                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUL 26 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
READING INTERNATIONAL, INC., a                   No.   14-16827
Nevada corporation,
                                                 D.C. No.
               Plaintiff-Appellant,              1:13-cv-00133-JMS-KSC

          v.
                                                 MEMORANDUM*
THE MALULANI GROUP, LIMITED, a
Hawaii corporation,

               Defendant-Appellee.

                    Appeal from the United States District Court
                             for the District of Hawaii
                    J. Michael Seabright, Chief Judge, Presiding

                        Argued and Submitted June 15, 2017
                                Honolulu, Hawaii

Before: FISHER, PAEZ and NGUYEN, Circuit Judges.

      Reading International appeals the judgment in favor of The Malulani Group

on its claims for breach of contract. We have jurisdiction under 28 U.S.C. § 1291,

and we reverse in part, affirm in part and remand.




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. The district court erred in concluding the Mortgage afforded Malulani an

opportunity to cure its alleged breach of the Settlement Agreement. Based on the

alleged breach of the Settlement Agreement, Reading sought to accelerate the

maturity of the indebtedness under the Note, a default remedy available under only

the Mortgage. Unlike the Pledge Agreements, the Mortgage does not cross

reference the cure provision in making breach of the Settlement Agreement an

Event of Default. Moreover, although the Mortgage permits cure for breach of a

“Loan Document,” the Settlement Agreement is not a Loan Document under the

Mortgage.

      Nor does § 7.11(x) of the Mortgage create a general right to cure any Event

of Default under the Mortgage. Rather than modifying all the preceding Events of

Default, the plain language of § 7.11(x) creates an additional Event of Default for

breach of “any of the other obligations . . . of this Mortgage or any other Loan

Document not otherwise referred to in this Section,” if that breach is not cured

within a specified period. (emphasis added). Malulani’s reading, when applied to

the identical language in the Pledge Agreements, would render meaningless the

Pledge Agreements’ cross reference to the cure provision in making breach of the

Settlement Agreement an Event of Default. Accordingly, the plain language of the

Mortgage does not permit Malulani to cure a breach of the Settlement Agreement.


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      Malulani is correct that Hawaii law looks to the overall context in

determining a contract’s meaning, see Haw. Med. Ass’n v. Haw. Med. Serv. Ass’n,

Inc., 148 P.3d 1179, 1194 (Haw. 2006), but Malulani has not shown the parties’

intent to permit cure under the Pledge Agreements shows their intent to permit cure

under the Mortgage. We therefore give effect to the differences in language

between the agreements. See Stanford Carr Dev. Corp. v. Unity House, Inc., 141

P.3d 459, 470 (Haw. 2006) (explaining that contracts should be interpreted to give

meaning and effect to each term). The district court erred in concluding otherwise.

      The district court, however, did not reach the question of whether Malulani

materially breached the Settlement Agreement when two individual Defendant

Parties failed timely to certify their compliance with § 5.2(b) of the Settlement

Agreement. We therefore remand for the district court to address this issue.

      2. The district court correctly granted summary judgment on Reading’s

remaining claims. First, the Hawaii Uniform Mediation Act does not apply

retroactively to the parties’ 2009 mediation. Although the Act applies retroactively

to mediation agreements, it governs mediations themselves only prospectively. See

Haw. Rev. Stat. § 658H-13; see also United Pub. Workers AFSCME, Local 646,

AFL-CIO v. Dawson Int’l, Inc., 149 P.3d 495, 511-12 (Haw. 2006) (adopting the

same interpretation of the analogous provision in the Hawaii Uniform Arbitration


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Act). Thus, the district court correctly concluded Bronster’s mediation statements

were not privileged.

      Second, the district court did not abuse its broad discretion in denying

Reading’s request to supplement the summary judgment record. See Navellier v.

Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (“We review . . . challenges to trial court

management for abuse of discretion.”). Reading could have disclosed its evidence

of Bronster’s mediation statements to the district court in camera without

terminating the privilege. See United States v. Zolin, 491 U.S. 554, 568 (1989)

(“[D]isclosure of allegedly privileged materials to the district court for purposes of

determining the merits of a claim of privilege does not have the legal effect of

terminating the privilege.”); Panatronic USA v. AT&T Corp., 287 F.3d 840, 846

(9th Cir. 2002) (To show an abuse of discretion in denying a request to reopen

discovery, “the movant [must have] diligently pursued its previous discovery

opportunities.” (quoting Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6

(9th Cir. 2001))).

      Third, the district court correctly granted summary judgment on Reading’s

claim that the records Malulani produced for inspection were inadequate. With

one exception, Reading has not offered evidence that more detailed records

actually exist. The district court concluded that Reading waived any argument


                                           4
based on the one item for which it offered evidence, and Reading does not

challenge that conclusion on appeal.

      REVERSED IN PART, AFFIRMED IN PART AND REMANDED. The

parties shall bear their own costs on appeal.




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