FILED
NOT FOR PUBLICATION JUN 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DERRICK SATCHELL, No. 10-15197
Plaintiff, D.C. Nos. 3:03-cv-02659-SI
3:03-cv-02878-SI
and
WAUKEEN Q. MCCOY, MEMORANDUM*
Appellant,
v.
GUY B. WALLACE,
Appellee,
and
FEDEX EXPRESS, a Delaware
corporation,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted May 12, 2011
San Francisco, California
Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and JONES, Chief
District Judge.**
Appellant Waukeen Q. McCoy, Esq., appeals the district court’s order
granting the law firm of Schneider Wallace Cottrell Brayton Konecky LLP
(“Schneider Wallace”) attorneys’ fees and costs of $46,605.87 for a motion for
declaratory relief that Schneider Wallace had filed against him and won.
I.
The district court did not err in its interpretation of the Attorney
Representation Agreement (ARA) and Co-Counsel Agreement. First, we held on a
prior appeal that the district court had properly concluded that the ARA had
superseded any prior fee agreement that McCoy and the class representatives may
have entered into. Boykin v. McCoy, 384 F. App’x 579, 582 (9th Cir. 2010).
Therefore, pursuant to the ARA, McCoy was not entitled to an additional 40%
contingency fee from the class representatives.
Second, paragraph 14 of the Co-Counsel Agreement specifically states that
the “prevailing party in any dispute arising out of [the Co-Counsel Agreement]
**
The Honorable Robert Clive Jones, Chief District Judge for the U.S.
District Court for Nevada, Reno, sitting by designation.
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shall be entitled to reasonable fees and costs incurred in the proceeding.” The
present dispute concerns paragraph 9 of the Co-Counsel Agreement. The class
representatives were the prevailing party and, pursuant to the Co-Counsel
Agreement, were entitled to reasonable fees and costs incurred during the
declaratory relief proceedings.
II.
“[A] party may ‘incur’ attorney fees even if the party is not personally
obligated to pay such fees.” Lolley v. Campbell, 48 P.3d 1128, 1131 (Cal. 2002).
The district court did not err in finding that Schneider Wallace was representing
the class representatives in the motion for a declaratory judgment. Even if the
class representatives were not obligated to pay for Schneider Wallace’s
representation during those proceedings, they still incurred attorneys’ fees.
Moreover, as the prevailing party, the class representatives were entitled to seek
and receive fees for their attorneys at Schneider Wallace. Accordingly, the district
court did not err in awarding attorneys’ fees to Schneider Wallace.
III.
The district court did not err by finding that the class representatives were
third-party beneficiaries to the Co-Counsel Agreement. Here, the Co-Counsel
Agreement expressly identified the class representatives. Paragraph 9 makes it
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clear that class counsel intended to benefit the class representatives by explicitly
limiting the fees that the class representatives would have to pay to class counsel.
Thus, pursuant to California Civil Code section 1559, they were able to enforce the
agreement through a motion for declaratory relief. See Balsam v. Tucows, Inc.,
627 F.3d 1158, 1161 (9th Cir. 2010).
IV.
Because McCoy had an opportunity to address the third-party beneficiary
argument, both by raising the argument in his opposition and then readdressing it
in his motion for reconsideration, the district court did not violate his due process
rights. See El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003).
V.
The district court correctly found that McCoy had never raised any
objections “to the rates sought or hours expended.” Instead of providing specific
evidence to challenge Schneider Wallace’s hours and rates, McCoy made general
arguments that Schneider Wallace was not entitled to any attorneys’ fees.
Therefore, the district court did not err in finding that McCoy did not meet his
“burden of providing specific evidence challenging the accuracy or
reasonableness” of Schneider Wallace’s attorneys’ fees. McGrath v. Cnty. of
Nevada, 67 F.3d 248, 255 (9th Cir. 1995).
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AFFIRMED.
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