Howe Investments Ltd. v. Quarles & Brady Llp; Does, 1-25

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWE INVESTMENTS LTD.,
Plaintiff-Appellant,
v.
QUARLES & BRADY LLP; DOES, 1-25,
Defendants-Appellees.
No. 17-55483
D.C. No.
3:14-cv-01436-JAH-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted February 7, 2019**
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and MURPHY,*** District Judge.
Howe Investments Ltd. (Howe) appeals the district court’s grant of summary
judgment in favor of Quarles & Brady LLP (Quarles) on Howe’s claims for
* 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 Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
FILED
FEB 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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fraudulent misrepresentation and negligence. We have jurisdiction under 28
U.S.C. § 1291 and review the grant of summary judgment de novo. Skydive Ariz.,
Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012). We affirm.
The district court properly granted summary judgment in favor of Quarles
because, viewing the undisputed facts in the light most favorable to Howe, there
were no material disputed facts showing that Howe suffered any damages resulting
from any actions by Quarles. Although the district court granted summary
judgment on five independent grounds, Howe appealed only the first four grounds.
It never challenged the district court’s conclusion that Howe could not establish, as
a matter of law, “that it suffered any damages as a result of” Quarles’s actions.
Under California law, the plaintiff must prove that the defendant caused
actual harm to it to successfully bring a claim for either fraudulent
misrepresentation or negligence. Beckwith v. Dahl, 141 Cal. Rptr. 3d 142, 163 (Ct.
App. 2012) (“In an action for [common law] fraud, damage is an essential element
of the cause of action. Misrepresentation, even maliciously committed, does not
support a cause of action unless the plaintiff suffered consequential damages.”);
Filbin v. Fitzgerald, 149 Cal. Rptr. 3d 422, 431–32 (Ct. App. 2012) (“If the
allegedly negligent conduct does not cause damage, it generates no cause of action
in tort.” (quoting Budd v. Nixen, 6 Cal. 3d 195, 200 (1971))).
By failing to raise on appeal the district court’s finding that Howe did not

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demonstrate any injury, Howe has waived the issue. See Cruz v. Int’l Collection
Corp., 673 F.3d 991, 998 (9th Cir. 2012); Entm’t Research Grp., Inc. v. Genesis
Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (affirming the district
court’s grant of summary judgment on the six causes of action that the appellant
failed to raise in its opening brief). And, even if Howe had not waived this
argument, the district court’s conclusion was correct because Howe did not present
any evidence of actual damages to the district court, and, therefore, did not create a
triable issue on damages.
Costs are to be taxed against Defendants-Appellees.
AFFIRMED.

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