                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            NOV 04 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE R. MARTINEZ and CHRISTINA                   No. 13-56626
BUCHANAN MARTINEZ,
                                                 D.C. No. 8:11-cv-00214-JVS-RNB
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

WALT DISNEY PARKS AND RESORTS
U.S., INC., a Florida corporation, FKA
Walt Disney World Co.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                      Argued and Submitted October 21, 2015
                               Pasadena, California

Before: IKUTA and OWENS, Circuit Judges and SESSIONS,** District Judge.

      Jose Martinez appeals from the district court’s decision ordering an offset of

attorneys’ fees and costs. As the parties are familiar with the facts, we do not

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review

the district court’s order for abuse of discretion. Kohler v. Bed Bath & Beyond of

Cal., LLC, 780 F.3d 1260, 1263 (9th Cir. 2015). We affirm.

       1. The district court did not abuse its discretion in concluding that Disney

was the substantially prevailing party and that Martinez was a limited prevailing

party. Martinez brought nine causes of action and prevailed on only a few claims

in comparison to Disney. Martinez is correct that negotiating a settlement can

confer prevailing status on a plaintiff. See Fischer v. SJB-P.D. Inc., 214 F.3d

1115, 1118 (9th Cir. 2000). The district court, however, did not ignore the

settlement agreement, or the claims upon which Martinez prevailed at trial, but

considered these victories in light of Martinez’s allegations at the outset of

litigation.

       2. The district court did not abuse its discretion in holding that Martinez’s

family restroom and emergency evacuation claims were frivolous. A claim is

frivolous “when the result is obvious or the . . . arguments of error are wholly

without merit.” C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1245 (9th

Cir. 2015) (citation omitted). As to the family restroom claim, Title III of the

Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (ADA) does not

require unisex restrooms. See Fortyune v. American Multi-Cinema, Inc., 364 F.3d


                                           2
1075, 1084-85 (9th Cir. 2004) (agreeing with the Fifth Circuit and the District of

Oregon that courts must rely on the ADA guidelines “in cases that involve the

design of a public accommodation under the ADA”) (emphasis in original).

      With regards to the emergency evacuation claim, the district court concluded

that the claim was frivolous after holding at summary judgment that (1) Disney’s

attraction-specific evacuation policies did not violate the ADA and (2) Disney’s

park-wide evacuation policies were appropriate because two of Disneyland’s

evacuation routes were accessible to the public. It was not an abuse of discretion

for the district court to conclude that the claim was frivolous because Disneyland

had two evacuation routes fully accessible to disabled individuals and was

prepared to evacuate persons with disabilities through its Emergency Response

Team, “which was created and is trained specifically to evacuate guests from rides

when those guests cannot evacuate themselves,” so the claim lacked a factual basis.

See Tutor-Saliba Corp. v. Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (affirming

the district court’s holding that plaintiff’s claims were frivolous when they lacked

“a factual and legal basis”).

      3. The district court did not abuse its discretion in its calculation of

attorneys’ fees for Disney. Under Fox v. Vice, a “court may grant reasonable fees

to the defendant . . . but only for costs that the defendant would not have incurred


                                           3
but for the frivolous claims.” 131 S. Ct. 2205, 2211 (2011). A “trial court has

wide discretion in applying this standard,” id., “may take into account [its] overall

sense of a suit, and may use estimates in calculating and allocating an attorney’s

time,” id. at 2216. A reviewing court must keep in mind that the essential goal “is

to do rough justice, not to achieve auditing perfection,” and “must give substantial

deference” to the trial court’s determination. Id. at 2216.

      The district court recognized that Disney was entitled “to only a portion of

its attorney fees because the Court [had] determined that only two of Plaintiffs’

three asserted claims were frivolous.” Accordingly, after considering Disney’s

billing records, the court concluded that the proposed apportionments “roughly

track[ed] the amount of work that had to be done to defend against Plaintiffs’

frivolous claims.” The district court applied the correct standard and, having done

so, had wide discretion in determining the appropriate fee award.

      4. The district court did not abuse its discretion in its costs award to Disney.

The court awarded costs to Disney pursuant to Rule 54(d), which provides costs

for prevailing parties. It is unclear whether the district court appropriately applied

Rule 54(d) with regards to costs for litigating the ADA claims, see Miles v.

California, 320 F.3d 986, 988-89 (9th Cir. 2003), or whether it should have applied

the Christiansburg test, which only allows for costs incurred in successfully


                                           4
litigating frivolous claims, see Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190

(9th Cir. 2001). The court need not decide this issue, however, because even if the

district court had not awarded Disney the total costs of $51,670.75, Disney’s

attorneys’ fees of $455,122.49, independent of its costs, would still have exceeded

Martinez’s requested fees and costs of $428,363.69.

      5. The district court did not abuse its discretion in reducing Martinez’s

attorneys’ fees and costs request for the state and federal disability discrimination

claims. The court had “considerable discretion” in determining what fee award

was reasonable. Webb v. Ada Cnty., Idaho, 195 F.3d 524, 526-27 (9th Cir. 1999)

(citation omitted). Where a plaintiff’s success is limited, as it is here, the award

may “not include time expended on the unsuccessful claims” if they are unrelated

to plaintiff’s successful claims. Schwarz v. Sec’y of Health & Human Servs., 73

F.3d 895, 901 (9th Cir. 1995) (citation omitted).

      Here, the court’s conclusion that the disability claims upon which Martinez

prevailed (access-barriers) are distinct factually and legally from Plaintiff’s

unsuccessful disability discrimination claims (Small World, lack of sufficient

family restrooms, and emergency evacuation) was not an abuse of discretion.

Thus, the district court did not abuse its discretion in reducing Martinez’s award

under the ADA, Unruh Act, and Disabled Persons Act. See Rodriguez v. Barrita,


                                           5
Inc., 53 F. Supp. 3d 1268, 1288–90 (N.D. Cal. 2014); see also Chavez v. City of

Los Angeles, 47 Cal. 4th 970, 989 (2010).

       6. Lastly, the district court did not abuse its discretion in denying Martinez

fees under California Code of Civil Procedure Section 1021.5. A plaintiff may

recover fees under this section when “(1) the litigation enforced an important right

affecting the public interest, (2) a significant benefit was conferred on a large class

of persons, and (3) the necessity and financial burden are such that an award of

attorney’s fees is appropriate.” Keith v. Volpe, 858 F.2d 467, 486 (9th Cir. 1988)

(citations omitted); see Cal. C.C.P. § 1021.5.

       Even if Martinez is correct that the district court did not properly analyze the

third factor, he has failed to show that his tort claim victories–for negligence and

premises liability–have conferred a significant public benefit on a large class of

persons. See Muniz v. U.S. Parcel, 738 F.3d 214, 219 (9th Cir. 2013) (“We may

affirm on any basis supported by the record, whether or not relied upon by the

district court.”); LaGrone v. Oakland, 202 Cal. App. 4th 932, 946 (Cal. Ct. App.

2011) (“The possibility that [plaintiff’s] lawsuit may have conveyed a cautionary

message to [defendant] about [its] conduct, or that it might cause [it] to change [its]

practices in the future, is insufficient to satisfy the significant public benefit

requirement.”).


                                             6
AFFIRMED.




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