Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^* 

Faye Brenner appeals from the district court's summary judgment for Edward Weiss in response to Weiss' motion to dismiss under Fed. R. Civ. P. ("Rule") 12(b) (6). Brenner alleges that she did not receive adequate notice that the motion to dismiss would be treated as a summary judgment request by the district court. She further contends that the judge, in granting summary judgment, relied on a supporting declaration that was defective under Rule 56(e). Because both of these claims are meritless, we affirm the district court's judgment.

The district court's grant of summary judgment is reviewed de novo. Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Evidence is viewed in the light most favorable to the nonmoving party in the course of determining whether any genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The panel may affirm the order on any ground finding support in the record. Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir. 1983).

Brenner alleges that she had insufficient notice of the possibility that Weiss' motion might become a summary judgment action. The facts in the record show that this claim is without merit. Weiss announced his intention to seek summary judgment in his September motion and attached an affidavit to support a summary judgment action. In her reply memo, Brenner expressly acknowledged that "It appears that Defendant [Weiss] is requesting that the motion to dismiss be treated as one for summary judgment pursuant to Rule 12 of the Federal Rules of Civil Procedure." The reply memo quoted Rule 12(b) and went on to challenge the sufficiency of Weiss' declaration under Rule 56(e). Brenner's lack of notice contention founders on these facts.

Brenner also claims that the summary judgment motion must fail because Weiss' affidavit is deficient under the terms of Rule 56(e). Brenner argues that Weiss' declaration is replete with hearsay, contains irrelevant and conclusory statements, and lacks foundation in personal knowledge.

Although Weiss concedes that parts of his declaration may be inadmissible, enough of it survives review to support the summary judgment order. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2738, at 509 & n. 62 (1983 & Supp.1988); cf. State of Washington v. Maricopa County, 143 F.2d 871, 872 (9th Cir. 1944) (suggesting that the trial court may exclude inadmissible sections in an affidavit while relying on the remaining admissible portions for the summary judgment decision). Even assuming that all of Brenner's allegations are true, the affidavit still leads to the following conclusions based on admissible statements drawn directly from Weiss' personal knowledge: (1) Weiss brought a limited number of civil actions against Brenner, her friends, and her family that he either won or favorably settled; (2) Weiss and Brenner had each engaged in insulting and aggressive behavior; (3) Weiss' procedural actions took place within the course of judicial proceedings. Brenner's allegations of hearsay, irrelevancy, and so on, simply do not undermine the basic facts put forth by Weiss in support of his motion. These facts are sufficient to support the summary judgment order.

Considering that Brenner clearly had sufficient notice of Weiss' intention to seek summary judgment, it appears that she chose to gamble that the district court would reject Weiss' declaration rather than electing to submit a counter-affidavit as Rule 56(e) requires. The affidavit was uncontested, and the admissible facts stated therein were sufficient to support the summary judgment; it is too late on appeal for Brenner to seek to contest those facts.

AFFIRMED.