                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 22 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MATTHEW LOPEZ, individually and on               No.   16-55602
behalf of all others similarly situated,
                                                 D.C. No.
              Plaintiff-Appellant,               3:15-cv-02522-AJB-JLB

 v.
                                                 MEMORANDUM*
NAC MARKETING COMPANY, LLC, a
Delaware limited liability company and
DOES, 1-10,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                          Submitted December 7, 2017**
                              Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WARDLAW and GOULD, Circuit Judges, and COLLINS,*** Chief
District Judge.

      Matthew Lopez appeals the district court’s denial of his motion for

attorney’s fees and costs under California Code of Civil Procedure § 1021.5,

California’s catalyst theory of recovery. Because the district court properly found

that Lopez failed to engage in any meaningful attempt to settle his dispute with

NAC Marketing Company, LLC (NAC) short of filing the complaint, we affirm.

      1.     We review a district court's award of attorney’s fees under an abuse of

discretion standard. Ass'n of Cal. Water Agencies v. Evans, 386 F.3d 879, 883 (9th

Cir. 2004). We review the underlying factual determinations for clear error and

review any legal analysis relevant to the fee determination de novo. Id.

      2.     Under the catalyst theory, for a plaintiff to obtain “attorney fees

without a judicially recognized change in the legal relationship between the parties,

a plaintiff must establish,” among other things, that he “reasonably attempted to

settle the litigation prior to filing the lawsuit.” See Tipton-Whittingham v. City. of

L.A., 34 Cal. 4th 604, 608 (2004) (cleaned up); see also Graham v.

DaimlerChrystler Corp., 34 Cal. 4th 533, 577 (2004). The district court did not err

in finding that (1) Lopez’s original settlement offer of $245,000 was exorbitant,


      ***
              The Honorable Raner C. Collins, Chief United States District Judge
for the District of Arizona, sitting by designation.
                                           2
considering that the most he could recover under the statute was restitution, i.e.,

slightly less than $30; (2) Lopez unreasonably imposed a six-day window within

which NAC was required to respond; and (3) the litigation was unnecessary

because NAC demonstrated a willingness to change its policies without litigation

by voluntarily correcting its website and confirmation email before litigation was

commenced. See Baxter v. Salutary Sportsclubs, Inc., 122 Cal. App. 4th 941,

946–47 (2004).

      3.     Accordingly, the district court correctly concluded that Lopez did not

engage in a reasonable attempt to settle and did not abuse its discretion by denying

Lopez’s motion for attorney’s fees and costs.

      AFFIRMED.




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