Rite-way Meat Packers, Inc., a California Corporation,plaintiff-appellant, v. National Beef Packing Company, L.p.; Hyplains Beef, L.c.,defendants-appellees, 117 F.3d 1426 (9th Cir. 1997)

MEMORANDUM^* 

Rite-Way Meat Packers, Inc. ("Rite-Way") appeals the district court's grant of summary judgment in favor of National Beef Packing Company, L.P., and Hyplains Beef, L.C. (collectively "National") in its diversity action for breach of oral contract. We have jurisdiction pursuant to 28 U.S.C. § 1291. After a de novo review, see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S. Ct. 1261 (1996), we affirm.

Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. See Fed. R. Civ. P. 56(c); Warren, 58 F.3d at 441.

Rite-Way first contends that a March 4, 1994 oral agreement with National to purchase six loads of boneless navel per week through the end of 1994 is enforceable because National thereafter accepted two of Rite-Way's purchase orders for six loads. This contention lacks merit.

The Statute of Frauds requires contracts for the sale of goods for $500 or more to be in writing and signed by the party to be charged. See Cal. Com.Code § 2201(1).¹  However, an oral contract between merchants is enforceable where written confirmation is sent, unless the receiving party objects in writing within ten days after receipt. See Cal. Com.Code § 2201(2). The written confirmation must contain all essential terms to create an enforceable contract. See Ellis v. Klaff, 216 P.2d 15, 19 (Cal.Ct.App.1950). A purchase order does not constitute written confirmation of an oral agreement where it makes no reference to the agreement. See Continental Nut Co. v. Slate, 217 P.2d 673, 677 (Cal.Ct.App.1950).

Here, the two purchase orders sent by Rite-Way did not state the duration of the agreement. Thus, they were insufficient to constitute a written confirmation for lack of an essential term. See Ellis, 216 P.2d at 19. Furthermore, the purchase orders could not constitute written confirmation of the oral agreement because they made no reference to it. See Continental Nut Co., 217 P.2d at 677.² 

While Rite-Way did send National a proper written confirmation of the alleged oral agreement in a letter dated April 14, 1994, the letter did not create an enforceable contract because National objected to the confirmation in writing eight days later. See Cal. Com.Code § 2201(2). Accordingly, Rite-Way's alleged oral contract with National is barred by the Statute of Frauds as a matter of law. See Cal. Com.Code §§ 2201, 2201(2).³ 

Rite-Way also contends that there is a triable issue of material fact as to whether National should be equitably estopped from asserting the Statute of Frauds because Rite-Way would suffer unconscionable injury if National is allowed to repudiate the oral agreement. This contention lacks merit because Rite-Way admitted that it had not detrimentally changed its position in reliance on the alleged oral agreement. See Munoz v. Kaiser Steel Corp., 203 Cal. Rptr. 345, 348-49 (Cal.Ct.App.1989).⁴ 

AFFIRMED.