                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KRAFT AMERICAS, L.P.,                            No. 14-55105
a Delaware limited partnership,
                                                 D.C. No. 2:12-cv-03681-JAK-E
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

OLDCASTLE PRECAST, INC.,
a Washington corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                           Submitted February 9, 2016**
                              Pasadena, California

Before: FARRIS, CLIFTON, and BEA, Circuit Judges.

      Plaintiff Kraft Americas, L.P. appeals from the district court’s summary

judgment in favor of Defendant Oldcastle Precast, Inc. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Kraft argues that the district court erred when it determined that the statute

of limitations for its breach of contract claim began to run on December 17, 2007.

Kraft contends that the limitations period actually began to run on April 28, 2008,

when Oldcastle informed Kraft that it would not purchase a certain company,

Company A, and that its claim was timely with respect to that later date.

      Kraft’s argument depends on the existence of an agreement that obligated

Oldcastle to acquire Company A in the event that it acquired another target

company, Company B. If such an agreement existed, then the “last element

essential to the cause of action” would be the nonacquisition of Company A. April

Enterprises, Inc. v. KTTV, 147 Cal. App. 3d 805, 826 (1983). Otherwise the

nonacquisition of Company A would be irrelevant, and Kraft’s cause of action

would have accrued on December 17, 2007, when Oldcastle purchased

Company B.

      Kraft argues that its May 2007 confidentiality agreement with Oldcastle

created an obligation to purchase Company A. But “California law is clear that

there is no contract until there has been a meeting of the minds on all material

points.” Banner Entertainment, Inc. v. Superior Court, 62 Cal. App. 4th 348, 357-

58 (1998). The May agreement is a standard confidentiality and non-use

agreement that lacks even the most basic elements of mutuality regarding an


                                          2
obligation to purchase Company A. The agreement says nothing about the

acquisition of property, and it does not even mention Company A or Company B.

Although the agreement states that Oldcastle and Kraft “will discuss various

transactions,” that language does not reflect a mutual understanding that if

Oldcastle were to purchase Company B, it would also have to purchase

Company A.

      Kraft also argues that the parties’ various communications regarding

Company A and Company B created an implied-in-fact agreement that Oldcastle

would either acquire both companies or neither. But Kraft has not cited to any

record evidence showing that Oldcastle intended to make a contract with Kraft that

would require it to acquire Company B if it acquired Company A. “[M]ere

allegation and speculation do not create a factual dispute for purposes of summary

judgment.” Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996).

Therefore, the district court properly concluded that Kraft’s breach of contract

claim accrued on December 17, 2007.

      Equitable tolling does not alter the result. “The effect of equitable tolling is

that the limitations period stops running during the tolling event, and begins to run

again . . . when the tolling event has concluded.” Lantzy v. Centex Homes, 31 Cal.

4th 363, 370-71 (2003) (emphasis omitted). Assuming that equitable tolling


                                          3
applies, Kraft would be entitled to only 64 days credit, whereas its claim was filed

more than four months late. Even considering an equitable tolling period, its claim

was untimely.

      Kraft also argues that the district court erred when it concluded that its trade

secret misappropriation claim accrued on December 17, 2007, because it did not

learn about certain acts of misappropriation until discovery commenced. But in its

amended complaint, Kraft alleged that Oldcastle purchased and operated Company

B using Kraft’s trade secrets. Kraft was aware of that acquisition when it occurred,

and claimed at that time that Oldcastle had harmed it. Indeed, Kraft sent a bill for

services rendered in conjunction with the transaction on December 17, 2007, and

accused Oldcastle of acting in bad faith on January 8, 2008. It does not matter that

Kraft discovered additional acts of misappropriation at a later date. Under

California law, “the continued improper use or disclosure of a trade secret after

defendant’s initial misappropriation is viewed . . . as part of a single claim of

‘continuing misappropriation’ accruing at the time of the initial misappropriation.”

Cadence Design Systems, Inc. v. Avant! Corp., 29 Cal. 4th 215, 218 (2002). The

district court properly concluded that Kraft’s claim accrued on December 17, 2007,

and that it was time barred.

      AFFIRMED.


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