                                                                           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                           NOT FOR PUBLICATION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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