                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             MAY 11 2011

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

L.L. BENAS,                                     No. 09-56561

             Plaintiff-Appellant,               2:00-cv-11507-FMC-SHx

  v.
                                                MEMORANDUM*
LEROY BACA, et al.,

             Defendants-Appellees.
and

MICHAEL ANTONOVICH, et al.,

            Defendants.


                  Appeal from the United States District Court*
                       for the Central District of California
                 Florence-Marie Cooper, District Judge, Presiding

                             Submitted May 4, 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 finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
                                         1
Before: WARDLAW, NOONAN, Circuit Judges, and KORMAN, District Judge***
       This is an appeal from an order of the United States District Court for the

Central District of California denying Yagman & Yagman & Reichmann (“YYR”) an

award of attorneys’ fees for its representation of plaintiff, L.L. Benas, in an action

pursuant to 42 U.S.C. § 1983 against all five members of the Los Angeles County

Board of Supervisors, the sheriff, and a number of sheriff’s deputies.

      We pass over the complicated procedural history of the case and turn directly

to the relevant facts. Briefly, while the § 1983 action was pending, Ms. Benas filed

for bankruptcy. The trustee of her estate entered into a settlement with the defendants

for $35,000 on the condition that the trustee execute a full release of all claims in

favor of defendants and that the lawsuit be dismissed with prejudice. The trustee then

moved to dismiss the action while YYR moved for an award of attorney’s fees

pursuant to 42 U.S.C. § 1988 based on the retainer agreement it had entered into with

Ms. Benas that provided:

             To the extent it is permitted by law, the client hereby
             irrevocably assigns client’s right and/or entitlement to any
             fee award to the attorney and agrees that the attorney may
             apply for any such award in the client’s name or in the
             attorney’s name, at the attorney’s option; client hereby
             consents to attorney intervention in client’s case for the
             purpose of asserting any claim to fees.


      ***
             The Honorable Edward R. Korman, Senior United States District Judge,
Eastern District of New York, sitting by designation.
                                          2
Relying on Pony v. County of Los Angeles, 433 F.3d 1138, 1140 (9th Cir. 2006), cert.

den., sub. nom. Mitchell v. L.A. County, 547 U.S. 1193 (2006), which held that a

plaintiff may not assign her right to seek attorney’s fees, Pony, 433 at 1145, the

district judge denied YYR’s motion for attorney’s fees and dismissed the complaint.

      In its brief on appeal, YYR acknowledges: (1) that “[t]he main dispositive issue

on this appeal is whether a prevailing Section 1983 plaintiff’s right to an award of

attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat.

2641, 42 U.S.C. § 1988, may be assigned to her legal counsel” and (2) that our

decision in Pony “on which the district court relied, answers in the negative.”

Nevertheless, YYR argues that Pony was wrongly decided. Whether there is any

merit to this argument is a matter resolvable only by our court sitting en banc or by

the Supreme Court and not by a three-judge panel. See Hulteen v. AT&T Corp., 498

F.3d 1001, 1009 (9th Cir. 2008) (“A three-judge panel must follow a prior circuit

decision unless a subsequent decision by a relevant court of last resort either

effectively overrules the decision in a case ‘closely on point’ or undercuts the

reasoning underlying the circuit precedent rendering the cases ‘clearly

irreconcilable.’”) rev’d on other grounds sub nom, AT &T Corp. v. Hulteen, 129 S.Ct.

1962 (2009); accord, U.S. v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009).

      YYR also argues that this case is distinguishable from Pony because Ms. Benas


                                          3
joined in its application for attorneys’ fees. This distinction is of no consequence

because Ms. Benas’ assignment of her right to seek attorneys’ fees was invalid and

because the § 1983 cause of action, from which the claim for counsel fees derived,

belonged to the trustee of her bankruptcy estate. Thus, Ms. Benas had no legal

interest in the outcome of the proceeding.

      AFFIRMED.




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