                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 06 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

SERJIK HATAMI,                                   No. 11-57074

              Plaintiff - Appellant,             D.C. No. 8:08-cv-00226-DOC-
                                                 MLG
  v.

KIA MOTORS AMERICA, INC.,                        MEMORANDUM*

              Defendant - Appellee,

  and

KIA MOTORS CORPORATION,

              Defendant.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                           Submitted November 4, 2013**
                               Pasadena, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      Plaintiff Serjik Hatami appeals the district court’s order granting in part and

denying in part his motion for attorney fees following his settlement with

Defendant Kia Motors America, Inc. For the reasons that follow, we affirm.

      1. We have appellate jurisdiction over this appeal. Contrary to Defendant’s

assertion, the district court awarded fees pursuant to California Civil Code section

1794(d), which allows the award of attorney fees after voluntary dismissal. See

Wohlgemuth v. Caterpillar Inc., 144 Cal. Rptr. 3d 545, 553-54 (Ct. App. 2012)

("[W]e hold that the pretrial dismissal with prejudice pursuant to the compromise

agreement was sufficient for purposes of section 1794(d) to allow an award of

attorney fees and costs."). Although a party generally may not appeal from a

voluntary dismissal, Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995), an

award of attorney fees pursuant to a statute is separately appealable from the

judgment on the merits, see Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th

Cir. 2011) ("[A]n order on attorneys’ fees is collateral to, and separately appealable

from, the judgment.").

      2. The district court did not abuse its discretion by denying attorney fees for

the period following Defendant’s Federal Rule of Civil Procedure 68 offer. See

TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011) ("We

review the denial of attorney’s fees for abuse of discretion . . . ."). "When a


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plaintiff rejects a Rule 68 offer, the reasonableness of an attorney fee award . . .

will depend, at least in part, on the district court’s consideration of the results the

plaintiff obtained by going to trial compared to the Rule 68 offer." Haworth v.

Nevada, 56 F.3d 1048, 1052 (9th Cir. 1995). The district court properly found

that, to the extent that the terms of the final judgment exceeded, if at all, the terms

of the Rule 68 offer, that benefit accrued only to Plaintiff’s lawyer. Cf. id.

("Clearly, the only one who benefited by pursuing the litigation after the Rule 68

offer was made was the plaintiffs’ attorney."). The district court’s weighing of the

relevant factors was permissible, and its findings were not "illogical, implausible or

without support in the record." TrafficSchool.com, 653 F.3d at 832.

      3. Because we conclude that the district court did not abuse its discretion,

we need not, and do not, reach the court’s alternative holding that Rule 68

prohibited the award of fees.

      AFFIRMED.




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