National Commission for Certification of Crane Operators, Inc. v. California Crane School, Inc. , 470 F. App'x 698 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 05 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
NATIONAL COMMISSION FOR THE No. 10-56468
CERTIFICATION OF CRANE
OPERATORS, INC., a District of D.C. No. 2:08-cv-05440-JVS-AN
Columbia non-profit corporation,
Plaintiff - Appellee, MEMORANDUM *
v.
CALIFORNIA CRANE SCHOOL, INC., a
California corporation and JOHN NYPL,
an individual,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted February 8, 2012 **
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
*
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).
California Crane School, Inc. (“CCS”) and its owner John Nypl appeal the
district court’s grant of summary judgment to National Commission for the
Certification of Crane Operators, Inc. (“NCCCO”) on its breach of contract and
civil contempt claims, and the district court’s award of attorney’s fees. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not err in granting summary judgment on the
breach of contract claim. We review a district court’s grant of summary judgment
de novo. Oak Harbor Freight Lines, Inc. v. Sears Roebuck, & Co., 513 F.3d 949,
954 (9th Cir. 2008). No genuine issue of material facts exists as to whether CCS
breached the parties’ 2005 settlement agreement by using the “CCO” mark in
Internet domain names that advertised CCS’s crane operator training courses.
Internet addresses are not case-sensitive, and thus registering domains containing
those letters, like ccotesting.com, was a breach of the agreement. CCS and Nypl
admitted that they or their agents renewed the registration of fourteen domain
names incorporating “CCO” after entering the settlement agreement. Nypl’s self-
serving affidavit did not suffice to create a genuine issue of material fact. See FTC
v. Pub. Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory,
self-serving affidavit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”).
NCCCO did not implicitly waive its right to enforce the settlement
agreement by acceding to CCS’s use of the “CCO” mark. Appellants adduced no
evidence that NCCCO was aware of CCS’s continued use of the mark in violation
of the settlement agreement between September 2005 and April 2008. Further,
NCCCO did not breach the settlement agreement when it later ended its relations
with CCS. CCS’s compliance with the terms of the settlement agreement—which
never occurred—was a condition precedent to all of NCCCO’s obligations to
engage in business with CCS. See Bennett v. Carlen, 213 Cal. App. 2d 307, 310-
11 (1963).
2. The district court also properly granted summary judgment on the
civil contempt claim. In 2005, the court enjoined Appellants from using the
“CCO” mark. Appellants’ breach of the settlement agreement also violated the
injunction, and was “disobedience to a specific and definite court order by failure
to take all reasonable steps within [their] power to comply.” In re Dual-Deck
Video Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695 (9th Cir. 1993)
(quotation omitted). The district court afforded CCS and Nypl due process by
providing notice and multiple opportunities to be heard on the contempt claim
prior to granting summary judgment in favor of NCCCO. United States v. Ayers,
166 F.3d 991, 995 (9th Cir. 1999) (“Civil contempt may be imposed in an ordinary
civil proceeding upon notice and an opportunity to be heard. Neither a jury trial
nor proof beyond a reasonable doubt is required.”).
3. The district court did not abuse its discretion when it awarded
attorney’s fees. In civil contempt cases, “the question of attorney’s fees [is
entrusted] to the sound discretion of district courts.” Donovan v. Burlington
Northern, Inc., 781 F.2d 680, 683 (9th Cir. 1986). CCS renewed its registration of
the Internet domain names with the “CCO” mark within months of the injunction,
and “the cost of bringing the violation to the attention of the court is part of the
damages suffered by [NCCCO].” Id. at 684. The award of attorney’s fees was
also justified under the undisputed terms of the settlement agreement, which
requires the non-prevailing party to pay the costs (including attorney’s fees) of any
action to enforce the injunction or settlement agreement. Finally, the award of fees
was justified under California Civil Code section 1717, which gives the prevailing
party on a contract claim “a right to recover attorney fees, whether or not that party
is the party specified in the contract.” Hsu v. Abbara, 9 Cal. 4th 863, 865 (1995).
The district court properly held that NCCCO was the prevailing party
notwithstanding its election to seek nominal damages for breach of contract.
AFFIRMED.