Ascendiant Capital Group v. Todd L. Smith, an individual Erroneously Sued As Todd R. Smith

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASCENDIANT CAPITAL GROUP,
Plaintiff - Appellant,
v.
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,
No. 09-56156
D.C. No. 8:07-cv-01286-JVS-AN
MEMORANDUM*
FILED
NOV 17 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable John A. Jarvey, United States District Judge for the**
Southern District of Iowa, sitting by designation.
2
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

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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

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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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