La Jolla Friends of the Seals, a nonprofit organization v. City of San Diego

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).
The Honorable Richard D. Cudahy, Senior United States Circuit***
Judge for the Seventh Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LA JOLLA FRIENDS OF THE SEALS, a
nonprofit organization and JAMES H.N.
HUDNALL, Jr., an individual,
Plaintiffs - Appellants,
v.
CITY OF SAN DIEGO,
Defendant - Appellee.
No. 11-56617
D.C. No. 3:08-cv-01847-WQH-
POR
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted May 25, 2012**
Before: CUDAHY, WARDLAW, and W. FLETCHER, Circuit Judges.***
La Jolla Friends of the Seals (“Friends”) appeals the denial of its request for
FILED
MAY 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

2
attorney’s fees from the City of San Diego (“the City”). The district court retained
“equitable jurisdiction” over attorney’s fees “even [though] the underlying case is
moot.” Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir.
1999). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
The question of whether Friends is entitled to attorney’s fees is governed by
California’s “private attorney general doctrine.” Cal. Civ. Proc. Code. § 1021.5;
see Felder v. Casey, 487 U.S. 131, 151 (1988); Mangold v. Cal. Pub. Utilities
Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995). The City “may be held liable for
attorney fees only if [it] was an ‘opposing party’ in the litigation.” Nestande v.
Watson, 111 Cal. App. 4th 232, 242 (2003). Here, the City and Friends shared the
same goal of protecting the seals during the pupping season. The City passed
resolutions calling for a rope barrier to protect the seals, defended those resolutions
in state court. Throughout the litigation, the City did not take any position that was
adverse to Friends, and did not oppose any of the motions Friends filed. The
district court correctly concluded that the City was not an “opposing party” within
the meaning of California Code of Civil Procedure section 1021.5, and did not
abuse its discretion by denying Friends’ motion for attorney’s fees and costs. See
Nestande, 111 Cal. App. 4th at 242.
AFFIRMED

-- 2 of 2 --