Brooks v. Tarsadia Hotels

• Court: District Court, S.D. California
• Decided: February 4, 2021
• Docket: 3:18-cv-02290
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JASON BROOKS, Case No.: 18cv2290-GPC(KSC)

11 Plaintiff, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION GRANTING TARSADIA DEFENDANTS AND 13 TARSADIA HOTELS, 5th ROCK, LLC, PLAYGROUND’S AMENDED MKP ONE, LLP, TUSHAR PATEL, B.U. 14 MOTION TO ENFORCE PATEL, GREGORY CASSERLY, SETTLEMENT AGREEMENT 15 PLAYGROUND DESTINATION

PROPERTIES, INC. AND DOES 1-50, 16 [REDACTED – ORIGINAL FILED Defendants. UNDER SEAL] 17

18 [Dkt. No. 77.]

19 Before the Court is Defendants Tarsadia Hotels, 5th Rock, LLC, MKP One, LLC 20 and Gaslamp Holdings, LLC’s (“Tarsadia Defendants”) amended motion to enforce 21 settlement agreement filed on June 5, 2020. (Dkt. No. 77.) On the same day, Defendant 22 Playground Destination Properties, Inc. (“Playground”) filed a notice of joinder. (Dkt. 23 No. 76.) On June 22, 2020, Plaintiff Jason Brooks (“Mr. Brooks”) filed an opposition. 24 (Dkt. No. 81.) On July 17, 2020, Tarasdia Defendants filed a reply. (Dkt. No. 82.) On 25 August 4, 2020, the Court referred the motion to the Magistrate Judge Karen S. Crawford 26 for a report and recommendation. (Dkt. No. 83.) On August 20, 2020, Mr. Brooks filed 27 an objection to referring the matter to the Magistrate Judge. (Dkt. No. 88.) On October 28 1 2, 2020, the Magistrate Judge issued a report and recommendation (“R&R”) granting 2 Tarsadia Defendant’s and Playground’s (collectively “Defendants”) amended motion to 3 enforce settlement agreement. (Dkt. No. 94.) On October 15, 2020, Mr. Brooks filed an 4 objection. (Dkt. No. 95.) On October 26, 2020, Tarsadia Defendants filed a reply. (Dkt. 5 No. 96.) On January 22, 2021, in response to the Court’s order, Tarsadia Defendants 6 filed the settlement agreement under seal. (Dkt. No. 101.) On January 29, 2021, Brooks 7 filed a notice regarding the settlement. (Dkt. No. 103.) Based on the reasoning below, 8 the Court ADOPTS the R&R and GRANTS Tarsadia Defendants and Playground’s 9 amended motion to enforce settlement agreement. 10 Background 11 On September 25, 2018, Jason Brooks, a prisoner proceeding pro se and in forma 12 pauperis, filed a complaint against Tarsadia Defendants and their principals Gregory 13 Casserly, B.U. Patel, and Tushar Patel as well as Playground for violations of the 14 Interstate Land Sales Full Disclosure Act (“ILSA”) and other related claims arising out of 15 Plaintiff’s purchase of a residential condominium unit in San Diego. (Dkt. No. 1.) After 16 rulings on motions to dismiss the first amended complaint, Plaintiff filed the operative 17 second amended complaint (“SAC”) on September 3, 2019. On December 5, 2019, the 18 Court granted in part and denied in part Tarsadia Defendants and Playground’s motions 19 to dismiss the SAC. (Dkt. No. 56.) Defendants filed their answers on February 21, 2020. 20 (Dkt. Nos. 62, 63.) 21 On April 22, 2020, the parties participated in a telephonic early neutral evaluation 22 conference (“ENE”) with Magistrate Judge Karen S. Crawford. (Dkt. Nos. 70, 71; Dkt. 23 No. 77-1, Moses Decl. ¶ 2.) In attendance were counsel for Tarsadia Defendants, 24 representatives from Tarsadia Defendants, counsel for Playground, representatives from 25 Playground as well as Plaintiff Jason Brooks, Magistrate Judge Crawford and her law 26 clerk. (Dkt. No. 77-1, Moses Am. Decl. ¶ 2.) 27 At the ENE, the Magistrate Judge explained that Plaintiff made the initial 28 settlement demand which was communicated to Defendants who then conferred and 1 presented a counter-proposal which was communicated to Plaintiff. (Dkt. No. 94 at 2- 2 3.1) This process with back and forth consultations between the parties continued for 3 about three hours until the parties reached a settlement. (Id. at 3; Dkt. No. 84-1, Moses 4 Am. Decl. ¶¶ 3-4 (UNDER SEAL).) 5 6 (Dkt. No. 93 at 3 (UNDER SEAL).) 7 . (Id. (UNDER SEAL).) 8 . (Id. (UNDER SEAL).) 9 10 11 12 . (Id. (UNDER SEAL).) 13 (Id. (UNDER 14 SEAL).) 15 Magistrate Judge Crawford articulated the following terms of the settlement to the 16 parties in a joint session. (Dkt. No. 94 at 3.) 17 1.

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15 11. . 16 (Dkt. No. 93 at 3-4 (UNDER SEAL).) Counsel for Tarsadia Defendants who was present 17 at the conference recited similar terms in their motion which included the following: 18 1. 19

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9 (Dkt. No. 84-1, Moses Am. Decl. ¶ 5 (UNDER SEAL).) After the Magistrate Judge 10 recited the terms of the settlement with all parties on the line, she asked each party and 11 counsel to verbally confirm that the stated terms accurately represented the settlement 12 reached. (Dkt. No. 94 at 4.) All parties confirmed that the terms accurately reflected the 13 settlement reached and Mr. Brooks did not express any objections to the terms of the 14 settlement. (Dkt. No. 94 at 4; Dkt. No. 77-1, Moses Am. Decl. ¶ 6.) 15 At the end of the ENE conference, Magistrate Judge Crawford ordered Tarsadia 16 Defendants’ counsel to prepare a written settlement agreement memorializing the terms, 17 and a joint request to dismiss the case, and to send both documents within seven days to 18 Mr. Brooks for his review. (Dkt. No. 77-1, Moses Am. Decl. ¶ 7.) The Court ordered 19 that Mr. Brooks have three days to review and send back the documents to the Tarsadia 20 Defendants. (Id.) The Court also ordered Tarsadia Defendants to provide the Court with 21 a copy of the Settlement Agreement when they transmitted them to Mr. Brooks. (Id.) On 22 April 28, 2020, the Magistrate Judge confirmed the settlement in its Order Following 23 Early Neutral Evaluation Conference. (Dkt. No. 72.) The Order states, 24 The parties reached an agreement in principal during the Early Neutral 25 Evaluation (“ENE”) held on April 22, 2020. As discussed during the ENE, 26 counsel for defendant Tarsadia Hotels will circulate a draft settlement and release agreement by April 29, 2020. Plaintiff shall review and respond 27 within three business days of receipt of the settlement and release 28 agreement. Pursuant to the parties’ agreement, Tarsadia Hotels will deposit 1 the settlement funds with the Clerk of the Court by check made payable to the “Clerk of Court, U.S. District Court, Southern District of California.” 2 The funds so deposited will be held in an interest bearing account pending 3 further order of this Court. Plaintiff Jason Brooks will file a motion before the Hon. Gonzalo P. Curiel, delineating how plaintiff believes the settlement 4 funds should be distributed based on applicable law and in consideration of 5 any restitution order entered against him in connection with his conviction. Plaintiff’s motion shall be filed by June 5, 2020. The settlement funds will 6 be distributed by the Clerk of Court in accordance with the Court’s 7 determination.

8 (Id. at 1-2 (emphasis in original).) Complying with the Court’s order, on April 29, 2020, 9 Tarsadia Defendants sent a copy of a written settlement agreement to Mr. Brooks and 10 Playground that memorialized the terms of the agreement reached on April 22, 2020, and 11 also provided an electronic copy to Judge Crawford’s electronic filing email account. 12 (Dkt. No. 77-1, Moses Am. Decl. ¶ 8.) 13 In May 2020, Mr. Brooks sent a written correspondence to counsel for Tarsadia 14 Defendants stating that he would not sign the written settlement agreement. (Id. ¶ 9.) 15 Brooks stated that he no longer believed that the Settlement Amount should be sent to the 16 Clerk of Court and that the payment should be directed to him or his sister. (Id.) On 17 May 21, 2020, Judge Crawford held a telephonic status conference, which was recorded, 18 with Mr. Brooks and counsel for the Tarsadia Defendants and Playground. (Id. ¶ 10; see 19 also Dkt. No. 90, Trans.) 20 Discussion 21 A. Legal Standard on Report and Recommendation 22 In reviewing a magistrate judge’s report and recommendation, a district court 23 “must make a de novo determination of those portions of the report . . . to which 24 objection is made” and “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 26 72(b); see also United States v. Raddatz, 447 U.S. 667, 675 (1980). Here, Plaintiff filed 27 28 1 an objection; therefore, the Court conducts a de novo review of the portions of the report 2 and recommendation that Plaintiff objects. 2 3 B. Legal Standard on Motion to Enforce Settlement Agreement 4 A district court has the inherent power to summarily enforce, by way of motion, a 5 settlement agreement entered into while the litigation is pending before it. In re City of 6 Equities Anaheim, Ltd., 22 F.3d 954, 957 (9th Cir. 1994); Callie v. Near, 829 F.2d 888, 7 890 (9th Cir. 1987). A settlement agreement must be “a complete agreement” meaning 8 that “the parties have reached agreement on all material terms”, Callie, 829 F.2d at 891, 9 and the parties “must have either agreed to the terms of the settlement or authorized their 10 respective counsel to settle the dispute.” Marks-Foreman v. Reporter Pub. Co., 12 F. 11 Supp. 2d 1089, 1092 (S.D. Cal. 1998) (citations omitted). 12 This enforcement power extends to oral agreements. Doi v. Halekulnai Corp., 276 13 F.3d 1131, 1138 (9th Cir. 2002). An “oral agreement is binding on the parties, 14 particularly when the terms are memorialized into the record,” and “even if a party has a 15 change of heart [after agreeing] to its terms but before the terms are reduced to writing.” 16 Id. (quoting Sargent v. HHS, 229 F.3d 1088, 1090 (Fed. Cir. 2000)). However, 17 18 19 2 Plaintiff filed an objection to the referral of the matter to the Magistrate Judge. (Dkt. No. 88.) Plaintiff argues that the Magistrate Judge is biased against him and should be recused because she created the 20 issue currently 21 (Id.) 22 (Dkt. No. 90 at 22.) 23 Moreover, when one party reneges on a settlement agreement, typically, the next step is to file a motion to enforce settlement agreement. 24

25 Plaintiff’s argument that the Magistrate Judge is biased against him is without merit. Moreover, the motion was 26 referred to the Magistrate Judge because she presided over the settlement and can rely on her own recollection as to the terms of the settlement agreement. See Kohn v. Jaymar-Ruby, Inc., 23 Cal. App. 27 4th 1530, 1533 (1994) (If the same judge presides over both the settlement and the section 664.6 hearing, he may avail himself of the benefit of his own recollection.”). Accordingly, the Court overrules 28 1 enforcement of a settlement agreement is not appropriate “where material facts 2 concerning the existence or terms of a settlement [are] in dispute, [ ] or where a 3 settlement agreement was apparently procured by fraud [ ].” In re City of Equities 4 Anaheim, Ltd., 22 F.3d 954 at 957 (internal citations omitted). 5 “The construction and enforcement of settlement agreements are governed by 6 principles of local law which apply to interpretation of contracts generally.” United 7 Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992) 8 (quoting Jeff D. v. Andrus, 899 F.2d 753, 759 (9th. Cir. 1989)). State law applies even 9 when the underlying litigation is based on federal law. Id.; see also Harrop v. West. 10 Airlines, Inc., 550 F.2d 1143, 1145 (9th Cir. 1977) (applying California law). Courts 11 construe settlement agreements in favor of enforcement. Jeff D., 899 F.2d at 759 (“The 12 authority of a trial court to enter a judgment enforcing a settlement agreement has as its 13 foundation the policy favoring the amicable adjustment of disputes and the concomitant 14 avoidance of costly and time consuming litigation.”). 15 In California, oral settlement agreements made before the court are enforceable. 16 Cal. Civ. Proc. Code § 664.63; Cal. Civ. Code § 16224. “The essential elements of a 17 contract are: [1] parties capable of contracting; [2] the parties’ consent; [3] a lawful 18 object; and [4] sufficient cause or consideration.” Lopez v. Charles Schwab & Co., Inc., 19 118 Cal. App. 4th 1224, 1230 (2004) (citing Cal. Civ. Code § 1550). “Mutual assent 20 usually is manifested by an offer communicated to the offeree and an acceptance 21 communicated to the offeror.” Id. (citing Cal. Civ. Code § 1565). The Court must 22 determine whether there is substantial evidence to support the existence and terms of a 23 24 25 3 Section 664.6 provides, “[i]f parties to pending litigation stipulate, in a writing signed by the parties 26 outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Cal. Civ. Proc. Code § 27 664.6. 4 Section 1622 states, “[a]ll contracts may be oral, except such as are specially required by statute to be 28 1 settlement agreement under section 664.6. See Karpinsky v. Smitty's Bar, Inc., 246 Cal. 2 App. 4th 456, 461 (2016). 3 Section 664.6 provides a summary procedure for enforcement of settlement 4 agreements during pending litigation. Murphy v. Padilla, 42 Cal. App. 4th 707, 711 5 (1996); Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th 793, 809 (1998). “It is well 6 settled that an oral agreement recited to a judge in the course of a settlement conference 7 supervised by that judge satisfies the ‘before the court’ requirement.” Murphy, 42 Cal. 8 App. 4th at 712.5 In Fiege v. Cooke, 125 Cal. App. 4th 1350, 1355-56 (2004), the court 9 held that it did not matter that the insurers’ assent was not “on the record” or the 10 “reporter’s transcript” noting that section 664.6 used to contain the requirement that an 11 oral settlement must be “orally on the record before the court” but “on the record” 12 requirement was removed by legislation in 1994. Id. at 1356 (it was clear from the 13 transcript that the insurers’ representation and counsel had discussion with the court 14 before going on the record and relaying the settlement). 15 “An agreement to settle a lawsuit which is reached at a judicially supervised 16 settlement conference is enforceable.” Richardson v. Richardson, 180 Cal. App. 3d 91, 17 97 (1986); see In re Marriage of Assemi, 7 Cal. 4th 896, 906 (1994) (“It is undisputed 18 that a stipulated settlement presented orally by the party litigants or their counsel to a 19 judge, in the course of a settlement conference supervised by that judge, satisfies the 20 “before the court” requirement of section 664.6.”). “In ruling on a motion to enter 21 judgment under section 664.6, the trial court acts as a trier of fact. It must determine 22 whether the parties entered into a valid and binding settlement. To do so it may receive 23 oral testimony in addition to declarations. If the same judge presides over both the 24 settlement and the section 664.6 hearing, he may avail himself of the benefit of his own 25 recollection.” Kohn v. Jaymar-Ruby, Inc., 23 Cal. App. 4th 1530, 1533 (1994) (citing 26

27 5 “In 1994, the Legislature deleted the requirement, added in 1993, that a stipulation made orally before 28 1 Richardson, 180 Cal. App. at 97) (affirming order enforcing settlement agreement 2 holding that the judge who was present during settlement conference could rely on his 3 own recollection concerning the terms of the settlement). In Kohn, the court of appeal 4 concluded there was substantial evidence to support the trial court’s ruling based on the 5 minute order stating that a settlement had been reached, respondent’s counsel’s 6 declaration stating the terms of the settlement including a letter written to the appellant 7 the day after the settlement conference confirming the terms of the settlement, failure of 8 the appellant to object to the terms as recited by the respondent, and finally, the trial 9 judge, who presided over both the settlement conference and the hearing on the motion to 10 enforce the agreement, stated at the hearing that the terms of the settlement agreement as 11 recited in respondent's motion were those agreed to at the settlement conference. Id. at 12 1533-34. “When the same judge hears the settlement and the motion to enter judgment on 13 the settlement, he or she may consult his memory.” Terry v. Conlan, 131 Cal. App. 4th 14 1445, 1454 (2005) (citing Richardson, 180 Cal. App. 3d at 97). 15 In Woods v. Carey, No. 2:04-cv-1225 MCE AC P, 2015 WL 7282749, at *2 (E.D. 16 Cal. Nov. 18, 2015), finding and recommendation adopted 2016 WL 11440086 (Jan. 15, 17 2016), aff’d 715 Fed. App’x 694 (Mar. 20, 2018), the Magistrate Judge denied a party’s 18 request for evidentiary hearing regarding whether an agreement had been reached at the 19 settlement conference explaining that the settlement agreement was placed on the record 20 and “the recollection of the judge conducting the settlement conference can also support a 21 finding of an enforceable agreement without an evidentiary hearing. Id. at *2 (citing 22 Lynch, Inc. v. SamataMason Inc., 279 F.3d 487 491 (7th Cir. 2002) (where neither party 23 asks that any part of the discussion be recorded, the judge’s failure to insist that a 24 settlement reached in such a discussion be recorded does not invalidate the settlement and 25 both parties assumed the risk that the judge would recollect the discussion differently 26 from how they did and the challenging party must live with the consequences)). 27 / / / 28 / / / 1 C. Analysis 2 The Magistrate Judge who facilitated and presided over the settlement between the 3 parties concluded that the parties formed a legally binding settlement agreement at the 4 ENE conference, that Mr. Brooks understood and accepted the terms, and knowingly and 5 voluntarily entered into the agreement. (Dkt. No. 94 at 20.) 6 In his objection, Plaintiff raises several threshold procedural challenges to the 7 validity and enforceability of the settlement agreement. First, Plaintiff challenges the 8 enforceability of the settlement agreement because it was not placed on the record in 9 open court. (Dkt. No. 95 at 2.) As discussed above, a settlement agreement may be 10 enforced as long as it is supervised by a judge and does not need to be placed on the 11 record. See Fiege, 125 Cal. App. 4th at 1355-56; Murphy, 42 Cal. App. 4th at 712. In the 12 same vein, Plaintiff also argues that the Magistrate Judge did not cite to any part of the 13 record to support her rendition of the terms of the settlement agreement and relies solely 14 on a declaration of defense counsel. (Dkt. No. 95 at 2-3, 5.) A judge presiding over a 15 settlement can rely on her own recollection about the terms of the settlement. See Kohn, 16 23 Cal. App. 4th at 1533; Richardson, 180 Cal. App. at 97 (affirming order enforcing 17 settlement agreement holding that the judge who was present during settlement 18 conference could rely on his own recollection concerning the terms of the settlement). 19 Here, Magistrate Judge Crawford did not solely rely on defense counsel’s declaration but 20 also properly relied on her own recollection of what transpired at the ENE including 21 reciting the terms of the settlement and recollecting that Plaintiff had voluntarily agreed 22 to all terms of the settlement without any objection. (Dkt. No. 94 at 2-5.) 23 Plaintiff also argues that he may rescind the agreement because his consent “was 24 given by mistake” citing California Civil Code section 1689(b)(1). Section 1689(b)(1) 25 provides “(b) A party to a contract may rescind the contract in the following cases: (1) If 26 the consent of the party rescinding, or of any party jointly contracting with him, was 27 given by mistake, or obtained through duress, menace, fraud, or undue influence, 28 1 exercised by or with the connivance of the party as to whom he rescinds, or of any other 2 party to the contract jointly interested with such party.” Cal. Civ. Code § 1689(b)(1). 3 A mistake supporting rescission must either be a “mistake of fact” as defined in 4 Civil Code section 1577 or “mistake of law” as defined in Civil Code section 1578. 5 Hedging Concepts, Inc. v. First Alliance Mortg. Co., 641 Cal.App.4th 1410, 1421 (1996). 6 Mr. Brooks appears to be alleging a mistake of law as he claims that he was under the 7 mistaken belief that the PLRA applied to the case and who would be entitled to the 8 settlement funds. (Dkt. No. 95 at 2.) “A mistake of law as defined by Civil Code section 9 1578 exists only when 1) all parties think they know and understand the law but all are 10 mistaken in the same way, or 2) when one side misunderstands the law at the time of 11 contract and the other side knows it, but does not rectify that misunderstanding.” Id. at 12 1421; Cal. Civ. Code § 1578. Here, Plaintiff has not provided legal authority that a 13 unilateral mistake of law without the other side knowing it is sufficient to rescind a 14 settlement agreement. 15 . Notwithstanding any alleged mistake of law, the 16 Court notes that even if Plaintiff misunderstood the law, this misunderstanding does not 17 affect the validity of the settlement agreement 18 19 20 21 22 23 Mr. Brooks acknowledges that he agreed in principle to settle the case at the ENE 24 conference, (Dkt. No. 81 at 2), but disputes certain provisions in the Settlement 25 Agreement that were drafted by Defendants and presents the following arguments that the 26 parties did not knowingly and voluntarily enter into a complete agreement or intended to 27 be bound by the terms of the agreement. 28 / / / 1 1. Recipient of the Settlement Funds 2 Plaintiff argues that Defendants omitted a provision that if the undersigned judge 3 ruled that the money would be diverted to pay for restitution, he would only agree to 4 settle if the proceeds would be given to charity. (Dkt. No. 81 at 2-3, 4.) The Magistrate 5 Judge explained that this issue will be determined by the undersigned judge and does not 6 detract from the fact the parties entered into an agreement where Defendants would be 7 dismissed with prejudice after an order on the issue is filed. (Dkt. No. 94 at 19.) In his 8 objection, Mr. Brooks claims the agreement is not enforceable because there is an 9 inconsistency between the Magistrate Judge’s recited provision stating that 10 11 12 (Dkt. No. 95 at 5.) 13 The written settlement agreement provides that Defendants “ 14 15 16 17 18 19 20 .” (Dkt. No. 21 101, Sett. Ag. ¶ 3 (UNDER SEAL).) 22 In the R&R, the Magistrate Judge explains 23 24 . (Dkt. No. 93 at 3 (UNDER SEAL).) At the status conference, 25 26 27 . (Dkt. No. 90, Trans. at 2:14-19; 7:7-19 (UNDER SEAL).) 28 1 2 . (Id. (UNDER SEAL).) 3 Irrespective of whether the settlement agreement or the Magistrate Judge 4 mentioned that the settlement proceeds this ultimate issue on 5 how the settlement funds should be distributed will be determined by the undersigned 6 judge. Defense counsel, the Magistrate Judge’s minute order following the ENE, the 7 Magistrate Judge’s recitation of the facts, and the status hearing transcript all confirm that 8 Plaintiff agreed to file a motion before the undersigned judge to explain, 9 . 10 Therefore, 11 . 12 Plaintiff’s allegation of his entitlement to the settlement funds is not a basis to reject the 13 validity or enforceability of the settlement agreement. 14 2. Section 1542 Waiver 15 Next, Plaintiff argues that Defendants falsely stated that Mr. Brooks was advised 16 of the section 15426 waiver at the ENE conference, when in fact, he was never advised of 17 the statute and does not even know what the statute provides. (Dkt. No. 81 at 4). 18 According to the Magistrate Judge, 19 (Dkt. No. 93 at 4 (UNDER SEAL).) Defense counsel also 20 (Dkt. No. 79, Moses Am. Decl. ¶ 5 (UNDER 21 SEAL).) 22 23 24 25

26 6 “A general release does not extend to claims that the creditor or releasing party does not know or 27 suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Cal. Civ. Code § 28 1 Plaintiff does not object to the Magistrate Judge’s conclusion that the settlement 2 agreed upon by the parties included a Section 1542 waiver. Therefore, the Court accepts 3 the findings of the Magistrate Judge.7 4 3. Jurisdiction under Kokkonen 5 Mr. Brooks avers that the Court lacks jurisdiction to enforce the settlement under 6 Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 378-82 (1994) and is a matter 7 for state court. (Dkt. No. 81 at 5-7.) The R&R concluded that Plaintiff’s reliance on 8 Kokkonen is misplaced as that case dealt with enforcing a settlement agreement after the 9 case had been dismissed with prejudice. (Dkt. No. 94 at 9.) It further explained that the 10 Court has jurisdiction to enforce settlement agreements between the parties in pending 11 cases especially one reached with the assistance of the Magistrate Judge. (Id.) 12 Mr. Brooks does not object to the R&R on this issue. The Court finds that the 13 R&R properly concluded that under Kokkonen, a federal court’s jurisdiction ends upon 14 dismissal of the case with prejudice. Because this case has not been dismissed, the 15 holding in Kokkonen does not apply. (Id.) Therefore, the Court adopts the findings of 16 the Magistrate Judge on this issue. 17 4. Plaintiff’s Entitlement to Settlement Funds 18 19 20 7 Plaintiff additionally argues that there is an inconsistency between the Magistrate Judge’s order 21 following ENE stating that “Brooks will file a motion before the Hon. Gonzalo P. Curiel, delineating how plaintiff believes the settlement funds should be distributed based on applicable law and in 22 consideration of any restitution order entered against him in connection with his conviction”, and Defendants’ claim that the settlement “would not be dependent upon any further briefing by Mr. Brooks 23 and/or determination by the Court regarding how the Settlement Agreement would be distributed.” (Dkt. No. 81 at 4-5.) He argues these two provisions are diametrically opposed and suggest that 24 “Plaintiff has no entitlement to brief the Court on where the settlement damages would go, which 25 Brooks would never-and has never-agreed to.” (Id. at 5.) Plaintiff misunderstands the terms of the written settlement agreement. The settlement agreement does not imply or state that Plaintiff has no 26 entitlement to brief the Court on where the settlement funds would go. It states that Defendants recognize Plaintiff will file a motion and whatever the undersigned decides will not affect that the case 27 has been resolved between Plaintiff and Defendants and a dismissal with prejudice will be filed after the Court’s order. In fact, Defendants state that they will not object to Brooks’ motion. Therefore, 28 1 Finally, Plaintiff argues that he is entitled to the Settlement Amount arguing 2 3 . (Dkt. No. 81 at 7-14.) The Magistrate Judge concluded that 4 this issue does not affect the enforceability of the settlement agreement because the 5 parties agreed that the undersigned judge would made that determination. (Dkt. No. 94 at 6 19.) The Court agrees. The Magistrate Judge could not make the ultimate determination 7 on the recipient of the settlement funds. Therefore, the proper avenue to address this 8 issue is when Plaintiff files his motion with the undersigned judge and this issue does not 9 affect the validity and enforceability of the settlement agreement. 10 Based on review of defense counsel’s declaration, the Magistrate Judge’s minute 11 order following the ENE, the Magistrate Judge’s recitation of the facts in the R&R, and 12 the status hearing transcript, the Court concludes that Mr. Brooks was fully informed and 13 orally agreed to the terms of the settlement before the Magistrate Judge at the ENE 14 conference. Besides the issue of who will be the recipient of the settlement funds, Mr. 15 Brooks does not challenge other provisions of the agreement such as the amount of the 16 settlement, dismissal of the case with prejudice, each party to bear their own attorneys’ 17 fees and costs and the releases outlined in the settlement agreement. (See Dkt. No. 90 at 18 17:3-9.) Thus, Plaintiff knowingly and voluntarily entered into the terms as provided in 19 the written settlement agreement and the Court ADOPTS the report and recommendation 20 of the Magistrate Judge. 21 Conclusion 22 Based on the above, the Court ADOPTS the report and recommendation of the 23 Magistrate Judge and GRANTS Defendants’ amended motion to enforce settlement 24 agreement as provided in the written settlement agreement.8 25

26 8 On January 29, 2021, Plaintiff filed a notice regarding settlement where he argues that the settlement 27 agreement is not enforceable because Defendants breached a material term of the settlement agreement . (Dkt. No. 103.) Plaintiff’s argument is without 28 a 5 4 || Due to COVID-19 restrictions at the prison, Plaintiff is granted until April 15, 2021 to 5 || file his motion and briefing on how the Settlement Amount should be distributed based 6 controlling law and the restitution order against him. 7 IT IS SO ORDERED. 8 ||Dated: February 4, 2021 9 Hon. athe Coke 10 United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24

26 a _ and the written settlement a a . (Dkt. No. 84-1, 27 ||Moses Am. Decl. 4,5 (UNDER SEAL); Dkt. No. 93 at 4 (UNDER SEAL); and Dkt. No. 101, Sett. Ag. 28 (UNDER SEAL).) Because Plaintiff refused to execute the settlement agreement, Defendants have not breached the settlement agreement.