N. L. v. Credit One Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 3, 2020
• Docket: 19-15399
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

N. L., an infant by his mother and natural Nos. 19-15399 guardian Sandra Lemos, 19-15938

Plaintiff-Appellee, D.C. No. 2:17-cv-01512-JAM-DB v.

CREDIT ONE BANK, N.A., MEMORANDUM*

Defendant-Appellant,

and

GC SERVICES LIMITED PARTNERSHIP; IENERGIZER HOLDINGS, LIMITED; FIRST CONTACT, LLC, AKA Iqor Holdings, Inc.,

Defendants.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted March 25, 2020** San Francisco, 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: GOULD, CHRISTEN, and BRESS, Circuit Judges.

Credit One Bank appeals the district court’s order awarding attorneys’ fees to

N.L. under California’s Rosenthal Fair Debt Collection Practices Act. Cal. Civ.

Code § 1788 et seq. We assume familiarity with the relevant facts and procedural

history and discuss them only as necessary to explain our decision. We have

jurisdiction under 28 U.S.C. § 1291 and now affirm.1

“We review the award or denial of attorney’s fees for abuse of discretion, but

any elements of legal analysis and statutory interpretation which figure in the district

court’s decision are reviewable de novo.” Evon v. Law Offices of Sidney Mickell,

688 F.3d 1015, 1032 (9th Cir. 2012) (quotations and citation omitted). Because the

fee award is based on a California state law claim, we apply California law. See

MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999).

1. Credit One first argues that the district court erred in failing to limit the

award to fees incurred litigating the Rosenthal Act claim. The Rosenthal Act permits

N.L. to recover “[r]easonable attorney’s fees” based on “time necessarily expended

to enforce the liability” under the statute. Cal. Civ. Code § 1788.30(c). But the

TCPA does not allow an award of fees. See Campbell-Ewald Co. v. Gomez, 136 S.

Ct. 663, 668 (2016). And under California law, “[w]hen a cause of action for which

1 In a published opinion issued concurrently with this memorandum disposition, we upheld that the district court’s jury instructions for N.L.’s claim under the Telephone Consumer Protection Act (TCPA).

2 attorney fees are provided by statute is joined with other causes of action for which

attorney fees are not permitted, the prevailing party may recover only on the

statutory cause of action” that allows fees. Akins v. Enterprise Rent-A-Car Co. of

S.F., 94 Cal. Rptr. 2d 448, 452 (Ct. App. 2000).

Most of the arguments that Credit One raises on this point were not raised

below, as the bank in the district court did not identify any entry that was improperly

apportioned or insufficiently detailed. We therefore decline to consider those

arguments now. See Gilbrook v. City of Westminster, 177 F.3d 839, 876–77 (9th

Cir. 1999). The only argument Credit One preserved below was that it was

“implausible” for N.L. to apportion 503.3 hours to the Rosenthal Act claim and 53.9

hours to unrelated issues, including the TCPA claim. But “fees need not be

apportioned when incurred for representation of an issue common to both a cause of

action for which fees are permitted and one for which they are not.” Akins, 94 Cal.

Rptr. 2d at 452. This principle applies when the claims share a “common legal issue”

or a “common factual issue.” Id. (emphasis omitted). Here, all of N.L.’s claims

share a common factual core. We therefore cannot conclude that the district court’s

apportionment was “implausible” or that the district court otherwise abused its

discretion.

2. Credit One next argues that the district court should have reduced the

award due to N.L.’s allegedly limited success in this lawsuit. Credit One did not

3 raise this argument below, and therefore did not preserve it for our review.

Gillbrook, 177 F.3d at 876–77. But even if Credit One had raised the argument in

the district court, we still could not find an abuse of discretion. It is true that “[a]

reduced fee award is appropriate if the relief, however significant, is limited in

comparison to the scope of the litigation as a whole.” ComputerXpress, Inc. v.

Jackson, 113 Cal. Rptr. 2d 625, 648 (Ct. App. 2001) (quotations and citation

omitted). In this case, however, N.L. obtained the full amount of available statutory

damages under the TCPA and the Rosenthal Act. We thus cannot say that the district

court would have abused its discretion in declining to reduce the award based on

other aspects of this case in which N.L. achieved less success. See Evon, 688 F.3d

at 1033.

3. Finally, Credit One argues that the district court abused its discretion

by not offsetting the fee award by the amount of attorneys’ fees awarded to N.L. in

his prior settlement with Credit One’s vendors. But Credit One on appeal does not

cite any specific entries that were allegedly double counted, just as it failed to do

before the district court. Credit One thus does not show that the district court abused

its discretion. Gilbrook, 177 F.3d at 876–77.

AFFIRMED.