Mvuinvestors, LLC v. General Electric Company

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 02 2011

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MVUINVESTORS, LLC, No. 09-56855

Plaintiff - Appellant, D.C. No. 2:08-cv-08016-R-E

v.
MEMORANDUM*
GENERAL ELECTRIC COMPANY, GE
Healthcare, a unit of General Electric
Company,

Defendant - Appellee.

MVUINVESTORS, LLC, No. 09-56998

Plaintiff - Appellant - Cross- D.C. No. 2:08-cv-08016-R-E
Appellee,

v.

GENERAL ELECTRIC COMPANY, GE
Healthcare, a unit of General Electric
Company,

Defendant - Appellee - Cross -
Appellant.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted February 17, 2011
Pasadena, California

Before: GOODWIN, KLEINFELD, and PAEZ, Circuit Judges.

This is a diversity case for breach of contract. The underlying facts of this

appeal are known to the parties and need not be repeated. MvuInvestors, LLC

(MVU) alleges that General Electric (GE) and its subsidiary, GE Healthcare,

agreed to buy MVU’s patent portfolio of a portable magnetic-resonance-imaging

(MRI) machine for $3 million down, and up to $10 million from future sales. The

district court ruled, among other things, that there was no contract under California

law and granted summary judgment to GE and GE Healthcare. MVU appeals. GE

and GE Healthcare cross-appeal the district court’s denial of their motion for Rule

11 sanctions against MVU.

Even if we assume that the conflicting evidence showed an oral contract

subject to conditions was formed under California law, see Kohn v. Jaymar-Ruby,

Inc., 23 Cal. App. 4th 1530, 1534 (1994), we may affirm the district court’s grant

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of summary judgment on any ground supported by the record. See, e.g., Enlow v.

Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004). We conclude

that summary judgment was appropriate because no reasonable factfinder could

find that the second of the two conditions necessary for the oral contract to become

binding under California law—that of researching the consumer market to

determine the viability of GE’s investment—was ever met. Platt Pac., Inc. v.

Andelson, 862 P.2d 158, 161–62 (Cal. 1993).

The second condition related to GE receiving customer feedback about the

portable MRI machine, and surveying these past customers. MVU pointed to the

deposition testimony of MVU’s chairman and primary shareholder wherein he

thought that this “Condition . . . had been satisfied.” It was, in the sense of

obtaining some feedback, but it was not, in the sense of obtaining positive

feedback. To make any sense, the condition had to mean obtaining positive

customer feedback, not just customer feedback regardless of whether it was

positive or negative. No evidence in the record establishes a genuine issue of fact

as to the commercial viability for GE.

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 After construing, as we must, these facts in the light most favorable to

MVU, Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 639–40 (9th Cir. 2003), we

conclude that a mere subjective legal opinion by the MVU chairman is not enough,

on its own, to create a genuine issue of material fact. See Cornwell v. Electra Cent.

Credit Union, 439 F.3d 1018, 1028 n.6 (9th Cir. 2006) (observing that a plaintiff’s

subjective impressions, standing alone, may not create a genuine dispute of

material fact). Indeed, our court’s case law is clear that deposition testimony not

within the deponent’s personal knowledge, consisting of summary legal

conclusions, does not create a genuine factual dispute. See, e.g., Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

Regarding the cross-appeal, although the transcripts of the proceedings show

that the district court applied an incorrect standard for Rule 11 sanctions, see Conn

v. Borjorquez, 967 F.2d 1418, 1420 (9th Cir. 1992), sanctions would have been

inappropriate regardless because MVU’s case had “a reasonable basis . . . in both

law and in fact.” Larez v. Holcomb, 16 F.3d 1513, 1522 (9th Cir. 1994) (quoting

Cooter & Zell v. Harmarx Corp., 496 U.S. 384, 393 (1990)); see also Fed. R. Civ.

P. 11(b). The district court’s application of a subjective “bad faith” standard for

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Rule 11 sanctions was harmless because its conclusion that sanctions were

inappropriate was compelled by the record.

We therefore AFFIRM.

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