                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 25 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LA JOLLA FRIENDS OF THE SEALS, a                  No. 11-56617
nonprofit organization and JAMES H.N.
HUDNALL, Jr., an individual,                      D.C. No. 3:08-cv-01847-WQH-
                                                  POR
              Plaintiffs - Appellants,

  v.                                              MEMORANDUM *

CITY OF SAN DIEGO,

              Defendant - Appellee.



                    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



        *
             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.
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


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