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Ondre Seltzer, An Individual v. Heads and Tails

March 14, 2012


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Defendants Heads and Tails, Inc. ("Heads and Tails"), and Anthony Loiacono's ("Loiacono," and collectively, "Defendants") motion to enforce agreed settlement and dismiss action. (Mot. to Enforce, ECF No. 29) Also before the Court are Plaintiff Ondre Seltzer's ("Seltzer" or "Plaintiff") response in opposition, (Resp. in Opp'n, ECF No. 35), and Defendants' reply in support, (Reply in Supp., ECF No. 28). Concluding that the motion could not be granted on the papers, declarations, and exhibits alone, (Order, Feb. 22, 2012, ECF No. 39), the Court set this matter for an evidentiary hearing, which was held on March 13, 2012. After considering the parties' arguments, the evidence submitted,*fn1 and the law, the Court DENIES Defendants' motion.


Seltzer filed the original complaint in this action on June 10, 2012, asserting claims for breach of contract, fraud, promise without intent to perform, rescission of contract, declaratory relief, and permanent injunctive relief. (Compl., ECF No. 1) The dispute arises out of a funding agreement whereby Seltzer provided Defendants with a $200,000 loan. (Id. ¶ 12)

Defendants answered the complaint on November 4, 2010, (ECF Nos. 15, 16), and the parties conducted discovery thereafter. Beginning in July or August of 2011, the parties commenced settlement negotiations. (Mot. to Enforce 3, ECF No. 29); (Resp. in Opp'n 2, ECF No. 35) Pursuant to these negotiations, several telephone discussions were had and several letters were exchanged. Permeating these discussions and letters was the suggestion that Defendants were experiencing "severe financial difficulties," (Decl. of David P. Beitchman ISO Resp. in Opp'n ("Beitchman Decl.") Ex. C, at 13, ECF No. 35-1),*fn2 and Plaintiff's consistent request for verification of Defendants' financial situation, (id. Exs. A, B, E).

Eventually, on October 25, 2011, Plaintiff's counsel sent a letter "confirm[ing] the settlement agreement reached between the parties," indicating that "[t]his agreement represents the essential agreed terms." (Decl. of Dennis F. Donovan ISO Mot. to Enforce ("Donovan Decl.") Ex. 2, ECF No. 29 ("Settlement Confirmation letter")) And, on October 26, 2011, Plaintiff filed a Notice of Settlement, indicating that "a settlement has been reached . . . with regard to all claims and issues against defendants." (Not. of Settlement 1, ECF No. 26) That same day, Magistrate Judge Major issued an Order confirming settlement and setting deadline to file joint motion for dismissal. (Order, Oct. 26, 2011, ECF No. 27) The parties failed to file a joint motion for dismissal by the Court's deadline, and informed Magistrate Judge Major that there was "a dispute regarding the allegedly previously agreed upon settlement." (Order, Dec. 16, 2011, ECF No. 28) As a result, Defendants filed the instant motion to enforce agreed settlement and dismiss action on January 12, 2012. (Mot. to Enforce, ECF No. 29)


"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). The Court "may enforce only complete settlement agreements," however. Id. Thus, "[w]here material facts concerning the existence or terms of an agreement to settle are in dispute, the parties must be allowed an evidentiary hearing." Id.; see also Russell v. Puget Sound Tug & Barge Co., 737 F.2d 1510, 1511 (9th Cir. 1984) ("Summary enforcement of a settlement agreement 'is ill-suited to situations presenting complex factual issues related either to the formation or consummation of the [settlement] contract, which only testimonial exploration in a more plenary proceeding is apt to satisfactorily resolve.'" (alteration in original) (quoting Autera v. Robinson, 419 F.2d 1197, 1200 (D.C. Cir. 1969))).

"'The construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally.'" United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992) (quoting Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989)). Accordingly, the Court applies California law regarding the formation and interpretation of the parties' alleged settlement agreement.


Here, the parties contest only the existence of any settlement agreement. Defendants contend that the parties entered into an enforceable settlement agreement as of the October 25, 2011, Settlement Confirmation letter. But Plaintiff argues the parties never entered into a mutual settlement agreement, and even if they had, any agreement would be unenforceable due to Defendants' fraudulent misrepresentations of fact. Because the Court finds that the parties lacked the requisite intent to be bound by the agreement as set forth in the Settlement Confirmation letter, it does not reach whether there are any grounds for rescission under California Civil Code section 1689(b)(1).

As the Court indicated to the parties prior to the start of the evidentiary hearing, the Court was unable to resolve the factual issue whether the parties intended to be bound as of the date of the Settlement Confirmation letter, or whether they intended to be bound only upon the execution of a final, written and signed instrument, based on the parties' briefing, affidavits, and exhibits alone. And yet, Defendants-who, as the moving parties, bore the burden to establish the requisite intent, see Olam v. Congress Mortg. Co., 68 F. Supp. 2d 1110, 1137 n.39, 1140 (N.D. Cal. 1999)-nevertheless submitted based on only the evidence as set forth in the moving papers.

Defendants contend that the Settlement Confirmation letter, drafted after several months of negotiations and reciting the "essential agreed terms" of the settlement agreement, constitutes an enforceable contract under California law. Referring to Stephan v. Maloof, 79 Cal. Rptr. 461, 463--64 (Cal. Ct. App. 1969), Defendants contend that even if the parties intended to execute a more formal written document, the mere contemplation of further documentation does not render the October 25 agreement unenforceable. (Mot. to Enforce 5, ECF No. 29) But unlike in Stephan, where it was "not contended that all of the material conditions and terms were not agreed upon," id. at 463, here further negotiations were contemplated before the parties intended to be bound.

Indeed, as was the case in Callie, 829 F.2d at 890, the Settlement Confirmation letter indicates that the agreement was contingent upon the execution of a stipulated judgment in the amount of $100,000. (Donovan Decl. Ex. 2, at 16, ECF No. 29) No such document was ever drafted. The letter additionally indicates that the agreement would contain bankruptcy protection provisions. (Id. at 17) No such provisions were ever drafted. And finally, the phrasing of the Settlement Confirmation letter itself contemplates the execution of a more detailed agreement in the future: "The settlement agreement shall include all other relevant and ...

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