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Apolonia Salinas, et al v. Lavender Investment


May 4, 2011


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed May 4, 2011 **


United States District Court For the Northern District of California


[Re: Docket No. 22]


Apolonia Salinas ("Salinas") and Faustino Cortez ("Cortez") (collectively, "Plaintiffs") 18 brought this wage-and-hour action against their former employer Lavender Investment, Inc. d/b/a/ 19 Ma's Restaurant ("Lavender") and Tohn Shieh ("Shieh"). In November 2010, Plaintiffs executed 20 separate settlement agreements with Lavender. See Docket No. 23 ("Pedersen Decl."), Exs. 5, 6, 8.

Thereafter, Lavender notified its counsel, Hopkins & Carley, that it did not wish its counsel 22 to continue representing it. Docket No. 25-1 ("Pyne Decl.") ¶4. Upon motion, this Court allowed 23 Hopkins & Carley to withdraw as Lavender's counsel. Docket No. 26. In its order, the Court alerted 24 Lavender that since it is a corporation, it may only appear in this action through an attorney; it may 25 not appear pro se.*fn1 Id. at 1-2; see Civ. L.R. 3-9(b) ("A corporation, unincorporated association, 26 partnership or other such entity may appear only through a member of the bar of this Court"); see also Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) ("It has been the law for the 2 better part of two centuries . . . that a corporation may appear in the federal courts only through 3 licensed counsel") and In Re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear 4 in a court proceeding only through an attorney at law"). To date, Lavender has not alerted this Court 5 that is has obtained new counsel. 6

Plaintiffs filed a motion to enforce them and for the attorney's fees and costs they incurred in having 8 do so. Docket No. 22. Given the circumstances surrounding Lavender's legal representation (or lack 9 thereof), the Court continued the hearing on Plaintiffs' motion. Docket No. 27. Nevertheless, 10 Pursuant to Civil Local Rule 7-1(b), the Court finds the matter suitable for determination without oral argument, and the May 10, 2011 hearing is vacated.

As described above, Plaintiffs and Lavender executed separate settlement agreements to 15 resolve their dispute. According to the executed agreements submitted by Plaintiffs, Lavender 16 agreed to pay $10,850.00 to Salinas and $6,650.00 to Cortez in exchange for their release of claims 17 against it.*fn2 Pedersen Decl., Ex. 8.

Near, 829 F.2d 888, 890 (9th Cir. 1987) ("It is well settled that a district court has the equitable 20 power to enforce summarily an agreement to settle a case pending before it."); see also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381 (1994). To be enforceable, a settlement must meet two 22 requirements. First, it must be a complete agreement. Callie, 829 F.2d at 890-91. Second, both 23 parties must have either agreed to the terms of the settlement or authorized their respective counsel 24 to settle the dispute. Harrop v. Western Airlines, Inc., 550 F.2d 1143, 1144-45 (9th Cir. 1977). The 25 settlement agreements in this case meet both requirements. Although an evidentiary hearing is 26 Lavender did not pay Plaintiffs the amounts due under the settlement agreements, so Lavender has not opposed Plaintiffs' motion.


A court retains jurisdiction to enforce a settlement in a case pending before it. See Callie v. required "[w]here material facts concerning the existence or terms of an agreement to settle are in 2 dispute," no hearing is necessary when, as here, the terms set forth in the settlement agreements are 3 unambiguous and leave no material facts in dispute. See Callie, 829 F.2d at 890. 4

In short, Plaintiffs and Lavender entered into complete, clear, and valid settlement 5 agreements, but Lavender has not held up its end of the bargain. In this situation, Plaintiffs' motion 6 to enforce the agreements is granted. 7

As for Plaintiffs' request for the attorney's fees and costs incurred with respect to their 8 motion, while the settlement agreements provide that "[e]ach party, upon breach of this agreement 9 by the other, shall have the right to seek all necessary and proper relief . . . from a court of 10 competent jurisdiction and the party prevailing in such a suit shall be entitled to recover reasonable costs and attorney fees," Plaintiffs have not submitted any documentation detailing any of the attorney's fees and/or costs they have incurred. If Plaintiffs want this Court to consider their request 13 further, Plaintiffs shall submit such documentation within 5 days from the date of this order. 14


Based on the foregoing, Plaintiffs' motion to enforce the settlement agreements in GRANTED. The parties are ordered to comply with the terms of the settlement agreements. In 17 addition, Plaintiffs shall provide the Court with documentation reflecting their attorney's fees and/or 18 costs incurred with respect to their motion within 5 days from the date of this order. 19

Hopkins & Carley shall forward a copy of this order upon Lavender.


C09-04541 HRL Notice will be electronically mailed to:

Adam Wang,, Adam Lee Pedersen Daniel Francis Pyne, III, 4 5 3 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. 6 7 8 9 10

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