Gilleran

On August 10,1990, the State of California (State) seized control of First Pacific Bank (Bank) pursuant to California Financial Code (Financial Code) § 3100 because, among other things, it concluded that the Bank’s contributed capital was impaired. The State appointed the Federal Deposit Insurance Corporation (FDIC) as receiver for the Bank. In accordance with Financial Code § 3101, the Bank and its owners brought suit in state court to reverse the seizure. The FDIC removed the case to federal district court pursuant to 12 U.S.C. § 1819 (b)(2)(B). The district court entered summary judgment confirming the seizure.

The Bank now appeals from the district court’s summary judgment, and its conclusion that its contributed capital was impaired. The State cross-appeals from an earlier ruling that a capital note should be included in the Bank’s contributed capital. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. § 1291 . We affirm, but for reasons different than those stated by the district court.

I

The Bank argues that summary judgment was improper because there was a genuine issue of material fact as to whether its contributed capital was impaired. We review a…