Unicon Financial Services, Inc. v. Intercept, Inc.

*28 MEMORANDUM **

This is an appeal from a summary judgement ruling in Intercept’s favor on Unicon’s breach of contract and declaratory judgment claims. This case was removed from state court based on diversity of citizenship. 28 U.S.C. § 1332 (a) and 28 U.S.C. § 1441 . This court has appellate jurisdiction under 28 U.S.C. § 1291 , and reviews de novo the district court’s grant of summary judgment. Arboireau v. Adidas-Salomon AG, 347 F.3d 1158, 1162 (9th Cir.2003).

The district court concluded Unicon failed to produce evidence raising a triable issue of fact as to damages—that is, Uni-con had not met its burden of showing whether royalties actually accrued after InterCept gave notice that Unicon breached them agreement. Under applicable California law, Unicon had the burden of producing evidence supporting its claim that it sustained damages as a result of Intercept’s alleged breach of their contract. See Cal. Civ.Code § 3301 (“No damages can be recovered for breach of a contract which are not clearly ascertainable in both their nature and origin.”); Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015 (9th Cir.2000) (“[A] breach of contract claim requires a showing of…