NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE CITRI-LITE COMPANY, Plaintiff – Appellant,

v. COTT BEVERAGES, INC., Defendant – Appellee. No. 11-17609 D.C. No. 1:07-CV-01075 OWW JLT MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior Judge, Presiding

Argued and Submitted November 7, 2013 San Francisco, California Before: REINHARDT and WATFORD, Circuit Judges, and LYNN, District Judge. ** The Citri-Lite Company (“Citri-Lite”) appeals the district court’s judgment, resulting from its Findings of Fact and C onclusions of Law following a bench trial, that the efforts of Cott Beverages, Inc. (“Cott”) to promote Slim-Lite, a Citri-Lite 

# FILED
NOV 21 2013 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable Barbara M. G. Lynn, District Judge for the U.S. District Court for the Northern District of Texas, sitting by designation.product, pursuant to an exclusive license agreement between the parties, were commercially reasonable and that Cott did not violate the implied covenant of good faith and fair dealing. We have ju risdiction pursuant to 28 U.S.C. § 1291. We review the district court’s legal conclusions de novo. Husain v. Olympic Airways , 316 F.3d 829, 835 (9th Cir. 2002). We review its factual findings for clear error. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 878 (9th Cir. 2009). Having done so, we affirm. Citri-Lite contends that the district court erred in its interpretation of the term “commercially reasonable efforts,” whic h is contained in paragraph 2.4 of the parties’ license agreement. However, th e district court fairly considered the contract as a whole, the subject matte r and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract , and the reasonableness of respective interpretations advocated by the parties, as well as the extrinsic evidence as to industry standards and the parties’ prio r relationship and negotiations, when it concluded that the term “commercially reasonable efforts” permitted Cott to consider its own economic business intere sts in rendering performance and that an inquiry into commercial reasonableness must be evaluated in the context of the totality of the business arrangement. See DP Aviation v. Smiths Indus. Aero. & Def.
2Sys. , 268 F.3d 829, 838 (9th Cir. 2001); Gifford v. J & A Holdings , 54 Cal. App. 4th 996, 1005, 63 Cal. Rptr. 2d 253 (Cal. Ct. App. 1997). The district court found that, under the agreement, “commercially reasonable efforts” with respect to marketing were not restricted to product demonstrations. We agree. We conclude that the determination of whether “c ommercially reasonable efforts” were undertaken by Cott is a factual determination as to which the district court did not clearly err. Citri-Lite also contends that the district court erred in its definition and application of the implied covenant of good faith and fair dealing. The district court properly found that the exclusive li cense agreement defined Cott’s marketing obligations and that Cott did notbreach any implied covenant. Accordingly, the district court pr operly interpreted and applied the contractual term “commercially reasonable efforts” to conclude that Cott did not breach that provision in the license agr eement, and properly defined Cott’s duties and evaluated its performance with respect to an implied covenant of good faith and fair dealing. AFFIRMED.

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