Mohebbi v. Khazen et al

Filing 153

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S APPLICATION FOR ENTRY OF STIPULATED JUDGMENT. Signed by Judge Beth Labson Freeman on 1/9/2019. (blflc3S, COURT STAFF) (Filed on 1/9/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SAEID MOHEBBI,

Case No. 13-cv-03044-BLF

Plaintiff,

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v.

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MAHNAZ KHAZEN, et al.,
Defendants.

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
APPLICATION FOR ENTRY OF
STIPULATED JUDGMENT
[Re: ECF 129-1]

United States District Court
Northern District of California

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Before the Court is Plaintiff Saeid Mohebbi’s Application for Entry of Stipulated

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Judgment Pursuant to Comprehensive Settlement, Release and Security Agreement

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(“Application”). Application, ECF 129-1. Defendants Mahnaz Khazen, Michael Shadman and

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U.S. Immigration Investment Center, LLC (collectively, “Defendants”) oppose Plaintiff’s

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Application. Opp’n, ECF 135. The present Application concerns whether Plaintiff is entitled to

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entry of the stipulated judgment arising out of Defendants’ failure to make timely payment under

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the parties’ settlement agreement and what monetary award Plaintiff would be entitled.
The Court held a hearing (“the Hearing”) on Plaintiff’s Application for Stipulated

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Judgment on December 13, 2018. The Court has considered the arguments presented at the

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Hearing and in the briefing, as well as the evidence submitted and applicable law. For the reasons

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that follow and as discussed at the Hearing, the Court hereby GRANTS IN PART and DENIES IN

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PART Plaintiff’s Application for Stipulated Judgment.

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I.

BACKGROUND

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A.

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The underlying facts of this case are well-known1 to the Court and the parties and such

General Background

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For example, see the Court’s prior orders at ECF 64 and ECF 81.

facts not relevant to the present Application for Stipulated Judgment are not restated here. On July

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11, 2014, Plaintiff Saeid Mohebbi (“Plaintiff” or “Mohebbi”) filed his Second Amended

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Complaint (“SAC”) against Defendants Mahnaz Khazen, Michael Shadman, Violet Parvarandeh,

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Pirooz Parvarandah, and Stacey Conti, as well as U.S. Immigration Investment Center LLC

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(“USIIC”), USIIC LLP, and USIIC I LP, asserting twenty-two causes of action, including claimed

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violations of federal and state securities laws, fraud, false advertising, conversion, unjust

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enrichment, and common law torts. SAC, ECF 66. The claims arose out of a contractual

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investment relationship between the parties. Plaintiff alleged that, in exchange for Defendants’

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assistance in applying for a federal EB-5 immigration visa, he invested over $1 million in a

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partnership. See, e.g., SAC ¶ 38. Plaintiff alleged that Defendants fraudulently induced this

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United States District Court
Northern District of California

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investment and failed to comply with their obligations pursuant to the contract, and sought

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rescission of the agreement and damages, including punitive damages, and attorneys’ fees. See

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generally SAC.

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B.

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On December 4, 2014, the Court granted in part Defendants’ motion to compel arbitration

Arbitration Award

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and stayed the remaining claims pending completion of arbitration. See ECF 81. Arbitration

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subsequently commenced in the International Court of Arbitration of the International Chamber of

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Commerce before the Hon. James Ware (Ret.). See generally Arbitration Partial Award, Ex. 2 to

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Holland Decl., ECF 129-3. On February 28, 2018, Judge Ware issued a Partial Award declaring

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“[Plaintiff] Saeid Mohebbi to be the prevailing party as against [Defendants] Mahnaz Khazen,

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Michael Shadman and [U.S.] Immigration Investment Center LLC.” Id. ¶ 335. Judge Ware ruled

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that Defendants Khazen, Shadman, and USIIC were liable and awarded Mohebbi both

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compensatory and punitive damages. See id. ¶¶ 326–29. Pre-award interest, attorney’s fees and

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costs were reserved for the Final Award. Id. ¶ 337. Judge Ware’s findings included, inter alia,

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that Defendant Khazen “made intentionally false representations to Claimant Mohebbi,” created

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“fake” government documents to illegally receive funds out of Iran, “creat[ed] a false paper trail,”

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made a variety of “documents [that] were all fictitious . . . to cover up [multiple]

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misrepresentations,” engaged in a “cover-up” through the creation of a “fictitious investment,” and
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“deliberately concealed from [] Mohebbi her actual use of his EB-5 funds.” See id. ¶¶ 148–49,

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210, 246, 248.
Settlement Agreement and Defendants’ Failure to Pay

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C.

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Prior to issuance of any Final Award, the parties2 entered into a Comprehensive

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Settlement, Release, and Security Agreement (“Settlement Agreement”), effective March 28,

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2018. See generally Settlement Agreement, Ex. 2 to Holland Decl., ECF 120-1. The Settlement

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Agreement is governed by California law, see id. § 12, and conditionally resolves all disputes

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between the parties as alleged in this action or the arbitration proceeding, see id. § A–E, § 1.

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Pursuant to the agreement, Defendants Khazen, Shadman, and USIIC agreed “to pay or cause to
paid to [] Mohebbi . . . by [] September 28, 2018, the discounted sum of Three Million, Six

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United States District Court
Northern District of California

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Hundred Twenty Five Thousand Dollars and No Cents ($3,625,000.00 U.S.) (the ‘Settlement

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Amount’).” Id. § 2.1 (emphasis in original). The Settlement Agreement further provides that the

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Court may “enter the Stipulated Judgment attached as Exhibit F [to the Settlement Agreement]” if

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the “full Settlement Amount, and all accrued interest, if any, is not paid with[in] the [] period

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specified.” See id. § 5.1(b). The Settlement Agreement also provides that “[Plaintiff] may

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immediately foreclose on the security referred to [in the Settlement Agreement], which

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Defendants shall not oppose, directly or indirectly,” if the full Settlement Amount is not paid

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within the period specified. See id. § 5.2.

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Defendants made an initial settlement payment of $500,000 to Plaintiff on June 11, 2018.

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See Holland Decl. ¶ 54, ECF 129-3. The parties agree that no additional payments were made by

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the deadline of September 28, 2018, but dispute who is at fault thus what actions should result

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from Defendants’ failure to pay. See Application at 1, ECF 129-1; Opp’n at 6–7, ECF 135. On

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October 19, 2018, Defendants made an additional settlement payment of $1,212,350 to Plaintiff.

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See Benning Decl. ¶ 6, ECF 136. The Settlement Agreement includes terms setting interest rates

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and accrual on any outstanding amount on or after June 12, 2018. See Settlement Agreement

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Defendant USIIC LLP is not listed in the Settlement Agreement; however, Plaintiff represents
that claims against all parties to this lawsuit are covered by the Settlement Agreement, see
Application at 1, ECF 129-1, which Defendant does not dispute.
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§ 2.1(c)–(g). The Settlement Agreement also states that if the full Settlement Amount is not paid

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by the deadline of September 28, 2018, Plaintiff may apply to the Court to enter “the Stipulated

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Judgment attached [see Exhibit F to the Settlement Agreement] . . . against Defendants [in] the

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amount of 120% of any unpaid portion of the Settlement Amount that is then due and owing at the

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time of default.” See Settlement Agreement § 5.1(b).

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D.

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On September 29, 2018, the day after the settlement payment deadline, Plaintiff served

On-going Litigation

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Defendants with a Notice of Default and indicated that Plaintiff would file an application for

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stipulated judgment in accordance with the terms of the Settlement Agreement if Defendants did
not “cure the default” within “four court days” as provided by the procedure for entering stipulated

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United States District Court
Northern District of California

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judgment. See Ex. 54 to Holland Decl., ECF 129-3. Defendants did not make any additional

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payments within this timeframe, but instead filed an Ex Parte Application for Temporary

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Restraining Order and Order to Show Cause Re: Preliminary Injunction (“Application for TRO”)

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on October 3, 2018. See Application for TRO, ECF 112. Defendants’ Application for TRO

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sought to enjoin Plaintiff from filing an application for stipulated judgment; enjoin Plaintiff from

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foreclosing on the properties listed as “security” in § 3 of the Settlement Agreement; obtain an

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order to show cause why a preliminary injunction should not issue; and obtain a finding of

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damages for breach of contract and breach of the implied covenant of good faith and fair dealing,

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and judicial declaration that § 5.1 of the Settlement Agreement is void and unenforceable. See

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generally id. The properties listed as “security” are located at 143 Bay Place and 2332 & 2336

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Harrison Street, Oakland, California (“The Properties”). See id. § 3.
On October 10, 2018, the Court denied Defendants’ Application for TRO in its entirety.

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See Order Denying Defendants’ Application for TRO, ECF 130. Now before the Court is

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Plaintiff’s Application for Entry of Stipulated Judgment Pursuant to Comprehensive Settlement,

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Release and Security Agreement (“Application”). Application, ECF 129-1.

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II.

LEGAL STANDARD

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Under federal law, courts possess inherent power to enforce a settlement agreement

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pertaining to an action pending before it. See Dacanay v. Mendoza, 573 F.2d 1075, 1078 (9th Cir.
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1978). “The authority of a trial court to enter a judgment enforcing a settlement agreement has as

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its foundation the policy favoring the amicable adjustment of disputes and the concomitant

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avoidance of costly and time consuming litigation.” Id. In other words, the district court “ha[s]

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the authority to approve and enforce [a] settlement [agreement]” in a case pending before it. See

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Waits v. Weller, 653 F.2d 1288, 1291 n.4 (9th Cir. 1981); see also Sohn v. Wells Fargo Bank,

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2015 WL 13688050, at *2 (N.D. Cal. Oct. 13, 2015). Courts possess equivalent power under

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California law. “If parties to pending litigation stipulate, in a writing signed by the parties outside

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the presence of the court or orally before the court, for settlement of the case, or part thereof, the

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court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by
the parties, the court may retain jurisdiction over the parties to enforce the settlement until

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United States District Court
Northern District of California

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performance in full of the terms of the settlement.” Cal. Civ. Proc. Code § 664.6. Under § 664.6,

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a court may “entertain challenges to the actual terms of the stipulation, that is, whether there

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actually was a settlement . . . . [and] interpret the terms and conditions to settlement.” Fiore v.

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Alvord, 182 Cal. App. 3d 561, 565–66 (1985).

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III.

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DISCUSSION
The parties do not dispute that settlement occurred and is binding. Instead, the parties

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dispute whether Plaintiff is entitled to Stipulated Judgment arising out of Defendants’ failure to

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make timely payment under the Settlement Agreement and to what amount of damages Plaintiff

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would be entitled. See Application at 1–2, ECF 129-1; Opp’n at 1, ECF 135. Specifically,

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Plaintiff requests that the Court enter judgment for Plaintiff pursuant to the parties’ Stipulated

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Judgment form (Ex. F to the Settlement Agreement), which includes confirming Judge Ware’s

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Arbitration Award and awarding Plaintiff an additional 20% of the amount outstanding. See

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Application at 1–2; Ex. F to Settlement Agreement at 1. Defendants object to the entry of

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Stipulated Judgment on three grounds: (1) that Plaintiff’s alleged breaches of the confidentiality

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clause of the Settlement Agreement caused Defendants to default; (2) that the Arbitration Award

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should not be confirmed because it was not finalized; and (3) that the additional 20% provided in

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the Stipulated Judgment form is void and unenforceable as a liquidated damages “penalty

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provision.” See Opp’n at 1.
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The Court discusses in turn each objection raised by Defendants. For the reasons stated

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below, the Court finds that Defendants’ first two objections are without merit but agrees that the

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provision granting Plaintiff an additional 20% of the amount outstanding is void and

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unenforceable. Accordingly, Plaintiff’s Application for Stipulated Judgment is GRANTED IN

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PART and DENIED IN PART.
Plaintiff’s Alleged Breaches of Confidentiality

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A.

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Defendants contend that “Plaintiff breached the confidentiality clause in the [Settlement]
Agreement” and that “[c]onsequently, Defendants have been unable to sell The Properties and

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acquire liquid capital to tender payment to Plaintiff . . . rendering [Defendants] in default under the

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[Settlement] Agreement.” See Opp’n at 8, 9. Plaintiff argues that “[Plaintiff] has not breached the

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United States District Court
Northern District of California

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Settlement Agreement’s confidentiality clause and Defendants have offered no evidence of any

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actual confidentiality breaches” and that regardless “any alleged confidentiality breaches are

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irrelevant, as Defendants’ performance is not excused.” See Plaintiff’s Memorandum at 10, ECF

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129-2; see also Reply at 1–6, ECF 144. As discussed below, the Court agrees with Plaintiff.

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First, Defendants’ obligation under the Settlement Agreement to make timely payment of

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the Settlement Amount is not contingent upon sale of The Properties. Instead, the Settlement

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Agreement provides that The Properties are “security until payment [is made] to [Plaintiff] of the

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full Settlement Amount and all accrued interest [] or [] shall be sold by Defendants . . . to generate

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funds.” Settlement Agreement § 3 (emphasis added); see also id. § 3.3. Thus, while Defendants

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may sell The Properties and use the proceeds to cover the Settlement Amount, Defendants are

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bound by the Settlement Agreement to pay the Settlement Amount irrespective of sale of The

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Properties. In other words, mere non-sale of The Properties does not relieve Defendants of their

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duty under the Settlement Agreement to make timely payment.

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Second, Defendants’ allegation that Plaintiff breached the confidentiality provisions of the

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Settlement Agreement is based primarily on the declaration of Defendant Khazen, see Opp’n at 6–

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11 (extensively citing Khazen Decl., ECF 137), which is rife with inadmissible hearsay. For

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example, Khazen alleges that Plaintiff violated the confidentiality provisions based on what a first

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individual told a second individual who then told Khazen. See Khazen Decl. ¶ 12. Khazen offers
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numerous additional double hearsay or hearsay statements that are likewise inadmissible. See,

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e.g., id. ¶¶ 19–21. Thus, the Khazen Declaration is not evidence that Plaintiff breached the

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confidentiality provisions of the Settlement Agreement or that the alleged breaches caused

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Defendants to default.

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Third, even if Plaintiff did breach the confidentiality provisions, the Settlement Agreement
provides liquidated damages in the event “a Party breaches th[e] confidentiality provision” and

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provides for no other damages or relief. See Settlement Agreement § 4.2. Therefore, the

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exclusive remedy for breach of confidentiality is liquidated damages of “[$37,500.00] per

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breach . . . if such an impermissible disclosure is proved.” Id. Here, Defendants have not proven

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that Plaintiff breached the confidentiality provisions of the Settlement Agreement. Other than the

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United States District Court
Northern District of California

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Khazen Declaration, Defendants point to a “Notice of Conditional Settlement” and “Notice of

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Lien” disclosed by Plaintiff in a state court action. See Opp’n at 9. However, these documents are

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simply ECF 105 and ECF 102, respectively, in the instant action. ECF 105 was publicly filed by

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Plaintiff and Defendants jointly and ECF 102 was publicly filed by a third party and not objected

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to by Defendants. Regardless, even if Defendants did show that Plaintiff breached the

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confidentiality provisions, Defendants’ failure to make timely payment would not be excused as a

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remedy for such breach. Accordingly, Defendants’ objection based on Plaintiff’s alleged breach

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of the confidentiality provisions fails. Defendants also object to Stipulated Judgment on grounds

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that Plaintiff breached the implied covenant of good faith and fair dealing; however, this alleged

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breach is based on Plaintiff’s alleged breach of confidentiality, see Opp’n at 10–11, and thus fails

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for the same reasons.

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In sum, the Court rejects Defendants’ contention that Plaintiff’s alleged breach of
confidentiality precludes Stipulated Judgment for Plaintiff.

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B.

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Defendants argue that Plaintiff’s request to confirm Judge Ware’s Arbitration Award

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should be denied because “[o]n March 16, 2018, Defendants filed [a] Correction, requesting

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clarification and resolution on several significant portions of the Award, including the Arbitrator’s

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conflicting findings of fraud and breach of contract.” See Opp’n at 14. This argument is without

Confirmation of the Arbitration Award

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merit. As pointed out by Plaintiff, see Reply at 11, Defendants affirmatively withdrew their

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request for a “Correction” of the Arbitration Award on April 26, 2018, see Ex. 41 to Holland

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Decl., ECF 129-3. In addition, confirmation of the Arbitration Award is a term of the Stipulated

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Judgment form (Ex. F to the Settlement Agreement) that Defendants’ approved on March 28,

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2018, as part of the Settlement Agreement. See Ex. F to Settlement Agreement at 1. Accordingly,

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the Court grants Plaintiff’s request to confirm the Arbitration Award.

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C.

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Defendants contend that § 5.1(b) of the Settlement Agreement providing for “the amount

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Provision for an additional 20% in Damages

of 120% of any unpaid portion of the Settlement Amount that is then due and owing at time of
default”3 is a “penalty provision” in violation of California Civil Code § 1671. See Opp’n at 11.

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United States District Court
Northern District of California

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Plaintiff argues that Civ. Code § 1671 does not void the 120% provision because the Settlement

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Amount represents a “discounted” amount and that multiplying the “discounted” amount by 1.2 is

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therefore not an “unenforceable penalty” but instead a reflection of “the undiscounted Settlement

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Amount.” See Plaintiff’s Memorandum at 19–20. Plaintiff also argues that pursuant to Civ. Code

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§ 1671(b) Defendants have the burden of proving the 1.2 multiplier is “unreasonable under the

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circumstances existing at the time the contract was made,” see id. at 20 (citing Civ. Code

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§ 1671(b)), and that Defendants have not met their burden, see Reply at 10. As discussed below,

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the Court finds that under California case law interpreting Civ. Code § 1671, Defendants have met

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their burden of showing “the provision was unreasonable under the circumstances existing at the

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time” the Settlement Agreement was entered, see Civ. Code § 1671(b), and therefore holds that the

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120% provision in the Settlement Agreement is unenforceable.

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Civil Code § 1671 provides that “a provision in a contract liquidating the damages for the

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breach of the contract is valid unless the party seeking to invalidate the provision establishes that

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the provision was unreasonable under the circumstances existing at the time the contract was

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made.” Civ. Code § 1671(b). The California Supreme Court has held that a “liquidated damages

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clause will generally be considered unreasonable, and hence unenforceable under section 1671(b),

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And corresponding reference to this 1.2 multiplier in the Stipulated Judgment form.
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if it bears no reasonable relationship to the range of actual damages that the parties could have

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anticipated would flow from a breach.” Ridgley v. Topa Thrift & Loan Ass’n, 17 Cal. 4th 970, 977

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(1998) (holding that the disputed provision was an unenforceable penalty for late payment of

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interest). Instead, “[t]he amount set as liquidated damages must represent the result of a

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reasonable endeavor by the parties to estimate a fair average compensation for any loss that may

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be sustained.” Id. (internal quotation and citation omitted). Absent such a relationship, “a

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contractual clause purporting to predetermine damages must be construed as a penalty.” Id.

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(internal quotation and citation omitted). “The characteristic feature of a penalty is its lack of

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proportional relation to the damages which may actually flow from failure to perform under a

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contract.” Id. (internal quotation and citation omitted).

United States District Court
Northern District of California

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Defendants argue that the 120% provision does not represent “an actual measure of

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damages” because “the liquidated damages clause remained at a constant 20%” during settlement

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negotiations despite fluctuations in proposed settlement amounts. See Opp’n at 13. The Court

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agrees. During settlement negotiations between the parties, the provision remained static at 120%

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of the outstanding amount, despite the proposed settlement amount fluctuating from $4,252,397.96

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on February 28, 2018, to $3,625,000.00 on March 8, 2018. See Ex. 5 to Holland Decl., ECF 129-

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3; Ex. 7 to Holland Decl., ECF 129-3. This evidence demonstrates that the 120% provision is not

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in proportion “to the damages which may actually flow” from Defendants’ failure to make timely

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payment, see Ridgley, 17 Cal. 4th at 977, but that instead the provision is simply a flat rate on top

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of the Settlement Amount. In other words, the amount of damages provided by the 120%

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provision varied with the proposed settlement amounts during negotiations, without consideration

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of “the range of actual damages that the parties could have anticipated would flow from [late

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payment],” see Ridgley, 17 Cal. 4th at 977.
Under the February 28, 2018 proposed settlement amount the 120% provision would

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provide $850,479.594 in liquidated damages for late payment, while under the March 8, 2018

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proposed settlement amount the provision would provide $725,000.005 for identical breach. As

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$4,252,397.96 x 0.20
$3,625,000.00 x 0.20
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the Settlement Agreement separately provides for enhanced interest on any outstanding amount in

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the event of late payment, see Ex. F to Settlement Agreement at 1–2, it is simply not plausible

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Plaintiff would suffer nearly $125,000 in additional actual damages merely because Plaintiff had

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obtained a larger settlement amount, see Greentree Financial Group, Inc. v. Execute Sports, Inc.,

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163 Cal. App. 4th 495, 500 (2008) (“Damages for the withholding of money are easily

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determinable—i.e., interest at prevailing rates.”) (internal quotation and citation omitted) (finding

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that additional charge for failure to make payment was an unenforceable penalty).

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As Greentree makes clear, it is impermissible to use a measure of damages based on the

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entire underlying lawsuit to set liquidated damages for a narrower breach. 163 Cal. App. 4th at
499. The Greentree court explained that “the breach we are analyzing is the breach of the

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United States District Court
Northern District of California

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stipulation, not the breach of the underlying contract.” Id. (emphasis in original). The Greentree

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court therefore found that because the measure of damages for breach of the stipulation was based

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on “damages in the underlying lawsuit,” that measure of damages “bears no reasonable

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relationship to the range of actual damages the parties could have anticipated from a breach of the

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stipulation.” Id. Here, like in Greentree, the 120% provision sets liquidated damages for late

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payment based solely on the outstanding amount due under the Settlement Agreement at the time

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of breach—the amount of damages in the underlying lawsuit—and likewise bears no reasonable

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relationship to actual damages the parties could have anticipated from late payment. Thus, the

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120% provision possesses the “characteristic feature of a penalty.” Ridgley, 17 Cal. 4th at 977.

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Moreover, on February 28, 2018, Plaintiff referred to the proposed stipulated judgment for

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120% of any outstanding amount as an “enforcement mechanism[] . . . for enforcement of the

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settlement agreement if the Settlement Amount is not timely and fully paid.” See Ex. 5 to Holland

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Decl., ECF 129-3. This evidence supports Defendants’ contention that the provision is a “penalty

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provision [that] operates to compel performance of an act and [] becomes effective only in the

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event of default upon which a forfeiture is compelled without regard to the damages sustained by

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the party aggrieved by the breach.” Ridgley, 17 Cal. 4th at 977.

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In support of his theory that the 120% provision represents a permissible “discounted”
amount because multiplying the “discounted” amount by 1.2 reflects “the undiscounted Settlement
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Amount,” see Plaintiff’s Memorandum at 19–20, Plaintiff cites two cases, Jade Fashion & Co. v.

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Harkham Industries, 229 Cal. App. 4th 635 (2014) and Weber, Lipshie & Co. v. Christian, 52 Cal.

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App. 4th 645 (1997). Neither is helpful to Plaintiff. Jade Fashion applied Ridgley’s “reasonable

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relationship to the range of actual damages” test and found that a $17,500 damages provision for

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late payment was permissible under Civ. Code § 1671 because the amount “was [not] an

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additional payment over and above any debt that was owed” but instead “the $17,500 was part of

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the [actual] $341,628.77 debt.” See Jade Fashion, 229 Cal. App. 4th at 646, 649–50. In other

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words, the damages provision was not a penalty but simply reflected the amount that Jade Fashion

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“agreed to forebear [sic] on the immediate collection of the [d]ebt . . . on the condition that
[Harkham Industries] make installment payments [on schedule].” Id. at 649. The Jade Fashion

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United States District Court
Northern District of California

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court emphasized that the $17,500 was part of the debt actually owed “in both the Agreement and

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the continuing guaranty.” Id.
Here, unlike in Jade Fashion, the 120% provision in the parties’ Settlement Agreement

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does not reflect forbearance of an amount owed under the Settlement Agreement, but instead an

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additional payment on top of the debt Defendants already owed Plaintiff. Accordingly, Jade

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Fashion does not stand for Plaintiff’s proposition. Nor does Weber. Weber provides that if a

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liquidated damages clause “is otherwise valid, [the court] will uphold it even if the parties have

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referred to it as a penalty.” 52 Cal. App. 4th at 656. Here, as discussed above, the Court finds that

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the 120% provision in the Settlement Agreement is not “otherwise valid” and thus Weber has no

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effect.

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Finally, at the Hearing, Plaintiff referred to an additional case, Krechuniak v. Noorzoy, 11

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Cal. App. 5th 713 (2017). The Court has reviewed Krechuniak and does not find it persuasive for

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Plaintiff. Krechuniak acknowledges Ridgley’s “reasonable relationship to the range of actual

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damages” test and concerns the appellate standard of review of the trial court’s determination of

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whether a contract provision is an illegal penalty or an enforceable liquidated damages clause. See

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Krechuniak, 11 Cal. App. 5th at 714, 722. Krechuniak concluded that appellant was precluded

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from arguing on appeal that the settlement agreement contained an invalid penalty provision

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because appellant did not make that argument before the trial court. See id. at 726–27. Thus,
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Krechuniak does not save the day for Plaintiff.
In sum, Plaintiff’s Application for Stipulated Judgment is denied to the extent it

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incorporates the 120% provision set forth in § 5.1(b) of the Settlement Agreement.

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IV.

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CONCLUSION
For the foregoing reasons, Plaintiff’s Application for Stipulated Judgment is GRANTED

IN PART and DENIED IN PART. It is hereby ordered that:

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1. The Arbitration Award is confirmed.

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2. Plaintiff is entitled to Stipulated Judgment (Ex. F to the Settlement Agreement) except

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United States District Court
Northern District of California

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the 120% provision set forth in the Stipulated Judgment form and the Settlement
Agreement shall not apply.
3. The parties shall jointly provide a written stipulation and proposed judgment to the

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Court no later than January 22, 2019, that reflects the total amount owed to Plaintiff

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up to the date of the proposed judgment, including interest, in accordance with this

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Order.

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IT IS SO ORDERED.
Dated: January 9, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge

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