Martifer-Silverado Fund I, LLC v. Zhongli Science and Technology Group Co., Ltd.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2025
• Docket: 23-15576
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 3 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTIFER-SILVERADO FUND I, LLC, No. 23-15576

Plaintiff-Appellant, D.C. No. 4:19-cv-04243-YGR

v. MEMORANDUM* ZHONGLI SCIENCE AND TECHNOLOGY GROUP CO., LTD., a Chinese corporation; SUZHOU TALESUN SOLAR TECHNOLOGY CO., LTD., a Chinese corporation,

Defendants-Appellees.

MARTIFER-SILVERADO FUND I, LLC, No. 23-15659

Plaintiff-Appellee, D.C. No. 4:19-cv-04243-YGR

v.

ZHONGLI SCIENCE AND TECHNOLOGY GROUP CO., LTD., a Chinese corporation; SUZHOU TALESUN SOLAR TECHNOLOGY CO., LTD., a Chinese corporation,

Defendants-Appellants.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted November 21, 2024 San Jose, California

Before: FRIEDLAND and BUMATAY, Circuit Judges, and KENNELLY, ** District Judge.

Plaintiff Martifer-Silverado Fund I, LLC (“MS Fund”) appeals the district

court’s grant of summary judgment and partial grant of judgment on the pleadings.

Defendants Zhongli Science and Technology Group Co., Ltd. and Suzhou Talesun

Solar Technology Co., Ltd. cross-appeal from the district court’s partial denial of

judgment on the pleadings. We have jurisdiction under 28 U.S.C. § 1291. Bullard

v. Blue Hills Bank, 575 U.S. 496, 501 (2015); Munoz v. Small Bus. Admin., 644

F.2d 1361, 1364 (9th Cir. 1981) (“[A]n appeal from the final judgment draws in

question all earlier non-final orders and all rulings which produced the

judgment.”). 1

1. MS Fund alleges that Defendants misrepresented the authority of their

subsidiary, Talesun USA, to enter agreements with MS Fund and to perform its

** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. 1 Defendants’ cross-appeal was unnecessary because it “advances only alternative arguments in support of the judgment.” Spencer v. Peters, 857 F.3d 789, 797 n.3 (9th Cir. 2017). We therefore “treat Defendants’ arguments on cross- appeal as alternative arguments to affirm the judgment.” Id.

2 obligations under those agreements. MS Fund’s claims arising from those alleged

misrepresentations are time-barred by the three-year statute of limitations. Cal.

Civ. Proc. Code § 338(d). MS Fund has waived its argument that it was not on

inquiry notice as to the misrepresentations because, as MS Fund concedes, it did

not raise that argument to the district court. “As a general rule, we will not

consider arguments that are raised for the first time on appeal.” Smith v. Marsh,

194 F.3d 1045, 1052 (9th Cir. 1999). There is no reason to depart from that rule

here.

2. MS Fund’s claims arising from the misrepresentations regarding Eric

Ma’s authority to form agreements on behalf of Talesun USA are similarly time-

barred. The limitations period “commences to run after one has knowledge of

facts sufficient to make a reasonably prudent person suspicious of fraud, thus

putting him on inquiry.” Cleveland v. Internet Specialties W., Inc., 171 Cal. App.

4th 24, 31 (Cal. Ct. App. 2009) (internal quotation marks omitted).

The undisputed evidence includes a series of events and conversations that

would put a reasonably prudent entity in MS Fund’s position on notice regarding

issues with Ma’s authority. Although MS Fund argues that Christian

Wiedemann’s email sent on December 21, 2012, was dubious and equivocal, that

email stated that according to Talesun’s chairman, “Eric [Ma] ‘did not have the

authority’ to pursue the Silverado transaction.” MS Fund argues that subsequent

3 events, such as the formation of the December 31 Standstill Agreement, vitiated

any potential notice that the Wiedemann email may have established. But MS

Fund received no further payments from Defendants or Talesun USA after the

Wiedemann email, and by January 10, 2013, MS Fund was aware that Talesun

USA had breached both the initial agreement and the Standstill Agreement.

Against this landscape of continuous breaches, there is no basis for the proposition

that later events vitiated the notice that MS Fund gained from the Wiedemann

email. Rather, the Wiedemann email, immediately followed by multiple breaches,

would have made a “reasonably prudent person suspicious” of Ma’s authority. Id.

No reasonable jury could find that MS Fund lacked notice of the problems

with Ma’s authority by January 2013. Consequently, MS Fund’s claims, filed in

July 2019, are time-barred.

AFFIRMED.