FILED

NOT FOR PUBLICATION

OCT 31 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT JASON HALPERN, No. 17-15722

Plaintiff-Appellant, D.C. No.

2:15-cv-02037-JCM-PAL v. GARY THARALDSON, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted October 17, 2018

San Francisco, California Before: HAWKINS and HURWITZ, Circuit Judges, and EATON,** Judge.

In this contract action, Jason Halpern appeals from a grant of summary judgment in favor of Gary Tharaldson on Halpern’s anticipatory repudiation claim.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Glenn v. Wach. Cty., 673 F.3d 864, 870 (9th Cir. 2011), and affirm.

Halpern had the option, upon payment of a specified sum of money, to enter a joint venture with Tharaldson. It is undisputed, however, that Halpern never exercised his option or tendered any payment thereunder. Accordingly, he failed to satisfy the condition precedent to his participating in a joint venture, and thus, under the facts of this case, the district court did not err in granting Tharaldson’s motion for summary judgment. See 135 E. 57th St. LLC v. Daffy’s Inc., 934 N.Y.S.2d 112, 115 (N.Y. App. Div. 2011) (option itself does not create interest in subject of option contract; no rights accrue until option is exercised).

Tharaldson’s motion to strike (Dkt. #40) is denied as moot.

AFFIRMED.

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