Amber MacHowski v. 333 N. Placentia Property, LLC ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMBER MACHOWSKI, No. 21-55673
Plaintiff-Appellant,
D.C. No.
v. 8:20-cv-01935-
DOC
333 N. PLACENTIA PROPERTY, LLC,
a California Limited Liability
Company; DOES, 1–10, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted January 12, 2022
Pasadena, California
Filed July 1, 2022
Before: A. Wallace Tashima and Milan D. Smith, Jr.,
Circuit Judges, and Stephen Joseph Murphy III,*
District Judge.
*
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
2 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
Opinion by Judge Tashima;
Dissent by Judge Milan D. Smith, Jr.
SUMMARY**
Attorney’s Fees
The panel vacated the district court’s award of attorney’s
fees to the plaintiff, following entry of default judgment in an
action under the Americans with Disabilities Act, and
remanded for further proceedings.
Central District of California Local Rule 55-3, governing
the award of attorney’s fees in cases of default judgment,
provides that fees shall be calculated according to a fee
schedule tied to the amount of the judgment, but it also states
that a party “claiming a fee in excess of this schedule may file
a written request at the time of entry of the default judgment
to have the attorney’s fee fixed by the Court.” The panel held
that where a prevailing party advises the district court that it
is opting out of the fee schedule and will seek, by motion, an
award of reasonable attorney’s fees, the district court abuses
its discretion by disregarding the plaintiff’s choice and sua
sponte awarding attorney’s fees under the fee schedule.
Dissenting, Judge M. Smith wrote that appellant never
made clear that she was seeking a fee award in excess of the
Central District of California’s fee schedule. He wrote that
appellant failed to establish any grounds for relief on appeal
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 3
because she failed to show that the district court erred by not
using the lodestar approach, and did not argue on appeal that
the timing of the district court’s ruling was improper.
COUNSEL
Kyle Wilson (argued) and Anoush Hakimi, Law Office of
Hakimi & Shahriari, Los Angeles, California, for Plaintiff-
Appellant.
No appearance for Defendants-Appellees.
OPINION
TASHIMA, Circuit Judge:
Four years after we decided Vogel v. Harbor Plaza
Center, LLC, 893 F.3d 1152 (9th Cir. 2018), we once again
address the application of Central District of California Local
Rule 55-3 (“Rule 55-3”), which governs the award of
attorney’s fees in cases of default judgment, to an award of
reasonable attorney’s fees under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12205. The rule
provides that fees shall be calculated according to a fee
schedule tied to the amount of the judgment, but it also states
that a party “claiming a fee in excess of this schedule may file
a written request at the time of entry of the default judgment
to have the attorney’s fee fixed by the Court.” Rule 55-3.
We hold that where, as here, a prevailing party advises the
district court that it is opting out of the fee schedule and will
seek, by motion, an award of reasonable attorney’s fees, the
district court abuses its discretion by disregarding the
4 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
plaintiff’s choice and sua sponte awarding attorney’s fees
under the fee schedule. Accordingly, we vacate the district
court’s fee award and remand for further proceedings.
BACKGROUND
Machowski is an individual with a disability who uses a
wheelchair for mobility. Defendant 333 N. Placentia
Property, LLC, is the owner of a property in Fullerton,
California, on which a business establishment known as City
Market Liquor II is located. The first amended complaint
(“FAC”) alleges that when Machowski attempted to
patronize the store, she encountered architectural barriers that
prevented her from making full use and enjoyment of the
premises. Machowski sued Defendant, asserting claims
under the ADA, 42 U.S.C. § 12101 et seq., and the Unruh
Civil Rights Act, Cal. Civ. Code §§ 51–53. The FAC sought
injunctive relief, statutory damages under the Unruh Act, and
reasonable attorney’s fees and costs.
After Defendant failed to respond to the complaint,
Machowski applied for the entry of default judgment, seeking
injunctive relief and statutory damages. Machowski’s
application for default judgment did not seek an award of
attorney’s fees. Instead, it advised the district court that
“plaintiff will separately file a motion for her attorney fees
and costs once this application is granted and judgment has
been entered.”
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 5
The district court declined to exercise supplemental
jurisdiction over Machowski’s Unruh Act claim,1 granted
default judgment to Machowski on her ADA claim, ordered
injunctive relief, and sua sponte awarded Machowski $1000
in attorney’s fees under Rule 55-3. In full, Rule 55-3 states:
L.R. 55-3 Default Judgment—Schedule of
Attorneys’ Fees. When a promissory note,
contract or applicable statute provides for the
recovery of reasonable attorneys’ fees, those
fees shall be calculated according to the
following schedule:
Amount of Attorneys’ Fees Awards
Judgment
$0.01–$1,000 30% with a minimum of
$250.00
$1,000.01– $300 plus 10% of the
$10,000 amount over $1,000
$10,000.01– $1200 plus 6% of the
$50,000 amount over $10,000
$50,000.01– $3600 plus 4% of the
$100,000 amount over $50,000
Over $100,000 $5600 plus 2% of the
amount over $100,000
1
On appeal, Machowski does not challenge the district court’s
declination to exercise supplemental jurisdiction over the Unruh Act
claim.
6 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
This schedule shall be applied to the amount
of the judgment exclusive of costs. An
attorney claiming a fee in excess of this
schedule may file a written request at the time
of entry of the default judgment to have the
attorney’s fee fixed by the Court. The Court
shall hear the request and render judgment for
such fee as the Court may deem reasonable.
C.D. Cal. R. 55-3. The district court wrote: “Pursuant to
Local Rule 55-3, attorneys’ fees for a default judgment are
determined pursuant to a fixed percentage schedule. C.D.
Cal. L.R. 55-3. Pursuant to this rule, the Court grants $1,000
in fees.”2
Machowski timely appealed the fee award.
STANDARD OF REVIEW
“We review for abuse of discretion a district court’s
award of attorney’s fees under the ADA.” Vogel, 893 F.3d at
1157. “But we review de novo questions of law that underlie
a court’s fee award.” Id.
DISCUSSION
Machowski contends that the district court abused its
discretion by awarding attorney’s fees based on the fee
2
Of course, awarding a fee of $1,000 for a judgment that awards
$0.00 in monetary relief cannot, on the face of the rule, be “pursuant” to
Rule 55-3. The rule, whose schedule starts with a judgment of $0.01,
simply does not address cases in which the judgment awards only non-
monetary, e.g., injunctive, relief.
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 7
schedule of Rule 55-3 and by failing to award fees under the
lodestar method. We agree, but with a caveat. While the
ADA authorizes an award of attorney’s fees to a prevailing
plaintiff, see 42 U.S.C. § 12205, and those fees are to be
determined in accordance with the lodestar method, see
Vogel, 893 F.3d at 1158, calculation of the lodestar amount
is the beginning – not the end – in determining “a reasonable
attorney’s fee.”3 See Hensley v. Eckerhart, 461 U.S. 424, 434
(1983) (“The product of reasonable hours times a reasonable
rate does not end the inquiry. There remain other
considerations that may lead the district court to adjust the fee
upward or downward . . . .”); Roberts v. City of Honolulu,
938 F.3d 1020, 1024 (9th Cir. 2019) (“After the lodestar
figure is determined, a district court retains discretion to
adjust the lodestar figure upward or downward based on a
variety of factors ‘not subsumed in the lodestar figure.’”
(quoting Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir.
2016))). Here, the district court cut short the procedure for
determining a reasonable attorney’s fee by sua sponte
awarding fees, supposedly pursuant to Rule 55-3, without
giving Plaintiff the opportunity to file a fee motion.
3
The ADA states:
In any action or administrative proceeding commenced
pursuant to this chapter, the court or agency, in its
discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee,
including litigation expenses, and costs, and the United
States shall be liable for the foregoing the same as a
private individual.
42 U.S.C. § 12205 (emphasis added).
8 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
To obtain an award of fees under the lodestar method, a
prevailing plaintiff must both file a motion for fees, see Fed.
R. Civ. P. 54(d)(2)(A) (“A claim for attorney’s fees and
related nontaxable expenses must be made by motion unless
the substantive law requires those fees to be proved at trial as
an element of damages.”), and submit evidence supporting
the award, see United States v. $28,000.00 in U.S. Currency,
802 F.3d 1100, 1105 (9th Cir. 2015) (explaining that a fee
“applicant has an initial burden of production, under which it
must ‘produce satisfactory evidence’ establishing the
reasonableness of the requested fee,” including “proof of
market rates in the relevant community . . . and detailed
documentation of the hours worked” (citations omitted)
(quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984))).
Machowski did not undertake these steps because she was
prevented from doing so by the district court. Accordingly,
the district court abused its discretion by short circuiting
Machowski from filing a fee motion, under the lodestar
method or otherwise.
We thus agree with Machowski’s contention that the
district court abused its discretion by awarding fees under the
fee schedule pursuant to Machowski’s application for a
default judgment. As we explained in Vogel, Local Rule 55-3
affords prevailing plaintiffs a choice. On the one hand, “the
rule gives lawyers who obtain default judgments and who are
entitled to statutory fees the option of recovering a set
amount” – under the fee schedule – “without going through
the hassle of submitting records.” 893 F.3d at 1160. On the
other hand, the rule also gives a prevailing party the option of
seeking fees under the lodestar method:
If a party seeks a fee “in excess of” the
schedule and timely files a written request to
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 9
have the fee fixed by the court, then the court
must hear the request and award a
“reasonable” fee. That process does not
describe a “modification” of the schedule of
fees. Rather, it prescribes an alternative
process when a party invokes it in the proper
way at the proper time. When a party invokes
that process, the court is obliged to calculate
a “reasonable” fee in the usual manner,
without using the fee schedule as a starting
point.
Id. at 1159. Here, Machowski made clear in her application
for default judgment that she was pursuing the second option.
At that point, it was incumbent upon the district court to
honor Machowski’s choice or explain why it was not doing
so, and the court abused its discretion by sua sponte awarding
fees under a fee schedule that Machowski had opted out of,
even assuming that the schedule applies to a non-monetary
judgment. Although the district court’s actions may have
been well-intentioned, they were, nonetheless, ill-advised,
given the confusion they spawned and the right they cut off.
If the court had stayed its hand, Machowski could have filed
her fee motion in due course following the entry of default
judgment, and the court would have afforded her the full
relief to which she was entitled, avoiding this appeal.
Because the district court abused its discretion, we vacate the
fee award and remand for further proceedings.
We note also that further confusion is caused by Rule
55-3’s ambiguous language. The rule states that a party
“claiming a fee in excess of this schedule may file a written
request at the time of entry of the default judgment to have the
attorney’s fee fixed by the Court.” C.D. Cal. R. 55-3
10 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
(emphasis added). Putting aside that the rule does not address
a non-monetary judgment, this language appears to require
that a motion for attorney’s fees must be filed immediately
upon the entry of a default judgment. We note, however, that
C.D. Cal. Rule 54-7 affords a prevailing party fourteen days
following the entry of judgment within which to file a motion
for attorney’s fees. See Local Rule 54-7 (“Any motion . . .
for attorneys’ fees shall be filed and served within fourteen
(14) days after the entry of judgment . . . unless otherwise
ordered by the Court.”). To repeat, Rule 54-7 applies to
“[a]ny motion” for fees. To avoid an internal conflict
between two different rules of the Central District, we
construe Rule 54-7 to apply to motions for attorney’s fees
under Rule 55-3.4 This is the most natural and sensible
reading of the two rules. Moreover, this reading is supported
by the rule of statutory construction that a specific provision
controls the general. Perez-Guzman v. Lynch, 835 F.3d 1066,
1075 (9th Cir. 2016) (“When two statutes come into conflict,
courts assume Congress intended specific provisions to
prevail over more general ones . . . .” (citing Fourco Glass
Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228–29
(1957))).5 With respect to the time within which a fee motion
4
This also appears to be the construction of the Central District’s
rules adopted by a number of its judges. See, e.g., Hull v. Little, 2021 WL
5368690, at *2 (C.D. Cal. Nov. 1, 2021); Goulet v. Oculus Architecture
Ltd., 2019 WL 7841926, at *6 (C.D. Cal. Sept. 5, 2019) (allowing 21 days
to file motion); DisputeSuite.com, LLC v. Credit Umbrella Inc., 2016 WL
6662722, at *7 (C.D. Cal. Apr. 25, 2016).
5
Some federal statutes provide for a specific timeframe within which
an attorney’s fee motion must be filed. See, e.g., 28 U.S.C. 2412(d)(1)(B)
(providing that an EAJA fee motion shall be filed “within thirty days of
final judgment”). Presumably, such a statutory provision would control
over a local rule provision, but we are not confronted with such a statute
in this case.
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 11
must be filed in a default judgment case, Rule 54-7’s
fourteen-day provision is the more specific rule, compared to
Rule 55-3’s ambiguous “at the time of entry of the default
judgment” provision.
We are unpersuaded by our dissenting colleague’s
suggestion that Machowski forfeited her right to fees
calculated under the lodestar method by failing to present the
argument to the district court. We recognize that a party may
forfeit her right to fees calculated under the lodestar method
by failing to file a timely motion for such fees in the district
court. Vogel, 893 F.3d at 1159 n.3. Here, however,
Machowski expressly advised the district court that she was
opting out of the fee schedule and would be filing a motion
for attorney’s fees following the entry of default judgment.
The only reason Machowski failed to follow through on that
plan was that the district court declined to honor her choice
and sua sponte awarded fees under the fee schedule – actions
that Machowski understandably construed as foreclosing her
from pursuing fees under the lodestar method. These facts do
not support a finding of forfeiture.
Nor do we fault Machowski for failing to file a motion for
reconsideration before filing her appeal. First, it is doubtful
whether, under the Central District’s local rules, Machowski
could have filed a motion for reconsideration.6 Here, the
6
The Central District’s rule governing permissible grounds for
reconsideration provides:
A motion for reconsideration of an Order on any
motion or application may be made only on the grounds
of (a) a material difference in fact or law from that
presented to the Court that, in the exercise of
reasonable diligence, could not have been known to the
12 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
circumstances which might call for reconsideration do not
appear to come under any of the clauses of the rule. Contrary
to the dissent’s assertion, Dissent at 21, the default fee award
was made in response to Machowski’s application for a
default judgment. But we need not decide whether a motion
for reconsideration could have been filed under Rule 7-18
because, even assuming that such a motion could have been
filed, a motion for reconsideration is not a prerequisite to an
appeal. See SEC v. Mayhew, 121 F.3d 44, 53–54 (2d Cir.
1997) (“Generally, a party disadvantaged by a district court’s
ruling is not required to move for reconsideration in the
district court as a precondition to an appeal from the ruling.”);
see also Williams v. New Castle Cnty., 970 F.2d 1260, 1266
(3d Cir. 1992) (“[W]e are not suggesting that Williams was
required to make a motion for reconsideration as a
jurisdictional prerequisite to the appeal.”).
We also disagree with the dissent’s suggestion, Dissent
at 20–21, that our decision violates the party presentation
principle. Machowski’s opening brief identifies the issue
presented as, “Did the district court abuse its discretion in
party moving for reconsideration at the time the Order
was entered, or (b) the emergence of new material facts
or a change of law occurring after the Order was
entered, or (c) a manifest showing of a failure to
consider material facts presented to the Court before the
Order was entered. No motion for reconsideration may
in any manner repeat any oral or written argument
made in support of, or in opposition to, the original
motion. Absent good cause shown, any motion for
reconsideration must be filed no later than 14 days after
entry of the Order that is the subject of the motion or
application.
C.D. Local Rule 7-18.
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 13
awarding attorneys’ fees in a civil rights action based on the
fee schedule of C.D. Cal. L.R. 55-3 rather than by using the
lodestar method?” She argues that “the district court abused
its discretion in limiting the award of attorney’s fees . . .
based on the fixed schedule of C.D. Cal. L.R. 55-3.” That is
the very question we have addressed and answered in the
affirmative. True, our analysis may not perfectly track the
arguments Machowski presents in her briefing. But “a court
is not hidebound by the precise arguments of counsel.”
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1581–82
(2020).
Finally, as in Vogel, we need not address whether an
attorney’s fee awarded under the Central District fee schedule
constitutes “a reasonable attorney’s fee” under the ADA. See
893 F.3d at 1159 n.3 (“We need not decide whether Local
Rule 55-3 is consistent with the ADA and other civil rights
statutes insofar as it authorizes a prescribed attorney’s fee in
cases in which a party does not ask for more than the
scheduled amount.”); id. at 1161.
• ! •
We hold that the district court abused its discretion by sua
sponte awarding attorney’s fees under Local Rule 55-3’s fee
schedule after Machowski made clear that she was opting out
of the fee schedule and would be filing a motion seeking a fee
determined under the lodestar method. We therefore vacate
the fee award and remand with instructions to afford
14 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
Machowski an opportunity to file a motion for reasonable
attorney’s fees. We, of course, express no view on the
appropriate amount of a fee award.
JUDGMENT VACATED AS TO THE FEE AWARD
and CASE REMANDED. No costs awarded on appeal.
M. SMITH, Circuit Judge, dissenting:
I respectfully dissent because Machowski has failed to
identify on appeal any error by the district court. The
majority overreads the record and improperly looks beyond
any claim of error actually presented to us to reach a contrary
conclusion.
Today’s opinion holds that “where, as here, a prevailing
party advises the district court that it is opting out of the fee
schedule and will seek, by motion, an award of reasonable
attorney’s fees, the district court abuses its discretion by
disregarding the plaintiff’s choice and sua sponte awarding
attorney’s fees under the fee schedule.” But, contrary to the
majority’s assertion, Machowski never “made clear” that she
was seeking a fee award in excess of the Central District of
California’s fee schedule. As the majority acknowledges, our
decision in Vogel v. Harbor Plaza Center, LLC, 893 F.3d
1152 (9th Cir. 2018), does not require district courts to
always award fees in excess of the Central District’s fee
schedule in ADA cases. Rather, we held that a reasonable fee
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 15
should be calculated via the lodestar method1 when a litigant
“invokes that process” via a request made “in the proper way
at the proper time.” Id. at 1159. Machowski never made
such a request, so the district court did not err by not making
a lodestar calculation. As I explain below, that is the only
claim of error Machowski raises on appeal: she has never
argued that the district court erred procedurally by sua sponte
awarding fees before she could file a motion for fees, nor did
she ask the district court to modify its fee award. In light of
this unusual procedural posture, we are left with no grounds
to grant relief on appeal.
I.
I begin by addressing the only argument Machowski has
actually raised on appeal. Machowski claims that the district
court erred by awarding “fees in a civil rights action based on
the fee schedule of [Rule] 55-3 rather than by using the
lodestar method,” because, in her view, Vogel requires use of
“the lodestar approach.” But that is not what we held in
Vogel.
As the majority explains, Central District of California
Local Rule 55-3 creates a fixed, percentage-based schedule
for attorney’s fees when a default judgment has been entered,
but allows “[a]n attorney claiming a fee in excess of this
schedule [to] file a written request at the time of entry of the
default judgment to have the attorney’s fee fixed by the
Court.” In Vogel, we vacated a fee award calculated pursuant
1
The lodestar method multiplies the number of hours the prevailing
party reasonably expended on the litigation by a reasonable hourly rate.
E.g., In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941–42
(9th Cir. 2011).
16 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
to this schedule in an ADA default judgment case, holding
that the district court should have used the lodestar method.
See 893 F.3d at 1159–60. But we stopped short of holding
that district courts in ADA cases must use the lodestar
method and may not resort to the Central District’s fixed fee
schedule.
Instead, we interpreted Rule 55-3 to say that “[i]f a party
seeks a fee ‘in excess of’ the schedule and timely files a
written request to have the fee fixed by the court, then the
court must hear the request and award a ‘reasonable’ fee.” Id.
at 1159 (quoting Rule 55-3) (emphasis added). We clarified
that this “process does not describe a modification of the
schedule of fees. Rather, it prescribes an alternative process
when a party invokes it in the proper way at the proper
time. When a party invokes that process, the court is obliged
to calculate a reasonable fee in the usual manner, without
using the fee schedule as a starting point.” Id. (emphasis
added). As a result, Rule 55-3 merely “gives lawyers who
obtain default judgments . . . the option of recovering a set
amount” pursuant to a fee schedule instead of spending time
on “submitting records” to establish a case-specific lodestar.
Id. at 1160 (emphasis added). These statements indicate that
it is the plaintiff’s responsibility, not the district court’s, to
request the lodestar approach to be used.2
2
Only one judge on the Vogel panel believed that the ADA mandated
use of the lodestar method. See Vogel, 893 F.3d at 1161 (Christen, J.,
concurring) (opining that “the correct method for calculating fees in an
ADA lawsuit ending in default judgment in the Central District of
California should not hinge on whether a prevailing party opts out of the
Central District’s local fee schedule,” and that there is “no room for the
district court to adhere to” Rule 55-3 in ADA cases). Another judge
dissented based on his view that whether the lodestar method should be
used instead of the fee schedule is a matter within the district court’s
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 17
Machowski did not discharge that responsibility here.
The majority claims that Machowski “made clear in her
application for default judgment” that she was seeking a fee
in excess of the Central District’s schedule. But all
Machowski said in her application was that she “will
separately file a motion for attorney fees and costs once [her]
application is granted and judgment has been entered.” She
never actually filed such a request, nor did she indicate in her
default-judgment application that she believed she was
entitled to a fee in excess of what she would receive pursuant
to the Central District’s schedule. See C.D. Cal. L.R. 55-3
(allowing “[a]n attorney claiming a fee in excess of this
schedule [to] file a written request at the time of entry of the
default judgment to have the attorney’s fee fixed by the
Court”); Vogel, 893 F.3d at 1159; see also Fed. R. Civ. P.
54(d)(2)(A) (“A claim for attorney’s fees and related
nontaxable expenses must be made by motion unless the
substantive law requires those fees to be proved at trial as an
element of damages.”).
Moreover, Machowski’s bare, prospective statement of
intent to file a motion for fees cannot be construed as a
request to use the lodestar method because it was utterly
lacking in the information necessary for the district court to
make the appropriate calculations. Determining a lodestar is
no small task. To establish the reasonable rate and reasonable
hours that underly the calculation, a fee applicant must
present “proof of market rates in the relevant community
(often in the form of affidavits from practitioners) and
detailed documentation of the hours worked.” United States
v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir.
discretion. See id. at 1161–62 (Kleinfeld, J., dissenting). Our court’s
opinion occupied a middle ground between these views.
18 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
2015) (citations omitted). The applicant’s burden of
producing this evidence “is not excused by lack of
opposition” to the requested award. Id. In Vogel, for
example, the appellant’s motion for default judgment
specifically requested $36,671.25 in attorney’s fees and
provided a seven-page supporting declaration itemizing the
work the appellant’s lawyer had performed. 893 F.3d
at 1156.
Conversely, Machowski did not move for fees beyond the
Central District’s schedule, did not request any specific
amount, and did not provide any materials that would have
allowed the district court to make a calculation that deviated
from the fee schedule.3 As a result, the district court had no
basis for awarding fees based on a lodestar calculation rather
than relying on the Central District’s fee schedule. Put
simply, Machowski never filed anything that could properly
be construed as a “timely written request” to invoke an
“alternative process” to the fee schedule. Vogel, 893 F.3d
at 1159 (explaining that request must be filed “in the proper
way at the proper time”). Consequently, I fail to see how the
district court erred by failing to do something it was not
requested or able to do.
3
Even on appeal, Machowski has made no meaningful effort to show
that her lawyer performed work that would justify a fee greater than that
awarded by the district court pursuant to the fee schedule. Machowski has
therefore failed to show that she was prejudiced by the district court’s
actions. To the contrary, as the majority notes, the district court awarded
$1,000 in fees even though Machowski recovered $0.00 in monetary
damages.
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 19
II.
To be clear, Vogel is not necessarily our final word on the
interaction between Rule 55-3 and the ADA. Formally, we
declined to consider whether “Local Rule 55-3 is consistent
with the ADA . . . insofar as it authorizes a prescribed
attorney’s fee in cases in which a party does not ask for more
than the scheduled amount.” Vogel, 893 F.3d at 1159 n.3. In
the same breath, however, we said that “it is difficult to see
how that issue could ever be presented properly on
appeal—any party in a position to complain would
necessarily have failed to ask for more than the scheduled
amount, thus waiving or forfeiting such a request.” Id. That
is precisely what happened here.
The majority’s contrary holding is premised on the view
that “the district court cut short the procedure for determining
a reasonable attorney’s fee by sua sponte awarding fees,
supposedly pursuant to Rule 55-3, without giving Plaintiff the
opportunity to file a fee motion.” But Machowski never
argued that the district court erred by making a sua sponte fee
award before she could file a fee motion; the only claim of
error she raised on appeal was that the district court erred by
awarding “fees in a civil rights action based on the fee
schedule of C.D. [Rule] 55-3 rather than by using the lodestar
method[.]” As discussed, this argument centered on the view
that Vogel required use of “the lodestar approach” in all
circumstances. Machowski’s counsel repeated this view at
oral argument, asserting that “the lodestar method is the
presumptively reasonable approach to determining an
appropriate award of fees.” He also made plain that he
thought the district court was required to use that approach
“in the first instance,” even though he admitted that
Machowski had never requested a lodestar calculation. “The
20 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
issue comes down to the fact that Rule 55-3 effectively
reverses the presumption” that the lodestar method should be
used, counsel replied when asked directly whether his client
had failed to seek attorney’s fees in excess of the schedule.
So, while I understand to some degree the majority’s
instinct to fault the district court for ruling prematurely, that
is not a proper basis for extending relief in this appeal. The
Supreme Court has made clear that, “[i]n our adversarial
system of adjudication, we follow the principle of party
presentation. . . . [I]n the first instance and on appeal, we rely
on the parties to frame the issues for decision[.] . . . [O]ur
system is designed around the rule that parties represented by
competent counsel know what is best for them, and are
responsible for advancing the facts and argument entitling
them to relief.” United States v. Sineneng-Smith, 140 S. Ct.
1575, 1579 (2020) (cleaned up). The majority’s admission
that its decision does “not perfectly track the arguments”
presented by Machowski, is quite the understatement: the
salient fact is that Machowski has never argued on appeal or
otherwise that the district court made a procedural mistake by
determining the appropriate fee award sua sponte in the
absence of a pending fee motion. Far from just considering
slightly different arguments than those presented in
Machowski’s brief, the majority has manufactured an entirely
distinct legal basis for revisiting the district court’s ruling.
Because Machowksi never raised the line of argument relied
upon by the majority, she has forfeited it on appeal. See, e.g.,
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam); Indep. Towers of Wash. v. Washington, 350 F.3d
925, 929 (9th Cir. 2003); cf. Vogel, 893 F.3d at 1159 n.3. My
colleagues wander astray today by “sally[ing] forth . . .
looking for wrongs to right” rather than “decid[ing] only
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 21
questions presented by the parties.” Sineneng-Smith, 140
S. Ct. at 1579 (citation omitted).
Additionally, the majority is wrong to suggest that the
district court “cut off” any opportunity for Machowski to seek
a higher fee. Machowski never objected to or sought to
modify the district court’s fee award before filing an appeal.
See, e.g., Fed. R. Civ. P. 59(e) (allowing motion to alter or
amend judgment); Fed. R. Civ. P. 60 (allowing motion for
relief from judgment or order); cf. Burke v. Adams & Ells of
Ells, Inc., 603 F.2d 114, 115 (9th Cir. 1979) (per curiam)
(suggesting that a “motion to vacate the judgment . . . [is] a
proper attempt to allow the trial court to correct its own
errors”). The majority says it is “doubtful” that Machowski
had the right to ask the district court to reconsider its fees
award in light of the Central District’s rules governing
reconsideration motions, but the rule cited by the majority
restricts only requests to reconsider orders “on any motion or
application.” C.D. Cal. L.R. 7-18. Again, though she did file
an application for default judgment, Machowski never filed
an application for attorney’s fees, so a strong case can be
made that this rule would not apply to her. Even if the rule
did apply, it allows reconsideration when there has been a
manifest failure by the court to “consider material facts
presented to the Court.” C.D. Cal. L.R. 7-18(c). The
majority’s entire argument is premised on the view that
Machowski’s statement that she intended to seek fees was a
material fact that the district court failed to consider.
Put simply, Machowski has already been awarded
attorney’s fees. She may think that the award should have
been higher, but, as I have explained, she failed to translate
22 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
this desire into a request in the district court.4 I see no reason
to give Machowski another bite at the apple under these
circumstances.
III.
One final observation is in order. At oral argument,
counsel objected that it would consume “judicial resources”
and create “inefficiencies” to require litigants to file a written
request to avail themselves of the lodestar approach. The
plaintiff should not have to go through all of this “work,” we
were told in effect. However, as I have explained, the district
court has no way of making a lodestar calculation in the
absence of such a request.
Indeed, it may often be more “efficient” for the plaintiff
to forgo that calculation in favor of the much simpler fixed-
fee approach, and to devote the saved time and resources
elsewhere. See Vogel, 893 F.3d at 1160 (Rule 55-3’s fixed
schedule lets lawyers recover a “set amount without going
through the hassle of submitting records”). Arguably, this is
likely to be the case for the large subset of ADA lawsuits that
are brought against small businesses with form complaints,
often with the hope of seeking a quick settlement or default
judgment. See, e.g., Molski v. Mandarin Touch Restaurant,
347 F. Supp. 2d 860, 863 (C.D. Cal. 2004) (describing a
“cottage industry” of ADA litigation whereby “a lawsuit is
4
For this reason, the majority’s observation that a motion for
reconsideration is ordinarily not a prerequisite to appeal misses the mark.
The point is that Machowski never filed any document—however
styled—notifying the district court that she intended to deviate from the
Central District’s fee schedule or that would have allowed the district
court to conduct the necessary calculation.
MACHOWSKI V. 333 N. PLACENTIA PROPERTY 23
filed, requesting damage awards [for supplemental state-law
claims] that would put many of the targeted establishments
out of business. Faced with the specter of costly litigation
and a potentially fatal judgment against them, most
businesses quickly settle the matter.”); Steven Brother v.
Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D. Fla.
2004) (describing ADA “shotgun litigation,” where “the same
plaintiffs file hundreds of lawsuits against establishments,”
brought for the purpose of seeking “attorney’s fees”); see also
Phoebe Joseph, Note, An Argument for Sanctions Against
Serial ADA Plaintiffs, 29 U. Fla. J.L. & Pub. Pol’y 193, 197
(2019) (describing “[s]erial ADA litigation” and “cookie-
cutter lawsuits” with “similar or even identical complaints”
(citations omitted)). In such cases, the attorney may not
always expect to engage in protracted or complex litigation
giving rise to a large lodestar.
Moreover, there is nothing efficient about the circuitous
approach Machowski has taken here. Surely, this matter
could have been resolved in the district court without our
involvement. A great deal of our court’s time and resources
would have been saved had Machowski simply brought Vogel
to the attention of the district court in an appropriate motion
and clearly asked for a lodestar calculation. Machowski
never gave the district court a chance to revisit its fee award,
and she does not argue that the district court made a
procedural error. The majority’s decision to excuse these
failures will only encourage more wasteful appeals.
IV.
A case can be made that the district court jumped the gun
here, ruling on the attorney’s fees issue before a motion was
properly before it. But Machowski has failed to show that the
24 MACHOWSKI V. 333 N. PLACENTIA PROPERTY
district court erred by not using the lodestar approach, and
she does not argue on appeal that the timing of the district
court’s ruling was improper. Consequently, she has failed to
establish any grounds for relief on appeal. I respectfully
dissent.