NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CUNICO CORPORATION,

Plaintiff

- Appellant,

v. CUSTOM ALLOY CORPORATION,

Defendant

- Appellee. No. 18

- 55047
D.C. No. 2:14

- cv - 01234

- PA

- AJW

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Argued and Submitted June 14, 2019 Pasadena, California Before: WARDLAW, BYBEE, and MILLER, Circuit Judges. Cunico Corporation appeals the district court’s order compel ling arbitration and dismissing Cunico’s complaint. We have jurisdiction under 9 U.S.C. § 16(a)(3) , and we affirm.
1. Under the Federal Arbitration Act, o ur role is limited to analyzing

“ whether a valid agreement to arbitrate exists ” and “ whether the agreement

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUL 3 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc. , 207 F.3d 1126, 1130 (9th Cir. 2000) ; see 9 U.S.C. § 4

. We review the district court’s “legal conclusions regarding the existence of a valid, binding contract” de

novo and its factual findings for clear error

. Casa del Caffe Vergnano S. p .A. v. ItalFlavors, LLC , 816 F.3d 1208, 1211 (9th Cir. 2016). Here, s tate law governs whether there is a valid agreement to arbitrate. See First Options of Chi

. , Inc. v. Kaplan , 514 U.S. 938, 944 (1995). B oth California and New Jersey have adopted the U niform Commercial Code, which applies to the parties’ transaction

. See Cal. Com. Code § § 1101 , 2102 ; N.J. Rev. Stat. § § 12A:1

- 101 , 12A: 2

- 102

. Like the district court, we therefore find it unnecessary to conduct a choice

- of

- law analysis. The district court did not err in finding that Custom Alloy’s October 9, 2008
q uotation was an offer and that Cunico accepted the offer by issuing p urchase

o rder 26860 on January 7, 2009. Cunico emphasizes that the p urchase o rder contained terms that varied in some respects from those of the quotation. But t he UCC rejects the common law’s “mirror

- im age” rule for contract formation, under which “no contract was reached if the terms of the offer and the acceptance varied.” R.W.L. Enters. v. Oldcastle, Inc. , 226 Cal. Rptr. 3d 677, 687 (Ct. App. 2017) (citation omitted); accord Sun Coast Merch. Corp. v. Myron Corp. , 922 A.2d 782, 791 (N.J. Super. Ct. App. Div. 2007). U nder s ection 2

- 207 of the UCC,3

Cunico’s purchase o rder did not need to be identical to Custom Alloy’s quotation
to constitute an acceptance and to form a contract. And because Custom Alloy’s quotation expressly incorporated Custom Alloy’s terms and conditions

— which , in turn, contained an arbitration clause

— those terms and conditions became part of the contract. See Cal. Com. Code § 220 4 (1) ; N.J. Rev. Stat. § 12A:2

- 20 4 (1)

. Cunico conten ds that it never received the terms and conditions, but the district
court found that Custom Alloy’s terms and conditions were “ r eadily available ” to Cunico

. See Selective Way Ins. Co. v. Glasstech, Inc. , 191 F. Supp. 3d 350, 359 (D.N.J. 2016) (finding that terms were “ reasonably communicated ” when incorporated by reference in the quotation) ; Wolschlager v. Fid. Nat’l Title Ins.
Co. , 4 Cal. Rptr. 3d 179, 185 (Ct. App. 2003) ( concluding that an arbitration clause incorporated by reference was bin ding because it was “ easily available ” to the plaintiff)

. If Cunico wished to avoid an obligation to arbitrate , it should have rejected the arbitration clause when it issued its purchase order

. There is no clear error in the district court’s finding that C unico acquiesced to the arbitration clause

. 2. The arbitration clause is neither procedurally n or substantively unconscionable. See Armendariz v. Found. Health Psychcare Servs., Inc. , 6 P.3d 669, 690 (Cal. 2000); B & S Ltd., Inc. v. Elephant & Castle Int ’ l, Inc. , 906 A.2d 511, 521

- 22 (N.J. Super. Ct. Ch. Div. 2006). Procedurally, t here is no clear error in the district court’s finding that Cunico and Custom Alloy are both business entities4

with equal bargaining power that spent months negotiating the t erms of their agreement. There is no evidence that Custom Alloy deployed any unfair business tactics, or that Cunico was otherwise compelled to accept the arbitration agreement. Substantively, there i s nothing shocking to the conscience when two business e ntities agree that a commercial dispute will be arbitrated in New York.
3. Custom Alloy did n o t waive its right to arbitrate th e dispute. “Waiver of a contractual right to arbitration is not favored.” Fisher v. A.G. Becker Paribas Inc. , 791 F.2d 691, 694 ( 9th Cir. 1986). Cunico , as the party asserting waiver, “ bears a heavy burden ” to show that Custom Alloy knew it had “ an existing right to compel arbitration ,” that it acted inconsistently with that right, and that Cunico suffered prejudice as a result. Id. (citation omitted)

. Cunico has not carried that burden

. Custom Alloy raised the arbitration agreement at the first opportunity: as an affirmative defense in its answer to Cunico’s complaint in state cour t

. Custom Alloy removed the case to federal court the same day that it filed its answer. A ny delay by Custom Alloy in moving to compel arbitration once the case reached federal court did not prejudice Cunico

. AFFIRMED.