Shah v. Applied Micro Circuits Corporation et al

Filing 51

ORDER DENYING MOTION TO WITHDRAW STIPULATION, GRANTING STIPULATED DISMISSAL. Signed by Judge Vince Chhabria on 6/23/2017. (knm, COURT STAFF) (Filed on 6/23/2017)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

DEVEN SHAH,

Case No. 17-cv-00151-VC

Plaintiff,
v.
APPLIED MICRO CIRCUITS
CORPORATION, et al.,

ORDER DENYING MOTION TO
WITHDRAW STIPULATION,
GRANTING STIPULATED DISMISSAL
Re: Dkt. Nos. 11, 19, 39, 47, 49, 50

Defendants.

Shah's request to withdraw the stipulation of dismissal is denied. See Dkt. No. 19. The
stipulation represents a bargained settlement between the parties – an agreement – according to
which Shah obtained supplemental disclosures in exchange for dismissal of the action. See Dkt.
No. 11 at 3-4; see also Los Angeles City Sch. Dist. of Los Angeles County v. Landier Mgmt. Co.,
177 Cal. App. 2d 744, 750 (1960). Shah cannot withdraw consent to this agreement at will. He
might invoke an ordinary contract defense to defeat the agreement or avoid the obligations it
imposes. See Reply (Dkt. No. 26) at 6-7. But he hasn't identified a contract defense applicable
to this situation. See id. at 6 n.2; Hedging Concepts, Inc. v. First All. Mortg. Co., 41 Cal. App.
4th 1410, 1421 & n.9 (1996), as modified on denial of reh'g (Feb. 22, 1996). Shah might invoke
agency principles to argue that his counsel lacked the authority to stipulate to dismissal on his
behalf. But the evidence Shah has submitted reveals, at best, only that Shah's current counsel has
revived his belief in the merits of his claims. That's not enough to create a factual dispute
regarding the former counsel's "specific authorization" to settle. Zamora v. Clayborn
Contracting Grp., Inc., 28 Cal. 4th 249, 260 (2002); see also In re Clawson, 434 B.R. 556, 57071 (N.D. Cal. 2010). While it's true that Shah's specific authorization was memorialized in a

"scripted," after-the-fact statement, Shah hasn't directly challenged that statement's accuracy or
authenticity. See Reply (Dkt. No. 47-5) at 2; Gallagher Decl., Ex. A (Dkt. No. 39-6) at
DS00037-38. Instead, he challenges the accuracy of the advice his former counsel gave him.
See Holleman Decl., Ex. 2 (Dkt. No. 47-6) at DS00093; Shah Decl. (Dkt. No. 26-1) at ¶¶ 6-7.
That sort of argument – dealing with the adequacy of representation and alleged ethical
impropriety – belongs in a direct action against the former counsel. See, e.g., Fair v. Bakhtiari,
195 Cal. App. 4th 1135, 1153-54 (2011).
The stipulation of dismissal is granted. See Dkt. Nos. 11, 20. This case is dismissed with
prejudice as to Shah and without prejudice as to the remaining class members. The administrative
motions to seal are denied because Shah's reply declaration waived the attorney-client privilege as
to the circumstances surrounding the stipulation. See Shah Decl. at ¶¶ 6-7; Hernandez v.
Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010). The parties must refile the provisionally sealed
material in unredacted form within 7 days of this Order. See Civil L.R. 79-5(f). Brower Piven's
request for unsealed copies of the parties' supplemental papers is denied as moot.
If the parties anticipate a motion for attorneys' fees in this case, they should confer on a
briefing schedule and submit a proposal within 7 days of this Order.
The Clerk of Court will close the case.
IT IS SO ORDERED.
Dated: June 23, 2017
______________________________________
VINCE CHHABRIA
United States District Judge

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