Juan Ulin v. Lovell's Antique Gallery , 528 F. App'x 748 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN BONIFACIO ULIN, Nos. 11-17698
Plaintiff - Appellee, D.C. No. 3:09-cv-03160-EDL
v.
MEMORANDUM *
LOVELL’S ANTIQUE GALLERY, AKA
Alea-72 Inc.; ABRAHAM MAGIDISH,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Submitted June 14, 2013 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and SINGLETON,
District Judge.***
Defendants Lovell’s Antique Gallery and Abraham Magidish (“Lovell’s”)
appeal the decisions of the district court awarding Juan Bonifacio Ulin (“Ulin”)
$28,032.21 in damages for various violations of the California Labor Code and the
Fair Labor Standards Act (FLSA) and granting in part his motion for costs and
attorneys’ fees. We decline to consider Lovell’s cross-appeal of the district court’s
decision on the merits of Ulin’s claims because it was untimely filed, and we
affirm the district court’s order awarding fees and costs.
I
Lovell’s does not contest that its notice of cross-appeal of the district court’s
merits decision was untimely filed. Instead, it argues that such untimely filing
should not preclude our consideration of that decision because Ulin timely filed a
notice of appeal1 and the timely filing of a notice of cross-appeal is “a rule of
practice and not a jurisdictional bar.” Lee v. Burlington N. Santa Fe Ry. Co., 245
F.3d 1102, 1107 (9th Cir. 2001).
***
The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
1
Ulin abandoned his appeal in that case (No. 11-17249), which was
dismissed on June 21, 2012, and thus is not before us.
2
Although the failure to file a timely notice of cross-appeal does not deprive
us of jurisdiction, we still have “required a [timely] cross-appeal when a party
seeks to increase its monetary recovery or decrease its monetary liability” or where
“an issue affects a legal right that may have an impact on damage recovery.” Id.(emphasis added). Here, Lovell’s urges us to overturn the district court’s decision
awarding Ulin damages for various wage and hour violations, and thus seeks to
decrease its monetary liability. Moreover, as in S.M. v. J.K., 262 F.3d 914 (9th Cir.
2001), Lovell’s has “not given us any reason to depart from the general rule that
we will not hear a challenge to a district court decision if a [timely] notice of cross-
appeal is not filed.” Id. at 923.
Lovell’s argues that the need for a cross-appeal on the merits did not become
apparent until the district court awarded attorneys’ fees to Ulin. This argument is
unpersuasive. Lovell’s knew—or at the very least should have known—at the time
the district court entered an adverse judgment against it on Ulin’s federal and state
wage and hour claims that Ulin would be entitled to recover attorneys’ fees. See
29 U.S.C. § 216(b) (“The court in [an FLSA] action shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to
be paid by the defendant, and costs of the action.”); Cal. Lab. Code § 218.5 (“In
any action brought for the nonpayment of wages . . . the court shall award
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reasonable attorney’s fees and costs to the prevailing party . . . .”); see also Cal.
Lab. Code § 1194.
Because Lovell’s should have known within the time period for filing a
notice of appeal that it intended to appeal the district court’s adverse judgment on
Ulin’s wage and hour claims, “[t]here is no reason to allow [it] to bring [a] cross-
appeal without filing the requisite notice.” S.M., 262 F.3d at 923. We therefore
decline to exercise our discretion to hear Lovell’s untimely cross-appeal, and it is
dismissed.
II
In its notice of cross-appeal, Lovell’s also challenged the district court’s
order awarding attorneys’ fees and costs to Ulin. Because the notice of cross-
appeal was filed within thirty days of the district court’s order awarding fees and
costs, we construe the notice of cross-appeal as a timely notice of appeal from the
district court’s collateral order. See Stephanie-Cardona LLC v. Smith’s Food &
Drug Ctrs., 476 F.3d 701, 705 (9th Cir. 2007); see also White v. N.H. Dep’t of
Emp’t Sec., 455 U.S. 445, 451–52 (1982). We thus consider the merits of this
appeal.
Reviewing the district court’s decision for abuse of discretion, we conclude
that there was no error. See Haworth v. Nevada, 56 F.3d 1048, 1051 (9th Cir.
4
1995). The district court followed the proper procedure, calculating a
presumptively reasonable fee award using the lodestar method and then adjusting
this award downward “to account for other factors which are not subsumed within
it.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001); see
also Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 901–02 (9th Cir.
1995). Indeed, taking into account the same arguments that Lovell’s raises before
us on appeal, the district court decreased the lodestar fee that Ulin’s attorneys
requested by more than $66,000—a reduction of more than 44%. We cannot say
that the district court abused its discretion by failing to decrease further such
award.
III
Finally, Lovell’s argues that the district court erred in not allocating
responsibility for attorneys’ fees and costs between Lovell’s and the individual
defendant Magidish in an amount proportional to their liability. This court has
“never mandated apportionment [of costs and attorneys’ fees] based on each
defendant’s relative liability . . . .” Corder v. Gates, 947 F.2d 374, 383 (9th Cir.
1991). Instead, “we have prescribed apportionment of attorney’s fees when the
time expended by the plaintiff in pursuing each defendant was grossly unequal.”
Id. Here, Ulin’s claims against both defendants were based upon the same facts
5
and legal theories, and thus there is no reason to suspect that the time expended in
pursuing the two defendants was unequal. Therefore, the district court did not err
in declining to apportion attorneys’ fees and costs between Lovell’s and Magidish.
IV
AFFIRMED in part and DISMISSED in part.
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