This OCRed fairly well considering the quality.
I am particularly amused at the idea that CoS has "circumstantial evidence" that Graham told people about the term of the aborted settlement. I have no idea of what was in it, except it from others observations that Graham did not picket certain areas around big blue it almost certainly had some kind of limits on his First Amendment rights. I can also surmise without having heard a thing from Graham that the typed version by Ava had a lot more crap in it than Graham agreed to.
Ava M. Paquette, SBN 165375
MOXON & KOBRIN 3055 Wilshire Blvd., Ste. 900 Los Angeles, CA 90010 Telephone: (213) 487-4468 Facsimile: (213) 487-5385
Attorneys for Plaintiff/Creditor GLENN BARTON
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA
In re GRAHAM E. BERRY, ) CASE NO. LA99-32264 ER
ADV. N0. AD 002817 ER
Honorable Ernest M. Robles
Debtor. ) Ctrm_ 1568
PLAINTIFF'S EX PARTE
GLENN BARTON, ) APPLICATION FOR AN ORDER:
(1) GRANTING PLAINTIFF LEAVE TO
Plaintiff, ) FILE A MOTION, UNDER SEAL; AND
(2) TO CONTINUE THE TRIAL DATE
GRAHAM E. BERRY, )
Defendant. ) ) ) )
Plaintiff, Glenn Barton, hereby applies for an Order (1) granting plaintiff leave to file a motion, under seal, enforce the settlement agreement, and/or for Sanctions; and (2) continuing the trial date from January 28, 2002 until sometime in April. 2002 or thereafter as convenient to the
This ex parte application is made upon the following grounds:
1. Or. November 28, 2001, the parties entered into a complete settlement of this matter, the terms of which were set forth in the debtor, Graham E. Berry's own handwriting, at .- his insistence and signed by both parties. Two weeks thereafter, Mr. Berry refused to honor the settlement agreement. Bankruptcy courts possess the power to summarily, on motion, enforce settlements. In re City Equities Anaheim, Ltd. v. Lincoln Plaza Development Company, 22 F. 3d 954 (9`h Ci x. 1994) ; Alipio v. Secretary of the Army, 1 998 WL 231021 N.D.Cal. 1992);
2. As to plaintiff's request for filing his motion under seal, Debtor has a history of using this bankruptcy matter to grandstand and play to his friends on the Internet, inciting them to take actions against plaintiff, plaintiff's counsel and plaintiff's law firm. Throughout his bankruptcy, debtor has sent plaintiff's counsel a number of letters in this case and others, threatening her to withdraw from the bankruptcy or else, threatening her with law enforcement action, and threatening her with a malicious prosecution and abuse of process lawsuit. A number of these letters have been posted on the Internet. It was for these reasons that confidentiality was one of the terms of the settlement. Despite this, plaintiff has circumstantial evidence that Mr. Berry disseminated the terms of the Agreement to his Internet friends which resulted in detriment to the Plaintiff. Thus, I confidentiality regarding this matter is warranted, including holding a hearing on the motion in a closed proceeding; and
4. Plaintiff's counsel suspended all preparations for trial which had been set for January 28, 2002, under the belief that the matter had been settled and the case would be dismissed. In addition, Mr. Moxon of Moxon & Kobrin was to try this matter. Likewise, under the belief that this matter had settled, he calendared another matter for that time period and will not be available until. April 2002 or thereafter.
On January 2, 2002, plaintiff's counsel gave notice of this ex parte application to the debtor, Graham Berry. He indicated that he would be filing an opposition to this application As reflected by the proof of service attached pp, hereto, debtor has also been served with the ex parte application papers, via telefax and mail.
Dated: January 7, 2002 Respectfully submitted,
MOXON & KOBRIN I
Ava M. Paquette q ~ P
Attorneys for Plaintiff Glenn Barton
MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION/STATEMENT OF FACTS A. Background History Of Court--Ordered Mediation.
On November 28, 2001, the parties engaged in a confidential, court-ordered mediation. an that day, -he parties entered into a complete settlement of this matter, the terms of which were set forth in the debtor, Graham E. Berry's own handwriting, at his --insistence, signed by both parties and witnessed by the Mediator (the "Written Agreement"). Counsel for plaintiff prepared a draft of a formal settlement agreement, tailored strictly from the Written Agreement. Thereafter, Mr. Berry began making a number of changes to the draft formal agreement which contained terms that were not discussed or agreed to and were far beyond the oral and Written Agreement entered into at the mediation. Plaintiff's counsel attempted to obtain Mr. Berry's cooperation in completing the settlement process as was agreed at the mediation. Mr. Berry refused. (Declaration of Ava M. 'Paquette "Paquette Decl."). i
B. Background History Supporting Plaintiff's Request To Have His Motion Submitted Under Seal.
Plaintiff's request to file a motion, under seal, is based upon (1) the fact that confidentiality was one of the terms of the Written Agreement, but more importantly, ;2) Mr. Berry's history of using this bankruptcy matter to grandstand and play to his friends on the Internet, inciting them to take actions against plaintiff, plaintiff's counsel and plaintiff's law firm. Plaintiff's counsel has been dealing with Mr. Berry with regard to his bankruptcy since he filed his petition on. June 11, 1999. During that time period, he has sent plaintiff's counsel a number of letters in this case and others, threatening her to withdraw from the bankruptcy case or else, threatening her with law enforcement action, and threatening her with a malicious prosecution and abuse of process lawsuit. A number of these letters have been posted on the Internet. (Paquette Decl.)
Additionally, plaintiff has circumstantial evidence that Mr. Berry disseminated the terms of the Agreement to his Internet friends which resulted in detriment to the Plaintiff. (Paquette Decl.)
C. Request For Trial Continuance.
Plaintiff's counsel suspended all preparations for trial which had been set for January 28, 2002, under the belief that the matter had been settled and the case would be dismissed.
In addition, Mr. Moxon of Moxon & Kobrin was to try this matter. Likewise, under the belief that this matter had settled, he calendared another matter for that time period and will not be available until April 2002 or thereafter.
(Paquette Decl.) I 11. DISCUSSION
A. This Court Has The Authority To Summarily, On Motion,
Enforce A Settlement Agreement.
It is settled law in the Ninth Circuit that a "bankruptcy court, as a court of equity, possesses power to summarily enforce settlements." In re City Equities Anaheim, LLd V. Lincoln Plaza Development Company, 22 F.3d 954, 958 (9-h Cir.1994)(affirming the bankruptcy's ruling, on motion and pursuant to its inherent authority, enforcing the settlement agreement entered into between the parties). The reasons for this practice of summary enforcement are the "high judicial favor" that are accorded voluntary settlement of disputes and the "efficiency of having one court see litigation through to its conclusion, thereby avoiding duplication of effort." Id. at 957. The sole limitations on such enforcement are that the material facts concerning the existence or the terms of a settlement agreement are not in dispute and it was not procured by fraud. Id. Indeed, it has been. held that a settlement agreement will be enforced where the parties entered into a settlement agreement, notwithstanding the parties' failure to agree on certain nonessential terms. In re Rhoades Industries, inc., 162 B.R. 485, 489-490 (Bankr. N.D. Ohio 1993).
Judge Breyer of the United States District Court, Northern District of California was confronted with almost the identical facts as those which occurred between the parties here. Alipio v. Secretary of the Army, 1998 WL 2?1021 (N.D. Cal. 1998) (attached for the Court's convenience as Exhibit A). In Alipio, the parties were ordered to a settlement conference. Plaintiff appeared in pro per, the defendant' appeared by counsel. The parties agreed to a settlement and set it forth in writing. Thereafter, the defendant sent the plaintiff a draft written settlement agreement reflecting what had been agreed to at the settlement conference. After delaying, plaintiff indicated that he changed his -mind, he did not want to settle the case.
The court in Alipio upheld the settlement agreement finding that the terms were complete between the parties, there was no indication that there were any further issues to resolve, all material facts were not in dispute, and both parties gave their oral and written consent to this agreement-
The facts in A1iplo are literally identical to what occurred here. The only difference between Alip-io and the facts here is that plaintiff seeks to file his motion under seal for the reasons pointed out in the Statement of Facts, set forth supra and as supported below.
8. Good Cause Exists To Grant Plaintiff Leave To File His
Motion Under Seal And To Continue The Trial Date.
11 U.S.C. § 105(a) grants this Court the power to:
. "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." No provision of title providing for the raising of any issue by a party in interest shall be construed or preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
This rule exists because there are powers that "are necessary for the courts to function as an institution", such as the "power to impose silence, respect and decorum, in the-r presence, and submission to their lawful mandates." in re Kneppex, 154 B.R. 75, 79-$0 ;N,D.Ind. Bankr. 1993) citing Chambers v. Nasco, 501 U.S. 32, 111 S.Ct. 2123„ 1991).
These principles apply directly here. As set forth herein, the parties agreed that the settlement agreement would be confidential. However, certain events occurred during the mediation and after the mediation which tends to show that the debtor breached this confidentiality clause, resulting .in harm, embarrassment and distress to the plaintiff. In addition, throughout this bankruptcy, debtor has routinely made this bankruptcy a source of information and entertainment amongst his Internet friends, all of whom are openly hostile to plaintiff. This is why plaintiff seeks to file his motion under seal.'
Additionally, debtor's actions in entering into the Written Agreement at the mediation led plaintiff's course: to believe the matter had been settled so preparation fox trial was suspended under that belief. Moreover, should the Court grant plaintiff's motion, trial of this matter would be mooted, warranting a continuance of the trial date of this matter.
In addition to, or alternatively, plaintiff w;-11 seek sanctions against defendant for engaging in vexatious conduct. in re Marvel, 265 B.R. 605 (Bankr. N.D.Cal. 2001). In Marvel, the court imposed sanctions on creditor's attorney for filing a motion without any basis, based upon her dislike of counsel and out of desire to discourage counsel from taking further action against creditor. In doing so, the Marvel court noted that bankruptcy courts have the power to sanction (1.) pursuant to their broad inherent powers granted them under 11 U.S.C. 105(a),(2) pursuant to bankruptcy Rule 9011 and/or 3) pursuant to 28 U.S.C. § 1927. Id. at 609. Plaintiff contends that, in addition, or alternatively to his motion to enforce the settlement agreement, that debtor's conduct with regard to the settlement (which would be more fully explained in plaintiff's motion, under seal) warrants sanctions under one or all three of these avenues available to rim under the law.
For judicial economy and the "high judicial favor"accorded voluntary settlements, plaintiff respectfully requests (1) he be given leave to file his motion to enforce the settlement and/or for sanctions, under seal, and for the hearing on the motion to be held in a closed proceeding and (2) that the trial. date be continued until April 2002 or to a date convenient to the Court.
Dated: January 7, 2002 Respectfully submitted, MOXON & KOBRIN
Ava M. Paquette
Attorneys for Plaintiff