Free Response in Opposition to Motion - District Court of Arizona - Arizona

CitiCapital Technology Finance, Inc., et al.
v.
Grant H. Goodman and Teri B. Goodman
No. CV-03 01587 PHX J AT
CitiCapital’s Response to Plaintiffs’
"First Verified Consolidated Independent Action"
EXHIBIT 1
Memorandum*
Case 2:03-cv-01587-JAT Document 133-2 Filed 06/30/2008 Page 1 of 4

Nor Fon PUBLICATION MAY 23 2008
M0u.Y c. DWYER, cLERK
UNITED STATES COURT OF APPEALS 0-8- 000** 0F/0"F'EALS
FOR THE NINTH CIRCUIT
CITICAPITAL TECHNOLOGY No. 06-16423
FINANCE, INC.; GENERAL ELECTRIC
CAPITAL CORP.; CITICAPITAL D.C. No. CV-03-01587-JAT
COMMERCIAL LEASING CORP.,
MEMORANDUM *
Plaintiffs - Appellees,
v.
GRANT H. GOODMAN, individually,
and GRANT H. GOODMAN and TERI B.
GOODMAN, husband and wife, as
guarantors/sureties,
Defendants - Appellants.
Appeal from the United States District Court for the
District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted May 14, 2008
San Francisco, California
Before: B. FLETCHER and RYMER, Circuit Judges, and DUFFY", District
" This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
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Judge.
Grant and Teri Goodman (collectively the "Goodmans”) appeal the district
court’s grant of a deficiency judgment in favor of CitiCapital Technology Finance,
Inc. and General Electric Capital Corporation following the sale of repossessed
equipment pursuant to the default provisions of the Goodmans’ leases. The
Goodmans argue that: (1) the sale of the equipment was not done in a
commercially reasonable manner; (2) the liquidated damages clauses were
unenforceable; (3) CitiCapital and General Electric had anticipatorily repudiated
the leases; and (4) the district court should have allowed Grant Goodman to testify
as to certain matters. ·
Contrary to the Goodmans’ assertion, there is ample evidence in the record
demonstrating that the sale was done in a commercially reasonable manner as it
was conducted in the usual manner in the recognized market of Ontario, California
through public auctions and private sales following extensive marketing efforts.
ARIZ. REV. STAT. § 47-9627(B). Also, the liquidated damages provisions of the
leases were enforceable as reasonable forecasts of anticipated damages, Fraser v.
United States, 261 F.2d 282, 286-87 (9th Cir. 1958), and such damages were
properly calculated. Moreover, the Goodmans’ anticipatory repudiation argument
lacks merit as the record does not show that CitiCapital and General Electric
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affirmatively and unequivocally expressed an intent to not perform their
obligations. Oldenburger v. Del E. Webb Dev. Co., 765 P.2d 531, 533 (Ariz. Ct.
App. 1988). Finally, the district court did not abuse its discretion in precluding
Grant Goodman from testifying either to legal matters and arguments, or to his
opinions of the value of the repossessed property, as he was neither the owner of
the property nor disclosed as an expert. E McHugh v. United Serv. Auto. Ass’n,
164 F.3d 451, 454 (9th Cir. 1999) (stating that witnesses may not testify as to
issues of law); In re Enewally, 368 F.3d 1165, 1173 (9th Cir. 2004) (stating that
owners may give opinions as to the value of their property).
AFFIRMED.
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