                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SELINA BRYANT,                                   No. 14-55251

              Plaintiff - Appellant,             D.C. No. 2:10-cv-09560-RGK-RZ

 v.
                                                 MEMORANDUM*
CIGNA HEALTHCARE OF
CALIFORNIA, INC.,

              Defendant - Appellee,

  and

SOUTHWEST CARPENTERS HEALTH
AND WELFARE TRUST,

              Defendant.



SELINA BRYANT,                                   No. 14-55313

              Plaintiff - Appellee,              D.C. No. 2:10-cv-09560-RGK-RZ

 v.

SOUTHWEST CARPENTERS HEALTH
AND WELFARE TRUST,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
               Defendant,

  and

CIGNA HEALTHCARE OF
CALIFORNIA, INC.,

               Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Central District of California
                     R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted February 12, 2016
                                Pasadena, California

Before: FARRIS, CLIFTON, and BEA, Circuit Judges.

        Plaintiff Selina Bryant appeals from the district court’s February 7, 2014

Judgment Regarding Attorneys’ Fees and Costs. Defendants Connecticut General

Life Insurance Company (“CGLIC”) and Southwest Carpenters Health & Welfare

Trust cross-appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm

in part, vacate in part, and remand.

        Bryant argues that the district court abused its discretion when it determined

that she could not recover attorneys’ fees incurred after March 21, 2011, the date

that CGLIC accepted responsibility for paying her claim. The district court based

its decision on McElwaine v. US West, Inc., 176 F.3d 1167, 1174 (9th Cir. 1999),


                                           2
where this court held that an ERISA claimant “should recover fees only for work

up until the time she learned conclusively that US West would pay her claim in

full.” The critical fact, however, was that once the plaintiff had achieved certainty

regarding her claim, “nothing remained to be achieved by further litigation[,]” and

the court was not persuaded that the further actions taken by counsel were

“necessary or appropriate.” Id.

      Entitlement to attorneys’ fees is a critical issue in ERISA actions, and

litigation may be necessary to establish that entitlement. See Smith v. CMTA-IAM

Pension Trust, 746 F.2d 587, 590 (9th Cir. 1984) (“‘Not to award counsel fees in

cases such as this would be tantamount to repealing the Act itself by frustrating its

basic purpose.’” (quoting Hall v. Cole, 412 U.S. 1, 13 (1973))). Here, Bryant’s

entitlement to attorneys’ fees depended on establishing that CGLIC received a

claim in 2007. Otherwise she would not have been able to show that she achieved

“some success on the merits.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S.

242, 255 (2010).

      Throughout the life-span of this case and including its briefing to this panel,

CGLIC refused to acknowledge that it received a claim in 2007. CGLIC was well

within its rights to do so, but that action forced Bryant to conduct additional

discovery to establish her entitlement to fees. As the prior Ninth Circuit panel


                                           3
recognized, “if CGLIC received a claim from Bryant prior to her initiation of this

litigation but paid up only under the cloud of litigation, then Bryant likely

‘sustained some degree of success’ on the merits.” On remand, the district court

placed dispositive weight on facts and arguments that were the result of Bryant’s

post-March 21, 2011 discovery.

      In these circumstances, the district court abused its discretion when it denied

attorneys’ fees corresponding to the work that was undertaken to ensure Bryant’s

entitlement to those fees. Accordingly, we vacate the district court’s judgment in

part and remand. On remand, Bryant must differentiate between the post-March

21, 2011 fees that she incurred to establish that CGLIC had received a claim in

2007, and the post-March 21, 2011 fees that she incurred pursuing the theory that

CGLIC should have paid her directly, so that the district court can fashion an

appropriate award. Only the post-March 21, 2011 fees that she incurred to

establish that CGLIC had received a claim in 2007 were “necessary or

appropriate.” McElwaine, 176 F.3d at 1174. In addition, the district court shall

exclude the costs incurred during both of Bryant’s appeals from its costs award.

      We affirm the remainder of the district court’s underlying orders regarding

attorneys’ fees. First, the district court did not abuse its discretion when it refused

to award attorneys’ fees that Bryant incurred pursuing the theory that CGLIC


                                           4
should have paid her directly. That theory did not contribute to the success that

Bryant achieved.

       The district court also did not abuse its discretion in reducing the fee award

for Bryant’s first appeal. The court properly concluded that reasonably

experienced counsel would not require more than 120 hours of preparation given

that the issues presented were not complex and that many of the hours expended

were unreasonable. For example, spending 44.4 hours to prepare for a 15 minute

oral argument defies logic, as does the 15.7 hours that counsel spent “preparing to

file an appeal.” Having arrived at a reasonable figure of 120 hours, the district

court did not abuse its discretion by halving that figure to excise the portion of the

appeal that was dedicated to the theory that CGLIC should have paid Bryant

directly.

       Likewise, the district court did not abuse its discretion when it reduced the

attorneys’ fees that Bryant’s attorneys incurred in preparing her motion for

attorneys’ fees and in responding to the court’s request for additional information.

The fees requested were unreasonable in light of the work required.

       With respect to the Defendants’ cross-appeal, the district court properly

determined that the Hummell factors weighed against a fee award for the defense.

See Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980). The only


                                           5
factor favoring a fee award was Bryant’s counsels’ ability to pay, and none of the

substantive factors suggested that a fee award would be appropriate.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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