FILED
NOT FOR PUBLICATION
DEC 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW LOPEZ, individually and on No. 16-55602
behalf of all others similarly situated,
D.C. No.
Plaintiff-Appellant, 3:15-cv-02522-AJB-JLB
v.
MEMORANDUM*
NAC MARKETING COMPANY, LLC, a
Delaware limited liability company and
DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted December 7, 2017**
Pasadena, California
*
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).
Before: WARDLAW and GOULD, Circuit Judges, and COLLINS,*** Chief
District Judge.
Matthew Lopez appeals the district court’s denial of his motion for
attorney’s fees and costs under California Code of Civil Procedure § 1021.5,
California’s catalyst theory of recovery. Because the district court properly found
that Lopez failed to engage in any meaningful attempt to settle his dispute with
NAC Marketing Company, LLC (NAC) short of filing the complaint, we affirm.
1. We review a district court's award of attorney’s fees under an abuse of
discretion standard. Ass'n of Cal. Water Agencies v. Evans, 386 F.3d 879, 883 (9th
Cir. 2004). We review the underlying factual determinations for clear error and
review any legal analysis relevant to the fee determination de novo. Id.
2. Under the catalyst theory, for a plaintiff to obtain “attorney fees
without a judicially recognized change in the legal relationship between the parties,
a plaintiff must establish,” among other things, that he “reasonably attempted to
settle the litigation prior to filing the lawsuit.” See Tipton-Whittingham v. City. of
L.A., 34 Cal. 4th 604, 608 (2004) (cleaned up); see also Graham v.
DaimlerChrystler Corp., 34 Cal. 4th 533, 577 (2004). The district court did not err
in finding that (1) Lopez’s original settlement offer of $245,000 was exorbitant,
***
The Honorable Raner C. Collins, Chief United States District Judge
for the District of Arizona, sitting by designation.
2
considering that the most he could recover under the statute was restitution, i.e.,
slightly less than $30; (2) Lopez unreasonably imposed a six-day window within
which NAC was required to respond; and (3) the litigation was unnecessary
because NAC demonstrated a willingness to change its policies without litigation
by voluntarily correcting its website and confirmation email before litigation was
commenced. See Baxter v. Salutary Sportsclubs, Inc., 122 Cal. App. 4th 941,
946–47 (2004).
3. Accordingly, the district court correctly concluded that Lopez did not
engage in a reasonable attempt to settle and did not abuse its discretion by denying
Lopez’s motion for attorney’s fees and costs.
AFFIRMED.
3