Ed Hull v. SPOT INVESTMENTS, LP, a California limited partnership

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ED HULL,
Plaintiff-Appellant,
v.
SPOT INVESTMENTS, LP, a California
limited partnership,
Defendant-Appellee,
and
DOES, 1-10,
Defendant.
No. 23-55333
D.C. No. 8:21-cv-01082-JLS-ADS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted February 7, 2024**
Pasadena, California
Before: BUMATAY and MENDOZA, Circuit Judges, and MOSKOWITZ,***
* 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 Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
FILED
FEB 9 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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District Judge.
Plaintiff Ed Hull appeals the district court’s orders awarding Defendant Spot
Investments, LP (“Spot”), $22,884.61 in attorney’s fees and costs under Federal
Rule of Civil Procedure 37(c)(2) and denying Hull’s motion for relief or
reconsideration. We have jurisdiction under 28 U.S.C. § 1291, review the orders for
abuse of discretion, United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1166
(9th Cir. 2017); Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007); Marchand v.
Mercy Medical Ctr., 22 F.3d 933, 936 (9th Cir. 1994), and affirm. Because the
parties are familiar with the factual and procedural history of the case, we need not
recount it here.
Hull raised arguments in his motion for reconsideration that he could have,
but did not, present to the district court before it decided Spot’s motion for attorney’s
fees and cost of proof sanctions. We decline to disturb the district court’s orders
based on such arguments. See Berman v. Freedom Fin. Network, LLC, 30 F.4th 849,
859 (9th Cir. 2022) (“Reconsideration motions may not be used to raise new
arguments or introduce new evidence if, with reasonable diligence, the arguments
and evidence could have been presented during consideration of the original
ruling.”); see also Greisen v. Hanken, 925 F.3d 1097, 1115 (9th Cir. 2019) (“[A]n
appellate court will not consider issues not properly raised before the district court.”
(quoting Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999))).

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Hull’s contention that he properly denied Spot’s request for admission that
Hull’s injunctive relief claim was moot, because he needed to confirm whether the
property was fully remediated, is inconsistent with Federal Rules of Civil Procedure
36 and 37. Rule 36 allows a party to “assert lack of knowledge or information as a
reason for failing to admit or deny only if the party states that it has made reasonable
inquiry and that the information it knows or can readily obtain is insufficient to
enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4). And Rule 37 provides that
where, as here, “a party fails to admit what is requested under Rule 36 and [] the
requesting party later proves . . . the matter true,” the court must award the moving
party “reasonable expenses, including attorney’s fees, incurred in making that proof”
unless an enumerated exception applies. Fed. R. Civ. P. 37(c)(2). The district court
did not abuse its discretion when it found that Hull did not meet an exception in Rule
37(c)(2). And the district court properly found that its grant of Spot’s motion was
not based on material misrepresentations.
Hull has not shown that the district court erred. And because Hull does not
challenge the amount the district court awarded, we will affirm. We reject Spot’s
contention that the appeal is frivolous and thus reject its request for attorney’s fees
on appeal.
AFFIRMED.

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