NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 21 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HIROSHI (GENLIN) HORIIKE; WORLD No. 17-55853 DOG ALLIANCE LTD., a Hong Kong limited liability company, D.C. No. 2:15-cv-09386-JAK-KS Plaintiffs-Appellants,

v. MEMORANDUM*

HUMANE SOCIETY OF THE UNITED

STATES; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted May 17, 2019** Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and BAYLSON,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Hiroshi Horiike and World Dog Alliance, Ltd. (collectively, “WDA”) appeal

from the district court’s order granting summary judgment to The Humane Society

of the United States and its then-President and Chief Executive Officer, Wayne

Pacelle, (collectively, “HSUS”). This appeal arises from a contract dispute

between the two parties. As the parties are familiar with the facts, we do not

recount them here. We review the district court’s grant of summary judgment de

novo. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). We

affirm.

1. WDA sued HSUS for breach of contract within three months of the

contract’s execution. The contract, however, provided a two-year term for the

project and included no interim deadlines. As such, WDA sued before HSUS was

required to perform. See Taylor v. Johnston, 539 P.2d 425, 430 (Cal. 1975)

(“There can be no [a]ctual breach of a contract until the time specified therein for

performance has arrived.”). Moreover, even if the time for performance had

arrived, HSUS would still be entitled to summary judgment. HSUS was

performing its contractual obligations when sued and thus there was no

“unjustified or unexcused failure to perform.” Sackett v. Spindler, 56 Cal. Rptr.

435, 440 (Ct. App. 1967). Nor is there support for an anticipatory-breach claim

because HSUS never made a “clear, positive, unequivocal refusal to perform”

moving forward or acted in such a way to inhibit future performance. Taylor, 539

2 P.2d at 430.

2. WDA also alleges that HSUS breached the covenant of good faith and

fair dealing, which is read into every contract in California. See Egan v. Mut. of

Omaha Ins. Co., 620 P.2d 141, 145 (Cal. 1979). Here, too, the district court

properly granted summary judgment. Although the contract gave HSUS

significant discretion in how to perform its obligations, there is no triable issue as

to whether HSUS ever failed to “discharge [its] contractual responsibilities,” let

alone did so “by a conscious and deliberate act.” Careau & Co. v. Sec. Pac. Bus.

Credit, Inc., 272 Cal. Rptr. 387, 399-400 (Ct. App. 1990).

3. Next, WDA claims that HSUS fraudulently induced it into the contract

without ever intending to perform, and then misused WDA’s funds. HSUS is

entitled to summary judgment based on either theory of fraud. There is no genuine

dispute whether HSUS had a fraudulent intent when executing the contract, see

Engalla v. Permanente Med. Grp., Inc., 938 P.2d 903, 917 (Cal. 1997), or that it

misused WDA’s donation.

4. Lastly, HSUS is also entitled to summary judgment on WDA’s state-law

unfair competition claim. See Cal. Bus. & Prof. Code § 17200 (prohibiting “any

unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue

or misleading advertising”). Assuming that the statute even applies here, there is

no support for WDA’s claim because HSUS’s conduct was, for instance, neither

3 unlawful nor fraudulent.1

AFFIRMED.

1 WDA never addresses the dismissal of its claim that HSUS violated California Business and Professions Code section 17500. We, therefore, deem any argument waived and affirm. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986). As for WDA’s accounting claim, we affirm because summary judgment has been granted on all potential substantive claims of liability. See Glue-Fold, Inc. v. Slautterback Corp., 98 Cal. Rptr. 2d 661, 663 n.3 (Ct. App. 2000).

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