Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

Nos. 89-55348, 89-55393.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT, CYNTHIA HOLCOMB HALL, Circuit Judges, and EDWARD D. RE,^*  Chief Judge.

MEMORANDUM^** 

Appellant/cross-appellee ("IGS") seeks reversal of the district court's order dismissing its lawsuit against appellees/cross-appellants ("Sandia") on the ground that it is barred by a general release which IGS and Sandia signed on November 13, 1981. Sandia cross-appeals the district court's order which apparently dismissed Sandia's counterclaims on the ground that they were also barred by the general release. We have jurisdiction under 28 U.S.C. § 1291 and affirm in part, reverse in part, and remand.

* The general release extinguished "any and all claims, demands, sums of money, actions, rights, causes of action, obligations and liabilities of every kind or nature whatsoever which [IGS] and [Sandia] have had or claim to have had or now have or claim to have." The parties agree that this language does not extend to post-release claims. IGS makes two arguments that the release does not extend to its claims. We consider them in turn.

* IGS first contends that its claims were based upon the confirmations Sandia provided in 1982, months after the release had been signed. We disagree. Although the First Amended Complaint mentions events which apparently occurred after the signing of the November 13 general release, they have little relevance to IGS' prayers for relief. IGS' claims are based instead upon the actual purchases of government securities, which occurred months before the signing of the general release. Accordingly, they are within the scope of the release.

B

IGS next argues that because it was unaware of Sandia's alleged fraud when it signed the general release, Cal.Civ.Code Sec. 1542 enables it press its claims forward.¹  The district court had rejected this argument; it noted that the general release explicitly waived IGS' Sec. 1542 rights and concluded that the waiver was valid.

IGS correctly points out on appeal that boilerplate waivers of Sec. 1542 are not automatically valid. However, it neglects to acknowledge that the question whether the releaser intended to waive his Sec. 1542 rights is essentially one of fact. See Vega v. Western Emp. Ins. Co., 216 Cal. Rptr. 592, 595 (App.1985). Our review of the record indicates that the district court did not commit clear error in determining that the signatory parties intended to be bound by the express waiver of Sec. 1542. Therefore, the release bars all of IGS' claims.

II

IGS next attempts to circumvent the general release by rescission. However, the district court concluded that, under Cal.Civ.Code Sec. 1693, IGS had waived its right to obtain rescission. Because IGS has failed to challenge that ruling in its briefs, we will not disturb it. See Williams v. United States Gen. Serv. Admin., No. 88-4325, Slip Op. 6067, 6076 (9th Cir. June 12, 1990).

In sum, we affirm the district court's dismissal of IGS' claims.

III

Because the judgment order dismissed the whole action, it necessarily dismissed Sandia's counterclaims. Sandia contends that because its counterclaims arose from actions subsequent to the November 13, 1981 release, the district court's dismissal thereof was probably the result of oversight.

We agree. Sandia's Answer and Counterclaim stakes out four legal claims based upon conduct occurring after November 13, 1981. The first claim, breach of contract, concerns IGS' refusal in 1982 to pay Sandia for deficits in the accounts Sandia kept open that year. The second claim, libel, concerns four letters IGS sent to various individuals in 1982 and 1983. The third claim, slander, concerns statements made between February 1982 and February 1983. The fourth and final claim, intentional interference with business relations, is predicated upon the alleged libels and slanders. Because these acts are clearly beyond the reach of the release, the district court erred by dismissing Sandia's counterclaims.

IV

For these reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings on Sandia's counterclaims.