Martin Vogel v. LA AMAPOLA, INC., DBA Tortas Bravas; CMG ENTERPRISES, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN VOGEL,
Plaintiff-Appellant,
v.
LA AMAPOLA, INC., DBA Tortas Bravas;
CMG ENTERPRISES, LLC,
Defendants-Appellees.
No. 20-55478
D.C. No.
2:16-cv-03327-RGK-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 8, 2021**
Pasadena, California
Before: MURGUIA and BADE, Circuit Judges, and MOLLOY,*** District Judge.
Plaintiff-Appellant Martin Vogel sued Defendant-Appellees La Amapola,
Inc. and CMG Enterprises, LLC (“Appellees”) for alleged violations of the
* 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).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
JUN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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American with Disabilities Act, California Disabled Persons Act, and Unruh Act.
The parties settled their dispute but asked the district court to decide Vogel’s request
for attorneys’ fees and costs. Vogel sought to recover fees pursuant to 42 U.S.C.
§ 12205 and California Civil Code §§ 52(a), 54.3(a), and 55. Vogel now appeals the
district court’s determination only on the grounds that he was not a prevailing party
under California law and therefore not entitled to attorneys’ fees and costs. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
“We review a district court’s decision to deny attorneys’ fees for an abuse of
discretion.” Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1133 (9th Cir.
2002). “A trial court abuses its discretion if its ruling on a fee motion is based on an
inaccurate view of the law or a clearly erroneous finding of fact.” Id. 1 Here, the
district court concluded that Vogel was not entitled to attorneys’ fees under
California Civil Code § 55 because he failed to demonstrate how his lawsuit “was
the catalyst motivating the defendants to modify their behavior” or achieve “the
primary relief sought.” See id. at 1137 (citation omitted). The district court’s finding
that a new tenant removed the alleged barriers for reasons unrelated to Vogel’s
lawsuit was not clearly erroneous. And the district court’s conclusion that Vogel did
1 Vogel’s arguments applying the federal prevailing-party test are misplaced. See
Swallow Ranches, Inc. v. Bidart, 525 F.2d 995, 999 (9th Cir. 1975) (“In diversity
actions, federal courts are required to follow state law in determining whether to
allow attorneys’ fees.”).

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not obtain the primary relief sought because he failed to obtain any injunctive relief
requiring Appellees to keep the premises free of the alleged access barriers was not
based on an inaccurate view of the law. See id. (concluding that the plaintiff obtained
the primary relief sought when he obtained both money damages and injunctive
relief).
To the extent Vogel asserts that he is entitled to fees in accordance with the
terms of the settlement agreement or some other provision of California law, those
arguments are waived because they were not distinctly argued to the district court or
in Vogel’s opening brief. United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005) (“Generally, an issue is waived when the appellant does not specifically and
distinctly argue the issue in his or her opening brief.”); see also In re Mercury
Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“We apply a
‘general rule’ against entertaining arguments on appeal that were not presented or
developed before the district court.”) (quoting Peterson v. Highland Music, Inc., 140
F.3d 1313, 1321 (9th Cir. 1998)).
AFFIRMED.

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