                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 23 2012

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



                            FOR THE NINTH CIRCUIT


FIDELITY NATIONAL FINANCIAL,                     No. 10-56148
INC., a Delaware corporation, AKA Seal
1; FIDELITY EXPRESS NETWORK,                     D.C. No. 2:06-cv-04271-CAS-JWJ
INC., a California corporation, AKA Seal
2,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

    v.

COLIN H. FRIEDMAN, individually and
as trustee of the Friedman Family Trust
UDT, dated July 23, 1987, AKA Seal B;
HEDY KRAMER FRIEDMAN,
individually and as trustee of the Friedman
Family Trust UDT, dated July 23, 1987,
AKA Seal C; FARID MESHKATAI, an
individual, AKA Seal D; ANITA
KRAMER MESHKATAI, individually
and as trustee of the Anita Kramer Living
Trust, dated July 23, 1987, AKA Seal E;
JOSEPH F. ETIENNE, trustee of Kramer
Family Trust, Friedman Insurance Trust,
Negev Trust, Brendon Friedman Trust,
Jason Friedman Trust, Elan Meshkatai
Irrevocable Trust, Arianna Meshkatai
Irrevocable Trust, and Aries Trust, AKA
Seal F; LORRAINE ROSS, as trustee of


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Friedman Insurance Trust, AKA Seal
G, Erroneously Sued As Laraine Ross;
SPACE PLANNERS LLC, an Arizona
limited liability company, AKA Seal H,
DBA Closets by Design; AZURA
INTERNATIONAL LLC, an Arizona
limited liability company, AKA Seal I;
WORLDWIDE NETWORK, INC., a
California corporation, AKA Seal J;
EXECUTIVE-WORLDWIDE, INC., a
California corporation, AKA Seal K;
EXECUTIVE LEGAL NETWORK, INC.,
a California corporation, AKA Seal L;
KZE ATTORNEY SERVICE, INC., a
California corporation, AKA Seal M;
WORLDWIDE REPROGRAPHICS,
INC., a California corporation, DBA
Simplex Reprographics, AKA Seal N;
MEDHI EKTEFAIE, an individual, AKA
Seal O; INVESTEC TRUST
(SWITZERLAND) S.A., as trustee for the
Zodiac Trust; KRAMER FOUNDATION;
NECESSARY HOLDINGS, INC., a
California corporation,

            Defendants - Appellees.



FIDELITY NATIONAL FINANCIAL,               No. 10-56728
INC., a Delaware corporation, AKA Seal
1; FIDELITY EXPRESS NETWORK,               D.C. No. 2:06-cv-04271-CAS-JWJ
INC., a California corporation, AKA Seal
2,

            Plaintiffs - Appellants,



                                       2
 v.

COLIN H. FRIEDMAN, individually and
as trustee of the Friedman Family Trust
UDT, dated July 23, 1987, AKA Seal B;
HEDY KRAMER FRIEDMAN,
individually and as trustee of the Friedman
Family Trust UDT, dated July 23, 1987,
AKA Seal C; FARID MESHKATAI, an
individual, AKA Seal D; ANITA
KRAMER MESHKATAI, individually
and as trustee of the Anita Kramer Living
Trust, dated July 23, 1987, AKA Seal E;
JOSEPH F. ETIENNE, trustee of Kramer
Family Trust, Friedman Insurance Trust,
Negev Trust, Brendon Friedman Trust,
Jason Friedman Trust, Elan Meshkatai
Irrevocable Trust, Arianna Meshkatai
Irrevocable Trust, and Aries Trust, AKA
Seal F; LORRAINE ROSS, as trustee of
the Friedman Insurance Trust, AKA Seal
G, Erroneously Sued As Laraine Ross;
SPACE PLANNERS LLC, an Arizona
limited liability company, DBA Closets by
Design, AKA Seal H; AZURA
INTERNATIONAL LLC, an Arizona
limited liability company, AKA Seal I;
WORLDWIDE NETWORK, INC., a
California corporation, AKA Seal J;
EXECUTIVE-WORLDWIDE, INC., a
California corporation, AKA Seal K;
EXECUTIVE LEGAL NETWORK, INC.,
a California corporation, AKA Seal L;
KZE ATTORNEY SERVICE, INC., a
California corporation, AKA Seal M;
WORLDWIDE REPROGRAPHICS,
INC., a California corporation, AKA Seal

                                        3
N, DBA Simplex Reprographics; MEDHI
EKTEFAIE, an individual, AKA Seal O;
INVESTEC TRUST (SWITZERLAND)
S.A., as trustee for the Zodiac Trust;
NECESSARY HOLDINGS, INC., a
California corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                       Argued and Submitted March 9, 2012
                              Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.



      The district court did not err in determining that Colin Friedman and the

other appellees (collectively, the Friedman parties) were “wrongfully enjoined”

within the meaning of Federal Rule of Civil Procedure 65(c) because the Friedman

parties “had the right all along” to lend money to Azura. Nintendo of Am., Inc. v.

Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir. 1994). Nor did the district

court err in concluding that Fidelity National Financial, Inc. and Fidelity Express

Network, Inc. (collectively, Fidelity) did not rebut the presumption that the

Friedman parties are “entitled to have the bond executed and recover provable


                                          4
damages up to the amount of the bond.” Id. The record suggests that the Friedman

parties suffered at least some provable damages, and Fidelity did not prove

otherwise. Nor did Fidelity adduce any other reasons why it “should not suffer the

execution of the preliminary injunction bond.” Id. at 1037.

      The district court’s determination that the injunction was “the direct cause of

the failure of [Azura] at the time that it failed” was not clearly erroneous and was

sufficient to support the conclusion that the loss to the Friedman parties as a result

of Azura’s failure was proximately caused by the injunction. Ambassador Hotel

Co. v. Wei-Chuan Inv., 189 F.3d 1017, 1027–28 (9th Cir. 1999). Accordingly, the

district court did not err in concluding that the Friedman parties were entitled to

provable damages.

      The district court did clearly err, however, in concluding that the Friedman

parties had proven they suffered damages in the amount of $1.1 million. The

district court did not explain the basis of its reasoning, and the record does not

support this conclusion. First, the record does not support a conclusion that the

Friedman parties’ loss, i.e., the value of the loans to Azura before the issuance of

the injunction less the value of those loans after the injunction was lifted,

amounted to $1.1 million. Ff. In re Daou Sys., Inc., 411 F.3d 1006, 1025–27 (9th

Cir. 2005); Ambassador Hotel, 189 F.3d at 1030–31. Rather, evidence in the


                                           5
record shows that the loans required no interest payments, had no repayment date,

and carried a high risk of default, all of which may reduce the value of a loan. See

United States v. Yeung, ---F.3d ---, 2012 WL 432289, at *5 (9th Cir. 2012).

Second, the record does not support the conclusion that the loans would have

almost certainly been repaid in full but for the injunction, given the evidence that

Azura lost money every year of operation and its prospects of future success were

speculative. Finally, the district court did not consider evidence that Azura

retained hundreds of thousands of dollars in assets after it failed, some of which

may have been available to make repayments on the loans. Therefore, the district

court’s implicit findings that the value of the loans before the injunction issued was

the $1.1 million face amount of the loans and that the loans had no value after

Azura failed are not supported by the record and are clearly erroneous.

      On remand, the district court may select any reasonable method of

calculation to develop a reasonable estimate, based on the evidence in the record,

of the provable damages suffered by the Friedman parties. The district court may

determine such damages by developing a reasonable estimate of the value of the

loans before the injunction issued, and subtracting a reasonable estimate of the

value of the loans after the injunction was lifted. The district court need not

determine the loss suffered with “mathematical certainty,” but “sufficient facts


                                          6
must be introduced so that [the] court can arrive at an intelligent estimate without

speculation or conjecture.” Bergen v. F/V St. Patrick, 816 F.2d 1345, 1350 (9th

Cir. 1987) (quoting Harmsen v. Smith, 693 F.2d 932, 945 (9th Cir. 1982), cert.

denied, 464 U.S. 822 (1983)).

      VACATED and REMANDED.




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