                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 18 2013

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




                            FOR THE NINTH CIRCUIT



JUAN BONIFACIO ULIN,                             Nos. 11-17698

              Plaintiff - Appellee,              D.C. No. 3:09-cv-03160-EDL

  v.
                                                 MEMORANDUM *
LOVELL’S ANTIQUE GALLERY, AKA
Alea-72 Inc.; ABRAHAM MAGIDISH,

              Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                             Submitted June 14, 2013 **
                              San Francisco, California




        *
             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).

                                          1
Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and SINGLETON,
District Judge.***

      Defendants Lovell’s Antique Gallery and Abraham Magidish (“Lovell’s”)

appeal the decisions of the district court awarding Juan Bonifacio Ulin (“Ulin”)

$28,032.21 in damages for various violations of the California Labor Code and the

Fair Labor Standards Act (FLSA) and granting in part his motion for costs and

attorneys’ fees. We decline to consider Lovell’s cross-appeal of the district court’s

decision on the merits of Ulin’s claims because it was untimely filed, and we

affirm the district court’s order awarding fees and costs.

                                           I

      Lovell’s does not contest that its notice of cross-appeal of the district court’s

merits decision was untimely filed. Instead, it argues that such untimely filing

should not preclude our consideration of that decision because Ulin timely filed a

notice of appeal1 and the timely filing of a notice of cross-appeal is “a rule of

practice and not a jurisdictional bar.” Lee v. Burlington N. Santa Fe Ry. Co., 245

F.3d 1102, 1107 (9th Cir. 2001).



          ***
             The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
      1
       Ulin abandoned his appeal in that case (No. 11-17249), which was
dismissed on June 21, 2012, and thus is not before us.

                                           2
      Although the failure to file a timely notice of cross-appeal does not deprive

us of jurisdiction, we still have “required a [timely] cross-appeal when a party

seeks to increase its monetary recovery or decrease its monetary liability” or where

“an issue affects a legal right that may have an impact on damage recovery.” Id.

(emphasis added). Here, Lovell’s urges us to overturn the district court’s decision

awarding Ulin damages for various wage and hour violations, and thus seeks to

decrease its monetary liability. Moreover, as in S.M. v. J.K., 262 F.3d 914 (9th Cir.

2001), Lovell’s has “not given us any reason to depart from the general rule that

we will not hear a challenge to a district court decision if a [timely] notice of cross-

appeal is not filed.” Id. at 923.

      Lovell’s argues that the need for a cross-appeal on the merits did not become

apparent until the district court awarded attorneys’ fees to Ulin. This argument is

unpersuasive. Lovell’s knew—or at the very least should have known—at the time

the district court entered an adverse judgment against it on Ulin’s federal and state

wage and hour claims that Ulin would be entitled to recover attorneys’ fees. See

29 U.S.C. § 216(b) (“The court in [an FLSA] action shall, in addition to any

judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to

be paid by the defendant, and costs of the action.”); Cal. Lab. Code § 218.5 (“In

any action brought for the nonpayment of wages . . . the court shall award


                                           3
reasonable attorney’s fees and costs to the prevailing party . . . .”); see also Cal.

Lab. Code § 1194.

      Because Lovell’s should have known within the time period for filing a

notice of appeal that it intended to appeal the district court’s adverse judgment on

Ulin’s wage and hour claims, “[t]here is no reason to allow [it] to bring [a] cross-

appeal without filing the requisite notice.” S.M., 262 F.3d at 923. We therefore

decline to exercise our discretion to hear Lovell’s untimely cross-appeal, and it is

dismissed.

                                            II

      In its notice of cross-appeal, Lovell’s also challenged the district court’s

order awarding attorneys’ fees and costs to Ulin. Because the notice of cross-

appeal was filed within thirty days of the district court’s order awarding fees and

costs, we construe the notice of cross-appeal as a timely notice of appeal from the

district court’s collateral order. See Stephanie-Cardona LLC v. Smith’s Food &

Drug Ctrs., 476 F.3d 701, 705 (9th Cir. 2007); see also White v. N.H. Dep’t of

Emp’t Sec., 455 U.S. 445, 451–52 (1982). We thus consider the merits of this

appeal.

      Reviewing the district court’s decision for abuse of discretion, we conclude

that there was no error. See Haworth v. Nevada, 56 F.3d 1048, 1051 (9th Cir.


                                            4
1995). The district court followed the proper procedure, calculating a

presumptively reasonable fee award using the lodestar method and then adjusting

this award downward “to account for other factors which are not subsumed within

it.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001); see

also Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 901–02 (9th Cir.

1995). Indeed, taking into account the same arguments that Lovell’s raises before

us on appeal, the district court decreased the lodestar fee that Ulin’s attorneys

requested by more than $66,000—a reduction of more than 44%. We cannot say

that the district court abused its discretion by failing to decrease further such

award.

                                           III

      Finally, Lovell’s argues that the district court erred in not allocating

responsibility for attorneys’ fees and costs between Lovell’s and the individual

defendant Magidish in an amount proportional to their liability. This court has

“never mandated apportionment [of costs and attorneys’ fees] based on each

defendant’s relative liability . . . .” Corder v. Gates, 947 F.2d 374, 383 (9th Cir.

1991). Instead, “we have prescribed apportionment of attorney’s fees when the

time expended by the plaintiff in pursuing each defendant was grossly unequal.”

Id. Here, Ulin’s claims against both defendants were based upon the same facts


                                           5
and legal theories, and thus there is no reason to suspect that the time expended in

pursuing the two defendants was unequal. Therefore, the district court did not err

in declining to apportion attorneys’ fees and costs between Lovell’s and Magidish.

                                         IV

      AFFIRMED in part and DISMISSED in part.




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