Rutgard

MEMORANDUM *

The district court properly determined that there was sufficient consideration for the mutual release between Rutgard and Haynes. Although Rutgard appears to correctly assert that under California law an attorney would not be entitled to fees for representation which occurs while the attorney has an actual conflict of interest, Image Technical Service, Inc. v. Eastman Kodak Co., 136 F.3d 1354, 1358 (9th Cir.1998), it is also clear under California law that our task is not to reach an ex post conclusion as to the merits of the claim for attorneys’ fees in order to determine whether there was consideration for the release ex ante. Murphy v. T. Rowe Price Prime Reserve Fund, Inc., 8 F.3d 1420, 1423 (9th Cir. 1993). Under California law, “surrender of a possibly meritless claim which is disputed in good faith is valid consideration.” Id.; see also Goldstone-Tobias Agency, Inc. v. Barbroo Enterprises Productions, Inc., 237 Cal.App.2d 720 , 47 Cal.Rptr. 347, 349 (Cal.Ct.App.1965) (citing cases and concluding forbearance to bring an action on an invalidly signed contract could constitute valid consideration).

Haynes undisputedly had a contractual claim for attorneys’ fees,…