Michael Drescher v. Baby Its You, LLC , 544 F. App'x 783 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DRESCHER, No. 12-55385
Plaintiff - Appellant, D.C. No. 2:10-cv-06854-PSG-PLA
v.
MEMORANDUM*
BABY IT’S YOU, LLC; FLOYD
MUTRUX; NORTHERN LIGHTS, INC.;
JONATHAN SANGER; and JONCAR
PRODUCTIONS INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted November 7, 2013**
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Plaintiff Michael Drescher appeals the district court’s enforcement of a
settlement agreement resolving his claims against Defendants Baby It’s You, LLC,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Floyd Mutrux, Northern Lights, Inc., Jonathan Sanger, and Joncar Productions,
Inc. Whether we review the court’s enforcement for abuse of discretion, Doi v.
Halekulani Corp., 276 F.3d 1131, 1136 (9th Cir. 2002), or de novo, Congregation
Etz Chaim v. City of Los Angeles, 371 F.3d 1122, 1124 (9th Cir. 2004), we affirm.
1. The parties entered into a binding settlement agreement when, at a
settlement conference before a magistrate judge, they expressly agreed to settle,
stated the terms of the agreement on the record, and agreed with those terms. Doi,
276 F.3d at 1137–39.
2. The district court properly looked to extrinsic evidence to interpret
whether the parties (1) intended the two separate revenue streams to run
concurrently or successively and (2) intended Defendant Mutrux to state his future
and current interest in the plays or his current interest only. See Wolf v. Walt
Disney Pictures & Television, 76 Cal. Rptr. 3d 585, 608 (Ct. App. 2008) (holding
that, in interpreting a contract, a court may provisionally review extrinsic
evidence). The court permissibly held that, looking in part to the extrinsic
evidence, the written settlement agreement correctly recorded that the revenue
streams run successively and that Defendant Mutrux must state his current interest
only. After reviewing the proposed written settlement agreement, Plaintiff
objected solely on an unrelated ground. Despite several opportunities to do so,
2
including during a hearing in front of a United States Magistrate Judge, Plaintiff
did not raise the two objections noted above until, weeks later, he learned that his
original objection had no legal support. The district court properly concluded that
Plaintiff’s initial failure to object on those grounds was evidence of his original
intent. Cf. Kennecott Corp. v. Union Oil Co. of Cal., 242 Cal. Rptr. 403, 410 (Ct.
App. 1987) ("The conduct of the parties after execution of the contract and before
any controversy has arisen as to its effect affords the most reliable evidence of the
parties’ intentions.").
3. On appeal, Plaintiff raises further objections for the first time. Those
objections are waived. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063
n.3 (9th Cir. 2007) (holding that arguments not raised before the district court
generally are waived).
AFFIRMED.
3