                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ASCENDIANT CAPITAL GROUP,                        No. 09-56156

             Plaintiff - Appellant,              D.C. No. 8:07-cv-01286-JVS-AN

  v.
                                                 MEMORANDUM *
TODD L. SMITH, an individual
Erroneously Sued As Todd R. Smith;
SUMMIT CAPITAL &
DEVELOPMENT, Erroneously Sued As
Summit Capital and Development LLC,

             Defendants - Appellees,


SUMMIT CAPITAL &
DEVELOPMENT, Erroneously Sued As
Summit Capital and Development LLC,

             Counter-Claimant,

  v.

ASCENDIANT CAPITAL GROUP,

               Counter-Defendant,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
TODD L. SMITH, an individual
Erroneously Sued As Todd R. Smith;
SUMMIT CAPITAL &
DEVELOPMENT, Erroneously Sued As
Summit Capital and Development LLC,

              Third-Party-Plaintiffs,
  v.

EDWARD P. OWENS,

              Third-party-Defendant.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                      Argued and Submitted November 2, 2010
                               Pasadena, California

Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District
Judge.**

       This is an action filed by a lender against both the principal and guarantor of

a promissory note. Plaintiff-Appellee is Ascendiant Capital Group, LLC

(“Plaintiff”), the lender, and defendants-appellants are Summit Capital &

Development, LLC, the principal, and Todd L. Smith, the guarantor

(“Defendants”). The jury returned a verdict in favor of the plaintiff and the district


       **
            The Honorable John A. Jarvey, United States District Judge for the
Southern District of Iowa, sitting by designation.

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court entered a judgment of joint and several liability against the defendants.

Under California law, the liability on a promissory note of this nature is joint and

several on the part of the principal and the guarantor; the plaintiff is not entitled to

a double recovery. Impac Imported Parts & Accessories Corp. v. Rattray, 95 Cal.

App. 3d 792, 796 (1979) (citing Cal. Civ. Code § 2807).

      The instructions to the jury were not controverted, and the jury was asked on

the verdict form to state the damages assessed against each defendant. The jury

did so by indicating the amount of “$357,500” in the blank after the name of each

defendant.

      In this appeal, Ascendiant contends that the district court erred in entering a

judgment of joint and several liability in the amount of $357,500 against each

defendant. It argues that the judgment should have reflected that each defendant

was separately liable for the entire amount of damages awarded against it. This

would mean that a judgment of total damages should have been entered in the

amount of $715,000. Yet the plaintiff does not cite to any evidence in the record

that indicates it was entitled to such a judgment or that the plaintiff ever argued to

the jury or district court it was entitled to damages of $715,000. Dividing total

liability between the principal debtor and guarantor is not authorized by the

instructions. Given the clear California law on joint and several liability, there is


                                            3
no basis for holding that the jury intended a total recovery of more than $357,500.

The judgment of joint and several liability in the amount assessed by the jury

against each defendant, taken in conjunction with the counterclaim award against

Summit in the amount of $143,000, roughly totals to the principal amount of the

loan, $500,000, and is thus consistent with California law and with the record

before us.

      The judgment of the district court is AFFIRMED.




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