Misael Avila; Sergio Avila v. NAIMAT KADAH INTERNATIONAL, INC., DBA Kabab and Curry's; MOHAMMAD USMAN

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MISAEL AVILA; SERGIO AVILA,
Plaintiffs-Appellees,
v.
NAIMAT KADAH INTERNATIONAL,
INC., DBA Kabab and Curry's;
MOHAMMAD USMAN,
Defendants-Appellants.
No. 13-17075
14-15791
D.C. No. 5:11-cv-01771-PSG
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Argued and Submitted November 17, 2015
Submission Vacated November 19, 2015
Resubmitted August 26, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and IKUTA and HURWITZ, Circuit Judges.
Naimat Kadah International, Inc., and Mohammad Usman (collectively,
“Naimat”) appeal a district court judgment in this wage-and-hour suit enforcing a
settlement between Naimat and Misael and Sergio Avila (collectively, “the Avilas”).
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
FILED
AUG 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Naimat also challenges an award of attorney’s fees to the Avilas. We have
jurisdiction under 28 U.S.C. § 1291, and affirm in part, vacate in part, and remand.
1. As the district court recognized, the settlement agreement provides for the
arbitration of most disputes. However, the agreement allows for a judicial
“proceeding to obtain the judgment caused by the Company’s breach . . . for unpaid
balance.” And, in its order dismissing the original action the district court explicitly
retained “jurisdiction over this case for the purpose of enforcing the settlement.” See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994). The
district court therefore retained the ability to determine whether a default had
occurred and, if so, to enter judgment in favor of the Avilas.
2. It is uncontested that the wages due the Avilas under the settlement remain
unpaid. As the district court held, the settlement agreement sets no conditions
precedent to payment. The district court did not err by concluding that Naimat was
in default and entering judgment in favor of the Avilas.
3. The district court entered judgment for the Avilas for the full amount of
unpaid wages, $33,108. Naimat must, of course, comply with relevant tax laws, and
the settlement agreement expressly provides for appropriate payroll deductions. See
Rivera v. Baker W., Inc., 430 F.3d 1253, 1259 (9th Cir. 2005) (finding that a
settlement for back wages was “subject to taxable withholding”). We therefore

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remand to the district court to modify the judgment to specify that any payment
required to the Avilas under the judgment is subject to required payroll deductions.
4. We also affirm the award of attorney’s fees. The settlement agreement
provides for fees to a prevailing party in the event of a dispute. The district court
did not commit clear error in its factual findings—it carefully reviewed the relevant
billing records and found the entries reasonable. See Ferland v. Conrad Credit
Corp., 244 F.3d 1145, 1147-48 (9th Cir. 2001). The court therefore did not abuse
its discretion. See id. at 1148.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED. Each
side shall bear its own costs on appeal.

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