                                                                            FILED
                           NOT FOR PUBLICATION                                 MAR 18 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ATLANTIQUE PRODUCTIONS, S.A., a                  No. 14-55326
corporation,
                                                 D.C. No. 2:12-cv-08632-DMG-
              Plaintiff - Appellant,             PLA

 v.
                                                 MEMORANDUM*
ION MEDIA NETWORKS, INC., a
Florida corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                       Argued and Submitted March 7, 2016
                              Pasadena, California

Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.

      Plaintiff-Appellant Atlantique Productions appeals the district court’s

summary judgment in favor of Defendant-Appellee ION Media in Atlantique’s

breach of contract, promissory estoppel, and fraud action arising out of the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
negotiations to broadcast an Atlantique-produced television series. We have

jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s decision

de novo, we affirm. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir.

2011).

      1. We apply California law, not New York law. See Trans-Tec Asia v. M/V

Harmony Container, 518 F.3d 1120, 1124 (9th Cir. 2008) (“[W]e cannot rely on

the choice of law provision until we have decided, as a matter of law, that such a

provision was a valid contractual term . . . . ”); Washington Mt. Bank, FA v.

Superior Court, 24 Cal. 4th 906, 919 (2001) (“[T]he foreign law proponent must

identify the applicable rule of law in each potentially concerned state and must

show it materially differs from the law of California.”).

      2. The district court did not err in concluding that a contract had not been

formed because the signature protocol demonstrated the parties’ agreement that

signatures were required for the contract to be binding. ION communicated to

Atlantique several times that the agreement would become binding only after both

Atlantique and ION signed and that ION needed to obtain the requisite internal

corporate approvals before signing. Atlantique agreed to this protocol, which is

evidenced by Atlantique’s sending ION the “partially executed” term sheet for

ION’s signature. Atlantique has failed to identify any evidence sufficient to raise a


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reasonable inference that the parties’ mutual understanding about the signature

protocol changed. Therefore, the district did not err in granting summary judgment

in favor of ION on the breach of contract claim. See First Nat. Mortg. Co. v. Fed.

Realty Inv. Trust, 631 F.3d 1058, 1065 (9th Cir. 2011) (“Where . . . there is a

manifest intention that the formal agreement is not to be complete until reduced to

a formal writing to be executed, there is no binding contract until this is done.”)

(alteration in original).

       3. The district court did not err in concluding that Atlantique’s claims of

promissory estoppel and fraud also fail. It was unreasonable as a matter of law for

Atlantique to rely on the contract before ION signed it. See Rennick v.

O.P.T.I.O.N. Care, Inc., 77 F.3d 309, 317 (9th Cir. 1996) (“If a party refuses to be

bound, yet the other changes its position in reliance on the expectation that a

contract will be made, reliance on the expectation cannot turn the non-promise into

a contract.”). In addition, Atlantique fails to provide any persuasive evidence, even

viewing the evidence in the light most favorable to Atlantique, that ION misled

Atlantique into believing that a final, binding agreement existed. See Lazar v.

Superior Court, 12 Cal. 4th 631, 638 (1996) (listing misrepresentation as an

element of fraud).

       AFFIRMED.


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