Talking Pictures, Inc., Plaintiff-appellant, v. Walgreen Company, Dba: Walgreens Defendant-appellee, 21 F.3d 1116 (9th Cir. 1994)

MEMORANDUM^* 

We review de novo the district court's grant of summary judgment. Jones v. Union Pacific R.R., 968 F.2d 937, 940 (9th Cir. 1992). We must determine whether the pleadings established a genuine issue of fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

The pleadings in the district court did not create a genuine issue of fact as to whether the contract between the parties was anything other than a consignment sale arrangement. Where the writings of the parties do not in themselves suffice to establish a contract, section 2207 of the California Commercial Code permits the courts to find the existence of a contract on the basis of those writings taken together with the parties' course of dealing. Because that course of dealing unequivocally established a sale or return contract, the district court did not err in holding that Talking Pictures, Inc.'s damages could not exceed $75,727.

In California diversity cases, we review the district court's denial of prejudgment interest for abuse of discretion. Adams v. Johns-Manville Corp., 876 F.2d 702, 704 (9th Cir. 1989). As the course of this litigation demonstrates, Walgreen's could not have calculated TPI's damages to a sum certain. We thus hold that Cal.Civ.Code Sec. 3287(a) did not apply and that the district court did not abuse its discretion in denying TPI's motion for the award of prejudgment interest.

AFFIRMED.