NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

IVAN LEE, an individual, No. 20-17003

Plaintiff-Appellant, D.C. No. 2:17-cv-00118-JAM-EFB v.

CITY OF SACRAMENTO, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted October 19, 2021** San Francisco, California

Before: GOULD and BEA, Circuit Judges, and VITALIANO,*** District Judge.

Appellant Ivan Lee, a street construction laborer for the City of Sacramento,

filed a complaint in the United States District Court for the Eastern District of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. California alleging that his employer had racially discriminated and retaliated

against him in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2,

and state law. Days after settling his claims through the mediation of a magistrate

judge, Lee moved, pursuant to Federal Rule of Civil Procedure Rule 60(b)(1), to

vacate the settlement agreement, while the City cross-moved to enforce it. The

district court denied Lee’s motion and granted the City’s cross-motion. We have

jurisdiction over Lee’s appeal pursuant to 28 U.S.C. § 1291, we review for abuse

of discretion, and we affirm.

The central question presented by this appeal is whether an oral exchange of

claim release and dismissal for a lump sum of money in open court created, as the

district court found, an enforceable contract. Nothing in either law or rule requires

that the agreement be reduced to writing. It is required, however, that the binding

terms of the agreement be complete and that they have the assent of the settling

parties. Doi v. Halekulani Corp., 276 F.3d 1131, 1137 (9th Cir. 2002). Here, the

agreement by the parties in open court was as complete as the law requires.

2 There is, likewise, no shortage of record support showing that Lee and his

counsel consented to the settlement agreement. A district court applies California

law in determining whether a legally enforceable settlement agreement was

reached, even where the underlying cause of action arises under federal law. See

Jeff D. v. Andrus, 889 F.2d 753, 759 (9th Cir. 1989). Though it is true that the

magistrate judge did not ask Lee to ratify the settlement with a ‘yes,’ California

law does not prescribe the form in which a party’s consent must be expressed.

Rather, “[t]he test is whether a reasonable person would, from the conduct of the

parties, conclude that there was a mutual agreement.” Marin Storage & Trucking,

Inc. v. Benco Contracting & Eng’g, Inc., 89 Cal. App. 4th 1042, 1050 (2001).

The settlement agreement Lee seeks to set aside was the product of lengthy

and intense mediation by the magistrate judge. Lee was present with his counsel

the entire time, both during the off-the-record negotiations and when the terms of

the agreement were outlined in open court and counsel advised of the parties’

consent to the agreement. It was at that time that the magistrate judge expressed to

3 Lee that the settlement fairly and adequately resolved the case, and Lee personally

thanked the magistrate judge for helping to bring about the agreement.

The record developed on Lee’s motion to set aside the agreement, which was

referred to the same magistrate judge who had mediated the settlement, only

fortifies the conclusion that the district court’s determination that Lee had assented

to the agreement, and that the agreement should be enforced rather than set aside,

was reasonable and not an abuse of discretion. Indeed, notwithstanding his

contrary claims made now, during the colloquy with the magistrate judge on his

Rule 60(b)(1) motion, Lee did not dispute that he was present and participating in

the mediation and had raised no objection in open court when the terms of the

agreement were outlined and the consent of the parties entered on the record.

In essence, Lee’s argument before the magistrate judge was that he had

made a mistake, due to poor advice from counsel, by assenting to the agreement.

Yet Rule 60(b)(1) is not intended to provide relief from an otherwise enforceable

settlement agreement or “to remedy the effects of a deliberate and independent

litigation decision that a party later comes to regret,” even if it is “a poor litigation

4 decision made because of inaccurate information or advice” from an attorney.

Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1109–1101 (9th Cir.

2006).

Although Lee regrets the settlement reached in his case, he makes no

showing that, at the time of his assent to it, he was not informed of its terms or that

his agreement was unintentional or involuntary. Since the recommendation of the

magistrate judge that Lee’s motion to vacate the settlement agreement be denied,

and the City’s motion to enforce it granted, was well-supported by the record, the

district court’s adoption of that recommendation was not an abuse of discretion.

AFFIRMED.

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