Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

Robert A. Karr appeals pro se the district court's summary judgment for the United States in its suit to collect defaulted Health Education Assistance Loans ("HEAL") totalling $123,341.65 in principal, interest, and late fees from Karr. Karr contends that (1) the district court considered inadmissible evidence in granting summary judgment, (2) the government should be estopped from collecting on the loans, and (3) he should have been permitted more time to prepare his case. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

* Evidentiary Rulings

Karr contends that the district court should not have considered either the promissory notes or the certificate of indebtedness in granting summary judgment because they are inadmissible hearsay. Karr also contends that the notes were not properly authenticated. These contentions lack merit.

We review a district court's ruling on admissibility of evidence over a hearsay objection for abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988), cert. denied, 488 U.S. 890 (1988). We also review district court rulings on authentication for abuse of discretion. United States v. Black, 767 F.2d 1334, 1342 (9th Cir. 1985), cert. denied, 474 U.S. 1022 (1985).

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). "Facts of independent legal significance constituting a contract which is at issue are not hearsay." United States v. Rubier, 651 F.2d 628, 630 (9th Cir. 1981), cert. denied, 454 U.S. 875 (1981). Here, the promissory notes are not being offered to prove the truth of the matter asserted. See Rule 801(c). Rather, they are offered as evidence of a debt. Accordingly, the promissory notes, like a contract, are not hearsay and are admissible. See Rubier, 651 F.2d at 630. Thus, the district court did not err in considering the promissory notes over Karr's hearsay objection.

The district court also was correct in finding that the promissory notes were properly authenticated. To be considered in a motion for summary judgment, "documents must be authenticated by and attached to an affidavit that meets the requirements of [Federal Rule of Civil Procedure] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir. 1990) (quotation omitted). Under 28 U.S.C. § 1746, an unsworn declaration subscribed under penalty of perjury may be used in place of a sworn affidavit. " [B]efore evidence may be admitted, a foundation must be laid 'by evidence sufficient to support a finding that the matter in question is what its proponent claims.' " Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (quoting Fed.R.Evid. 901(a)).

Here, the United States submitted the declaration, signed under penalty of perjury, of Jeannette Y. Pang, an employee of the collections staff of Health and Human Services. The declaration stated that she had access to the original promissory notes in the files and that the copies offered as evidence were true and accurate copies of the originals. The promissory notes bear Karr's signature, and he has not contested his signature. Further, Karr admitted in his answer that he executed five loans to finance his dental education. Given these facts, there was sufficient evidence to conclude that the notes were what they purported to be. See Beyene, 854 F.2d at 1182. Accordingly, we find that the promissory notes were properly authenticated.

The certificate of indebtedness also was admissible in the motion for summary judgment. Rule 56 provides that a motion for summary judgment may be based on affidavits. Here, the certificate of indebtedness was made under penalty of perjury and therefore complies with the requirements of Rule 56 and 28 U.S.C. § 1746. Thus, the district court properly considered the certificate of indebtedness.

II

Estoppel

Karr contends that summary judgment was inappropriate because the triable issue of estoppel existed. Karr contends that when he inquired about financing his dental education through an Armed Forces educational scholarship, he was erroneously told by military recruiters that such programs were no longer available. Karr claims that the program was still available, and, if he had known that, he would have enrolled in the program and would not have taken out the HEAL loans. Karr claims that the United States should be estopped from collecting on the loans because if it had not been for the misinformation of the government recruiter, he would not have acted to his detriment by making the HEAL loans.

We review de novo a district court's determination that there is no genuine issue of material fact. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). In order to invoke estoppel against the government, a party must establish: (1) affirmative governmental misconduct going beyond mere negligence, and (2) that the government's act will cause a serious injustice and the imposition of estoppel will not unduly harm the public interest. S & M Inv. Co. v. Tahoe Regional Planning Agency, 911 F.2d 324, 329 (9th Cir. 1990), cert. denied, 111 S. Ct. 963 (1991). " [A] single oral misstatement by a government employee will ordinarily not constitute affirmative misconduct." Id. Moreover, individuals who deal with the government are charged with knowing government statutes and regulations and assume the risk that government agents may provide misinformation. Id.

Here, Karr has failed to establish any affirmative misconduct on the part of the government. He has established, at most, oral misstatements on the part of government employees, the military recruitment officials. This will not give rise to an estoppel. See id. Karr is charged with knowing government regulations, and he easily could have further explored the availability of financing through the military before borrowing HEAL loans. Thus, Karr has failed to establish a triable issue with regard to estoppel, and the district court was correct to grant summary judgment for the United States.¹ 

III

Continuance

Karr's final contention is that the district court should have granted him a three-week continuance to prepare his defense. We review the decision of a district court judge to grant or deny a continuance for abuse of discretion. Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989). Here, we find no abuse. The district court granted Karr a one-week continuance in consideration of his pro se status. Karr has made no showing of extraordinary circumstances, nor has he shown what defense he could have prepared with the extra two weeks. We find no abuse of discretion in the district court's grant of a continuance of one week rather than three.

AFFIRMED.