1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY GIRALDES, Jr., No. 2:17-cv-2602-KJM-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 M. BOBBALA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding with counsel in an action brought under 42 U.S.C. 18 § 1983. On June 7, 2019, a settlement conference was held before Magistrate Judge Kendall J. 19 Newman and the parties reached a verbal settlement as to this case (and two others). ECF No. 54. 20 The parties were obligated to file dispositional documents within thirty days of that date. Id. A 21 stipulation for voluntary dismissal with prejudice, signed by plaintiff and attorney Derrek Lee of 22 the California Office of Attorney General, was filed on June 10, 2019. ECF No. 55. The case 23 was closed the next day. ECF No. 56. 24 Now, plaintiff has filed two pro se motions – one for reconsideration (ECF No. 57) and 25 another “to vacate order to dismiss as untimely” (ECF No. 59) – both of which argue that: (1) 26 plaintiff was misled by the court during settlement proceedings; (2) that the written settlement 27 ///// 28 ///// 1 terms are “without merit”;1 and (3) that defendants prematurely moved to dismiss this action 2 before the terms of settlement were complete. Chijioke Ikonte – plaintiff’s counsel who 3 represented him in settlement – did not sign either motion. Defendants Bobbala, Bodenhamer, 4 Moghaddam, and Nicolai filed an opposition to the motion to vacate order to dismiss. ECF No. 5 60. Defendant Sahota filed a joinder to the opposition. ECF No. 61. 6 Legal Standards 7 I. Settlement Agreements 8 “It is well settled that a district court has the equitable power to enforce summarily an 9 agreement to settle a case pending before it.” Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987). 10 “Assessing the validity of a settlement agreement . . . is a question of state contract law.” Golden 11 v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083, 1087 (9th Cir. 2015) (“Typically, the 12 construction and enforcement of settlement agreements are governed by principles of local law 13 which apply to interpretation of contracts generally.” (internal quotation marks and citation 14 omitted)). Under California law, a valid contract requires parties capable of contracting, consent, 15 a lawful object, and consideration. Cal. Civ. Code § 1550; Lopez v. Charles Schwab & Co., Inc., 16 118 Cal. App. 4th 1224, 1230 (Cal. Ct. App. 2004). “[U]nless a writing is required2 by the statute

17 1 Plaintiff has also filed a “supplement” (ECF No. 64) which also attacks the settlement 18 agreement as “invalid.” Id. at 2.

19 2 California Civil Code section 1624 lists seven types of contracts as “invalid” without a writing: 20 (1) An agreement that by its terms is not to be performed within a 21 year from the making thereof. 22 (2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794. 23 (3) An agreement for the leasing for a longer period than one year, 24 or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is 25 invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged. 26 (4) An agreement authorizing or employing an agent, broker, or any 27 other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to procure, introduce, or find a 28 purchaser or seller of real estate or a lessee or lessor of real estate 1 of frauds, oral settlement agreements are enforceable in the same manner as oral agreements in 2 general.” 3 II. Motion for Reconsideration 4 “[A] motion for reconsideration should not be granted, absent highly unusual 5 circumstances, unless the district court is presented with newly discovered evidence, committed 6 clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners 7 v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). A motion for reconsideration “may not be used to 8 raise arguments or present evidence for the first time when they could reasonably have been 9 raised earlier in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 10 2000). 11 Analysis 12 I. Motion for Reconsideration 13 Plaintiff’s motion for reconsideration should be denied. This case was closed when 14 plaintiff signed, along with defendants, a stipulation for voluntary dismissal with prejudice under 15 where the lease is for a longer period than one year, for compensation 16 or a commission. 17 (5) An agreement that by its terms is not to be performed during the lifetime of the promisor. 18 (6) An agreement by a purchaser of real property to pay an 19 indebtedness secured by a mortgage or deed of trust upon the property purchased, unless assumption of the indebtedness by the 20 purchaser is specifically provided for in the conveyance of the property. 21 (7) A contract, promise, undertaking, or commitment to loan money 22 or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not primarily for personal, family, or 23 household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. 24 For purposes of this section, a contract, promise, undertaking, or commitment to loan money secured solely by residential property 25 consisting of one to four dwelling units shall be deemed to be for personal, family, or household purposes. 26 27 Cal. Civ. Code § 1624(a)(1)-(7). The immediate contract does not appear to fall within any of 28 those categories. 1 Federal Rule of Civil Procedure 41. ECF No. 55. Plaintiff now seeks “reconsideration” of the 2 “notice of voluntary dismissal” – a text only entry indicating that this case was closed based on 3 the stipulation. ECF No. 56. There is neither newly discovered evidence, clear error on the part 4 of the court, nor an intervening change in the controlling law. Indeed, there was no order of the 5 court closing the case. See Pedrina v. Han Kuk Chun, 987 F.2d 608, 610 (9th Cir. 1993) (“The 6 language of Rule 41(a)(1) is unequivocal. It permits a plaintiff to dismiss an action ‘without order 7 of court.’”) (quoting Fed. R. Civ. P. 41(a)(1)). If a motion for reconsideration is one seeking a 8 “substantive change of mind by the court,” see Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 9 1988), then it is inapposite here.3 10 II. Motion to Vacate 11 Plaintiff’s motion to vacate should also be denied. He asks the court to “vacate its order 12 to dismiss under Fed. R. Civ. P 41 as untimely.” ECF No. 59 at 1. As noted supra, this action 13 was dismissed pursuant to a stipulation which plaintiff signed. There is no order to vacate.4 14 Moreover, in his motion plaintiff states that he signed under the misapprehension that 15 “[s]ettlement was achieved.” Id. He claims that the written terms drafted by the defendants are 16 “significantly meritless and not what was promised at the verbal settlement.” Id. He does not, 17 however, explain how the verbal and written terms differ or how the latter are “meritless.” Nor 18 has plaintiff offered a valid rationale, under local contract law, for attacking the verbal settlement 19 reached on June 7, 2019. There was an oral settlement agreement before Judge Newman. See

20 3 To the extent, plaintiff proceeds under Rule 60(b) with this motion, the Ninth Circuit has 21 held that: 22 Rule60(b)(1) is not intended to remedy the effects of a litigation that a party later comes to regret through subsequently-gained knowledge 23 that corrects the erroneous advice of counsel. For the purposes of subsection (b)(1), parties should be bound by and accountable for the 24 deliberate actions of themselves and their chosen counsel. Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir. 2006). 25

26 4 Plaintiff also claims that the agreement is untimely insofar as “the [m]otion to dismiss 27 was to be held by defendants until settlement was complete.” ECF No. 59 at 1. Again, he signed the stipulation which resulted in this action’s dismissal and was aware of the date on which it was 28 signed. See ECF No. 55 at 2 (signed and dated by plaintiff). 1 ECF No. 62 at 20-22. There is no indication that plaintiff was incapable of contracting. See Cal. 2 Civ. Code § 1556 (“All persons are capable of contracting, except minors, persons of unsound 3 mind, and persons deprived of civil rights.”). There was, as the record indicates, consent. ECF 4 No. 62 at 20-22. And plaintiff cannot reasonably argue the absence of either lawful object or 5 consideration. Resolution of pending litigation is a lawful reason to contract. See Stewart v. 6 Preston Pipeline Inc., 134 Cal. App. 4th 1565, 1586 (2005) (settlement has lawful object insofar 7 as it resolves litigation). The settlement conferred, inter alia, a financial benefit to plaintiff and, 8 thus, the requirement of consideration is met. ECF No. 62 at 4, 10. The agreement at issue does 9 not fall into any of the seven categories for which the California Civil Code demands a writing. 10 Lastly, the Ninth Circuit has upheld a district court’s enforcement of a negotiated 11 settlement “where, after the terms of the settlement had been placed on the record and agreed to 12 by all parties in open court, the plaintiff refused to execute a written agreement.” Doi v. 13 Halekulani Corp., 276 F.3d 1131, 1133-34 (9th Cir. 2002). In Doi, the relevant agreement was 14 governed by Hawaii law. Nevertheless, California law also provides that “[i]f the parties to 15 pending litigation stipulate, in a writing signed by the parties outside the presence of the court or 16 orally before the court, for settlement of the case, or part thereof, the court, upon motion, may 17 enter judgment pursuant to the terms of the settlement.” Cal. Civ. Proc. Code § 664.6 (emphasis 18 added). An oral agreement was reached before the court in this case and, thus, enforcement of the 19 agreement is appropriate. 20 Conclusion 21 Accordingly, the Clerk of Court is directed to serve on plaintiff, along with these findings 22 and recommendations, a copy of the settlement conference transcript (ECF No. 62). 23 Further, it is RECOMMENDED that: 24 1. Plaintiff’s motion for reconsideration (ECF No. 57) be DENIED; and 25 2. Plaintiff’s motion to vacate order to dismiss as untimely (ECF No. 59) be DENIED. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 1 || objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 4 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 5 | DATED: October 17, 2019. tid, PDEA

EDMUND F. BRENNAN

7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28