Rptr. 369, 375 (1968). In addition, the March 8, 1983 letter characterizes the relationship as one of manufacturer to purchaser.

The unfair competition and unjust enrichment claims rely on the argument that SAC granted Techsonix market exclusivity in the construction industry. Because Techsonix's breach of contract claims fail, these claims must also fail.

A constructive trust is a remedy. Because Techsonix failed to establish any underlying claim, it is not entitled to a constructive trust on SAC's profits. See Taylor v. Fields, 178 Cal. App. 3d 653, 224 Cal. Rptr. 186, 194 (1986).

AFFIRMED.