Fairfax Savings Association, Plaintiff-appellant, v. Ben Adelman; Usa Mortgage Corporation; United Bank,s.s.b., Aka United Savings Bank, F.s.b.defendants-appellees, 967 F.2d 585 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 967 F.2d 585 (9th Cir. 1992)

Argued and Submitted May 4, 1992. Decided June 23, 1992


Before JAMES R. BROWNING and FARRIS, Circuit Judges, and CAULFIELD, District Judge.* 

MEMORANDUM** 

One who seeks to reverse the grant of summary judgment must show that there is at least a genuine issue of material fact for trial or that the court on undisputed facts made an error of law. Fairfax Savings Association did neither. The facts, well known to both sides, will not be repeated here.

At the time of the transaction, Fairfax was secured by the property, a personal guarantee, and a bond. It failed at the summary judgment stage to: (1) overcome the presumption justifying the conclusion that what it gave was equal in value to what it received, see Cal.Civ.Code § 3356 (West 1970); (2) raise a genuine issue of material fact as to whether the alleged damages were proximately caused by the alleged fraud, see Pepper v. Underwood, 122 Cal. Rptr. 343, 352 (Ct.App.1975); or (3) raise a genuine issue of material fact as to whether the alleged damages were proximately caused by the alleged breach of contract. See Cal.Civ.Code § 3300 (West 1970).

The court did not err in denying Fairfax's motion for reconsideration. Nothing in the motion suggested that the evidence relied upon in making that motion could not have been discovered in the exercise of due diligence in the summary judgment stage. See Fed. R. Civ. P. 60(b) (2).

We have carefully reviewed the record. We deny USA Mortgage Corporation's request under Cal.Civ.Code § 1717(a) for attorney's fees. See Reynolds Metals Co. v. Alperson, 25 Cal. 3d 124, 129 (1979); Leach v. Home Savings Association, 230 Cal. Rptr. 531, 561 (Ct.App.1986).

AFFIRMED.

 *

Honorable Barbara A. Caulfield, United States District Judge for the Northern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3