By order today from Judge Gonzales Rogers, tomorrow’s hearing has been cancelled. My non-legal interpretation is that the judge does not see evidence of imminent damage to the Tribe and Upstream that would warrant a restraining order, but at the same time, she is warning that the City of Richmond has a contractual obligation not to take any actions that would undermine the settlement agreement and that the consequences of doing so could be serious.

Under California law, “an agreement to settle a legal dispute is a contract and its enforceability is governed by familiar principles of contract law.” Jeff D. Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (citations omitted.) “California law recognizes that a contract may be breached by nonperformance, repudiation, or a combination of the two.” Hewlett-Packard Co. v. Oracle Corp., 65 Cal. App. 5th 506, 549 (2021). “The repudiation may be express or implied. An express repudiation is a clear, positive, unequivocal refusal to perform . . . ; an implied repudiation results from conduct where the promisor puts it out of his power to perform so as to make substantial performance of his promise impossible.” Taylor v. Johnston, 15 Cal. 3d 130, 137, (1975) (citations omitted.) A party that negotiates and enters a settlement of a legal dispute cannot at the same time disavow the agreement when it becomes no longer beneficial. See Hurvitz v. St. Paul Fire & Marine Ins. Co., 109 Cal. App. 4th 918, 936 (2003). Principles of federalism do not impact these obligations.

The City concedes that it would be judicially estopped from taking any inconsistent positions in the SPRAWLDEF Action citing Samson v. NAMA Holdings, LLC, 637 F.3d 915, 936 (9th Cir. 2011), Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 996 (9th Cir. 2011), and Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001). (See Opposition at 7:3-8, Dkt. No. 425.) In essence, the City argues that “no action” does not constitute either inconsistent action or a repudiation.

Given the current record, the Court finds too much ambiguity to resolve the issues at this juncture and, in any event, plaintiffs’ requested relief is not currently premised on any actionable claim. Here, plaintiffs have offered evidence reflecting an intent by the City to repudiate the Amended Judgment. As noted, the City contests that implication. At most, the evidence of the City’s flip-flopping on the filing of a brief in support of the legitimacy of the Amended Judgement is circumstantial evidence of the City’s repudiation of the Amended Judgment, especially if the source of the flip-flopping is the mere change in the composition of the city council. However, plaintiffs have not filed a motion to enforce the Amended Judgment. As noted on the record on November 22, 2021, the Court was not convinced that it could order the requested relief. That said, the City is on notice that its conduct relative to the appeal can be considered in any future proceeding relative to the enforcement of the Amended Judgment, including whether such actions are circumstantial evidence of repudiation. Of course, time remains for the City to make explicit that it does not repudiate the Amended Judgment.

It is interesting that the Court stripped the city attorney of some of her arguments about absolute confidentiality of closed session information:

The City is also on notice that the attorney-client privilege does not shield the city council members from factual matters. Upjohn Co. v. U.S., 449 U.S. 383, 395 (1985) (explaining that the attorney-client privilege only protects against communications and does not extend to disclosure of the underlying facts); see also North Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1127 (2003) (explaining that not all communications during the closed sessions of a City Council’s meeting are privileged).