A.C.L. Computers and Software v. United States

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
A.C.L. COMPUTERS AND SOFTWARE, No. 17-15633
INC.,
D.C. No. 3:16-cv-01485-SK
Plaintiff-Appellant,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Submitted June 14, 2018**
San Francisco, California
Before: SILER,*** PAEZ, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
A.C.L. Computers and Software, Inc. (ACL) appeals the district court’s
order dismissing its complaint against the Defense Logistics Agency (DLA) under
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1). We have
jurisdiction under 28 U.S.C. § 1291.
Under California law,1 the default rule is that “one owes no duty to control
the conduct of another, nor to warn those endangered by such conduct.” Zelig v.
County of Los Angeles, 27 Cal. 4th 1112, 1129 (2002) (citation omitted). ACL
fails to identify any applicable contractual or common-law duty requiring a
business to prevent third-party fraudsters from impersonating the business, or to
warn merchants who sell to the business on credit about the risk of such criminal
activity. Therefore, the district court did not err in rejecting ACL’s negligence
claim.
ACL does not plausibly plead a conversion claim based on respondeat
superior because there are multiple explanations for the loss of ACL’s merchandise
that do not involve DLA employees aiding in the theft of shipments, and ACL does
not offer facts, such as readily available Federal Express tracking information,
“tending to exclude the possibility that [one of] the alternative explanation[s] is
1
ACL bears the burden of demonstrating that the government would be
liable under the relevant state’s law, Bolt v. United States, 509 F.3d 1028, 1031
(9th Cir. 2007), and relies solely on California law.
2
true.” In re Century Aluminum Co. Secs. Litig., 729 F.3d 1104, 1108 (9th Cir.
2013).
ACL also fails to carry its burden to identify any California law establishing
that an involuntary bailment arises by the acceptance of misdelivered goods. See
Bolt v. United States, 509 F.3d 1028, 1031 (9th Cir. 2007). Even if California law
recognized such a claim, ACL does not plausibly plead that DLA employees took
possession of the shipments, let alone with notice that they were ACL’s property.
See Gordon H. Ball, Inc. v. Parreira, 214 Cal. App. 2d 697, 702 (1963).
AFFIRMED.
3