Unpublished Disposition, 931 F.2d 896 (9th Cir. 1985)

MEMORANDUM^* 

PROCEDURAL AND FACTUAL BACKGROUND

Appellant Andreini and Company, Incorporated (Andreini) is an insurance broker which had done a substantial volume of business with Mission Insurance Group. Carl Lindner controls several insurance companies, including Mission Insurance Group.

In 1984, Mission reported a loss of approximately $192,000,000. Andreini became concerned about Mission's financial integrity. In order to allay these concerns, a meeting was held on March 5, 1985, in Cincinnati. Present at the meeting were John Andreini and Michael J. Colzani, President and Executive Vice President of Andreini, and defendant, Carl Lindner, and others representing his organizations.

Andreini filed what it now characterizes as a garden variety fraud and estoppel case for damages caused by the failure of Mission Insurance Group. Each claim in the complaint hinges on Andreini's ability to establish a single promise allegedly made by Lindner. The complaint alleges that Lindner, at the March 5 meeting, told Andreini's executive officers that he "knew that Mission was sound, and solvent, and promised and guaranteed to supply by the personal infusion of his own capital, no matter what it cost, money to Mission sufficient with which to keep it that way, and in full business operation.... He said and promised that he would furnish all the money that was required." Lindner took the position that he made no promise to keep Mission in existence and solvent in perpetuity.

The parties' deposition testimony shed light on the accuracy of the allegations in the complaint. Andreini's executive officers testified that Lindner promised to infuse new capital into Mission with the intent to preserve Mission as a viable operating company. If that failed, Lindner was to establish a new company and roll the business of Mission into the new company to insure Andreini's continued ability to do business. This deposition testimony of John Andreini and Colzani was consistent with Lindner's position, that there was no promise by him to forever keep Mission in existence and solvent. Looking only at the version of the meeting advanced in the depositions of John Andreini and Colzani, they did not support the version of the meeting set out in the complaint, but rather consistently established Lindner's version of the facts.

Shortly before the hearing on summary judgment, Andreini filed a declaration by Colzani which is at odds in some respects with his own deposition testimony. The district court characterized the declaration as a last gasp effort to dodge summary judgment. The district court granted summary judgment against Andreini. Andreini appeals, contending that there exists a genuine issue of material fact.

DISCUSSION

A grant of summary judgment is reviewed de novo. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3217 (1990). The appellate court's review is governed by the same standard used by the trial court under the Federal Rule of Civil Procedure 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). The summary judgment standard "mirrors the standard for directed verdict under Federal Rules of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986); In re Apple Computer Securities Litigation, 886 F.2d 1109, 1112-13 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3229 (1990). "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." California Architectural Bldg. Products, Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988); In re Apple Computer Securities Litigation, 886 F.2d at 1113.

The Supreme Court has held that the party moving for summary judgment has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record showing the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); In re Apple Computer Securities Litigation, 886 F.2d at 1113. After fulfilling this responsibility, the burden shifts to the nonmoving party to present evidence sufficient to support a verdict in its favor on every element of its claim for which it will carry the burden of proof at trial. Id. To satisfy this burden, the nonmoving party must demonstrate to the court that there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (where the record as the whole could not lead a rational trier of fact to find for the nonmoving party there is no genuine issue for trial).

In addition, a party cannot create an issue of material fact by swearing out a self-serving declaration which contradicts that party's earlier deposition testimony necessitating a choice between the nonmoving party's two conflicting versions. Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975).

On review of the record, it is clear that the district court did not err in granting summary judgment. Defendant has shown no triable issue of material fact and the entry of summary judgment was proper.

AFFIRMED.