NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFERY ETTER, et al., individually and on 

behalf of all others similarly situated, 

Plaintiffs-Appellees, 

 v. 

NORCOLD, INC., THETFORD 

CORPORATION, and THE DYSONKISSNER-MORAN CORPORATION, 

Defendants-Appellants.

No. 21-55242 

D.C. No. 8:13-cv-00081-JLS-RNB 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge

Argued and Submitted February 18, 2022 

Pasadena, California

Before: BRESS and BUMATAY, Circuit Judges, and LASNIK,** District Judge.

Defendants-Appellants Norcold, Inc., Thetford Corporation, and the DysonKissner-Moran Corporation (collectively “Norcold”) seek reversal of the district 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert S. Lasnik, United States District Judge for the 

Western District of Washington, sitting by designation.

FILED

MAR 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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court’s post-judgment order interpretating a Settlement Agreement between Norcold 

and a class of plaintiffs (“Plaintiffs”) who purchased Norcold’s refrigerators. We

“review questions of law, including the interpretation of a settlement agreement, de 

novo.” In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig., 

975 F.3d 770, 775 (9th Cir. 2020). We have jurisdiction under 28 U.S.C. § 1291 to 

review the district court’s post-judgment order, see Armstrong v. Schwarzenegger, 

622 F.3d 1058, 1064 (9th Cir. 2010), and we affirm.

1. Norcold asserts that the Settlement Agreement bars class members 

from claiming punitive damages in relation to their individual personal injury and/or 

property damage claims, while Plaintiffs argue there is no such limitation. Because 

the Settlement Agreement is governed by California law, “we first determine 

whether the contract language is clear or ambiguous.” Navarro v. Mukasey, 518 

F.3d 729, 734 (9th Cir. 2008) (applying California law). “If the contract language 

is clear, we give effect to its plain meaning.” Id. Where the “contract language is 

susceptible to multiple interpretations,” however, California law directs us to 

“attempt to discern which interpretation the parties intended.” Id. “The whole of a 

contract is to be taken together, so as to give effect to every part, if reasonably 

practicable, each clause helping to interpret the other.” Cal. Civ. Code § 1641. Both 

the plain meaning of the Settlement Agreement and the intentions of the parties 
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indicate that claims for punitive damages in relation to reserved individual claims

are not barred.

Paragraph VI.B of the Settlement Agreement details which claims and 

remedies were released by the class members (the “Released Claims”). Immediately 

following this release, paragraph VI.C explains that claims for personal injury, 

wrongful death, or property damage were not released (the “Reserved Claims”). 

Reading paragraphs IV.B and IV.C paragraphs together, it is clear that punitive 

damages in relation to the Reserved Claims were not released. Paragraph VI.B 

expressly provides that claims for damages of any kind—including punitive 

damages—were released in relation to the “Action”—i.e., the class-wide consumer 

fraud cases. Paragraph VI.C, however, is an explicit carve-out from the Settlement, 

providing that individual claims for personal injury, wrongful death, or property 

damage were “excluded from the Release.” Nothing in the Settlement Agreement 

suggests that punitive damages associated with Reserved Claims were in fact 

released. This reading is bolstered by the introductory phrase in paragraph VI.C—

“[n]otwithstanding the foregoing”—which severs any connection between 

paragraph VI.B and VI.C. See Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 

550, 559 (9th Cir. 2016) (“‘Notwithstanding’ means ‘in spite of’” and 

“‘notwithstanding clauses’ work to sweep aside potentially conflicting” provisions) 
4

(simplified). Thus, the release of punitive damages in paragraph VI.B does not apply 

to the subject matter of paragraph VI.C. 

Even if the Settlement Agreement were ambiguous, the available evidence 

indicates that the parties did not intend for punitive damages in relation to the 

Reserved Claims to be barred. Just before the Settlement Agreement was approved 

by the district court, a group of class members requested to amend the Agreement to 

expressly “include the right to seek all remedies arising [from the Reserved Claims], 

including, but not limited to . . . punitive damages.” The district court denied the 

request but found “that the definition of ‘Reserved Claims’ in section I.A.62 [of the 

Settlement Agreement] and the carve-out from the release in section VI.C are clear 

as to the question raised.” In other words, the district court effectively agreed then

that the Settlement Agreement did not bar punitive damages in relation to the 

Reserved Claims (as it later held explicitly in its ruling now on review). We find 

this to be probative of the parties’ intent when drafting the Agreement.1

1 Norcold advances other arguments purporting to show that punitive damages 

should not be assessed, e.g., “the presumption is very strong against punitive 

damages,” “no obvious necessity exists to imply the right to assert punitive damage 

claims,” “California law and due process prohibit multiple punitive awards for the 

same conduct,” and “the purpose of punitive damages was already served here.” 

These arguments do not alter our interpretation of the Settlement Agreement, and to 

the extent they have any merit, Norcold may raise these considerations before the 

courts hearing the individual tort actions. 
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2. In parallel with its contract interpretation arguments, Norcold advances 

a theory of res judicata. According to the doctrine of res judicata, a “court-approved 

settlement in a prior suit precludes subsequent litigation on the same cause of 

action.” Villacres v. ABM Indus. Inc., 189 Cal. App. 4th 562, 569 (2010). While 

our decision upholding the district court’s interpretation of the Settlement 

Agreement may have implications for any res judicata defense in any subsequent 

individual case, Norcold’s res judicata arguments do not require any additional 

interpretation of the Settlement Agreement by us. Therefore, any res judicata or 

other preclusion arguments that Norcold may advance are best left to the courts in 

the individual tort actions. 

AFFIRMED.