Kraft Americas, L.P. v. Oldcastle Precast, Inc. , 641 F. App'x 718 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRAFT AMERICAS, L.P., No. 14-55105
a Delaware limited partnership,
D.C. No. 2:12-cv-03681-JAK-E
Plaintiff - Appellant,
v. MEMORANDUM*
OLDCASTLE PRECAST, INC.,
a Washington corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted February 9, 2016**
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Plaintiff Kraft Americas, L.P. appeals from the district court’s summary
judgment in favor of Defendant Oldcastle Precast, Inc. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Kraft argues that the district court erred when it determined that the statute
of limitations for its breach of contract claim began to run on December 17, 2007.
Kraft contends that the limitations period actually began to run on April 28, 2008,
when Oldcastle informed Kraft that it would not purchase a certain company,
Company A, and that its claim was timely with respect to that later date.
Kraft’s argument depends on the existence of an agreement that obligated
Oldcastle to acquire Company A in the event that it acquired another target
company, Company B. If such an agreement existed, then the “last element
essential to the cause of action” would be the nonacquisition of Company A. April
Enterprises, Inc. v. KTTV, 147 Cal. App. 3d 805, 826 (1983). Otherwise the
nonacquisition of Company A would be irrelevant, and Kraft’s cause of action
would have accrued on December 17, 2007, when Oldcastle purchased
Company B.
Kraft argues that its May 2007 confidentiality agreement with Oldcastle
created an obligation to purchase Company A. But “California law is clear that
there is no contract until there has been a meeting of the minds on all material
points.” Banner Entertainment, Inc. v. Superior Court, 62 Cal. App. 4th 348, 357-
58 (1998). The May agreement is a standard confidentiality and non-use
agreement that lacks even the most basic elements of mutuality regarding an
2
obligation to purchase Company A. The agreement says nothing about the
acquisition of property, and it does not even mention Company A or Company B.
Although the agreement states that Oldcastle and Kraft “will discuss various
transactions,” that language does not reflect a mutual understanding that if
Oldcastle were to purchase Company B, it would also have to purchase
Company A.
Kraft also argues that the parties’ various communications regarding
Company A and Company B created an implied-in-fact agreement that Oldcastle
would either acquire both companies or neither. But Kraft has not cited to any
record evidence showing that Oldcastle intended to make a contract with Kraft that
would require it to acquire Company B if it acquired Company A. “[M]ere
allegation and speculation do not create a factual dispute for purposes of summary
judgment.” Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996).
Therefore, the district court properly concluded that Kraft’s breach of contract
claim accrued on December 17, 2007.
Equitable tolling does not alter the result. “The effect of equitable tolling is
that the limitations period stops running during the tolling event, and begins to run
again . . . when the tolling event has concluded.” Lantzy v. Centex Homes, 31 Cal.
4th 363, 370-71 (2003) (emphasis omitted). Assuming that equitable tolling
3
applies, Kraft would be entitled to only 64 days credit, whereas its claim was filed
more than four months late. Even considering an equitable tolling period, its claim
was untimely.
Kraft also argues that the district court erred when it concluded that its trade
secret misappropriation claim accrued on December 17, 2007, because it did not
learn about certain acts of misappropriation until discovery commenced. But in its
amended complaint, Kraft alleged that Oldcastle purchased and operated Company
B using Kraft’s trade secrets. Kraft was aware of that acquisition when it occurred,
and claimed at that time that Oldcastle had harmed it. Indeed, Kraft sent a bill for
services rendered in conjunction with the transaction on December 17, 2007, and
accused Oldcastle of acting in bad faith on January 8, 2008. It does not matter that
Kraft discovered additional acts of misappropriation at a later date. Under
California law, “the continued improper use or disclosure of a trade secret after
defendant’s initial misappropriation is viewed . . . as part of a single claim of
‘continuing misappropriation’ accruing at the time of the initial misappropriation.”
Cadence Design Systems, Inc. v. Avant! Corp., 29 Cal. 4th 215, 218 (2002). The
district court properly concluded that Kraft’s claim accrued on December 17, 2007,
and that it was time barred.
AFFIRMED.
4