                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 27 2011

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




                            FOR THE NINTH CIRCUIT



IAN MCCOWN,                                      No. 10-55672

              Plaintiff - Appellee,              D.C. No. 2:05-cv-05537-AG-VBK

  v.
                                                 MEMORANDUM *
CITY OF FONTANA, a municipality;
CITY OF FONTANA POLICE
DEPARTMENT; JORGE RODRIGUEZ;
DAVID MAXSON,

              Defendants - Appellants.



                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                           Submitted December 6, 2011 **
                               Pasadena, 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).
Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.***

      Defendants/Appellants City of Fontana, the City of Fontana Police

Department, and Fontana Police Officers Jorge Rodriguez and David Maxson (“the

City”) appeal the district court’s order awarding Plaintiff/Appellee Ian McCown

$148,250.00 in attorney’s fees and $15,034.10 in costs pursuant to 42 U.S.C. §

1988. The City argues that the district court abused its discretion because (1) the

fee award is unreasonable in light of the success McCown achieved and (2) the

district court failed to adequately articulate and explain a public benefit achieved

by the suit that might justify the award. We review awards of attorney’s fees for

an abuse of discretion. Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir.

2005). Questions of law are reviewed de novo. Id.

      This Court previously held that the district court’s award of $200,000.00 in

attorney’s fees to McCown was an abuse of discretion because it was unreasonable

in light of McCown’s “limited success.” McCown v. City of Fontana, 565 F.3d

1097, 1105 (9th Cir. 2009) (McCown I). In so holding, the McCown I Court relied

primarily on the fact that McCown’s $20,000.00 settlement was “one-fourth of the

‘damages in excess of $ 75,000’ that he pled in his complaint, and less than


        ***
            The Honorable Suzanne B. Conlon, District Judge for the U.S. District
Court for Northern Illinois, sitting by designation.

                                           2
one-tenth of the $251,000 he requested in settlement.” Id. at 1104. Because the

panel relied on McCown’s settlement offer in appraising the success of his suit,

McCown revealed on remand that only three months after making his $251,000.00

settlement offer, he and the City reached a tentative agreement to settle his case for

$20,000.00 plus attorney’s fees, but the Fontana City Council refused to ratify the

settlement. As a result, the litigation continued for another year, through summary

judgment, before settling on the same terms to which McCown originally agreed.

In light of this fact, the ultimate $20,000.00 settlement appears much more

successful than it did in McCown I. The canceled settlement demonstrates that the

actual value McCown placed on his case was less than previously supposed and

suggests the $20,000.00 settlement came close to meeting McCown’s goal. Id. at

1104–05. Furthermore, it speaks to the quality of the overall result that McCown’s

counsel managed to secure for him the exact same damage award he had agreed to

settle for a year earlier. Id. at 1104 (“[T]he district court must consider the

excellence of the overall result, not merely the amount of damages won.”).

      Additionally, heeding McCown I’s directive to “consider whether, and to

what extent, McCown’s suit benefitted the public,” the district court concluded that

McCown’s suit imparted a substantial public benefit by deterring future

unconstitutional conduct by law enforcement officials. Id. at 1105. This finding


                                           3
was not an abuse of discretion. The $20,000.00 in damages awarded to McCown

is not de minimis and our precedent supports the district court’s deterrence

conclusion. See Morales v. City of San Rafael, 96 F.3d 359, 364 (9th Cir. 1996)

(“Because it assessed [$17,500 in] damages against the defendants, the verdict

established a deterrent to the City, its law enforcement officials and others who

establish and implement official policies governing arrests of citizens.”).

      The public benefit identified by the district court coupled with the fact that

McCown’s suit was more successful and a better result than it initially appeared

demonstrate the reasonableness of the district court’s $148,250.00 fee award,

which we note is approximately half of the fee McCown requested and $51,750.00

less than the district court’s original award. Consequently, the district court did not

abuse its discretion. Furthermore, we decline to consider McCown’s argument,

which he did not raise in a cross-appeal, that the case should be remanded for an

upward adjustment of fees. See Mahach-Watkins v. Depee, 593 F.3d 1054, 1063

(9th Cir. 2010) (explaining that the Court need not consider interrelated arguments

a party failed to raise on a cross-appeal).

      AFFIRMED




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