Greco D.O. v. Matthew Todd Ahern DO

2

3

4

5

6

7

8

9 UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA

11

12 GABRIELLA FRANCESCA GRECO D.O., et Case No.: 21cv155-RBM(MSB)

al.,

13

REPORT AND RECOMMENDATION FOR

Plaintiffs,

14 ORDER DENYING PLAINTIFF’S GABRIELA

v. FRANCESCA GRECO’S MOTION TO

15

VACATE ORDER GRANTING JOINT

MATTHEW TODD AHERN D.O., et al.,

16 MOTION TO DISMISS WITH PREJUDICE

Defendants. AND TO WITHDRAW NOTICE AND

17

STIPULATION OF THE PARTIES TO

18 DISMISS ENTIRE CASE WITH PREJUDICE

[ECF NO. 66]

19

20

21

22 Pending before the Court is Plaintiff’s Gabriela Francesca Greco’s1 “Motion to

23 Vacate Order Granting Joint Motion to Dismiss With Prejudice and to Withdraw Notice

24 and Stipulation of the Parties to Dismiss Entire Case With Prejudice” (“Motion to

25

26

27 1 The Court notes that Plaintiff Greco filed the Motion to Vacate, and Plaintiff LaRue did not move to

2 support of her Motion to Vacate [ECF No. 72], and Defendants’ Objections to new

3 evidence in Plaintiff’s Reply [ECF Nos. 73, 74, 75]. This Report and Recommendation is

4 submitted to the United States District Judge Ruth Bermudez Montenegro pursuant to

5 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the

6 Southern District of California. For the foregoing reasons, the Court RECOMMENDS that

7 Plaintiff’s Motion to Vacate be DENIED.

8 I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

9 On January 27, 2021, Plaintiff Gabriella Greco and her husband Kenneth LaRue,

10 filed a “Complaint for Damages,” and on June 1, 2021—a “First Amended Complaint for

11 Damages” (“FAC”). (ECF Nos. 1, 34). In the FAC, Plaintiffs alleged that on January 29,

12 2020, Greco was evaluated at Scripps Encinitas Emergency Department for mild acute

13 pancreatitis. (ECF No. 34 at 6.) She was admitted and treated at the hospital for

14 thirteen days. (Id. at 6–15.) Plaintiffs alleged, inter alia, that Defendants (doctors,

15 nurses, and medical care providers) failed to treat Greco’s pancreatitis, which increased

16 the risk of serious or life-threatening complications and long-term pancreatic problems.

17 (Id. at 15–16.) Plaintiffs further alleged that Defendants administered unnecessary

18 medical treatments, failed to treat Greco’s hypersensitivity reaction to a certain drug

19 which led to an airway obstruction and contributed to respiratory distress, and failed to

20 recognize and address her hypervolemia and consider fluid overload as a cause of her

21 respiratory distress. (Id.) According to the FAC, Plaintiff Greco “suffered multiple

22 hypoxic episodes resulting in hypoxic encephalopathy, skin wounds, emotional distress,

23 and other injuries.” (Id. at 16.) The FAC asserted the following causes of action:

24 (1) professional negligence (Greco against all Defendants); (2) medical battery (Greco

25 against all Defendants, except Defendants Ahern, Mason, and Encinitas Emergency

26 Medicine, Inc.); (3) false imprisonment (Greco against Defendants Himaya, Rozar, Cho,

27 Scripps Health, and Does 1–3); (4) loss of consortium (LaRue against all Defendants); and

2 Ahorn, Mason, and Encinitas Emergency Medicine, Inc.). (Id. at 15–20.)

3 On August 18, 2021, a “Notice and Stipulation of the Parties to Dismiss the Entire

4 Case with Prejudice” was filed on the docket. (ECF No. 61.) On August 19, 2021, District

5 Judge Curiel granted the motion and dismissed the case with prejudice. (ECF No. 62.)

6 On September 3, 2021, Greco filed an ex parte motion for substitution of attorney

7 seeking to be substituted in for attorney Hart, and the District Judge granted the motion

8 on September 7, 2021. (ECF Nos. 63, 64.) Two weeks later, Greco filed the instant

9 Motion to Vacate the District Judge’s order dismissing this action with prejudice

10 pursuant to Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6). (ECF No. 66.)

11 Defendants filed Oppositions, (ECF Nos. 69, 70, 71), and Greco filed a Reply in support of

12 her Motion to Vacate, (ECF No. 72). On November 12, 2021, Greco filed a “Motion to

13 Strike Scripps Defendants’ Objection to New Evidence Submitted by Plaintiff in Support

14 of her Reply, or in the Alternative, Plaintiff’s Response to the Scripps Defendants’

15 Objection to New Evidence Submitted by Plaintiff in Support of her Reply.” (ECF No. 77;

16 see also ECF No. 76.)

17 On November 16, 2021, District Judge Curiel issued an “Order re Motion to Vacate

18 Order Granting Joint Motion to Dismiss with Prejudice.” (ECF No. 78.) The Order stated

19 the following:

20 [B]ased on the record presented, there are disputed facts as well as an

absence of facts concerning Mr. Hoyt [Hart]’s role and actions during this

21

case. In the objection, Defendants seek an order that Plaintiff has waived

22 the attorney-client privilege and the opportunity to conduct discovery

regarding Plaintiff’s communications with her former counsel. (Dkt. No.

23

73.) The Court agrees that additional discovery is necessary to provide a

24 fuller understanding of what transpired. Thus, the Court REFERS this

matter to the Magistrate Judge for a report and recommendation on

25

whether Plaintiff’s motion to vacate should be granted. The Magistrate

26 Judge shall address any attorney-client privilege issues, any discovery

necessary to resolve this question, and conduct an evidentiary hearing, if

27

necessary.

2 (Id. n.4.)

3 On February 4, 2022, this Court conducted an evidentiary hearing. (See ECF No.

4 84; see also ECF No. 85.) On April 12, 2022, the action was transferred from the

5 calendar of District Judge Curiel to the calendar of District Judge Montenegro. (ECF No.

6 86.)

7 II. APPLICABLE LAW

8 Under Federal Rule of Civil Procedure 60(b)(1), a court “may relieve a party . . .

9 from a final judgment, order, or proceeding” for “mistake, inadvertence, surprise, or

10 excusable neglect.” Id. For purposes of Federal Rule of Civil Procedure 60(b)(1),

11 “parties should be bound by and accountable for the deliberate actions of themselves

12 and their chosen counsel.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1101

13 (9th Cir. 2006). This includes not only innocent attorney mistakes, but also intentional

14 attorney misconduct. Id.

15 Federal Rule of Civil Procedure 60(b)(6) further provides that a court “may relieve

16 a party . . . from a final judgment, order, or proceeding” for “any other reason that

17 justifies relief.” Id.; see also Lehman v. U.S., 154 F.3d 1010, 1017 (9th Cir. 1998) (“Rule

18 60(b)(6) is a catch-all provision that allows a court to vacate a judgment for ‘any other

19 reason justifying relief from the operation of the judgment.’”). Federal Rule of Civil

20 Procedure 60(b)(6) is “used sparingly as an equitable remedy to prevent manifest

21 injustice” and “is to be utilized only where extraordinary circumstances prevented a

22 party from taking timely action to prevent or correct an erroneous judgment.” Latshaw,

23 452 F.3d at 1103. The movant is required to “demonstrate both injury and

24 circumstances beyond his control that prevented him from proceeding with . . . the

25 action in a proper fashion.” Id. (quoting Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168

26 (9th Cir. 2002)).

27 / / /

2 Greco moves to vacate the “Order Granting Joint Motion to Dismiss With

3 Prejudice” [ECF No. 62], arguing that she did not settle this action with any of the

4 Defendants, did not sign a settlement agreement, and did not consent to the filing of

5 the dismissal with prejudice. (ECF No. 66 at 2; see also ECF No. 66-1 at 5–7.) Greco

6 further claims that she sought to proceed pro se, was not aware that her former counsel

7 Hart agreed to dismiss the case with prejudice, and had not reviewed or signed the

8 stipulation to dismiss before it was filed. (ECF No. 66-1 at 6.) Greco also asserts that in

9 light of the dismissal of the action, she is precluded from litigating her claims, which

10 amounts to “manifest injustice.” (Id. at 7.) Greco argues that the facts and

11 circumstances in this case are so “extraordinary,” “unusual and extreme,” that they

12 warrant setting aside the entry of the dismissal with prejudice pursuant to Federal Rule

13 of Civil Procedure 60(b)(1), (6). (Id. at 4–8.)

14 Defendants argue that Greco is suffering from “buyer’s remorse” and

15 mischaracterizes the circumstances surrounding the parties’ agreement to settle. (ECF

16 No. 69 at 4; see also ECF Nos. 69, 70, 71.) Defendants maintain that in lieu of providing

17 the signed authorizations for release of her medical records on August 17, 2021, Greco

18 “voluntarily and unequivocally agreed to dismiss her case against all defendants in

19 exchange for waiver of costs.” (ECF No. 69 at 14.) Defendants further contend that

20 Greco took affirmative steps after the dismissal of the action to ensure that Defendants

21 were abiding by the terms of the parties’ settlement agreement. (Id. at 4.) Defendants

22 also assert that Greco is bound by her former counsel’s actions, and any alleged

23 attorney malpractice does not warrant setting aside a judgement pursuant to Federal

24 Rule of Civil Procedure 60(b). (Id.) Defendants therefore ask the Court to deny Greco’s

25 Motion to Vacate. (Id. at 16.)

26 Greco replies that she did not consent to the dismissal of the case with prejudice,

27 and her former counsel Hart did not have authority to settle the case because she had

2 dismissed with prejudice on August 19, 2021, and immediately contacted defense

3 counsel to “determine what happened,” as well as to find out “what private and

4 personal records of hers were circulating between defendants and their attorneys,” and

5 to stop “the transmission of privileged materials.” (Id. at 20.) Greco argues that the

6 circumstances in this case “are so unusual and compelling that they warrant the

7 extraordinary relief” she seeks. (Id. at 5.)

8 In their Objection to the New Evidence in Greco’s Reply (“Objection to New

9 Evidence”), Defendants move to exclude certain evidence, claiming that Greco

10 improperly submitted the evidence for the first time in her Reply, and the evidence is

11 hearsay and irrelevant. (ECF No. 73 at 2–6.) Specifically, Defendants ask the Court to

12 disregard: (1) paragraphs 3–6 of the Greco Declaration II; (2) Exhibits A and D to the

13 Greco Declaration II; and (3) portions of Exhibit C containing Greco’s August 20, 2021 e-

14 mail to Kevin Rappel and his August 23, 2021 e-mail response. (Id. at 6 (citing ECF No.

15 72-1, Decl. of Gabriella Greco (“Greco Decl. II”); id., Exhs. A, C, D).) Alternatively,

16 Defendants seek an order finding that Greco waived the attorney-client privilege, and

17 allowing them to inquire into Greco’s communications with her former counsel Hart, as

18 well as statements in Dr. Spadoni’s declaration. (Id. at 6–7.) In support, Defendants

19 argue that by submitting to the Court her “purported attorney-client communications,

20 Ms. Greco has waived the attorney-client privilege,” and Defendants should therefore

21 be allowed to “inquire into the totality of those communications.” (Id. at 2.)

22 Greco responds that she did not submit any “new” evidence in her Reply, and the

23 evidence at issue directly responds to the allegations in Defendants’ Opposition. (ECF

24 No. 77 at 3–6.) Greco also contends that her August 12, 2021 text message to Hart

25 terminating him did not seek legal advice, and Defendants’ argument that she waived

26 the attorney-client privilege thus lacks merit. (Id. at 5.) She further argues that the

27 evidence at issue is not hearsay and is relevant. (Id. at 6–8.) Greco therefore asks the

2 The Court initially addresses Defendants’ request to disregard (1) paragraphs 3–6

3 of the Greco Declaration II; (2) Exhibits A and D to the Greco Declaration II; and

4 (3) portions of Exhibit C, containing Greco’s August 20, 2021 e-mail to Kevin Rappel and

5 his August 23, 2021 e-mail response. (ECF No. 73 at 6.) During the evidentiary hearing,

6 the Court found that the affidavit from Dr. Spadoni (attached as Exhibit D to the Greco

7 Declaration II) was “immaterial and irrelevant” to the issues raised in the Motion to

8 Vacate, and would “not be considered for any purpose.” (ECF No. 85 at 13–14.)

9 Further, because the Court does not rely in this Report or Recommendation on the

10 portions of Exhibit C that contain Greco’s August 20, 2021 e-mail to Kevin Rappel and his

11 response, (Greco Decl. II, Exh. C at 9), and paragraph 3 in the Greco Declaration II,

12 Defendants’ motion to exclude that evidence is moot. See Garcia Lopez v. Barr, 822 F.

13 App’x 648, 649 (9th Cir. 2020) (“[B]ecause we do not consider the additional evidence

14 submitted with [the petitioner’s] reply brief, the [respondent’s] motion to strike . . . is

15 denied as moot).

16 The remaining evidence Defendants ask the Court to disregard (paragraphs 4–5 in

17 the Greco Declaration II and Exhibit A to the Greco Declaration II) concerns Greco’s

18 August 12, 2021 text message to her former counsel Hart, and Hart’s response to the

19 text message, and Greco’s message left with defense counsel’s Low’s office the

20 following day. (See Greco Decl. II at 2; id., Exh. A.) The Court finds that the evidence is

21 highly relevant to whether Hart had authority to negotiate a settlement in this action

22 and agree to dismiss the action with prejudice. Further, Defendants were allowed to file

23 their Objection to New Evidence and to argue their position concerning Plaintiff’s

24 evidence at issue. (See ECF No. 73; see also ECF No. 78 at 8 n.4 (District Judge’s order

25 denying Plaintiff’s motion to strike Defendants’ Objection to New Evidence).)

26 Additionally, as discussed below, the Court granted the alternative relief requested by

27 Defendants in their Objection to New Evidence, (ECF No. 73 at 2, 6–7), by finding that

2 Accordingly, the Court will consider the evidence presented in paragraphs 4 and 5 of the

3 Greco Declaration II, and Exhibit A to the Greco Declaration II. See Sinclair v. City of

4 Needles, 365 F. App’x 844, 845 n.1 (9th Cir. 2010) (finding that “[t]he district court

5 properly considered evidence submitted alongside the City’s reply brief, as it did not

6 deny Appellants an opportunity to respond.”); Champion-Cain v. MacDonald, No. 14-cv-

7 2540-GPC-BLM, 2015 WL 3775659, at *2 (S.D. Cal. June 17, 2015) (admitting new pieces

8 of evidence, where defendants had the opportunity to review the evidence, present

9 arguments in their opposition briefs, and address the evidence at the hearing on the

10 pending motion).

11 B. Attorney-Client Privilege

12 “[I]n a civil case, state law governs privilege regarding a claim or defense for

13 which state law supplies the rule of decision.” Fed. R. Evid. 501. In diversity actions,

14 such as this action, questions of privilege are controlled by state law. In re Cal. Pub.

15 Utils. Comm’n v. Westinghouse Elec. Corp., 892 F.2d 778, 781 (9th Cir. 1989). Under

16 California law, evidentiary privileges, including the attorney-client privilege, are

17 governed by statute. HLC Props., Ltd. v. Sup. Ct., 105 P.3d 560, 563 (2005); see also Cal.

18 Evid. Code § 911(b) (“Except as otherwise provided by statute . . . [n]o person has a

19 privilege to refuse to disclose any matter or to refuse to produce any writing, object, or

20 other thing.”).

21 The attorney-client privilege confers a privilege on the client “to refuse to

22 disclose, and to prevent another from disclosing, a confidential communication between

23 client and lawyer.” Cal. Evid. Code § 954. The party claiming the privilege has the initial

24 burden of establishing the facts necessary to support nondisclosure, namely, a

25 confidential communication made in the course of an attorney-client relationship.

26 Costco Wholesale Corp. v. Sup. Ct., 219 P.3d 736, 741 (2009); City of Petaluma v. Sup.

27 Ct., 204 Cal. Rptr. 3d 196, 203 (Ct. App. 2016). Once that party establishes a prima facie

2 privilege does not apply. Id.

3 The California Legislature has codified certain exceptions to the attorney-client

4 privilege. See Cal. Evid. Code §§ 956–962. “[T]here is no privilege . . . as to a

5 communication relevant to an issue of breach, by the lawyer or by the client, of a duty

6 arising out of the lawyer-client relationship.” Id. § 958. “[A]n attorney is released from

7 th[e] obligations of secrecy . . . whenever the disclosure of a communication, otherwise

8 privileged, becomes necessary to the protection of the attorney’s own rights,” such as

9 when the attorney’s “integrity, good faith, authority or performance of his duties is

10 questioned.” Carlson, Collins, Gordon & Bold v. Banducci, 64 Cal. Rptr. 915, 923 (Ct.

11 App. 1967).

12 The attorney-client privilege may be “waived with respect to a communication

13 protected by the privilege if any holder of the privilege, without coercion, has disclosed

14 a significant part of the communication or has consented to disclosure made by

15 anyone.” Cal. Evid. Code § 912(a). “What constitutes a significant part of the

16 communication is a matter of judicial interpretation; however, the scope of the waiver

17 should be determined primarily by reference to the purpose of the privilege.”

18 Transamerica Title Ins. Co. v. Sup. Ct., 233 Cal. Rptr. 825, 828 (Ct. App. 1987).

19 Further, although the attorney-client privilege and its exceptions are defined by

20 statute rather than common law, California courts have held that a client may impliedly

21 waive the attorney-client privilege by placing an ordinarily privileged matter at issue,

22 and disclosure is essential for a fair adjudication of the action. See id.; S. Cal. Gas Co. v.

23 Pub. Utils. Comm’n, 784 P.2d 1373, 1378 (Cal. 1990) (quoting Chicago Title Ins. Co. v.

24 Sup. Ct., 220 Cal. Rptr. 507, 512 n.8 (Ct. App. 1985)) (“The [California] Evidence Code

25 does not create any exception to the lawyer-client privilege for the situation in which a

26 client tenders an issue such as his lawyer’s conduct or state of mind. But the Code does

27 not bar the courts from creating by decisional law new exceptions to various

2 (“Although not specifically reflected in the California statutory law, the theory of implied

3 privilege waiver is well-accepted.”).

4 The communications between Greco and her former counsel Hart made during

5 the course of the lawyer-client relationship are presumed to be privileged. See Cal.

6 Evid. Code § 917(a) (“[I]f a privilege is claimed on the ground that the matter sought to

7 be disclosed is a communication made in confidence in the course of the lawyer-

8 client . . . relationship, the communication is presumed to have been made in

9 confidence”). As noted above, Greco argues that her August 12, 2021 text message to

10 Hart terminating him did not seek legal advice, and the communication was therefore

11 not privileged. (See ECF No. 77 at 5.) Greco filed with the Court screenshots of her

12 August 12, 2021 text message to her former counsel Hart, and Hart’s text message

13 response. (See Greco Decl. II, Exh. A.) Even if the entire text messages, or their

14 portions, were covered by the attorney-client privilege, Greco expressly waived the

15 privilege with respect to those communications by filing the screenshots of the text

16 messages on the docket and discussing the contents of the messages in her pleadings.

17 See Cal. Evid. Code § 912(a). Additionally, because Greco asserts that she terminated

18 attorney Hart on August 12, 2021, and he did not have authority to settle on her behalf

19 and dismiss the action with prejudice, any communications regarding Hart’s authority,

20 or lack thereof, to settle and dismiss the action are not privileged. See Cal. Evid. Code

21 § 958 (“[T]here is no privilege . . . as to a communication relevant to an issue of breach,

22 by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”).

23 Finally, because Greco is claiming that she did not agree to the settlement or to

24 the stipulation to dismiss the action with prejudice, and she was not aware that

25 attorney Hart had agreed to settle the case with prejudice before the dismissal of this

26 action, Greco placed at issue her communications with Hart regarding a potential

27 settlement or dismissal of the action. Therefore, Greco has impliedly waived the

2 589525, at *3 (E.D. Cal. Feb. 11, 2015) (applying California law and holding that “by

3 asserting [his attorney’s] lack of authority, [defendant] has impliedly waived his

4 privilege,” where the defendant claimed that his counsel had entered into a settlement

5 agreement without authorization). 2

6 C. Evidence Presented to the Court in Declarations Before the Evidentiary

7 Hearing

8 Due to the medical nature of the claims in this action, on April 16, 2021,

9 Defendants requested Plaintiff Greco sign authorizations for the release of her medical

10 records. (ECF No. 69-1, Decl. of William M. Low (“Low Decl.”) at 2; id., Exh. B.) Four

11 months later on August 4, 2021, Greco’s counsel e-mailed Defendants a proposed

12 Stipulated Protective Order “[i]n preparation for providing signed document release

13 authorizations,” which contained the “Attorney’s-Eyes-Only” designation. (Low Decl. at

14 2; id., Exh. C.) Defendants objected to the designation, (Low Decl. at 2), and the Court

15 scheduled a Discovery Conference to address the issue for August 16, 2021, (ECF No.

16 57).

17 On August 12, 2021, Greco sent Plaintiffs’ attorney of record, Hoyt Hart, a text

18 message stating the following:

19 Atty Hart

20 I want you to stop communicating with Scripps or anyone else on this case

about me. Period. I do not want you to do another thing except notify

21

them that you are no longer on the case (unless you want me to notify

22 them)

23

If you need me to communicate this to you in an email, please let me know

24

You are done with this case

25

26

27

2 substitution of attorney prepared “tomorrow” so that Greco could “represent [her]self.”

3 (Id., Exh. A.)

4 Attorney Hart appeared on Plaintiffs’ behalf at the August 16, 2021 Discovery

5 Conference regarding a dispute related to the parties’ proposed Stipulated Protective

6 Order. (ECF No. 58; see also Low Decl. at 2.) Following the hearing, the Court directed

7 the parties to drop the “Attorneys-Eyes-Only” designation and jointly file a Stipulated

8 Protective Order. (Low Decl. at 2; id., Exh. D.)

9 On August 16, 2021, the parties filed a “Joint Motion for Entry of Stipulated

10 Protective Order.” (ECF No. 59.) Attorney Hart signed the motion on behalf of Plaintiffs

11 Greco and LaRue. (Id. at 2.) On August 17, 2021, the Court granted the joint motion

12 with modification, entered the parties’ modified Stipulated Protective Order, and

13 ordered Plaintiffs to execute and deliver the previously served confidential record

14 authorizations to respective Defendants by the end of business day on August 17, 2021.

15 (ECF No. 60 at 2.)

16 The next day, on August 17, 2021, defense counsel Low received a phone call

17 from attorney Hart advising him that Plaintiffs were prepared to voluntarily dismiss the

18 case with prejudice against Scripps Defendants, if Low agreed not to provide copies of

19 Greco’s medical records that he had already obtained to counsel for co-Defendants.

20 (Low Decl. at 2–3.) Low rejected the proposal due to a prior agreement among defense

21 counsel to coordinate gathering and sharing relevant records to avoid duplication of

22 efforts. (Id. at 3.)

23 Hart called Low again on the same day and advised that “in lieu of providing the

24 Court-ordered authorizations by day’s end, the plaintiffs would agree to dismiss the

25 entire action, with prejudice, against all defendants in exchange for a waiver of costs.”

26 (Id.) Low accepted the proposal on behalf of Scripps Defendants. (Id.) The same day,

27 Low e-mailed Hart, and all defense counsel confirming full and final resolution of the

2 a full and final settlement of the entire case.

3 Plaintiffs have agreed to dismiss this case with prejudice in exchange for a

waiver of costs by all defendants.

4

5 In light of this settlement, I recommend we agree to (1) freeze any and all

outstanding discovery requests, (2) relieve [attorney Hart] of his obligation

6

to provide us with the signed authorizations for release of records due

7 today and also (3) agree to destroy any records we have obtained on Dr.

Greco or her husband.

8

9 (Id., Exh. E.)

10 On August 18, 2021, a “Notice and Stipulation of the Parties to Dismiss the Entire

11 Case with Prejudice” was filed on the docket stating that: “IT IS HEREBY STIPULATED by

12 and between the parties to this action through their designated counsel that the above-

13 captioned action be and hereby is dismissed with prejudice pursuant to FRCP 41(a)(1).”

14 (ECF No. 61 at 2.) The document contained electronic signatures of attorney Hart on

15 behalf of Plaintiffs Greco and LaRue, and attorneys Popke, Hardisty and Low on behalf of

16 Defendants they represented. (Id. at 2–3.) On August 19, 2021, District Judge Curiel

17 granted the joint motion and dismissed this action with prejudice. (ECF No. 62.)

18 On August 19, 2021, Greco e-mailed Low stating that she was not represented by

19 counsel and requesting to speak “regarding the dismissal of the case.” (Low Decl. at 3;

20 id., Exh. F.) Low responded on August 20, 2021, that “[u]nder the circumstances, I really

21 do not wish to speak with you directly,” and advising Greco that he had “notified . . .

22 copy service to suspend all efforts to serve subpoenas or otherwise obtain copies of

23 [Greco’s] records (from any and all sources).” (Low Decl. at 3; id., Exh. G.)

24 Greco replied on August 20, 2021, expressing concern about subpoenas for

25 medical records that had already been served. (Low Decl. at 3; id., Exh. H.) She stated

26 the following:

27 There needs to be an affirmative effort by your copy service to notify each

2 manyd o rre mcayll haulls obuatnsdta’sn pdeinrgso snuablp inofeonrams ainti olingh. tF oafil tuhree dtois immimsseadl oiaft tehlye qlauwasshu it

3 is abuse of your subpoena powers.

4

I would also appreciate a comprehensive list of the entities that received

5 subpoenas from your law firm and whether the entity responded with

records or if not, the deadline for the response. For the entities that

6

responded, please send sworn certification that the records you received

7 have been completely deleted from your server and from your copy

service’s servers.

8

9 (Id., Exh. H.) Low responded on August 20, 2021, that Defendants’ copy service had

10 been notified of the dismissal and advised to immediately suspend efforts to gather

11 records responsive to the subpoenas. (Greco Decl. II at 3; id., Exh. C at 9–10.) Low

12 further stated that he had asked the copy service to advise all of the providers on whom

13 subpoenas had been served and were outstanding to suspend efforts to gather and

14 produce Greco’s records. (Id.) Low also stated that all of the records his client had

15 received regarding Greco and her husband would be deleted from the servers. (Id.)

16 On August 23, 2021, Greco e-mailed Low claiming that she had contacted three

17 entities that received subpoenas and none of them were aware that the subpoenas had

18 been recalled. (Low Decl. at 3; id., Exh. I.) She also stated that:

19 I am sure there are more entities who have responded since the dismissal

of the case. This is a blatant abuse of your subpoena powers despite your

20

assurances last Friday.

21

I demand a list of ALL subpoenas that were sent out and proof that you

22

have affirmatively acted to recall each and every subpoena. I am drafting

23 correspondence to bring this to the attention of the federal judge. I will be

including the responses from the entities stating that they have not been

24

contacted.

25

26 (Id.) Greco further claimed that she was “bullied” into dismissing the case, and

27 reiterated that she was not represented by counsel. (Id.) Low responded the same day

2 service, the copy service “would not copy the records because the case is over.” (Id.)

3 On August 25, 2021, Low received a voicemail from Plaintiff LaRue’s former

4 employer and a recipient of a subpoena, Mr. Brown of the Lake County State’s

5 Attorney’s Office. (Low Decl. at 3; id., Exh. K.) Brown stated that LaRue had informed

6 him that “the lawsuit was settled,” and Brown wanted to confirm that the material in

7 the subpoena was no longer needed. (Id.) Low returned the call and advised Brown

8 that the case had been dismissed, and the subpoena issued for LaRue’s employment

9 records was void and did not require any response. (Low Decl. at 3.)

10 The next day, on August 26, 2021, Greco e-mailed Low stating that “Hart said that

11 an agreement existed for the cost waiver,” and asking to send her “a copy of the

12 agreement you entered into with Attorney Hoyt Hart regarding the cost waiver.” (Low

13 Decl. at 3; id., Exh. L.) Greco further stated the following:

14 I did not “agree” to this dismissal with prejudice. I was not aware of what

the parties were stipulating. There were errors made in this exchange. In

15

fact, I had communicated to Attorney Hart on Thursday, August 12, 2021 to

16 “stop communicating with Scripps or anyone else on this case about me.

Period . . . You are done with this case.” He promised that he would

17

substitute me in the next day. Then I was told I was going to have to wait

18 for the substitution until “next week.”

19

20 (Id.) Low responded the same day stating:

21

On behalf of my clients I agreed to waive costs in exchange for a dismissal

22 with prejudice. I communicated my position to Mr. Hart and he said he has

authority from his clients to agree. I understood similar agreements were

23

reached with the co-defendants. This all happened on the day you were

24 ordered by the court to sign and provide the authorizations for release of

records. In light of plaintiffs agreement to dismiss the entire case with

25

prejudice, we informed Mr. Hart that you did not have to provide the

26 signed authorizations because the case was over and done. Hence, we did

not insist that you provide the court ordered signed authorizations. The

27

dismissal request was drafted that day and submitted to the court followed

2 In her e-mail to Low dated August 27, 2021, Greco stated that she did not review,

3 sign, or agree to the stipulation dismissing the case with prejudice. (Low Decl. at 4; id.,

4 Exh. N.) She further stated that her former counsel Hart was “discharged from the case

5 ‘effective immediately’ on August 12th,” and she attempted to notify defense counsel

6 that she was no longer represented by counsel and was taking over the case, but was

7 advised not to speak with defense counsel until the substitution paperwork was

8 completed. (Id.) She also stated that she was pressured to sign authorizations for her

9 medical records and wanted to substitute in “so that [she] could be informed as to

10 exactly what was being ordered and raise any objections if needed.” (Id.) Finally, Greco

11 stated that “[a]greeing to the dismissal of [her] case with prejudice is not something

12 [she] would have done voluntarily,” and she “expected to be able to review and sign any

13 final stipulation agreement but that did not happen.” (Id.)

14 In her declaration submitted to the Court in support of her Motion to Vacate,

15 Greco states that on August 13, 2021, she called the law office of defense counsel Low,

16 and left a message with the secretary stating that she was representing herself;

17 however, no one followed up regarding her message. (Greco Decl. II at 2–3.) She also

18 states that she “did not consent to the Stipulation [of dismissal with prejudice] as

19 entered,” and “did not have an opportunity to review, consider or approve the

20 Stipulation prior to entry” of the order dismissing the case with prejudice. (ECF No. 66-

21 2, Decl. of Gabriella Greco (“Greco Decl. I”) at 2.) Greco declares that she “did not settle

22 with the defendants, did not sign a settlement agreement with the defendants, and did

23 not agree to dismiss the case against defendants with prejudice.” (Id.) Greco further

24 states that she “was never made aware of an agreement, reviewed any agreement,

25 approved any agreement or authorized any agreement to dismiss [her] case with

26 prejudice.” (Greco Decl. II at 2.) Greco also presented evidence that on August 12,

27 2021, she sent a text message to her attorney Hart terminating him. (Greco Decl. II at 3;

2 had purportedly discharged Hart as counsel of record on August 12, 2021, until he

3 received Greco’s e-mail on August 19, 2021. (Low Decl. at 4.) Low further states that

4 “[a]t all times during the course of litigation, including the formation and filing of the

5 Notice and Stipulation of the Parties to Dismiss Entire Case With Prejudice, [he]

6 operated under the reasonable assumption that Ms. Greco’s counsel of record was

7 authorized to act on her behalf.” (Id.)

8 D. Relevant Testimony During the Evidentiary Hearing

9 On February 4, 2022, the Court held an evidentiary hearing with regard to Greco’s

10 Motion to Vacate. (ECF Nos. 84, 85.) Plaintiff Greco appeared pro se. (ECF No. 85 at 2.)

11 Plaintiff’s former counsel, Hoyt Hart, II, also appeared at the hearing. (Id.) Attorney

12 Jeffrey Doggett appeared on behalf of Defendants Cho, McMurray, Eisman, Shaw, Hsing,

13 Magana, Corbin, Encinitas Hospital Associates, and Coastal Pulmonary Associates. (Id.;

14 see also id. at 5.) Attorney William Low appeared on behalf of Defendants Rozar,

15 Himaya, and Scripps Health. (Id.) Attorney Michael Popcke appeared on behalf of

16 Defendants Ahern, Mason, and Encinitas Emergency Medicine, Inc. (Id.)

17 Greco’s former counsel Hart was questioned by the Court, Greco, and defense

18 counsel Low, Doggett, and Popcke. (See ECF No. 85.) Hart testified that Defendants e-

19 mailed over thirty authorizations for release of Greco’s medical records, and he

20 forwarded the authorizations to Greco. (Id. at 16, 27, 42–43, 64.) Hart did not object to

21 the record requests because he “assumed” that the requested information was

22 discoverable. (Id. at 43.) Hart had discussions with Greco regarding the requested

23 records, whether they were privileged, and whether he should file a motion to quash or

24 modify the scope of the subpoenas seeking the records, and advised Greco that there

25 was no need to quash subpoenas seeking those records. (Id. at 28–29, 72.) Hart had

26 difficulties with obtaining Greco’s signed authorizations because “there were materials

27 that she believed were private and not related to the issues in the case,” and “she didn’t

2 and advised Greco that his paralegal would prepare the substitution documents within

3 “a day or two.” (Id. at 18–19, 26.) Hart had subsequent phone conversations with

4 Greco “about what to do and what’s available, what the options [were].” (Id. at 19, 47.)

5 After her August 12, 2021 text message terminating his services, Greco repeatedly asked

6 Hart to substitute in, but he did not provide the signed substitution of attorney form

7 because he was “waiting for it to be produced by [his] paralegal.” (Id. at 19, 26–27, 65.)

8 On August 16, 2021, Hart appeared at the Discovery Conference with this Court,

9 but did not inform the Court or defense counsel that he “had received the termination

10 text” from Greco. (Id. at 48; see also id. at 19.) Hart stated that Greco was aware that

11 he would be attending the Discovery Conference on August 16, 2021, and she did not

12 tell him that he could not attend the conference. (Id. at 60–61.) Hart testified that he

13 continued to proceed as Greco’s attorney of record because he believed that he had

14 authority to do so. (Id. at 19.)

15 Hart further testified that after the Court adopted the version of the Stipulated

16 Protective Order without the “Attorneys-Eyes-Only” designation and ordered Greco to

17 sign the authorizations by the end of business day on August 17, 2021, Greco was

18 “frustrated.” (Id. at 52.) On August 17, 2021, Hart had multiple conversations with

19 Greco “trying to get a resolution.” (Id. at 53–54.) Hart advised Greco that a “cost

20 waiver,” which he stated was the “code in the context of med mal cases for dismissal,”

21 would stop her records from being released. (Id. at 20–21, 45, 53, 64.) Hart believed

22 Greco’s “immediate imperative was to stop the production of confidential records,” and

23 cost waiver was the only mechanism he had to accomplish that goal. (Id. at 32.)

24 Hart testified that defense counsel Low advised him that his clients were not

25 willing to offer any monetary sum to settle the case, but would agree to settle for a cost

26 waiver. (Id.; see also id. at 61–62.) Hart further testified as follows:

27

2 pacrocevpidtea nac—e oaru athgoreriez etod ab yc oysotu wr caliiveenrt ?a nd you accepted that, was that

3 [Hart]: It was.

THE COURT: And could you discuss the terms of that conversation[?]

4

[Hart]: This is the only way to protect those records from being

5 generally released. You know, I cannot get a protective order that’s

attorney’s eyes only. This is our only option to protect the confidentiality

6

of those records.

7 THE COURT: And she said, “I agree. You can dismiss the case with a

cost waiver”?

8

[Hart]: Yes.

9

10 (Id. at 22–23.)

11 Hart also testified that the parties entered into a “cost waiver agreement,” but

12 the agreement was not in writing. (Id. at 32–33.) Hart further testified as follows:

13 THE COURT: [D]o you have any doubt about whether that was an

actual knowledge on [Greco’s] part that this case was being dismissed? Or

14

was there any type of hesitancy on her part?

15 [Hart]: Well, yes, there’s hesitancy on her part.

THE COURT: As to the understanding?

16

[Hart]: [T]hese were compressed negotiations over the course of a

17 day or two, where the—my belief was that both my clients were—wanted

the records protected, and recognized the only way to do that was the cost

18

waiver. And, therefore, that was my mission: Get the cost waiver.

19 THE COURT: Okay. And she authorized you to do that?

[Hart]: That was my understanding, yes.

20

. . . .

21 THE COURT: Why did Ms.—or Dr. Greco not sign the dismissal?

[Hart]: There was no place for her to sign. It was a stipulation among

22

counsel. And, in fact, I don’t think I signed it either. I simply authorized

23 that it be signed.

24

25 (Id. at 23–24.)

26 Greco then questioned Hart as follows:

27 [Greco]. At what point did you come to me and say that we are

2 term wI’ams “gcooinstg wtoa igveetr .y”o u a cost waiver in order to stop the confidential

3 records being produced. And cost waiver means the case is dismissed.

I don’t think I ever used the term “with prejudice.”

4

. . . .

5 [Greco]. [A]re you aware of me signing any documents? Any

settlement agreements? [A]nything where I agreed to dismiss the case

6

with prejudice in exchange for a cost waiver agreement?

7 [Hart]. Curiously, no.

. . . .

8

[Greco]. [T]here’s no cost waiver agreement, and I never saw the

9 dismissal with prejudice or settlement agreement. I never signed any

settlement agreement. I never got to review any settlement agreement.

10

Correct?

11 [Hart]. Correct. It does seem incomplete. The only explanation I can

give is that we were under a little bit of time duress.

12

13 (Id. at 31, 33, 35.)

14 Greco further questioned Hart about the dismissal of the case:

15 [Greco]. [D]id I authorize you to enter into an agreement with

Scripps or anyone else about dismissing the case with prejudice?

16

[Hart]. Not specifically, no.

17 . . . .

[Greco]. I never agreed to a dismissal with prejudice. Correct?

18

[Hart]. We never discussed with or without prejudice. That’s true.

19

20 (Id. at 63–64, 73.)

21 Hart testified that Greco understood that the case was being dismissed, otherwise

22 he would not have dismissed the case. (Id. at 69–70.) Greco then questioned Hart as

23 follows:

24 [Greco]. But if you—if you kept saying that the only way not to have the

authorizations—not to have to sign the authorizations is through a cost

25

waiver, and I’m not understanding that a cost waiver means dismissal with

26 prejudice, then we’re not really communicating very well, are we?

[Hart]. It’s entirely possible that we didn’t communicate very well.

27

2 e-mail to Hart and defense counsel, stating, in relevant part, that Plaintiffs had agreed to

3 dismiss the case with prejudice in exchange for a waiver of costs by all Defendants. (Id.

4 at 56.) Hart testified that he did not respond to the e-mail disputing the terms of the

5 dismissal. (Id.) Hart further testified that he did not recall whether he forwarded the e-

6 mail to Greco and whether he provided to Greco a copy of the draft joint motion to

7 dismiss the case with prejudice, but he “communicated [to Greco] that everyone had

8 agreed,” and “the case was going to be dismissed.” (Id. at 57–59.)

9 Hart also testified that when Greco learned about the District Judge’s order

10 dismissing the case with prejudice after Hart had e-mailed the copy of the order to

11 Greco, she was “surprised” and wanted to have the dismissal order vacated. (Id. at 36–

12 37, 67–68.) Hart stated that “I had—in my mind, what we were doing in negotiating

13 cost waiver was the end of the case.” (Id. at 68, 75.) Hart also testified that “having not

14 cleared specifically the issue of [dismissal of the case] with prejudice would seem to be

15 my mistake.” (Id. at 77.)

16 E. Federal Rule of Civil Procedure 60(b)(1), (b)(6)

17 Greco seeks to vacate the District Judge’s order dismissing this action with

18 prejudice pursuant to Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6). (See ECF

19 No. 66 at 2; ECF No. 66-1 at 5–7; ECF No. 72 at 6–9.) As discussed above, a district court

20 “may relieve a party or its legal representative from a final judgment, order, or

21 proceeding” for “mistake, inadvertence, surprise, or excusable neglect,” (Fed. R. Civ. P.

22 60(b)(1)), or “any other reason that justifies relief,” (Fed. R. Civ. P. 60(b)(6)).

23 The Court has carefully reviewed the evidence presented in the pleadings, as well

24 as the testimony at the evidentiary hearing. The evidence establishes that on

25 August 12, 2021, Greco sent a text message to Hart terminating him, and Hart advised

26 Greco to wait for the substitution paperwork. (See Greco Decl. II at 3; id., Exh. A; ECF

27 No. 85 at 18–19, 26–27, 65.) Hart had numerous subsequent conversations with Greco

2 the opposing counsel about Greco’s “termination” text message. (See ECF No. 58; ECF

3 No. 85 at 19, 47–48.) Hart subsequently signed on behalf of Plaintiffs Greco and LaRue a

4 “Joint Motion for Entry of Stipulated Protective Order,” which was filed on the docket

5 on August 16, 2021. (ECF No. 59 at 2.) On August 17, 2021, the Court granted the joint

6 motion with modification, entered the parties’ modified Stipulated Protective Order,

7 and ordered Plaintiffs to execute and deliver the previously served confidential record

8 authorizations to respective Defendants by the end of business day on August 17, 2021.

9 (ECF No. 60 at 2.)

10 After several conversations and rounds of negotiations with defense counsel on

11 August 17, 2021, Hart received an e-mail from defense counsel summarizing the terms

12 of the proposed settlement, including the term that “Plaintiffs have agreed to dismiss

13 this case with prejudice in exchange for a waiver of costs by all defendants,” and Hart

14 did not dispute the terms of the settlement summarized by defense counsel. (See Low

15 Decl., Exh. E; ECF No. 85 at 56–57.) Hart did not discuss dismissing the case with

16 prejudice with Greco; rather, they discussed dismissing the case in exchange for a “cost

17 waiver,” and Greco did not specifically authorize Hart to enter into an agreement with

18 Defendants, pursuant to which the case was to be dismissed with prejudice. (Id. at 21–

19 23, 54, 63–64, 73.) The negotiated “cost waiver agreement” was not in writing, and

20 Greco did not review the draft of the joint motion to dismiss the case with prejudice.

21 (Id. at 31–33, 35.) Hart signed on behalf of Plaintiffs Greco and La Rue a “Notice and

22 Stipulation of the Parties to Dismiss the Entire Case with Prejudice,” which was filed on

23 August 18, 2021. (ECF No. 61.)

24 The Court initially needs to determine whether Hart had authority to negotiate a

25 settlement and move to dismiss the case with prejudice on Plaintiffs’ behalf. Courts in

26 this federal district have applied state law to determine whether an attorney appearing

27 in federal court was authorized to bind his client to a settlement. See Hess v.

2 an attorney has no authority, either actual or implied, to settle an action without the

3 express permission of his client.” Harrop v. W. Airlines, Inc., 550 F.2d 1143, 1145 (9th

4 Cir. 1977) (emphasis added); see also Hess, 2017 WL 6027015, at *5 (under California

5 law, an attorney does not have implied authority to settle by virtue of his representative

6 role in pending litigation, and the client’s “specific authorization” is required).

7 In light of the evidence presented, the Court concludes that Hart did not have

8 authority to negotiate a settlement pursuant to which the case was to be dismissed with

9 prejudice, and sign on Plaintiffs’ behalf the joint motion to dismiss the case with

10 prejudice. However, there is evidence in the record indicating that Greco ratified the

11 terms of the settlement. Pursuant to the settlement agreement negotiated by Hart, the

12 case was to be dismissed with prejudice in exchange for a waiver of costs by all

13 Defendants. (See Low Decl. at 2; id., Exh. E.) In light of the settlement, Defendants

14 relieved Greco of the obligation to provide signed authorizations for release of her

15 records ordered by this Court, did not seek the production of documents requested in

16 their subpoenas, and agreed to destroy any records they had obtained regarding Greco

17 and her husband. (See id.; see also ECF No. 60 at 2 (this Court’s order requiring Plaintiffs

18 to execute and deliver the previously served confidential record authorizations to

19 respective Defendants by the end of business day on August 17, 2021).) After the case

20 was dismissed with prejudice, and after Greco reviewed the District Judge’s order

21 granting joint motion to dismiss the case with prejudice, Greco made deliberate and

22 repeated requests for “proof” from Defendants that they “affirmatively acted to recall

23 each and every subpoena” for her records. (See Low Decl. at 3; id., Exhs. H, I.) Notably,

24 Greco wrote to defense counsel that because “[t]he lawsuit has ended,” Defendants

25 “ha[d] no authority to continue to obtain [Greco’s] or [her] husband’s personal

26 information,” that Defendants’ “[f]ailure to immediately quash and recall all outstanding

27 subpoenas in light of the dismissal of the lawsuit [wa]s abuse of [their] subpoena

2 (Greco’s August 20, 2021, e-mail to defense counsel Low stating that “[t]here needs to

3 be an affirmative effort by your copy service to notify each and every recipient of a

4 served subpoena to instruct them to not respond,” and that “[t]he lawsuit has ended

5 and your firm has no authority to continue to obtain my or my husband’s personal

6 information. Failure to immediately quash and recall all outstanding subpoenas in light

7 of the dismissal of the lawsuit is abuse of your subpoena powers”; also requesting

8 “sworn certification that the records you received have been completely deleted from

9 your server and from your copy service’s servers” for “the entities that responded.”); id.,

10 Exh. I (emphasis added) (Greco’s August 23, 2021, e-mail to defense counsel Low stating

11 “I am sure there are more entities who have responded since the dismissal of the case.

12 This is a blatant abuse of your subpoena powers”; also “demand[ing] a list of ALL

13 subpoenas that were sent out and proof that you have affirmatively acted to recall each

14 and every subpoena.”); see also id., Exh. K (a transcript of a voicemail defense counsel

15 Low received on August 25, 2021, from Plaintiff LaRue’s former employer and a

16 recipient of a subpoena, Mr. Brown, stating that LaRue had informed him that “the

17 lawsuit was settled,” and Brown wanted to confirm that the material in the subpoena

18 was no longer needed).)

19 Greco received the benefits of the settlement—the waiver of costs by

20 Defendants, and she no longer had to provide the signed authorizations for her records

21 by the deadline imposed by the Court. Greco did not provide the signed authorizations,

22 and repeatedly e-mailed defense counsel to ensure that Defendants “affirmatively acted

23 to recall each and every subpoena” for her records “in light of the dismissal of the

24 lawsuit.” As such, the evidence in the record indicates that Greco ratified the terms of

25 the settlement agreement Hart negotiated with Defendants. See Hess, 2017 WL

26 6027015, at *5 (finding circumstantial evidence of ratification of the agreement to

27 settle; noting that “[p]laintiff cannot receive the advantage of a settlement (a vacated

2 No. 16-CV-07026-LHK, 2019 WL 402362, at *11 (N.D. Cal. Jan. 31, 2019) (“[A] principal

3 may not both receive the advantages of an agreement and escape its burdens by later

4 repudiation” because “it would be unfair to allow [the principal] both to have [her] cake

5 and eat it too.”); Goldie v. Caliber Home Loans, Inc., No. 2:16-cv-00962-KJM-DB, 2018

6 WL 4659576, at *9 (E.D. Cal. Sept. 27, 2018) (finding that plaintiff ratified her counsel’s

7 authority to accept defendant’s settlement offer; noting that “[plaintiff] cannot disclaim

8 his counsel’s authority to enter into the settlement agreement, retain every benefit of

9 the parties’ agreement, but refuse to abide by that agreement and proceed with this

10 suit.”); see also Alvarado Cmty. Hosp., 219 Cal. Rptr. at 53–54 (concluding that “a client

11 cannot both accept the benefits of her lawyer’s negotiated settlement and continue to

12 sue the settling defendant. The client’s acceptance of [the benefits of the settlement]

13 operates as ratification of the settlement,” where the client “first sought to and in fact

14 did successfully obtain the benefits of the settlement,” and afterwards moved to set

15 aside the dismissal, claiming that the attorney settled the lawsuit without

16 authorization).

17 The Court finds that Greco has not met her burden to establish that she is entitled

18 to relief under Federal Rule of Civil Procedure 60(b)(1). See Fed. R. Civ. P. 60(b)(1);

19 Latshaw, 452 F.3d at 1101 (innocent attorney mistakes and intentional attorney

20 misconduct do not warrant relief under Federal Rule of Civil Procedure 60(b)(1)); Turner

21 v. Tierney, 678 F. App’x 580, 581 (9th Cir. 2017) (quoting Latshaw, 452 F.3d at 1101)

22 (“[A]ttorney mistakes are more appropriately addressed through malpractice claims,

23 not Rule 60(b)(1) motions.”). The Court also finds that circumstances in this case are not

24 “extraordinary” and do not warrant relief under Federal Rule of Civil Procedure 60(b)(6).

25 See id.; Fed. R. Civ. P. 60(b)(6); Latshaw, 452 F.3d at 1103 (Rule 60(b)(6) “is to be utilized

26 only where extraordinary circumstances prevented a party from taking timely action to

27 prevent or correct an erroneous judgment”); see also Lal v. Cal., 610 F.3d 518, 524 (9th

2 actions are typically chargeable to his or her client and do not ordinarily constitute

3 extraordinary circumstances warranting relief from judgment under Rule 60(b)(6).”).

4 Because Greco has failed to present an adequate basis for vacating the stipulated

5 dismissal of this action under Federal Rule of Civil Procedure 60(b)(1) and (b)(6), the

6 Court RECOMMENDS that the District Judge DENY the Motion to Vacate [ECF No. 66].

7 The Court also notes that in her Reply, Greco appears to ask the Court to sanction

8 “Defendants’ attorneys for violating the Stipulated Protective Order by including in

9 Attorney William’s Low’s Declaration as Exhibit A, Plaintiff’s entire 34-page Verified

10 Response to Scripps Defendants’ Form Interrogatories.” (ECF No. 72 at 6.) In light of

11 the procedural posture of the case, the Court RECOMMENDS that the District Judge

12 DENY Greco’s request for sanctions. (See ECF No. 62 (District Judge’s order dismissing

13 the case with prejudice, which did not contain any language retaining jurisdiction).) The

14 Court further RECOMMENDS that the District Judge direct the Clerk of Court to restrict

15 access to Exhibit A to Low’s Declaration [ECF No. 69-2 at 1–36] to Court personnel and

16 case participants only.

17 IV. CONCLUSION AND RECOMMENDATION

18 For the reasons set forth above, the Court RECOMMENDS that Plaintiff’s Motion

19 to Vacate be DENIED.

20 IT IS ORDERED that no later than June 29, 2022, any party to this action may file

21 written objections with the Court and serve a copy on all parties. The document should

22 be captioned “Objections to Report and Recommendation.”

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the

2 Court and served on all parties no later than July 8, 2022. The parties are advised that

3 || failure to file objections within the specified time may waive the right to raise those

4 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

5 || Cir. 1998).

6 IT IS SO ORDERED.

7 Dated: June 8, 2022 _ -

_ 2 FZ —

9 Honorable Michael S. Berg

United States Magistrate Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28