District Court of Appeal of Florida,

Fourth District.

Ivana Vidovic MLINAR, Appellant,

v.

UNITED PARCEL SERVICE, INC., Pak Mail of Wellington, Inc., Recovery Management Corp. d/b/a Cargo Largo and Aaron Anderson, Appellees.

 

No. 4D12–1332.

Oct. 9, 2013.

 

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 502008CA 036246XXXXMB.Jack Scarola and Mara R.P. Hatfield of Searcy Denney Scarola Barnhart & Shipley, P.A., and Shannon M. Mahoney of Law Offices of Shannon Mahoney, P.A., West Palm Beach, for appellant.

 

Evan S. Gutwein and David R. Heffernan of Hamilton, Miller & Birthisel, LLP, Miami, for appellee United Parcel Service, Inc.

 

TAYLOR, J.

*1 Ivana Vidovic Mlinar appeals a final order dismissing all of her claims against UPS on the ground that the claims were preempted by the Carmack Amendment. We affirm.

 

Factual Background

Appellant is an artist who created two valuable oil paintings: Advice and The Messenger. Her husband took the paintings to Pak Mail, a third party retailer, to be shipped via UPS to New York. When the container arrived at its intended destination in New York, it was empty. The duct tape had been sliced and the paintings had been removed. Appellant reported the loss to UPS and Pak Mail. Months later, Pak Mail offered her $100 for the missing contents of the package.

 

At some point, UPS sold the paintings to Cargo Largo, UPS’s lost goods contractor. Cargo Largo later auctioned the paintings. An individual named Aaron Anderson purchased one of the paintings at the Cargo Largo auction.

 

About two years after appellant lost possession of the paintings, she received a telephone call from Anderson, who informed her that he had just purchased Advice at the Cargo Largo auction sale. Anderson inquired into the value of the painting, and she informed him that it had been appraised to be worth $20,000. He also informed her that The Messenger was auctioned in the same lot, but that he did not know the identity of the purchaser.

 

Anderson placed a listing online offering to sell Advice and even offering to introduce the buyer to appellant. He eventually acquired The Messenger as well. He then placed advertisements online in which he offered to sell or trade both paintings, and again offered to introduce the buyer to appellant.

 

Based on the above facts, appellant filed suit against UPS, Pak Mail, Cargo Largo, and Anderson. According to the operative complaint, UPS selectively located the contents of her container “based on their nature, probable worth, and lack of insurance,” and then sold the paintings to Cargo Largo for “some as of yet undiscovered consideration.” UPS also utilized appellant’s contact information on the back of each painting “to catalogue, sell and/or distribute” the paintings to Cargo Largo.

 

Appellant asserted four claims in her complaint: Conversion (Count I—against UPS, Cargo Largo, and Pak Mail), Profiting by Criminal Activity (Count II—against UPS, Cargo Largo, and Pak Mail), Unauthorized Publication of Name or Likeness (Count III—against UPS, Cargo Largo, and Anderson), and a claim under Florida’s Deceptive and Unfair Trade Practices Act (Count IV—against UPS).

 

The trial court dismissed all of appellant’s claims against UPS, ruling that they were preempted by the federal Carmack Amendment. This appeal followed.

 

Standard of Review

[1] The standard of review of a trial court’s order of dismissal is de novo. Gomez v. Fradin, 41 So.3d 1068, 1070 (Fla. 4th DCA 2010).

 

Law on Carmack Preemption

[2] The Carmack Amendment to the Interstate Commerce Act was enacted in 1906 to establish a uniform national policy for interstate carriers’ liability for property loss. N.Y., N.H. & Hartford R.R. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S.Ct. 986, 97 L.Ed. 1500 (1953). Under the Carmack Amendment, a carrier is generally liable for the actual loss or injury to the property. 49 U.S.C. § 14706(a)(1). However, a carrier may limit its liability to “a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” 49 U.S.C. § 14706(c)(1).

 

*2 [3][4][5] Consistent with the goal of uniformity, the Carmack Amendment preempts state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments. N. Am. Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 456 (7th Cir.1996). The Carmack Amendment’s preemptive scope supersedes all the regulations and policies of a particular state upon the same subject. Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S.Ct. 148, 57 L.Ed. 314 (1913). Carmack Amendment preemption embraces “all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation….” Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196, 36 S.Ct. 541, 60 L.Ed. 948 (1916). A cause of action not within the ambit of the preemptive scope of the Carmack Amendment is the rare exception. Brightstar Int’l Corp. v. Minuteman Int’l, 2011 WL 4686432 (N.D.Ill.2011).

 

[6] As a general rule, the Carmack Amendment broadly preempts common law fraud, conversion, and unfair trade practices claims. See, e.g., Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 689 (9th Cir.2007) (stating that the Carmack Amendment preemption “applies equally to fraud and conversion claims arising from a carrier’s misrepresentations as to the conditions of delivery or failure to carry out delivery”); Moffit v. Bekins Van Lines Co., 6 F.3d 305, 306–07 (5th Cir.1993) (holding that the Carmack Amendment preempted various state law claims, including fraud, negligent and intentional infliction of emotional distress, slander, and a claim under the Texas Deceptive Trade Practices Act, when a moving company failed to deliver household goods to a new home in time for Christmas); Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir.1997) (holding that fraud “claims relating to the making of the contract for carriage are so closely related to the performance of the contract, and the measure of damages for such claims so likely to be the loss or damage to the goods, that they are also preempted by the Carmack Amendment”); Rini v. United Van Lines, Inc., 104 F.3d 502, 506 (1st Cir.1997) (holding that Carmack Amendment preempted a shipper’s claim for violation of the Massachusetts Consumer Protection Act); United Van Lines v. Shooster, 860 F.Supp. 826, 828–29 (S.D.Fla.1992) (finding that the Carmack Amendment preempted a claim based on an alleged fraudulent estimate made to induce a contract); see also Miracle of Life, LLC v. N. Am. Van Lines, Inc., 368 F.Supp.2d 494, 498 (D.S.C.2005) (collecting cases).

 

[7] Situations may exist, however, in which the Carmack Amendment does not preempt all state and common law claims. Smith v. United Parcel Serv., 296 F.3d 1244, 1248 (11th Cir.2002). Claims that are “based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption.”   Id. at 1249. For example, “no doubt exists that if a UPS driver intentionally assaulted and injured” a plaintiff, the Carmack Amendment would not preempt the cause of action. Id.

 

*3 Other courts have applied a different test, ruling that preemption does not apply if “the shipper alleges injuries separate and apart from those resulting directly from the loss of shipped property.” See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 382 (5th Cir.1998). Under this test, a claim alleging a harm independent from the loss or damage to the goods is not preempted by Carmack. See Braid Sales & Mktg., Inc. v. R & L Carriers, Inc., 838 So.2d 590, 593 (Fla. 5th DCA 2003) (“Here, Braid’s claim of an alleged oral contract between the parties for payment of repairs, entered into after the shipment was completed, constitutes a separate harm which is independent from the loss or damage to goods. As such the claim is not preempted.”); Rini, 104 F.3d at 506 (“[A] claim for intentional infliction of emotional distress alleges a harm to the shipper that is independent from the loss or damage to goods and, as such, would not be preempted.”); Gordon, 130 F.3d at 289 (holding that claim of intentional infliction of emotional distress was not preempted).

 

Analysis of Appellant’s Claims

[8] We agree with the Eleventh Circuit that the proper test for whether claims escape Carmack preemption is whether the claims are based on conduct separate and distinct from the delivery, loss of, or damage to goods. “In other words, separate and distinct conduct rather than injury must exist for a claim to fall outside the preemptive scope of the Carmack Amendment.” Smith, 296 F.3d at 1249 (emphasis added).

 

[9][10] Applying this standard, we conclude that all of appellant’s claims against UPS are preempted by the Carmack Amendment. First, we find that appellant’s claim against UPS for conversion is preempted because it is predicated upon UPS’s failure to deliver appellant’s goods. See Laing v. Cordi, 2012 WL 4792905 (M.D.Fla. Oct.9, 2012) (“Plaintiffs’ claims for conversion and civil theft are predicated on Estes’ alleged failure to deliver plaintiffs’ goods. Although plaintiffs allege that Estes knowingly, intentionally, and maliciously appropriated and converted plaintiffs’ personal property, these contentions do not alter the fact that the claims are based on Estes’ alleged failure to deliver their personal property.”) (record citations omitted). We recognize that some courts allow an exception from preemption “when there has been a true conversion, i.e., where the carrier has appropriated the property for its own use or gain.” Glickfeld v. Howard Van Lines, 213 F.2d 723, 727 (9th Cir.1954). However, we decline to craft such an exception. Conversion is an intentional tort under Florida law. See, e.g., Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1223 n. 4 (Fla.2010). We find that any distinction between “true” conversions and other conversions is unworkable in practice. Accordingly, we conclude that appellant’s conversion claim is preempted by the Carmack Amendment even though it includes allegations of intentional conduct. To hold otherwise would undermine the Carmack Amendment’s goal of creating a uniform national policy on a carrier’s liability for property loss.

 

*4 [11] Second, we conclude that appellant’s claim against UPS for the unauthorized use of her name or likeness is preempted by the Carmack Amendment. Courts have held that even claims of slander or damage to reputation are preempted by the Carmack Amendment. See Moffit, 6 F.3d at 306–07 (holding that Carmack Amendment preempted all of the plaintiffs’ claims, including slander); Design X Mfg., Inc. v. ABF Freight Sys., Inc., 584 F.Supp.2d 464, 468 (D.Conn.2008) (holding that Carmack Amendment preempted furniture company’s claim against carrier for loss of business and reputation arising out of damaged desk delivered to one of the plaintiff’s customers; the “alleged loss to business and reputation flowed directly from the damage to the goods shipped in interstate commerce and the subsequent claims process”). Similarly, in this case we find that UPS’s alleged unauthorized use of appellant’s likeness in the resale of her paintings flowed directly from UPS’s course of conduct in failing to deliver the paintings. This claim is therefore preempted.

 

[12] Finally, we hold that appellant’s claims against UPS in Counts II and IV are also preempted. These counts, which allege fraud and deceptive conduct relating to the formation of the shipping contract, are so closely related to the performance of the contract that they are preempted. See, e.g., Gordon, 130 F.3d at 289 (holding that fraud “claims relating to the making of the contract for carriage are so closely related to the performance of the contract, and the measure of damages for such claims so likely to be the loss or damage to the goods, that they are also preempted by the Carmack Amendment”); Schultz v. Auld, 848 F.Supp. 1497, 1503 (D.Idaho 1993) (“Decisions more recent than those on which Plaintiff relies have uniformly upheld the preemptive effect of the Carmack Amendment and that the application of a state’s deceptive trade practices act is totally incongruous with the purposes of the Carmack Amendment.”).FN1

 

Conclusion

We affirm the trial court’s final order of dismissal.

 

Affirmed.

 

CIKLIN, J., and ROBINSON, MICHAEL A., Associate Judge, concur.

 

FN1. While there are some cases holding that the Carmack Amendment does not preempt unfair trade practice claims, see Mesta v. Allied Van Lines Int’l, Inc., 695 F.Supp. 63 (D.Mass.1988); Sokhos v. Mayflower Transit, Inc., 691 F.Supp. 1578 (D.Mass.1988); Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980), these cases are in the minority and two of them have been disapproved. See Rini, 104 F.3d 502, 506 n. 3 (1st Cir.1997) (“To the extent [Sokhos and Mesta ] are inconsistent with our holding, they do not represent the law of the circuit.”).

United States District Court, N.D. California

San Jose Division

Sephora USA, Inc., a Delaware corporation, Plaintiff,

v.

J.B. Hunt Transportation, an Arkansas corporation; BDS Transport LLC, a Utah corporation; and Does 1–10, inclusive, Defendants.

 

Case No.: 5:12–cv–3252–PSG

5:12–cv–03252Filed October 10, 2013

 

Andrea R. Shearer, Adam Curtis Brown, Hill Rivkins Brown & Association, A Professional Law Corporation, Fair Oaks, CA, for Plaintiff.

 

Andrew D. Kehagiaras, Roberts & Kehagiaras LLP, Long Beach, CA, Gregg S. Garfinkel, Nemecek & Cole, Sherman Oaks, CA, for Defendants.

 

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

(Re: Docket Nos. 36, 48, 63)

PAUL S. GREWAL, United States Magistrate Judge

*1 In this carrier liability dispute, Defendant J.B. Hunt Transportation et al (“Defendants”) moves for partial summary judgment.FN1 Plaintiff Sephora USA, Inc. (“Sephora”) opposes the motion. The parties appeared for oral argument. Having considered the papers and arguments of counsel, the court hereby DENIES Defendants’ motion.

 

FN1. See Docket No. 36.

 

I. BACKGROUND

Sephora develops and sells cosmetic products and toiletries around the world. Sephora contracts with external providers to transport its products to retail stores. Defendant J.B. Hunt Transport (“JBHT”) provides such services as a cargo-shipper.

 

A. Preliminary Negotiations

In early 2010, Sephora and JBHT entered negotiations for JBHT to provide shipping services for Sephora.FN2 The primary contact points for these negotiations were Evan Hendrix (“Hendrix”) for JBHT and Janet Begunich (“Begunich”) for Sephora. The negotiations continued for more than six months by both phone and email.

 

FN2. See Docket No. 36 at 2.

 

On January 20, 2010, Begunich informed Hendrix by email that an average truckload of Sephora products was valued at approximately $500,000.FN3 Hendrix asked if she would like rates based on that value, for which he would need to seek approval from higher management, or if she would prefer quotes based on a lower value.FN4 Begunich indicated that while Sephora would be most interested in rates based on a $500,000 value, Sephora did carry its own insurance on the products and would therefore be interested in looking at other options if the rates would be significantly higher for a $500,000 load. FN5

 

FN3. See id. at 3.

 

FN4. See id.

 

FN5. See id.

 

On February 1, 2010, Hendrix emailed Begunich a packet of documents called the “Total Transportation Solution,” which provided Sephora with shipping rates based on $100,000 and $250,000 total liability per truck and included a clause indicating that for higher fees, JBHT could make shipments bearing greater liability.FN6 Neither party contends that a contract was entered into based on these rates. For the next several months, JBHT made shipments for Sephora based on “spot rates,” as negotiations continued for a longer term contract.FN7

 

FN6. See id.

 

FN7. See Docket No. 48 at 3.

 

B. June 25–30, 2010 Email Exchange

On June 25, 2010, Begunich emailed Hendrix to solicit a quote for certain shipments due to be moved that Friday, July 2, 2010.FN8 Hendrix asked whether Begunich would like spot rates or long-term rates, and she responded that she would prefer long-term.FN9

 

FN8. See id.

 

FN9. See id.

 

On June 29, 2010 Hendrix send Begunich with spot rates for the July 2 shipment, with a promise that his long term rates would follow.FN10 Begunich responded with a request for more information about JBHT’s liability limits. The next day, Hendrix responded that it was going to be “difficult” to find trucks to carry the some of loads with $250,000 or more in liability. The parties exchanged several more emails expressly referencing both the July 2 shipments and the longer term quotes to be forthcoming, discussing rates, insurance, and fuel surcharges. That afternoon, Begunich asked Hendrix, “Can you rate them ALL at $100K liability? I think that is acceptable.” Hendrix provided quotes based on that liability limit, and JBHT shipped the July 2 freight.

 

FN10. See Docket No. 36 at 4.

 

*2 The parties continued negotiating for several more months over permanent, long-term rates for Sephora. On August 5, 2010 Begunich emailed Hendrix a copy of a rate agreement signed by her supervisor, Martin Flaherty (“Flaherty”).FN11 Hendrix informed Begunich that those rates would be good for one year.FN12 However, the rate agreement in question did not specifically mention anything about the carrier’s liability limits.FN13 On August 20, 2010, Hendrix sent Begunich an email with the subject line “increasing cargo value,” in which he offered to limit Sephora’s shipments to carriers with cargo liability limits at $250,000 and above, but he never received a response to that email.FN14

 

FN11. See Docket No. 45, Exh. 24.

 

FN12. See id.

 

FN13. See id.

 

FN14. See Docket No. 36 at 8.

 

C. February 17, 2011 Shipment

Sephora arranged for JBHT to deliver a truck load of products from Salt Lake City, Utah to Kent, Washington, with pick up on February 17, 2011.FN15 For this shipment, JBHT was acting under the assumption that the $100,000 liability limit requested by Begunich on June 30 and (in their opinion) cemented by the August 5, 2010 agreement was at work, so it did not designate the loads “high value,” and follow the advanced protocols in place for such shipments.FN16 Sephora, on the other hand, was under the impression that the August 5, 2010 agreement had not included any liability limitation, and that none was at play in the February 17, 2011 shipment.FN17

 

FN15. See id. at 9.

 

FN16. See id.

 

FN17. See Docket No. 48 at 6–7.

 

The shipment was picked up as scheduled on February 17, 2011 by a JBHT contractor, who completed a bill of lading prepared by Sephora.FN18 The bill of lading contained neither a statement of value nor a statement of liability limitations.FN19

 

FN18. See Docket No. 36 at 9–10.

 

FN19. See Docket No. 36 at 10.

 

On February 18, 2011, the driver entrusted with Sephora’s cargo reported that it had been stolen.FN20 JBHT reported the theft to their insurer, who assigned an investigator to the matter.FN21 On February 23, 2011, Sephora’s insurer also hired a private investigation firm to look into the theft.FN22 In late March, $367, 551.69 worth of the cargo was recovered, out of the original $510,793.26 worth of product.FN23 There are conflicting reports about the investigation teams’ working relationship, and their relationship with the Los Angeles Police Department.FN24

 

FN20. See id.

 

FN21. See id.

 

FN22. See Docket No. 48 at 7.

 

FN23. See id. at 10.

 

FN24. Compare id. with Docket No. 36 at 11.

 

On June 22, 2012, Sephora filed this suit alleging a single cause of action for damage to cargo.FN25 Sephora seeks $369,521.13 in damages for the value of the lost product, as well as $223,003.75 in investigation costs. Defendant argues that its liability was limited at $100,000, and hiring an investigative firm went beyond what was reasonable for mere mitigation, so they are not liable to reimburse for those costs.

 

FN25. See Docket No. 34.

 

JBHT now moves for partial summary judgment on two grounds.FN26 First, it seeks summary judgment establishing that it is entitled to limit its liability to $100,000 under the Carmack Amendment.FN27 Second, it argues that Sephora has failed to raise any issues of material fact that would establish that it has a right to recover the cost of investigation under the Carmack Amendment.FN28

 

FN26. See Docket No. 36.

 

FN27. See id. at 1.

 

FN28. See id.

 

II. LEGAL STANDARDS

Summary judgment is appropriate only if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FN29 There are two distinct steps to a motion for summary judgment. The moving party bears the initial burden of production by identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a triable issue of material fact.FN30 Where the moving party has the burden of proof at trial, he must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” FN31 If the moving party does not bear the burden of proof at trial, however, he may satisfy his burden of proof either by proffering “affirmative evidence negating an element of the non-moving party’s claim,” or by showing the non-moving party has insufficient evidence to establish an “essential element of the non-moving party’s claim.” FN32 If the moving party meets its initial burden, the burden of production then shifts to the non-moving party, who must then provide specific facts showing a genuine issue of material fact for trial.FN33 A material fact is one that might affect the outcome of the suit under the governing law.FN34 A dispute is “genuine” if the evidence is such that reasonable minds could differ and find for either party. FN35

 

FN29. Fed.R.Civ.P. 56(a).

 

FN30. See Fed.R.Civ.P. 56(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

 

FN31. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007).

 

FN32. Celotex, 477 U.S. at 331.

 

FN33. See id. at 330; T.W. Elec. Service, Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 630, 630 (9th Cir.1987).

 

FN34. See Anderson, 477 U.S. at 248.

 

FN35. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987).

 

*3 At this stage, the court does not weigh conflicting evidence or make credibility determinations.FN36 Thus, in reviewing the record, the court must construe the evidence and the inferences to be drawn from the underlying evidence in the light most favorable to the non-moving party.FN37

 

FN36. T.W. Elec. Serv., Inc., 809 F.2d at 630.

 

FN37. See Anderson, 477 U.S. at 248; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

 

III. DISCUSSION

A. Liability Limitation

The parties agree that the general measure for commercial carrier liability is the actual loss to the shipper. They also agree that the Carmack Amendment created an exception to that general rule, under which a carrier may limit its liability to a certain amount if it follows certain protocols. The Ninth Circuit addressed these protocols in OneBeacon Insurance Company v. Haas Industries.FN38 OneBeacon explains that a party seeking to limit its liability must: (1) provide the shipper with a copy of the shipping rate classification, rules, and practices in writing; (2) give shipper a reasonable opportunity to choose between two or more levels of liability; (3) get shipper’s consent to the choice of liability limitation; and (4) issue a bill of lading or receipt before moving the shipment that reflects any agreement to limit liability.FN39

 

FN38. 634 F.3d 1092, 1099 (9th Cir.2011).

 

FN39. See id. at 1100.

 

Here, the parties fundamentally disagree as to whether or not there was an agreement in place regarding liability in February 2011, and if so, what it provided. Their disagreement turns on a question of interpretation: in Begunich’s June 30, 2010 email, when she asked Hendrix to limit “ALL” the shipments to $100,000 in liability, was she referring just to the shipments for the coming Friday, or did she mean all shipments to be shipped with JBHT in the future? When read in context of the overall communications between Sephora and JBHT, the sentence is ambiguous. While the sentence itself emphasizes “ALL,” that phrase cannot be read in isolation.FN40 It came in the middle of a week-long email chain, and although the emails discuss long-term rates for Sephora, they focus primarily on the July 2 cargo. Because the two topics are not clearly separated within the emails, it is not clear from the face of the document whether the “them” in question referred simply to the rates for the July 2 shipments or to the longer-term rates that were also in discussion.

 

FN40. See, e.g., Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 433 (9th Cir.2011) (“language in a contract must be interpreted as a whole”); Bob Lewis Volkswagen v. Universal Underwriters Grp., 571 F.Supp.2d 1148, 1153 (N.D.Cal.2008) (“language in a contract must be construed in the context of that instrument as a whole.”)

 

Because the document is facially ambiguous, the court may look to parol evidence to clarify its meaning.FN41 In addition to the language of the email itself, and Hendrix’ email of August 20, JBHT points to Hendrix’ “unequivocal” deposition testimony that the email committed Begunich to a $100,000 liability limit “from that point on” as conclusive evidence that such a limitation was in place.FN42 Sephora, however, argues that the email only limited JBHT’s liability for the July 2, 2010 shipments.FN43 It points to the equally unequivocal declaration and deposition testimony of Begunich’s supervisor, Martin Flaherty, to substantiate its interpretation. FN44 This dispute in interpretation underlies the analysis of multiple OneBeacon factors.

 

FN41. See, e.g., Sussex Fin. Enterprises, Inc. v. Bayerische Hypo–Und Vereinsbank AG, 460 Fed.Appx. 709, 711 (9th Cir.2011) (“Under California law, parol evidence may be admitted to explain ambiguity in a … contract.”).

 

FN42. See Docket No. 36 at 13.

 

FN43. See Docket No. 48 at 14.

 

FN44. Defendants object to the consideration of Flaherty’s declaration and deposition testimony on the grounds that it is hearsay, improper opinion testimony, and lacks foundation. However, the evidence submitted is sufficient to establish, and it is uncontested, that Flaherty was Begunich’s supervisor at Sephora and would therefore have knowledge of their internal operations. He has testified and is available to testify at trial as to his first hand, personal knowledge of their operating procedures, which would govern the authorization needed by Begunich to commit to long term liability limitations. He can also testify from first-hand knowledge as to any conversations that he had or did not have with Begunich in connection with her June 30 email. This admissible evidence could be used to persuade a reasonable jury that Sephora’s interpretation of the contract is correct, making it relevant to the case at hand. Defendants’ objections are therefore overruled.

 

*4 In order to resolve this dispute and issue a ruling on summary judgment, the court would be required to decide which testimony correctly describes the contract, making it clear that the fact is material to the resolution of the case.FN45 Because credibility determinations are the traditional province of the jury,FN46 it would be inappropriate for the court to make such a determination at this time. Defendants’ motion for summary judgment on the issue of liability limitations is therefore DENIED.

 

FN45. See First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968) (genuine issue of material fact exists where the trier of fact would be required to resolve differing versions of truth at trial).

 

FN46. See United States v. Rosales, 7 Fed.Appx. 766 (9th Cir.2001) (“the question of the credibility of witnesses is one for the jury) (citing Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 216 (1931)”).

 

B. Mitigation Expenses

Defendants also seek summary judgment as to the reasonableness of Sephora’s mitigation expenses. Sephora seeks reimbursement for costs incurred by its insurer in hiring a private investigation firm to look into the theft of Sephora’s cargo. Defendant alleges that this conduct is unreasonable because no court would ever have mandated such measures. Sephora counters that because the cargo was eventually recovered through the investigation of the private firm, and the costs of retaining that firm plus the value of the goods lost is a reasonable damage rate.

 

Summary judgment is only appropriate on a question of reasonableness where no reasonable jury could find that the actions were appropriate.FN47 Specifically, the Ninth Circuit has consistently found that “in many areas of law,” “summary judgment is generally an inappropriate way to decide questions of reasonableness because the jury’s unique competence in applying the reasonable man standard is thought ordinarily to preclude summary judgment.” FN48 In this circumstance, given that the total damages sought (the value of the cargo recovered plus the costs of mitigation) are less than the value of the cargo lost, a reasonable jury may find that the actions were warranted. The court therefore declines to deprive the jury of the option to consider evidence on this point, and summary judgment on the matter is DENIED.

 

FN47. See McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984).

 

FN48. Eid v. Alaska Airlines, Inc., 621 F.3d 858, 868 (9th Cir.2010); see also Ortiz v. Bank of Am. Nat. Trust & Sav. Ass’n, 852 F.2d 383, 387 (9th Cir.1987) (“the reasonableness of mitigation efforts … is a question of fact”).

 

IT IS SO ORDERED.