The opinion
FILED
NOT FOR PUBLICATION DEC 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS COLLADO, on behalf of No. 11-57013
himself and all others similarly situated;
RICHARD HOCK, on behalf of himself D.C. No. 2:10-CV-03113-R-RC
and all others similarly situated,
ENRIQUE CANTU, on behalf of himself MEMORANDUM*
and all others similarly situated; PAUL
BIGBIE; WILLIAM ASKEW, on behalf
of himself and all others similarly situated;
JACEK PAWLOWICZ, on behalf of
himself and all others similarly situated;
JAMES FREEMAN,
Plaintiffs,
BILL URBAN, on behalf of himself and
all others similarly situated,
Plaintiff - Appellant,
v.
TOYOTA MOTOR SALES, U.S.A., INC.,
a California corporation,
Defendant - Appellee.
CARLOS COLLADO, on behalf of No. 11-57023
himself and all others similarly situated,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff, D.C. No. 2:10-CV-03113-R-RC
And
GIRARD GIBBS LLP; WASSERMAN
COMDEN CASSELMAN AND
ESENSTEN LLP; ARIAS OZELLO &
GIGNAC; COHEN MILSTEIN SELLERS
& TOLL PLLC,
Appellants,
v.
TOYOTA MOTOR SALES, U.S.A., INC.,
a California corporation,
Defendant - Appellee.
ELLIOT FIXLER, No. 11-57030
Plaintiff - Appellant, D.C. No. 2:10-CV-03124-R-SS
v.
TOYOTA MOTOR SALES, U.S.A., INC.,
a California corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
2
Submitted December 3, 2013**
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Appellants Girard Gibbs, Cohen Milstein Sellers & Toll PLLC, Braun Law
Group P.C. (collectively “appellant law firms”), and Bill Urban appeal the district
court’s order awarding $766,000 in attorney’s fees, allocating 65% of those fees to
Girard Gibbs, and granting Girard Gibbs discretion to allocate the remaining fees
among the other law firms acting as plaintiffs’ counsel.1
The district court abused its discretion by computing fees using a percentage
of recovery method rather than a lodestar method. Here, because the court
exercised diversity jurisdiction over this matter, state law governs both the right to
recover attorney’s fees and the computation of their amount. Mangold v.
California Public Utilities Com’n, 67 F.3d 1470, 1478 (9th Cir. 1995). In
particular, California Code of Civil Procedure § 1021.5 applies to the request for
attorney’s fees. Abogados v. AT&T, 223 F.3d 932, 934 (9th Cir. 2000); Graham v.
DaimlerChrysler Corp., 34 Cal. 4th 553, 560–561 (2004) (awarding fees in
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Because Bill Urban has standing to appeal and raises substantially the same
grounds for reversal as the appellant law firms, we need not address whether
appellant law firms have standing to appeal.
3
national class action settlement under § 1021.5); In re Consumer Privacy Cases,
175 Cal. App. 4th 545, 551 (2009) (same). Fee awards granted pursuant to §
1021.5 must be calculated using a lodestar analysis. Press v. Lucky Stores, Inc., 34
Cal. 3d 311, 321–22 (1983); see also Flannery v. California Highway Patrol, 61
Cal. App. 4th 629, 640 (1998).
Additionally, the district court abused its discretion by allocating 65% of the
fee award to Girard Gibbs and granting Girard Gibbs discretion to allocate the
remaining fees. Under California Civil Procedure Code § 1021.5, “[u]pon motion,
a court may award attorney’s fees” (emphasis added). Furthermore, California law
requires fee allocation decisions to be “tied to counsel’s actual efforts to benefit the
class.” Rebney v. Wells Fargo Bank, 220 Cal. App. 3d 1117, 1142 (1990). Absent
special circumstances, the district court’s allocation of fees should correspond to
the portion of the lodestar attributable to each firms’ efforts. In re Vitamin Cases,
110 Cal. App. 4th 1041, 1055–56 (2003).2
2
Because the only error below was the application of an incorrect legal
standard, there are no “unusual circumstances” warranting reassignment to a
different district court judge in this case. 28 U.S.C. § 2106; United Nat. Ins. Co. v.
R&D Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001).
4
Accordingly, we hereby REVERSE the district court’s decision regarding
the amount of attorney’s fees to be awarded and REMAND for further proceedings
consistent with this order.3
Costs are awarded to the appellants.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
3
The district court did not abuse its discretion in deciding to award the fees
or awarding the incentive fees to the named class representatives, and neither party
appeals those decisions.
5