NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY PAN, No. 20-55139
Plaintiff-Appellant, D.C. No.
8:15-cv-01528-JVS-KES
v.
TOM MING CHOU, AKA Tom Chou, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted May 4, 2021**
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and DONATO,*** District
Judge.
Tony Pan appeals from the district court’s judgment and the denial of his
motion to alter or amend findings of fact and conclusions of law, to make
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
additional findings, and to amend judgment accordingly. The district court held an
eight-day bench trial before making its findings of fact and conclusions of law,
entering judgment, and denying Pan’s motion. We affirm.
First, the district court did not err in finding that Pan did not reasonably
mitigate his damages. The district court did not conclude that Pan should have
mitigated his damages by paying off Chou’s personal debts himself. It was not
clear error for the district court to find that there were procedures available to Pan
to remove the two liens on the property in China, which, if utilized, would have
facilitated the property’s sale. See Watkins v. Ameripride Servs., 375 F.3d 821,
824 (9th Cir. 2004) (“The district court’s findings of fact following a bench trial
are reviewed for clear error[.]”).
Second, with respect to the determination that Pan breached the settlement
agreement, it was also not clear error for the district court to conclude that Pan
knew about claims affecting the ability to sell the China property, which he failed
to disclose. That Chou knew about the repayment agreements underlying those
disputes is irrelevant to Pan’s breach. Under the settlement agreement, both Pan
and Chou independently warranted that neither party was “aware of any pending or
threatened claims . . . [w]hich might affect the sale of the [China] Property.”
Third, the district court’s offset of Pan’s damages from Chou’s breach of the
settlement agreement, with Chou’s damages from Pan’s breach, is not clearly
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erroneous. The district court found that Pan had breached the agreement, and that
Chou’s damages were greater than Pan’s damages. The offset was consequently
proper under California law. See Cal. Code Civ. P. § 431.70; McMillin Cos., LLC
v. American Safety Indem. Co., 233 Cal. App. 4th 518, 533-35 (2015).
Pan’s request for judicial notice of a minute order from the parties’ related
action in the Orange County Superior Court is granted. Fed. R. Evid. 201.
AFFIRMED.
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