Robel Afewerki v. Anaya Law Group ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBEL A. AFEWERKI, No. 19-56486
Plaintiff-Appellee, D.C. No.
2:14-cv-07132-RGK-JPR
v.
ANAYA LAW GROUP, MEMORANDUM*
Defendant-Appellant,
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted December 11, 2020**
Pasadena, California
Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.
Anaya Law Group (“ALG”) appeals a district court order granting Robert
Afewerki’s (“Afewerki”) motion for attorney’s fees and costs under the Fair Debt
*
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).
***
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, and an order denying
ALG’s motion for reconsideration of the fee order. Because the parties are
familiar with the facts and procedural history of the case, we recite only those facts
necessary to decide this appeal. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
In the proceedings below, Afewerki moved for attorney’s fees and costs
under the FDCPA. ALG opposed the motion, arguing that the check it had
tendered to Afewerki after the district court entered judgment on its order granting
Afewerki fees, but before the prior appeal, constituted an accord and satisfaction
under California Commercial Code § 3311. The district court rejected that
argument. It reasoned that our prior decision in Afewerki v. Anaya Law Grp., 779
F. App’x 449 (9th Cir. 2019), required it to reinstate Afewerki’s original fee award
of $83,299.00 and his original cost award of $3,008.91. ALG filed a motion for
reconsideration, which the district court denied.
In doing so, the district court explained that ALG did not raise a sufficient
basis for reconsideration because the district court had addressed ALG’s accord
and satisfaction defense when it granted Afewerki’s fee motion. The district court
also noted that even if it were to reconsider its fee order, ALG’s defense failed
because there was no “meeting of the minds” between ALG and Afewerki. This
appeal followed.
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ALG first argues that the district court erred in reading our prior mandate as
foreclosing ALG’s accord and satisfaction defense. We review de novo a district
court’s compliance with our mandate. United States v. Kellington, 217 F.3d 1084,
1092 (9th Cir. 2000). “A district court that has received the mandate of an
appellate court cannot vary or examine that mandate for any purpose other than
executing it.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012).
But “when a [district] court is confronted with issues that the remanding court
never considered, the ‘mandate[] require[s] respect for what the higher court
decided, not for what it did not decide.’” Id. (emphasis in original) (quoting
Kellington, 217 F.3d at 1093).
Here, we never considered ALG’s accord and satisfaction defense in the
prior appeal. We therefore agree with ALG that the district court erred in
concluding that ALG’s defense was foreclosed by our mandate. Nevertheless, we
hold that the district court properly awarded fees to Afewerki and denied ALG’s
motion for reconsideration, because ALG’s accord and satisfaction defense fails on
the merits.
As an initial matter, ALG asserted its defense under the wrong law. The
parties briefed extensively on the accord and satisfaction defense under California
Commercial Code § 3311. But Afewerki sought fees under the FDCPA, so federal
law applies. See Klein v. City of Laguna Beach, 810 F.3d 693, 702 (9th Cir. 2016)
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(“Erie does not compel federal courts to apply state law to a federal claim.”)
(citation omitted); see also Modzelewski v. Resolution Trust Corp., 14 F.3d 1374,
1379 (9th Cir. 1994) (“[S]ince we address federal, not state claims, the federal
common law of attorney’s fees, and not [state] law, is the relevant authority.”).
ALG’s arguments relating to its accord and satisfaction defense under California
law are irrelevant to this dispute.
Applying federal law, we conclude that ALG’s accord and satisfaction
defense fails. In United States v. Houghton, the Supreme Court held that “where a
judgment is appealed on the ground that the damages awarded are inadequate,
acceptance of payment of the amount of the unsatisfactory judgment does not,
standing alone, amount to an accord and satisfaction of the entire claim.” 364 U.S.
310, 312 (1960). Here, ALG can only point to the check that purportedly satisfied
ALG’s obligations to Afewerki under the district court’s judgment.
Moreover, nothing in the record suggests that the parties agreed to
extinguish Afewerki’s right to appeal. In Milicevic v. Fletcher Jones Imports, Ltd.,
we explained that “[t]he usual rule in the federal courts is that payment of a
judgment does not foreclose an appeal.” 402 F.3d 912, 915 (9th Cir. 2005)
(citations omitted). “Unless there is some contemporaneous agreement not to
appeal, implicit in a compromise of the claim after judgment, and so long as, upon
reversal, restitution can be enforced, payment of the judgment does not make the
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controversy moot.” Id. (citations omitted). Here, there was no contemporaneous
agreement not to appeal. Afewerki filed the notice of the prior appeal two months
before depositing the check from ALG. We agree with the district court’s finding
that this undercuts any contention that the parties “had reached a genuine
compromise that the $1,770.00 payment would be considered full satisfaction of
the judgment.”
The district court’s judgment awarding attorney’s fees and costs to Afewerki
is AFFIRMED. The district court should credit $1,770.00 against ALG’s
obligations to Afewerki. Afewerki may also seek the attorney’s fees and costs he
incurred in litigating his fees and costs on this appeal. See Orange Blossom Ltd.
P’ship v. S. Cal. Sunbelt Developers, Inc. (In re S. Cal. Sunbelt Developers, Inc.),
608 F.3d 456, 463 (9th Cir. 2010). We REMAND to the district court for a
determination of the amount.
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