Case 8:11-cv-01426-AG-AN Document 49

Filed 12/03/12 Page 1 of 4 Page ID #:189

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title SACV 11-1426 AG (ANx) AUDIE ATTAR v. JOHN JR RICKERT Date December 3, 2012

Present: The Honorable Lisa Bredahl Deputy Clerk

ANDREW J. GUILFORD Not Present Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Proceedings:

[IN CHAMBERS] ORDER GRANTING MOTION TO ENFORCE SETTLEMENT

Plaintiff Audie Attar (Plaintiff) sued Defendant John JR Rickert (Defendant) in September 2011, alleging that Defendant had breached the terms of an employment agreement by refusing to pay Plaintiff or reimburse him for various expenses Plaintiff had incurred. In September 2012, the parties reached a settlement agreement that required Defendant to pay Plaintiff a total of $41,000 in five payments. But Defendant allegedly failed to keep his end of the bargain. Before the Court is Plaintiffs Motion to Enforce the Settlement (Motion). Defendant has not filed an opposition to the Motion. The Court GRANTS the Motion. BACKGROUND The parties agreed on settlement terms on September 19, 2012. (Motion, Dkt. No. 47, at 2:11-12.) Three days later, the parties signed the Settlement Agreement. (Id. at 2:13-15; Settlement Agreement and Mutual General Release, Dkt. No. 47, Exh. A (Settlement Agreement), at 1.) Under the Settlement Agreement, Defendant agreed to make five payments to Plaintiff: $9,000 within three days of signing the Settlement Agreement;
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Case 8:11-cv-01426-AG-AN Document 49

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title SACV 11-1426 AG (ANx) AUDIE ATTAR v. JOHN JR RICKERT Date December 3, 2012

$8,000 by September 30, 2012; $8,000 by October 31, 2012; $8,000 by November 30, 2012; and $8,000 by December 30, 2012. (Settlement Agreement 1.) The Settlement Agreement provided that, if Plaintiff did not receive any of the $8,000 payments, the entire remaining amount would become due immediately, along with a $5,000 penalty and interest on any unpaid amount. (Id. 2.) The Settlement Agreement was signed by Plaintiff, Defendant, and the arbitrator Roger P. Kaplan. (Id. at 6.) The day the Settlement Agreement was signed, Defendant gave Plaintiff five signed checks drawn on the account of JR Sports Enterprises, LLC. (Motion, at 2:22-28; Copies of Post-dated Checks, Dkt. No. 47, Exh. C.) The first check, for $9,000, was back-dated September 15, 2012. (Id.) The other four checks, for $8,000, were post-dated for September 30, 2012, October 30, 2012, November 30, 2012, and December 30, 2012. (Id.) Plaintiffs attorney deposited the checks dated September 15, 2012 and September 30, 2012 into his client trust account, but both were returned due to insufficient funds. (Motion, at 3:2-7; Notices of Insufficient Funds, Dkt. No. 47, Exh. C.) Plaintiffs attorney discussed the returned checks with Defendant, who said on numerous occasions that he would send replacement checks but never did. (Declaration of T.K. Smith, Dkt. No. 47 (Smith Decl.), at 6-7.) On October 12, 2012, Plaintiffs attorney conferred with Defendant about this Motion. (Id. 7.) Defendant has not filed an opposition to this Motion. LEGAL STANDARD It is well settled that a district court has the equitable power to enforce summarily an agreement to settle a case pending before it. Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987). But [t]he district court may enforce only complete settlement agreements. Maynard v. City of San Jose, 37 F.3d 1396, 1401 (9th Cir. 1994) (citing Callie, 829 F.2d at 890). The Court cannot enforce a purported settlement agreement unless all of the terms of that agreement have been agreed to by both parties. Callie, 829 F.2d at 890.
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Case 8:11-cv-01426-AG-AN Document 49

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title SACV 11-1426 AG (ANx) AUDIE ATTAR v. JOHN JR RICKERT Date December 3, 2012

The construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally. Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989); see also Gates v. Rowland, 39 F.3d 1439, 1444 (9th Cir. 1994). The mutual intention of the parties is determined by examining factors including the words used in the agreement, the surrounding circumstances under which the parties negotiated or entered into the contract, and the subsequent conduct of the parties. Ambat v. City and County of San Francisco, No. C 0703622 SI, 2011 WL 2118576, at *2 (N.D. Cal. May 27, 2011). ANALYSIS The circumstances in this case show that enforcement of the parties settlement is appropriate. The terms of the settlement unambiguously require Defendant to make the five payments to Plaintiff and notify Defendant that failure to make any of the last four payments will trigger an additional $5,000 payment. (Settlement Agreement 1-2.) There is no evidence of additional agreements or proposed changes. Plaintiff and Defendant showed intent to be bound by the Settlement Agreement by signing it. (Settlement Agreement, at 6.) Defendants agreement with the settlement terms is also apparent from the five checks he wrote, signed, and gave to Plaintiff. (Motion, at 2:2228; Copies of Post-dated Checks, Dkt. No. 47, Exh. C.) The declaration from Plaintiffs attorney also supports Plaintiffs agreement with the settlement terms. In the declaration, Plaintiffs attorney stated that, after the first two checks were returned for insufficient funds, Defendant repeatedly promised to send replacement checks. (Smith Decl. 6-7.) Together, this evidence adequately supports Plaintiffs argument that the Settlement Agreement was a complete agreement and that both parties intended to be bound by it. The Court therefore GRANTS Plaintiffs Motion. Although it is possible Defendant might have arguments in opposition, the participation of an arbitrator in the settlement and the failure of Defendant to file any opposition convinces the Court that Plaintiff should prevail. See L. R. 7-12 (The failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion.).
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Case 8:11-cv-01426-AG-AN Document 49

Filed 12/03/12 Page 4 of 4 Page ID #:192

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title SACV 11-1426 AG (ANx) AUDIE ATTAR v. JOHN JR RICKERT Date December 3, 2012

DISPOSITION Plaintiffs Motion to Enforce the Settlement is GRANTED. Plaintiff shall submit a short judgment, without factual recitals and reflecting that judgment is entered against Defendant and for Plaintiff.

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