Shahrokh Mireskandari v. Associated Newspapers, Ltd. , 665 F. App'x 570 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAHROKH MIRESKANDARI, ) No. 13-56858
)
Plaintiff-Appellee, ) D.C. No. 2:12-cv-02943-MMM-SS
)
v. ) MEMORANDUM*
)
ASSOCIATED NEWSPAPERS, )
LTD.; DAVID GARDNER, )
)
Defendants-Appellants, )
)
SHAHROKH MIRESKANDARI, ) No. 14-56438
)
Plaintiff-Appellant, ) D.C. No. 2:12-cv-02943-MMM-SS
)
v. )
)
ASSOCIATED NEWSPAPERS, )
LTD.; DAVID GARDNER, )
)
Defendants-Appellees, )
)
SHAHROKH MIRESKANDARI, ) No. 14-56911
)
Plaintiff-Appellant, ) D.C. No. 2:12-cv-02943-MMM-SS
)
v. )
)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ASSOCIATED NEWSPAPERS, )
LTD.; DAVID GARDNER, )
)
Defendants-Appellees, )
)
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted October 3, 2016**
Pasadena, California
Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.
Associated Newspapers Ltd. and David Gardner (collectively, “ANL”)
appeal the district court’s denial of their motion to strike two claims in Shahrokh
Mireskandari’s First Amended Complaint pursuant to California’s anti-SLAPP1
statute. See Cal. Code Civ. Proc. § 425.16(b)(1). For his part, Mireskandari
appeals the district court’s award of attorney’s fees to ANL under the anti-SLAPP
statute2 and its award of sanctions against him.3 We dismiss No. 13-56858 (“the
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
1
SLAPP is the acronym for “strategic lawsuit against public participation.”
Hilton v. Hallmark Cards, 599 F.3d 894, 899 n.1 (9th Cir. 2010).
2
Cal. Civ. Proc. Code § 425.16(c).
3
See Fed. R. Civ. P. 16(f)(2).
2
merits appeal”) and affirm Nos. 14-56438 and 14-56911.
(1) Mireskandari asserts that the merits appeal is now moot because he
has voluntarily dismissed the action in the district court. We agree. While we did
have interlocutory jurisdiction over the merits appeal,4 the underlying action was
subsequently dismissed, and there is no relief that we could now grant on the
merits.5 In fact, the parties inform us that the case is now proceeding in the
California courts.
ANL does not dispute the above,6 except, it argues, that it might be entitled
to additional anti-SLAPP attorney’s fees if the district court’s denial of a portion of
its motion were reversed. However, we have made it clear that “‘[c]laims for
attorneys’ fees ancillary to [a] case survive independently’” and that “[t]he
existence of an attorneys’ fees claim thus does not resuscitate an otherwise moot
controversy.” Cammermeyer, 97 F.3d at 1238; see also Ctr. for Biological
Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805–06 (9th Cir. 2009) and
4
See Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003).
5
See Cammermeyer v. Perry, 97 F.3d 1235, 1237 (9th Cir. 1996).
6
ANL does not contend that there is any other impediment to mootness, and
it does not appear that Mireskandari could now refile the claim in federal court.
See Cal. Civ. Proc. Code § 340(c) (statute of limitations); Roberts v. McAfee, Inc.,
660 F.3d 1156, 1166, 1169 (9th Cir. 2011).
3
cases cited therein; United States v. Ford, 650 F.2d 1141, 1144 n.1 (9th Cir. 1981).
Thus, although we did have jurisdiction at the inception of the merits appeal, it has
now become moot, and will be dismissed for lack of jurisdiction.
(2) Mireskandari asserts that the district court abused its discretion when
it awarded the anti-SLAPP attorney’s fees7 against him because ANL did not
succeed in striking all of his claims pursuant to its anti-SLAPP motion, and
because the fees are unreasonably large. Of course, the mere fact that
Mireskandari has now dismissed the action does not affect ANL’s right to recover
appropriate fees,8 but the award is subject to the trial court’s broad discretion,9 and
must be reasonable in amount.10
Mireskandari wrongly asserts that ANL’s attorney’s fees had to be reduced
because it did not prevail on the whole of its anti-SLAPP motion. We cannot say
that the district court abused its discretion when it determined that on balance ANL
7
See Cal. Civ. Proc. Code § 425.16(c).
8
See Wilkerson v. Sullivan, 99 Cal. App. 4th 443, 446, 121 Cal. Rptr. 2d 275,
277 (2002).
9
See Mann v. Quality Old Time Serv., Inc., 139 Cal. App. 4th 328, 340, 42
Cal. Rptr. 3d 607, 614–15 (2006); see also Manufactured Home Cmtys., Inc. v.
County of San Diego, 655 F.3d 1171, 1176 (9th Cir. 2011); United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
10
See Robertson v. Rodriguez, 36 Cal. App. 4th 347, 362, 42 Cal. Rptr. 2d
464, 472 (1995); see also Manufactured Home, 655 F.3d at 1176.
4
was highly successful, and that no reduction for failure to fully prevail was
required.11
Moreover, we cannot say that the fee award was unreasonably large under
the circumstances. The district court reduced ANL’s fee award by fifteen percent
across the board because it determined that there was some overbilling. When
properly explained, that approach is satisfactory. See Gates v. Deukmejian, 987
F.2d 1392, 1398 (9th Cir. 1992). The district court carefully delineated its
reasoning in deciding that a reduction was required. Overall, it said enough to
allow our review of its exercise of discretion.
(3) Mireskandari also asserts that the district court erred when it imposed
sanctions upon him for his violation of the court’s scheduling and other pretrial
orders. See Fed. R. Civ. P. 16(f)(1)(c), 16(f)(2). He argues that once he dismissed
the complaint, sanctions for his past breaches of the district court’s orders were
improper. We see no justification for holding that a voluntary dismissal precludes
issuance of a sanctions order. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
395–96, 110 S. Ct. 2447, 2455–56, 110 L. Ed. 2d 359 (1990). To the extent that he
11
See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 1940, 76 L.
Ed. 2d 40 (1983); see also Graciano v. Robinson Ford Sales, Inc., 144 Cal. App.
4th 140, 158–59, 50 Cal. Rptr. 3d 273, 288–89 (2006); Mann, 139 Cal. App. 4th at344–45, 42 Cal. Rptr. 3d at 618–19; Abdallah v. United Sav. Bank, 43 Cal. App.
4th 1101, 1111, 51 Cal. Rptr. 2d 286, 293 (1996).
5
suggests that a sanction for violating a scheduling or other pretrial order is not
collateral to the merits of the action, we disagree. The district court had authority
to sanction him for his actions prior to the voluntary dismissal. Cf. Cooter & Gell,
496 U.S. at 395, 110 S. Ct. at 2455; Allen v. Exxon Corp. (In re Exxon Valdez), 102
F.3d 429, 431 (9th Cir. 1996). Thus, this claim fails.12
DISMISSED as to Appeal No. 13-56858; and AFFIRMED as to Appeals
Nos. 14-56438 and 14-56911.
12
We note that Mireskandari raises issues in his reply brief regarding Nos.
14-56438 and 14-56911 that were neither raised at the district court nor raised in
his opening brief. We decline to consider those issues. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999); Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th
Cir. 1996).
6