FILED
NOT FOR PUBLICATION NOV 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERJIK HATAMI, No. 11-57074
Plaintiff - Appellant, D.C. No. 8:08-cv-00226-DOC-
MLG
v.
KIA MOTORS AMERICA, INC., MEMORANDUM*
Defendant - Appellee,
and
KIA MOTORS CORPORATION,
Defendant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted November 4, 2013**
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Plaintiff Serjik Hatami appeals the district court’s order granting in part and
denying in part his motion for attorney fees following his settlement with
Defendant Kia Motors America, Inc. For the reasons that follow, we affirm.
1. We have appellate jurisdiction over this appeal. Contrary to Defendant’s
assertion, the district court awarded fees pursuant to California Civil Code section
1794(d), which allows the award of attorney fees after voluntary dismissal. See
Wohlgemuth v. Caterpillar Inc., 144 Cal. Rptr. 3d 545, 553-54 (Ct. App. 2012)
("[W]e hold that the pretrial dismissal with prejudice pursuant to the compromise
agreement was sufficient for purposes of section 1794(d) to allow an award of
attorney fees and costs."). Although a party generally may not appeal from a
voluntary dismissal, Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995), an
award of attorney fees pursuant to a statute is separately appealable from the
judgment on the merits, see Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th
Cir. 2011) ("[A]n order on attorneys’ fees is collateral to, and separately appealable
from, the judgment.").
2. The district court did not abuse its discretion by denying attorney fees for
the period following Defendant’s Federal Rule of Civil Procedure 68 offer. See
TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011) ("We
review the denial of attorney’s fees for abuse of discretion . . . ."). "When a
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plaintiff rejects a Rule 68 offer, the reasonableness of an attorney fee award . . .
will depend, at least in part, on the district court’s consideration of the results the
plaintiff obtained by going to trial compared to the Rule 68 offer." Haworth v.
Nevada, 56 F.3d 1048, 1052 (9th Cir. 1995). The district court properly found
that, to the extent that the terms of the final judgment exceeded, if at all, the terms
of the Rule 68 offer, that benefit accrued only to Plaintiff’s lawyer. Cf. id.
("Clearly, the only one who benefited by pursuing the litigation after the Rule 68
offer was made was the plaintiffs’ attorney."). The district court’s weighing of the
relevant factors was permissible, and its findings were not "illogical, implausible or
without support in the record." TrafficSchool.com, 653 F.3d at 832.
3. Because we conclude that the district court did not abuse its discretion,
we need not, and do not, reach the court’s alternative holding that Rule 68
prohibited the award of fees.
AFFIRMED.
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