U.S. Glass & Aluminum v. Winco Window Co. CA1/3

Filed 9/18/24 U.S. Glass & Aluminum v. Winco Window Co. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

U.S. GLASS & ALUMINUM, INC. OF NEVADA, Plaintiff and Respondent, v. A169223 WINCO WINDOW COMPANY, (City & County of San Francisco Defendant and Appellant. Super. Ct. No. CGC23607266)

In 2023, U.S. Glass & Aluminum, Inc. of Nevada (U.S. Glass) sued Winco Window Company (Winco) alleging breach of contract. U.S. Glass petitioned the trial court to compel arbitration in San Francisco, while Winco petitioned for arbitration in Missouri. The court granted U.S. Glass’s petition and found Winco’s moot. Winco appeals the functional denial of its petition to arbitrate, and we affirm. BACKGROUND In 2021, U.S. Glass contracted Winco to manufacture windows for a housing development in San Francisco. U.S. Glass sent Winco a purchase order incorporating its “Standard Terms & Conditions.” Its terms required — if a dispute arose — arbitration in San Francisco. Winco replied via e-mail, “[y]our PO, as attached, has been accepted.” Winco attached the purchase order but drew an “X” over the terms clause and wrote, “EM Per Winco Terms 5/11/2021.” Winco’s terms required arbitration in Missouri. U.S. 1

Glass did not open the attachment because Winco indicated in its e-mail that it accepted the purchase order. After U.S. Glass sued, both parties petitioned the trial court to compel arbitration. The court heard the petitions concurrently and found Winco did not expressly condition its acceptance of U.S. Glass’s purchase order on U.S. Glass’s assent to Winco’s terms, and that the proposed changes were material. Therefore, it concluded U.S. Glass’s terms controlled. It granted U.S. Glass’s petition and ordered Winco’s off calendar.1 DISCUSSION Winco — relying on Roth Grading, Inc. v. Martin Bros. Constr. (E.D.Cal. 2020) 493 F.Supp.3d 865 and Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44 — argues the trial court erred in finding it did not expressly condition its acceptance of the purchase order on U.S. Glass’s assent to its terms. We disagree. “Where a commercial buyer and seller seeking to make a deal exchange forms containing inconsistent provisions, California Uniform Commercial Code section 2207 governs the existence of a contract and its terms.” (Transwestern Pipeline Co. v. Monsanto Co. (1996) 46 Cal.App.4th 502, 513, fn. omitted (Transwestern); undesignated statutory references are to this code.) Section 2207 provides a “ ‘definite and seasonable expression of acceptance . . . operates as an acceptance even though it states terms additional to or different from those offered,’ ” “ ‘unless acceptance is expressly made conditional on assent to the additional or different terms.’ ” (Transwestern, at p. 513, some italics omitted.) Whether a contract exists is a