Aspex Eyewear, Inc. v. Vision Service Plan

MEMORANDUM

Plaintiff-Appellant Aspex Eyewear, Inc. appeals the district court’s dismissal of its complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We review de novo and affirm.

“[A] contract may, by its express terms, provide for a term of duration of indefinite length and without specific limitation, tied not to the calendar but to the conduct of the contracting parties.” Zee Med. Distrib. Ass’n, Inc. v. Zee Med., Inc., 80 Cal.App.4th 1 , 94 Cal.Rptr.2d 829, 833 (2000). Generally, “[a] construction conferring a right in perpetuity will be avoided unless compelled by the unequivocal language of the contract.” Nissen v. Stovall-Wilcoxson Co., 120 Cal.App.2d 316 , 261 P.2d 10, 12 (1953) (internal quotation omitted). “[I]n some cases,” however, “the court by referring to the nature of the contract and the totality of circumstances is able to determine that the obligations of the contract [are] impliedly conditioned as to duration upon the occurrence or nonoccurrence of some event or situation.” Consol. Theatres, Inc. v. Theatrical Stage Emp. Union, Local 16, 69 Cal.2d 713 , 73 Cal.Rptr. 213 , 447 P.2d 325, 333 (1968).

A contract with “neither an express nor an…