HIROSHI (GENLIN) HORIIKE; WORLD DOG ALLIANCE LTD., a Hong Kong limited liability company v. Humane Society of the United States;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HIROSHI (GENLIN) HORIIKE; WORLD
DOG ALLIANCE LTD., a Hong Kong
limited liability company,
Plaintiffs-Appellants,
v.
HUMANE SOCIETY OF THE UNITED
STATES; et al.,
Defendants-Appellees.
No. 17-55853
D.C. No.
2:15-cv-09386-JAK-KS
MEMORANDUM*
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.
FILED
MAY 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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

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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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