Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

MEMORANDUM^* 

In 1973, appellant Alaska Pictures, Inc. ("API") and appellee Pacific International Enterprises, Inc. ("PIE") entered into a memorandum of agreement providing for the distribution of an API film. In 1983, API filed a seven-count complaint against PIE alleging breach of contract, malicious harassment, improper interference with business relations, and injury to business reputation. Subsequent to execution of a judgment against API by its former attorney, Joel Reeder, PIE bought out API's contract rights at an execution sale. The district court then dismissed API's contract claims against PIE.

In 1985 API filed a second complaint alleging tortious behavior by PIE in connection with the sale of API's contract rights. API contended that false statements contained in a certificate of garnishee executed by PIE resulted in the forced sale of API's contract rights. The district court granted PIE's motions for dismissal or summary judgment on all of API's causes of actions.

We review the district court's grant of summary judgment de novo. Peters v. Titan Nav. Co., 857 F.2d 1342, 1344 (9th Cir. 1988). Under Fed. R. Civ. P. 56(c), summary judgment is appropriate if the pleadings and supporting materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Where the nonmoving party bears the burden of proof at trial as to an element essential to its case, and that party fails to establish a genuine dispute of fact with regard to the existence of that element, summary judgment against that party is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party, to avoid summary judgment, must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The gravamen of API's claims against PIE is that PIE's certificate of garnishee was false and that its falsity caused the forced sale of API's contract rights in the 1973 memorandum of agreement. However, the evidence of falsity API offers does not appear sufficient to avoid summary judgment. Moreover, API's argument concerning causation is similarly unpersuasive. In attempting to collect his $12,000 judgment against API, Reeder had the choice of going after PIE on the contingency that at some time in the future PIE would be indebted to API for considerably more than $1,750.75 or going after API on the much greater certainty that API's interest in the 1973 agreement had a present value equal to or in excess of $12,000. Given this choice, it is highly unlikely that the certificate of garnishee caused Reeder to execute his judgment against API rather than PIE.

Because we conclude that API did not present sufficient evidence to avoid summary judgment on either falsity or causation, and API's claims depended on a sufficient showing on both issues, we affirm.