
    PUBALI BANK, Plaintiff-Appellee, v. CITY NATIONAL BANK, the Aristos Group, Jack A. McGuire, and Margo Svikhart, Defendants, City National Bank, Defendant-Appellant. PUBALI BANK, Plaintiff-Appellee, v. The ARISTOS GROUP, Defendant-Appellant.
    Nos. 84-5912, 84-5938.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 2, 1985.
    Decided Aug. 22, 1985.
    As Amended Dec. 10, 1985.
    
      Don A. Proudfoot, Los Angeles, Cal., for plaintiff-appellee.
    James P. Tierney, Santa Monica, Cal., Bruce E. Clark, Los Angeles, Cal., for defendant-appellant.
    Before GOODWIN, NELSON and BOOCHEVER, Circuit Judges.
   GOODWIN, Circuit Judge.

This case is before us for the second time. After our remand order in Pubali Bank v. City National Bank, 676 F.2d 1326 (9th Cir.1982) (Pubali I), the district court granted summary judgment to Pubali. We affirm.

Pubali began this action in 1978 for breach of contract, fraud, money had and received and negligent misrepresentation. Pubali had arranged for Manufacturers Hanover Bank to issue two stand-by letters of credit on behalf of its customer, Emerald, Inc. In its complaint, Pubali alleged that Aristos and its bank, City National Bank (CNB), in conjunction with actions taken by individual defendants, drew down the two letters of credit even though they knew that Emerald had met the contractual obligations which the letters guaranteed.

The dispute between Emerald and Aristos and CNB centered on the meaning of the term “freight earned per contract.” Emerald contracted with Aristos for the charter of two ships to transport jute from Bangladesh to Syria. The letters of credit issued by Manufacturers Hanover Bank specified that Emerald would pay Aristos a specific amount for “freight earned per contract” for each charter. According to the parties’ agreement, only if those amounts were not paid could Aristos and CNB draw down the letters of credit.

Emerald paid Aristos the amount specified on each letter. Extra charges arose, however, for demurrage, for which Emerald did not pay Aristos. Aristos and CNB maintain, and the district court found, that “freight earned per contract” included demurrage costs. Under this interpretation, as long as Aristos was not paid for demur-rage, Emerald had not met its obligations and Aristos and CNB were justified in drawing down the letters of credit.

At the close of Pubali’s case, defendants successfully moved for an involuntary dismissal. Because the district court finding was clearly erroneous, we reversed and remanded. We further held that CNB’s role was not merely that of an advisor bank to Aristos but also that of an assignee who held a direct interest in payment, on these letters, of Aristos by Pubali. CNB was thus jointly liable with Aristos for Pubali’s damages. We addressed standing in a footnote, observing that Pubali had standing under the Uniform Commercial Code. 676 F.2d at 1329 n. 5.

On remand before a different trial judge, Pubali moved for summary judgment. Applying the law of the case doctrine, the judge concluded that he was bound, by our decision in Pubali I, to find that Pubali had met its obligations and that CNB and Aristos were liable for damages suffered by Pubali when Manufacturers Hanover Bank honored the letters of credit and offset Pubali’s account in those amounts. The judge granted partial summary judgment against CNB and Aristos on the breach of contract and fraud claims. He stayed the proceedings on the other claims and against individual defendants to permit CNB and Aristos to take this appeal from the summary judgment.

Under the law of the case doctrine “a decision of a legal issue or issues by an appellate court ... must be followed in all subsequent proceedings in the same case ... unless the evidence on a subsequent trial was substantially different____” Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834 (9th Cir.1982), (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)). See Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.1981).

When, as in this case, the plaintiff moves on remand for summary judgment, the trial judge may decide the motion in accordance with the law of the case, based on the appellate conclusions, if no evidence that affects the appellate ruling is offered in opposition to the summary judgment. United States v. United States Gypsum Co., 340 U.S. 76, 86, 71 S.Ct. 160, 168, 95 L.Ed. 89 (1950). The trial court cannot grant the motion solely in reliance on the appellate holdings; it must examine whatever materials the defendant presents in opposition to the summary judgment. If that material produces no new evidence and evinces no factual dispute, the resolution of which might change the law applied by the appellate court, the trial court should enter judgment for the plaintiff as a matter of law. See id. It is not clear in this case whether the district court properly examined defendants’ material in opposition to summary judgment, or simply applied the holding of Pubali I to Pubali’s motion papers. We examine the problem afresh because we review a summary judgment de novo, Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 720 (9th Cir.1984), and we can affirm on any basis revealed in the record. Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir.1982).

In this case, the Pubali I conclusions apply unless CNB and Aristos have produced evidence indicating that (1) the parties meant “freight earned per contract” to include demurrage; (2) Aristos and CNB did not know Aristos had been paid for the shipments (except for demurrage) when they drew down the letters of credit; (3) CNB was not acting in its own interest when it countersigned the beneficiary statements; and (4) the parties’ choice of law precludes Pubali from suing on the letters of credit. We begin with the question of whether Pubali may sue on the letters.

In Pubali I, we determined that Pubali was afforded a right to sue by § 5-111 of the Uniform Commercial Code (“U.C. C.”), which provides that a beneficiary warrants its statements to all interested parties. That finding was correct.

Under U.C.C. § 5-103(g), Pubali meets the definition of a “customer.” Because a “customer” is the party who procures the issuance of the letter of credit in favor of the beneficiary, it is without a doubt an “interested party” under § 5-111. Thus, § 5-111 affords Pubali the right to sue CNB and Aristos on the warranties they made as beneficiaries.

CNB and Aristos argue that the U.C.C. does not apply because the parties to the letters of credit agreed to be governed by the Uniform Customs and Practice for Commercial Documentary Credits (“UCP”). Under New York law, this argument might have merit because of that state’s non-uniform amendment to U.C.C. § 5-102(4), which calls off the U.C.C. when the parties agree to be governed by the UCP. N.Y. UCC § 5-102(4) (1964). New York law does not, however, apply. In a diversity case, we apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). In this case, therefore, California choice of law rules apply. California applies the governmental interest/comparative impairment test. S.A. Empresa de Viacao Aerea Rio Grandense v. Boeing Co., 641 F.2d 746, 749 (9th Cir.1981). Because the sole connection to New York in this case is the location of the issuing bank, which is not a party to the litigation, California would apply its own law. Under its version of the U.C.C., CNB and Aristos waranted to Pubali that its drawing of the letters was proper. See Cal.Com.Code §§ 5103(g), 5111 (West 1964).

CNB and Aristos also rely on Barclays Bank v. Mercantile National Bank, 481 F.2d 1224, 1239 n. 21 (5th Cir.1973), cert. dismissed, 414 U.S. 1139, 94 S.Ct. 888, 39 L.Ed.2d 96 (1974), which states the proposition that a letter of credit is completely independent of the underlying agreement or contract that it guarantees. The independence principle is not, however, violated by affording Pubali a right to sue. Because it is suing on the warranties made by the beneficiaries, it is suing on the letters themselves, and not on the underlying contract for the chartering of vessels. Therefore, defendants’ reliance on ¿relays Bank is misplaced.

With regard to the expenses covered by the letters of credit, CNB and Aristos have presented no material which is significantly different from the record upon which we based our decision in Pubali I. Nor have they shown errors in the factual assumptions underlying our conclusion in Pubali I that “[i]f demurrage [as well as freight] was to be covered by the letters of credit the letters could and should have included a specific amount or other provision for demurrage,” and that “all concerned distinguished between the two classes of charges until a dispute arose.” 676 F.2d at 1329. Instead their evidence consists essentially of declarations about what the letters were intended to cover and what the expression “freight earned per contract” is commonly understood to mean. None of this changes the factual premises of our opinion in Pubali I.

The letters of credit were written to cover only a certain amount and Emerald paid Aristos those amounts in full. There is no dispute that Emerald owes Aristos money above and beyond the amounts on the face of the letters of credit. Other amounts owing, however, do not justify drawing down the letters which were standby guarantees for particular debts which had been honored fully. CNB and Aristos still offer no plausible explanation for why, if the letters of credit were intended to cover demurrage and other incidental charges, they did not specify that they would be adjusted if necessary to include demurrage, or they were not made out “in the amount of the loan” instead of for a specific amount. The declarations submitted on this issue indicate nothing more than that Aristos bargained that the total cost would not exceed the amount of the letters of credit. There is no basis in the record for Aristos’ argument that because the total cost of the charters was more than the letters covered, Pubali is estopped from protesting Aristos’ and CNB’s improperly drawing down the letters.

Nor have CNB and Aristos presented new evidence on the question of whether they knew Aristos had been paid when they drew down the letters of credit. Some of CNB’s evidence, favorably interpreted, suggests that because confusion arose about whether Aristos had assigned to ENB an Emerald payment, CNB officials may have thought Emerald had not paid Aristos. No new facts have been alleged, however, which disprove Pubali’s evidence that both Aristos and CNB knew Emerald had been paid the full amount of the letters of credit.

Finally, CNB has not alleged facts which undermine our earlier conclusion that CNB acted in its capacity as Aristos’ assignee when it drew down the letters of credit. CNB’s evidence tends to show that an attempt at formal assignment had been rejected by CNB because it was not properly signed by Emerald. However, CNB has made no attempt to rebut Pubali’s allegation that after CNB received the funds from Manufacturers it used them to repay itself the money it had lent to Aristos. Whether or not there was a formal assignment, the record is still clear that CNB acted not solely as an advising bank, but also on its own behalf and thus that it shared liability with Aristos.

In their opposition to summary judgment and on appeal, Aristos and CNB have failed to present any significant evidence not available when Pubali I was decided. Their after-the-fact, unsupported explanations of intent do not counter the facts which we held in Pubali I were sufficient to invoke their liability. The partial summary judgment is affirmed.  