Opinion
18cv2290-GPC(KSC)
05-31-2021
JASON BROOKS, Plaintiff, v. TARSADIA HOTELS, 5th ROCK, LLC, MKP ONE, LLP, TUSHAR PATEL, B.U. PATEL, GREGORY CASSERLY, PLAYGROUND DESTINATION PROPERTIES, INC. AND DOES 1-50, Defendants
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND CLARIFICATION ORIGINAL FILED UNDER SEAL [Dkt. No. 110.]
Hon. Gonzalo P. Curiel United States District Judge
Before the Court is Plaintiff Jason Brooks' (“Mr. Brooks”) motion for reconsideration and clarification of the Court's order adopting report and recommendation granting Defendants' amended motion to enforce settlement agreement. (Dkt. No. 110.) Defendants Tarsadia Hotels, 5th Rock, LLC, MKP One, LLC and Gaslamp Holdings, LLC's (“Tarsadia Defendants”) filed a response. (Dkt. No. 112.) Plaintiff filed a reply. (Dkt. No. 113.) Based on the reasoning below, the Court DENIES Plaintiff's motion for reconsideration and clarification.
Defendants included Tarsadia Defendants and Playground Destination Properties, Inc. (“Playground”). In response to the motion for reconsideration only Tarsadia Defendants filed an opposition.
Background
On February 4, 2021, the Court adopted the Magistrate Judge's report and recommendation granting Defendants' amended motion to enforce settlement agreement. (Dkt. No. 104.) After a review of the record surrounding the settlement agreement, which included the defense counsel's declaration, the Magistrate Judge's minute order following the ENE, the Magistrate Judge's recollection and recitation of facts in the R&R and the May 21, 2020 status hearing transcript, the Court concluded that Mr. Brooks was fully informed and orally agreed to the terms of the settlement before the Magistrate Judge at the ENE. (Id. at 16.) Per the terms of the settlement agreement, the Court also directed that within one week “Tarsadia Defendants shall deposit __with the Clerk of the Court by check made payable to the ‘Clerk of Court, U.S. District Court, Southern District of California,' to be held in an interest-bearing account pending further order of the Court.” (Id. at 16-17.) Further, the Court granted Plaintiff until April 15, 2021 “to file his motion and briefing on how the Settlement Amount should be distributed based on controlling law and the restitution order against him.” (Id.) On February 16, 2021, Tarsadia Defendants filed a notice indicating they submitted the settlement check to the Clerk of Court. (Dkt. No. 108.)
Page No. are based on the CM/ECF pagination.
The Court granted Tarsadia Defendants' request for extension of time to submit the settlement amount to the Clerk of Court because they did not receive a copy of the unredacted order until February 12, 2021. (Dkt. Nos. 106, 107.) The deadline for submitting payment was redacted from the redacted version publicly filed on February 5, 2021. (Dkt. No. 106.)
On March 2, 2021, Plaintiff filed a motion for reconsideration making numerous arguments that the settlement agreement was procured by fraud by the Magistrate Judge. (Dkt. No. 110.) It is not entirely clear but it appears that Plaintiff seeks to rescind the settlement agreement arguing that there was never an agreement to settle because he informed the Magistrate Judge he agreed to settle the case only if the settlement funds would go to his sister or charity but not to pay the restitution against him in his underlying conviction. (Id. at 6.) In response, Defendants argue there is no basis for reconsideration as the Court already considered these same arguments that Plaintiff raises in his reconsideration motion. (Dkt. No. 112.)
Discussion
A. Legal Standard on Motion for Reconsideration
Plaintiff does not provide the relevant legal standard for his motion for reconsideration. In any event, a district court may reconsider a prior order under either Federal Rule of Civil Procedure (“Rule”) 59(e) or Rule 60(b). Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Under Rule 59(e), reconsideration is “appropriate if the district court (1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Id. at 1263; see also Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). A court commits clear error when “the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Smith, 727 F.3d at 955 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Rule 60(b) “provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances' which would justify relief.” Sch. Dist. No. 1J, Multnomah Cty., Or., 5 F.3d at 1263 (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)).
A motion for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration cannot be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Id.
In addition, Local Civil Rule 7.1(i)(1) provides that a motion for reconsideration must include:
an affidavit or certified statement of a party or attorney setting forth the material facts and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was made thereon, and (3) what new and different facts and circumstances are claimed to exist which did not exist, or were not shown upon such prior application.Local Civ. R. 7.1(i)(1).
Tarsadia Defendants argue the Court should deny the reconsideration motion because Mr. Brooks failed to comply with Local Civil Rule 7.1(i)(1). (Dkt. No. 112 at 4-5.) Mr. Brooks replies that he does not have access to the local rules and when he asked for them from the Clerk's office, he received a bill to pay for them. (Dkt. No. 113 at 3.) Because Mr. Brooks claims he does not have access to the Local Rules and has already provided the information required by the Local Rule in his motion, a declaration is not necessary.
B. Analysis
Plaintiff moves for reconsideration but identifies no new facts, no intervening change in law, no extraordinary circumstances or showing that the Court committed clear error in order to justify relief from the Court's prior order. Instead, he disagrees with the Court's ruling and repeats arguments raised in his objections to the R&R that were already considered by the Court.
Because the validity of the settlement agreement is based on the Magistrate Judge's recollection of events, in the motion for reconsideration, Mr. Brooks seeks to discredit, malign and challenge the Magistrate Judge, but does not provide any evidentiary proof. Accordingly, the Court declines to consider Plaintiff's numerous allegations against the Magistrate Judge claiming she “lied, destroyed evidence of her lies”, “conspire[d]”, “fabricated [her] ‘recollection'”, “plotted. . . her trap”, engaged in “despicable conduct”, and was “unfair” as unsupported. Moreover, his reliance on another case where the Magistrate Judge oversaw a settlement does not provide support she is biased against him. (Dkt. No. 113 at 3-4 (citing Holt v. Macarthur, 11cv1502-GPC(KSC), 2014 WL 940327 (S.D. Cal. Mar. 10, 2014).) In that case, the Court adopted the Magistrate Judge's R&R granting the defendants' motion to enforce settlement agreement and there, the Court found there was no undue influence imposed on the Defendant to settle the case. Holt, 2014 WL 940327, at *4. In this case, Plaintiff does not allege undue influence on him by the Magistrate Judge to settle the case.
First, Mr. Brooks argues that the Court cited no precedent where a court enforced an oral settlement agreement against a pro se plaintiff who vehemently protested the terms of the agreement and one that was not recorded or placed on the record. (Dkt. No. 110 at 3, 7.) As the Court explained in its order, in California, an oral settlement agreement made before the court is enforceable even if not on the record as long as there is substantial evidence that supports the existence and term of a settlement agreement. (Dkt. No. 104 at 8-9 (citing Karpinsky v. Smitty's Bar, Inc., 246 Cal.App.4th 456, 461 (2016); Kohn v. Jaymar-Ruby, Inc., 23 Cal.App.4th 1530, 1533-34 (1994).) In California “[w]hen parties orally agree upon all the terms and conditions of an agreement with the mutual intention that it shall thereupon become binding, the mere fact that a formal written agreement to the same effect is to be prepared and signed does not alter the binding validity of the oral agreement.” Kohn, 23 Cal.App. at 1534 (citation omitted). In this case, the Magistrate Judge facilitated the settlement agreement reached at the early neutral evaluation conference and also presided over the motion to enforce settlement agreement. Because the ENE conference was not recorded, the Magistrate Judge was permitted and in fact relied on her recollection of events. Moreover, the Magistrate Judge's order following the ENE corroborates the Magistrate Judge's recitation of the terms of the settlement agreement. (Dkt. No. 72.) The order states that a settlement had been reached at the ENE conference and provided the salient terms of the settlement agreement which included drafting and the exchange of a written settlement agreement, payment by Tarsadia Defendants of the settlement funds to the Clerk of Court and the filing of a motion before the undersigned judge by Mr. Brooks “delineating how plaintiff believes the settlement funds should be distributed based on applicable law and in consideration of any restitution order entered against him in connection with his conviction.” (Id. at 2.) Further, defense counsel's declaration as well as the transcript of the telephonic status hearing held on May 21, 2020 provide additional support for the terms of the settlement agreement. (Dkt. No. 77-1, Moses Decl.; Dkt. No. 90, Trans.) Based on this record, the Court concluded Mr. Brooks fully understood and orally agreed to the terms of the settlement before the Magistrate Judge at the ENE conference and the parties entered into a legally binding settlement agreement. (Dkt. No. 104 at 16.) Therefore, the Court's ruling is supported by California caselaw.
Next, Mr. Brooks argues that the doctrine of “contra proferentem” requires that any ambiguities be resolved against the drafter. (Dkt. No. 110 at 11.) However, contra proferentem applies to insurance contracts and Mr. Brooks has not demonstrated this theory applies to this case. See Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 539 (9th Cir. 1990); Eley v. Boeing Co., 945 F.2d 276, 280 (1991) (“contra proferentem is strictly applied in the interpretation of insurance contracts”). But, “a settlement agreement is analyzed in the same manner as any contract, i.e., any ambiguities are construed against the drafter.” Erdman v. Cochise Cnty., Ariz., 926 F.2d 877, 880 (9 Cir. 1991).
Contra proferentem is a principle of insurance contract construction “that when one party is responsible for the drafting of an instrument, absent evidence indicating the intention of the parties, any ambiguity will be resolved against the drafter.” Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 539 (9th Cir. 1990).
Plaintiff argues there is ambiguity because Defendants were not even involved in the oral settlement agreement and evidence was lost or intentionally concealed. (Dkt. No. 110 at 11.) Therefore, the Magistrate Judge's recollection must yield to Plaintiff's reasonable interpretation. (Id.) Plaintiff does not identify an ambiguity as to any terms of the settlement agreement. Instead, there is a disputed fact issue on whether Mr. Brooks required that the settlement funds go to his sister, to charity or to pay his restitution. Therefore, Mr. Brooks' second argument is not persuasive.
Mr. Brooks next maintains that his due process rights were violated because the Magistrate Judge failed to advise him at the ENE that the oral settlement agreement was enforceable and because he is incarcerated in Colorado, he was unaware of the ENE process. (Dkt. No. 110 at 10-11.) Tarsadia Defendants respond that Mr. Brooks was give full notice as to the ENE. (Dkt. No. 112 at 6.) On February 26, 2020, the Magistrate Judge issued an order and provided detailed information about the upcoming ENE conference and included a section about the purpose of the ENE Conference which is “to permit an informal discussion between the attorneys, parties, and the Magistrate Judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. All ENE Conference discussions will be informal, off the record, privileged and confidential.” (Dkt. No. 64 at 2.) Moreover, at the ENE conference, the Magistrate Judge recited the terms of the settlement with all parties on the line and asked each party and counsel to verbally confirm that the stated terms accurately represented the settlement reached. (Dkt. No. 94 at 4.) Plaintiff confirmed the terms orally on the record and did not express any objections to the terms. (Id.) Therefore, Plaintiff's argument that he did not understand the ENE process and that settlement agreements consummated at the ENE conference would not be enforceable are without merit.
Next, Brooks argues that the Court did not consider his pro se status and liberally construe his “reasonable understanding” of the settlement as well as his inability to access the law library making his briefing “incomplete at best.” (Dkt. No. 110 at 9-10, 12-13.) During this case, the Court has been cognizant that Mr. Brooks is a pro per litigant and his arguments have been liberally construed in a prior opposition brief to a motion. (See Dkt. No. 37 at 36-37.) In addition, liberal construction applies to a pro se's arguments contained in pleadings and briefs and not the Court's consideration of evidence. See Boag v. MacDougall, 454 U.S. 364, 365 (1982) (courts are to construe the “inartful pleading” of pro se litigants); Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (“It is settled law that the allegations of [a pro se litigant's complaint] ‘however inartfully pleaded' are held ‘to less stringent standards than formal pleadings drafted by lawyers . . .”)); Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (“[T]he Court has held pro se pleadings to a less stringent standard than briefs by counsel and reads pro se pleadings generously, ‘however inartfully pleaded.'”); see also Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989) (stating that obligation of courts to liberally construe pro se pleading “applies only to a plaintiff's factual allegations”).
Mr. Brooks provides no legal authority that the Court must accept his version of the facts that do not have any evidentiary support against substantial evidence that supports the existence and terms of a settlement agreement.
Mr. Brooks' additional argument that he has not had access to the law library and therefore his briefing is incomplete is not persuasive. As an initial matter, Mr. Brooks has timely filed his briefs in this case without seeking leave for an extension of time. Moreover, his briefs contain numerous arguments with numerous citations to caselaw. Further, if Mr. Brooks had concerns about the completeness of his brief, he could have filed a request to continue briefing deadlines but he did not.
Finally, he argues that Defendants breached the terms of the settlement agreement by failing to deposit the settlement funds with the Court. (Dkt. No. 110 at 13-14.) This was already addressed in the Court's order and Mr. Brooks provides no legal reasons why the Court should reconsider this issue. (Dkt. No. 104 at 15 n.7.)
Therefore, because Plaintiff has not demonstrated any reasons that the Court should reconsider its order, the Court DENIES Plaintiff's motion for reconsideration.
In addition to seeking reconsideration, Plaintiff seeks clarification of the motion he is to file before this Court and also seeks an indefinite extension of time to file the motion until he has access to the law library. (Dkt. No. 110 at 15.) Mr. Brooks asserts he is unsure what he is to brief because the Magistrate Judge's order is conflicting. While the R&R states that Plaintiff would brief the applicability of the PSLRA to determine the appropriate recipient of the settlement funds, (Dkt. No. 93 at 3:8-12 (UNDER SEAL)), the Magistrate Judge expanded that briefing to also include how plaintiff believes settlement funds should be distributed based on applicable law and the restitution order entered against him in his underlying conviction. (Id. at 11:2-5.) He also seeks clarification as to whether federal or state law applies.
According to the terms of the Settlement Agreement, Plaintiff is to brief “the issue of the proper recipient of the settlement funds” and “how the Settlement Amount would be directed based on controlling law and a restitution order against him.” (Dkt. No. 93 at 3-4 (UNDER SEAL); Dkt. No. 84-1, Moses Am Decl. ¶ 5 (UNDER SEAL).) That could include applicability of the PSRA or any other legal basis. At this stage, the Court declines to provide any further legal guidance or advisory opinions on the motion Plaintiff will be filing concerning how the settlement funds are to be distributed. See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“federal courts established pursuant to Article III of the Constitution do not render advisory opinions.”). Accordingly, the Court DENIES Plaintiff's request for clarification.
The Court also DENIES Plaintiffs request for an indefinite extension of time to file his motion but will grant him an extension of time until August 15, 2021 . In the event Plaintiff needs additional time, he shall file a request for an extension of time explaining the status of his access to the law library.
Conclusion
Based on the above, the Court DENIES Plaintiffs motion for reconsideration and clarification. Plaintiff is granted an extension of time until August 15, 2021 “to file his motion and briefing on how the Settlement Amount should be distributed based on controlling law and the restitution order against him.” (Dkt. No. 104 at 17.) The hearing set on May 14, 2021 shall be vacated .
IT IS SO ORDERED.