                                                                          FILED
                            NOT FOR PUBLICATION
                                                                           SEP 07 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GLOBAL BARISTAS LLC,                            No.    14-35715

              Appellant,                        D.C. No. 2:14-cv-00431-RSL

 v.
                                                MEMORANDUM*
TC GLOBAL INC,

              Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 Robert S. Lasnik, Senior District Judge, Presiding

                           Submitted September 2, 2016**
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and DAVIS,*** Circuit Judges.

      Global Baristas, LLC (“Buyer”) appeals the district court’s order affirming the

bankruptcy court’s grant of partial summary judgment in favor of debtor TC Global,

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S. Court
of Appeals for the Fourth Circuit, sitting by designation.
Inc. (“Seller”). The bankruptcy court held that Buyer had breached a provision of an

asset purchase agreement between it and Seller, which provided for certain post-

closing adjustments to the purchase price.

      The district court did not err by affirming the bankruptcy court’s grant of partial

summary judgment to Seller on the breach of contract claim.               The contract

unambiguously required Buyer to make specific adjustments to the purchase price

following closing. These were not items left to Buyer’s discretion, but mandatory

obligations: “Buyer shall” deliver its proposed adjustments within thirty days, and

“the [p]urchase [p]rice shall be adjusted” upward/downward based on various factors

set forth in great detail in the agreement. The use of the phrase “if any” before the

defined term “Buyer Adjustment Amounts” in the contract clearly refers only to the

theoretical possibility that there could be an adjustment of $0 because many of the

adjustment provisions used pre-closing ballpark estimates that would not trigger post-

closing adjustments to the purchase price unless the actual amounts wound up being

significantly greater or significantly lower than expectations. It does nothing,

however, to render the contract ambiguous or convert Buyer’s clearly defined and

mandatory obligation to engage in the adjustment process into an optional action on

Buyer’s part.




                                           2
      Nor did the bankruptcy court abuse its discretion by declining to continue the

summary judgment hearing to allow Buyer to propound discovery. Buyer sought a

continuance to conduct discovery into the subjective intent of the parties to the

contract, but extrinsic evidence of intent is generally irrelevant if the parties’ intent

can be determined from the words actually used, as it could with this unambiguous

contract. See Brogan & Anensen LLC v. Lamphiear, 202 P.3d 960, 961-62 (Wash.

2009) (per curiam) (extrinsic evidence cannot be used to modify or contradict terms

of agreement or show an intention independent of the contract).

      Buyer’s argument that the bankruptcy court failed to determine that its breach

of contract caused the damages claimed by Seller is raised for the first time on appeal,

and we deem it waived. See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010).

      AFFIRMED.




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