556 F.3d 815 (9th Cir. 2009), 07-56541, Winterrowd v. American General Annuity Ins. Co.

Docket Nº:07-56541, 07-56711.
Citation:556 F.3d 815
Party Name:Neil WINTERROWD; Kevin Yurkus; Gregory Stopp, Plaintiffs-Appellants, v. AMERICAN GENERAL ANNUITY INSURANCE CO., a Texas Corporation; Patrick Grady; does, 1-10 inclusive; The Western National Corporation Job Security Plan, Defendants-Appellees. Neil Winterrowd; Kevin Yurkus; Gregory Stopp, Plaintiffs-Appellees, v. American General Annuity Insurance
Case Date:February 17, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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556 F.3d 815 (9th Cir. 2009)

Neil WINTERROWD; Kevin Yurkus; Gregory Stopp, Plaintiffs-Appellants,


AMERICAN GENERAL ANNUITY INSURANCE CO., a Texas Corporation; Patrick Grady; does, 1-10 inclusive; The Western National Corporation Job Security Plan, Defendants-Appellees.

Neil Winterrowd; Kevin Yurkus; Gregory Stopp, Plaintiffs-Appellees,


American General Annuity Insurance Co., a Texas Corporation; Patrick Grady; The Western National Corporation Job Security Plan, Defendants-Appellants.

Nos. 07-56541, 07-56711.

United States Court of Appeals, Ninth Circuit.

February 17, 2009

Argued and Submitted Nov. 18, 2008.

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[Copyrighted Material Omitted]

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William G. Wheatley, Jr., Law Offices of William G. Wheatley, Jr., Del Mar, CA, William G. Wheatley, Sr. (argued), Jaqua & Wheatley, Eugene, OR, for plaintiffs-appellants.

Catherine A. Conway, Rex S. Heinke (argued), Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California, Christina A. Snyder, District Judge, Presiding. D.C. No. CV-00-00677-CAS-RC.

Before: PAMELA ANN RYMER and MILAN D. SMITH, JR., Circuit Judges, and EDWARD R. KORMAN,[*] District Judge.

MILAN D. SMITH, JR., Circuit Judge:

We consider in this appeal whether the Plaintiffs can recover attorney's fees generated by a distinguished member of the Oregon Bar who assists a member of the California Bar in litigating a case before the federal district court in the Central District of California (Central District), but who (a) is not a member of the California Bar, (b) does not physically appear before the Central District, (c) does not sign pleadings in the case before the Central District, (d) has minimal contact with his clients, and no direct contact with opposing counsel in the case, (e) is supervised by Wheatley, Jr., an attorney who is licensed to practice law in California and is the person who alone remained responsible to the Plaintiffs, and (f) is not admitted pro hac vice in connection with the case before the Central District, but no evidence in the record shows that he would not have routinely been so admitted had he applied. We hold that the Plaintiffs can recover such fees. With respect to this issue, we reverse and remand, and with respect to the other issues addressed in this opinion, we affirm in part, and remand in part.

Factual and Procedural Background

This is the third time this court has heard an appeal related to this matter in almost nine years of litigation. Appellants Neil Winterrowd, Kevin Yurkus, and Gregory Stopp (Winterrowd plaintiffs) filed their initial and amended complaints in early 2000, asserting claims for breach of a severance contract. American General

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Annuity Insurance Co., et al. (AGAIC) asserted in its answer that the Winterrowd plaintiffs' contract claims were preempted by the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.

The district court granted AGAIC's motion for summary judgment, holding that the severance contract issued to the Winterrowd plaintiffs was an employee benefit plan covered under ERISA. The Winterrowd plaintiffs appealed, and on March 5, 2003, this court reversed the district court's grant of summary judgment, finding that ERISA did not apply, and remanded the case for further consideration of the Winterrowd plaintiffs' breach of contract claims.

After remand, the Winterrowd plaintiffs moved the district court for an entry of summary judgment on their breach of contract claims. The district court denied that motion because it found that a material dispute of fact remained respecting AGAIC's unilateral mistake affirmative defense. Ten months later, the parties entered into a settlement agreement under which AGAIC agreed to pay the entire amount claimed by the Winterrowd plaintiffs, plus interest, totaling $288,240.56. The settlement agreement provided for the payment of all costs except for those incurred in connection with the appeal. With regard to attorney's fees, the settlement agreement stated:

The parties agree to preserve the issue of attorneys' fees, if any, for a noticed motion to be decided by District Court Judge Christine Snyder.... The Court shall decide the issue of attorney's fees based on the law, evidence submitted by affidavits (with either party reserving the right to object) and the submitted briefs. Each party retains the right to appeal the award or denial of attorneys' fees.

The Winterrowd plaintiffs also agreed " to prepare a dismissal with prejudice of the entire action and provide it to Defendants' counsel. Defendants agree not to file the Dismissal until their receipt of the Court's final decision on the issue of attorney's fees."

The Winterrowd plaintiffs next filed a motion for attorney's fees pursuant to § 218.5 of the California Labor Code, as well as a motion for sanctions against AGAIC's counsel. In an order dated October 20, 2004, the district court held that the Winterrowd plaintiffs were owed attorney's fees as a matter of law " [i]n light of the Ninth Circuit's decision that plaintiffs' original claim was not preempted by ERISA and the fact that defendant ultimately agreed to pay plaintiffs one hundred percent of their contract claims." The district court applied California law to determine a reasonable hourly rate for the Winterrowd plaintiffs' attorneys, finding that $300 per hour was an appropriate rate for their counsel of record, William Wheatley Jr., and for Robert Wheatley. The district court also granted fees for the Winterrowd plaintiffs' three unsuccessful motions for summary judgment. The district court denied the Winterrowd plaintiffs' request for sanctions against AGAIC's counsel.

The district court determined that William Wheatley, Sr., an attorney admitted to the Oregon Bar but not the California Bar, could not recover attorney's fees for the work he did while the case was before the district court. The court found that because Wheatley, Sr.'s " work on this case dealt with matters of California law for a California client's claim in the Central District of California, he is not entitled to recover for fees that were rendered in violation of the State Bar Act or the Central District Local Rules." Wheatley, Sr., was, however, admitted to the Ninth Circuit

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Bar, and the court granted the Winterrowd plaintiffs fees for the time Wheatley, Sr. spent on the 2002-03 appeal before this court.

On February 22, 2005, the district court granted the Winterrowd plaintiffs' motion for an entry of judgment, " dismissing this action, pursuant to the terms of the settlement agreement, and entering judgment awarding plaintiffs attorney's fees in the amount" established in the prior order. The Winterrowd plaintiffs timely appealed from this judgment on the issues of attorney's fees and sanctions. AGAIC cross-appealed. While that appeal was pending, on April 4, 2005, the district court denied a March 8, 2005 motion for unclaimed attorney's fees (seeking attorney's fees from August 27, 2004, the date that the original fees motion was filed, until March 7, 2005) stating that it " finds that it does not have jurisdiction to award any further attorneys' fees to plaintiffs by reason of the appeal."

On January 22, 2007, the Ninth Circuit Clerk's Office remanded the case to the district court because " the district court has neither entered a final judgment disposing of plaintiffs' underlying claims, nor certified the attorneys fee issue for interlocutory review pursuant to 28 U.S.C. § 1292(b) or Fed.R.Civ.P. 54(b)." On January 25, 2007, the district court issued an order certifying the case for appeal pursuant to 28 U.S.C. § 1292(b). On April 12, 2007, this court denied the Winterrowd plaintiffs' petition for permission to appeal pursuant to 28 U.S.C. § 1292(b). In response to the dismissal by our court, the district court dismissed the Winterrowd plaintiffs' underlying claims against AGAIC with prejudice on September 27, 2007. Once more, the Winterrowd plaintiffs timely appealed and AGAIC timely cross-appealed.

While these appeals were pending, the district court issued a minute order on November 7, 2007 denying the Winterrowd plaintiffs' motion for fees for work on this case between March 8, 2005 and October 11, 2007 " without prejudice to its being renewed after the Ninth Circuit renders a decision." On December 3, 2007, the Winterrowd plaintiffs amended their notice of appeal to include an appeal from this most recent minute order.


This court has jurisdiction under 28 U.S.C. § 1291, and reviews the amount of attorney's fees awarded by the district court for abuse of discretion. Nat'l Res. Def. Council, Inc. v. Winter, 543 F.3d 1152, 1157 (9th Cir.2008). Nevertheless " any elements of legal analysis and statutory interpretation which figure in the district court's decision are reviewable de novo. " Id. (citation and internal quotation marks omitted). " We review for an abuse of discretion the district court's denial of a motion for sanctions." Avery Dennison Corp. v. Allendale Mut. Ins. Co., 310 F.3d 1114, 1117 (9th Cir.2002).


Attorney's Fees for Wheatley, Sr.

Even at a time when the largest law firms in the United States were composed of not many more than one hundred lawyers, Judge Friendly observed that we live in an " age of increased specialization and high mobility of the bar." Spanos v. Skouras, 364 F.2d 161, 170 (2d Cir.1966). But in 1966, there were no personal computers, no Internet, no Blackberries, no teleconferencing, no emails, and the only person who had a two-way wrist radio was...

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