                               NOT FOR PUBLICATION                          FILED
                         UNITED STATES COURT OF APPEALS                      JAN 8 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


 INDYMAC BANK, F.S.B.,                               No. 13-56972

            Plaintiff - Appellee,                    D.C. No. 5:12-cv-01494-VAP-
                                                     DTB
 and

 FEDERAL DEPOSIT INSURANCE                           MEMORANDUM*
 CORPORATION, as Receiver for Indymac
 Bank FSB,

            Movant - Appellee,

   v.

 ARYANA/OLIVE GROVE LAND
 DEVELOPMENT LLC, a California
 limited liability company,

            Defendant,

   and

 SHAHVAND ARYANA, an individual,

            Defendants - Appellants.

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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted January 6, 2016**
                               Pasadena, California

Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.

      Appellant Shahvand Aryana appeals the district court’s grant of partial

summary judgment in favor of the FDIC holding Aryana liable for breach of

guaranty, and determining that the FDIC’s damages were at least $5,201,040.63.

Reviewing the district court’s grant of partial summary judgment de novo and its

evidentiary decisions for abuse of discretion, we affirm.

      In 2006, IndyMac Bank (the “Bank”) entered into a loan agreement with

Aryana/Olive Grove Land Development, LLC (“Olive Grove”), of which Aryana

was a managing member. Olive Grove executed a promissory note in favor of the

Bank, which set a maturity date upon which the loan, if not yet repaid, would

become payable and due in full. In addition, Aryana executed a guaranty

agreement in which he personally guaranteed Olive Grove’s performance under the

loan agreement.1

      After Olive Grove failed to repay the loan by the maturity date, the Bank




      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1
       Olive Grove and the Bank subsequently agreed to a loan modification, for
which Aryana reaffirmed his guaranty.

                                          2
demanded payment in full from Aryana pursuant to the guaranty agreement.

Aryana did not pay, and the Bank sued in California superior court alleging, inter

alia, a cause of action for breach of guaranty under California law. In July 2008,

the FDIC was appointed receiver for the Bank, and subsequently substituted for the

Bank in the state court action. The FDIC then removed this suit to federal court

pursuant to 12 U.S.C. § 1819(b)(2)(B).

      The FDIC moved for summary judgment on its breach of guaranty claim,

which the district court granted as to liability, and granted in part and denied in

part as to damages. With respect to damages, the district court held that the

amount owed on the loan (and hence the guaranty) was $5,545,460.63, but the

court held that a triable issue of fact existed as to whether a $344,420 check from

Olive Grove’s insurer to the Bank had been credited against the amount Olive

Grove owed on the loan. The district court accordingly held that the FDIC’s

damages were at least $5,201,040.63, but denied summary judgment as to

$344,420 of the FDIC’s claimed damages and directed the parties to proceed to

trial on that issue. The parties subsequently stipulated to a judgment of

$5,306,702.53. In this timely appeal, Aryana challenges the district court’s grant

of summary judgment as to both liability and damages.

      1. Liability.

      Aryana argues that he is not liable to the FDIC because (1) Olive Grove’s


                                           3
nonperformance under the loan agreement was excused under Brown v. Grimes,

120 Cal. Rptr. 3d 893, 902 (Cal. Ct. App. 2011), by the Bank’s alleged prior

material breach involving delaying disbursements or underdisbursing funds due to

Olive Grove under the loan agreement; and (2) under California law, a guarantor’s

liability can be no larger than the underlying principal’s obligation. Cal. Civ. Code

§ 2809. These arguments fail because Aryana waived such defenses in his

guaranty agreement.

      Section 5(f) of the guaranty agreement explicitly “waives any defense to the

enforcement of this Guaranty . . . arising by reason of . . . any discharge or release

of any other Loan Party2 . . . whether resulting from any act or omission of the

Lender . . . or by operation of law.” Section 5(l) of the agreement further waived

“any defense arising from a claim that the obligations of the Guarantor are greater

than those of the Borrower or any other Loan Party,” and § 5(k) waived “any

defense arising by reason of . . . any other action by the Lender.” Those clauses

were sufficiently clear as to waive Aryana’s prior-material-breach and § 2809

defenses. In addition, § 7.05(c) of the loan agreement provides that “the [Bank]

shall have no responsibility or liability for any delays in funding or construction

caused by any inspection of construction or review of Documents, information,


      2
       The loan agreement defines “Loan Party” as including “the Borrower,” i.e.,
Olive Grove.


                                           4
conditions or performance, or any other action by the Lender in connection with

any Disbursement.” Together, these provisions clearly encompass Aryana’s

contention that Olive Grove’s liability under the loan agreement—and by

extension, Aryana’s liability under the guaranty agreement—was discharged by the

Bank’s purported prior material breach of failing to make full disbursements in a

timely manner.3 We therefore affirm the district court’s grant of summary

judgment in the FDIC’s favor as to liability.

      2. Damages.

      Aryana also challenges the district court’s grant of partial summary

judgment relating to damages, arguing that the district court’s conclusion that the

FDIC had established damages of $5,201,040.63 was not supported by evidence in

the record. Because the FDIC placed sufficient evidence in the record to support

its damages calculations, and because Aryana fails to point to any evidence in the

record that contests or contradicts the FDIC’s evidence of damages, we affirm.

      In support of its summary judgment motion, FDIC filed a declaration from a

Vice President at KeyCorp Real Estate Capital Markets, Inc., which was retained

by IndyMac to service its loan to Olive Grove. The declaration authenticated



      3
         Because Aryana waived any prior breach defense, any error arising from
the district court’s exclusion of the testimony of Stephen Eib—which Aryana
proffered to support that defense—was necessarily harmless.


                                          5
Exhibit J, which was a July 16, 2013 statement of account created by KeyCorp that

listed the payoff amount of the Olive Grove loan as $5,545,460.63.

      Aryana objected to the portion of the declaration authenticating Exhibit J

and Exhibit J itself on hearsay and foundation grounds. The district court rejected

that objection in relevant part.4 The district court then relied on Exhibit J when it

concluded that the FDIC had submitted sufficient evidence to support its damages

calculation.5

      Aryana argues that the district court abused its discretion by not excluding

Exhibit J. We disagree. The declarant supervised IndyMac’s loan to Olive Grove,

and there is no basis on this record to conclude that he lacked sufficient knowledge

to authenticate Exhibit J at trial. Fed. R. Civ. P. 56(c)(2). Moreover, the FDIC

filed a supplemental declaration from the same declarant that appropriately laid the

foundation for its admission as a business record. Accordingly, the district court

did not abuse its discretion by considering Exhibit J.



      4
        Aryana points to the district court’s rejection of a proffered “statement of
undisputed fact” containing the $5,545,460.63 number, arguing that it was
inconsistent with this evidentiary ruling. Although it is not entirely clear what the
basis for that rejection was, it does not change our conclusion that the district
court’s damages calculation is supported by the record.
      5
         Although the district court’s opinion erroneously referred to “Exhibit I,”
the district court’s description of the document as “an authenticated statement
indicating the balance owed on the loan dated July 16, 2013” makes clear that the
district court meant to reference Exhibit J.

                                           6
      Aryana also argues that the FDIC failed to place evidence in the record

demonstrating how it calculated its claimed damages. But Exhibit J states that the

interest rate used in calculating the payoff amount was 8.75%, which was the

minimum interest rate set forth in the promissory note. Exhibit J also states the

amount of the principal as of July 16, 2013, and the amount of interest accrued

from Feb. 1, 2008 to June 30, 2013. The FDIC thus submitted sufficient evidence

to support its damages calculations. Accordingly, to create a triable issue of fact,

Aryana needed to offer evidence contradicting or contesting the FDIC’s

calculations. Because Aryana fails to point to any evidence in the record

contesting the FDIC’s damages calculations, the district court’s award of partial

summary judgment as to this issue must be affirmed.6

                                              AFFIRMED.




      6
         Aryana also argues for the first time on appeal that the district court’s
reliance on the FDIC’s damage calculations were error because the Bank never
notified Aryana of the post-default interest rate it would charge Aryana, as is
required by California law. Because Aryana did not present this argument to the
district court, it is waived. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.
2006).

                                          7
