Timothy Demartini v. Michael Demartini ( 2023 )

FILED
NOT FOR PUBLICATION
JUN 16 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY P. DEMARTINI; MARGIE Nos. 19-16603
DEMARTINI, 19-16940
Plaintiffs-Appellants, D.C. No.
2:14-cv-02722-JAM-CKD
v.
MICHAEL J. DEMARTINI; RENATE MEMORANDUM*
DEMARTINI,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 18, 2023
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and MOSKOWITZ,**
District Judge.
Dissent by Judge BENNETT.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
Plaintiffs Timothy and Margie Demartini (Timothy) appeal from district
court orders denying attorney’s fees and denying reconsideration of that denial.
Timothy argues he is entitled to attorney’s fees from Defendants Michael and
Renate DeMartini under Cal. Civ. Proc. Code § 874.040, which provides for the
apportionment of costs of partition among the parties in a partition action.
“Jurisdictional bars . . . ‘may be raised at any time’ and courts have a duty to
consider them sua sponte.” Wilkins v. United States, 143 S. Ct. 870, 876 (2023)
(quoting Henderson v. Shinseki, 562 U.S. 428, 434 (2011)). “We review our own
jurisdiction de novo.” Falck N. Cal. Corp. v. Scott Griffith Collaborative Sols.,
LLC, 25 F.4th 763, 765 (9th Cir. 2022). Because the parties are familiar with the
factual and procedural history of the case, we discuss that history only as
necessary. We dismiss the appeals for lack of jurisdiction.
1. “[W]e ordinarily have jurisdiction over appeals from final decisions of
the district courts.” Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248
F.3d 892, 896 (9th Cir. 2001) (internal quotation marks omitted) (quoting
Cunningham v. Hamilton County, 527 U.S. 198, 200 (1999)); 28 U.S.C. § 1291. A
final judgment “end[s] the litigation on the merits and leave[s] nothing for the
court to do but execute the judgment.” Am. Ironworks, 248 F.3d at 897 (quoting
Catlin v. United States, 324 U.S. 229, 233 (1945)). In this vein, “[a]n interlocutory
2
order becomes appealable [only] when final judgment is entered.” Id. Before final
judgment, however, we may review a “collateral order” which “conclusively
determines a disputed issue that is separate from the merits and effectively
unreviewable upon final judgment.” AdTrader, Inc. v. Google LLC, 7 F.4th 803,
808 (9th Cir. 2021).
Here, there has been no final decision of the district court to vest us with
jurisdiction. The district court explicitly labeled the partition order an
“interlocutory judgment.” Moreover, the partition order did not “end the litigation
on the merits and leave nothing for the court to do but execute the judgment.” Am.
Ironworks, 248 F.3d at 897 (citation omitted). For example, the partition order
granted partition, but it did not decide exactly which parties would be entitled to
which portion of the property. That is analogous to deciding liability and
announcing that damages was the appropriate remedy but leaving it for another day
to determine the amount of damages. That would not be a final appealable order.
Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976) (explaining that
judgments on liability are interlocutory and “have never been considered to be
‘final’ within the meaning of 28 U.S.C. § 1291” if “assessment of damages or
awarding of other relief remains to be resolved”). The district court’s order finding
that the partition order was a final judgment does not mandate otherwise because
3
federal law determines federal jurisdiction, and we review our jurisdiction de novo.
See Falck, 25 F.4th at 765; see also Parsons v. Ryan, 912 F.3d 486, 503 (9th Cir.
2018) (reviewing de novo whether an order was a final judgment).
Nor does Sekaquaptewa v. MacDonald require a contrary result. 575 F.2d
239 (9th Cir. 1978). There, pragmatic concerns and Congressional direction
compelled us to conclude that a partition order was a final decision. See id. at 242.
The Hopi and Navajo tribes had disputed their respective rights to the roughly
2,500,000 acres in controversy for almost one hundred years, during which all
three branches of the federal government had sought to resolve the conflict. Id. at
240–41. In 1974, Congress instructed the district court “to make a final
adjudication, including partition” of the disputed area if the latest round of
negotiations failed. Id. at 241. The court’s partition order “depriv[ed] the Navajo
of the right to possess and use almost one million acres of land previously open to
them,” and the Navajo argued the partition was an abuse of discretion. Id. at 241,
243. And at the time of our decision, “[r]elocation of the Navajos [then] in Hopi
territory [was] in process.” Id. at 243. We therefore determined that “the
hardships of relocation [would] be exacerbated, not eased, by a refusal to undertake
immediate review,” so “the judgment of partition [was] sufficiently ‘final’ to be
appealable under Section 1291.” Id.4
The same pragmatic and Congressional concerns do not exist here. Timothy
seeks attorney’s fees in this action. While this property dispute is almost ten years
old, put bluntly, the hardships and stakes which recommended finality in
Sekaquaptewa are not present. See id. Nothing in the record before us
demonstrates that delay will “exacerbate” circumstances. See id. Sekaquaptewa
therefore does not demand a contrary result.
2. The district court’s orders denying fees and reconsideration are also
not collateral orders which we may review before final judgment. “[A] party may
appeal interlocutory orders” like these “after entry of final judgment because those
orders merge into that final judgment.” Am. Ironworks, 248 F.3d at 897–98. The
orders denying fees and reconsideration are therefore not “unreviewable upon final
judgment.” AdTrader, 7 F.4th at 808.
DISMISSED.
5
FILED
DeMartini v. DeMartini, Nos. 19-16603, 19-16940 JUN 16 2023
BENNETT, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent because I believe we have jurisdiction over the
consolidated appeals. I would affirm the district court’s order dismissing
Appellants’ attorneys’ fee motion as untimely, and I would also affirm the district
court’s order denying Appellants’ motion for reconsideration (though on a
different ground than that relied upon by the district court).
I.
On September 15, 2014, Timothy and Margie DeMartini (“Timothy and
Margie” or “Appellants”) sued Michael and Renate DeMartini (“Michael and
Renate” or “Appellees”) over commercial property located in Grass Valley,
California. See DeMartini v. DeMartini, 964 F.3d 813, 816 (9th Cir. 2020), cert.
denied, 142 S. Ct. 92 (2021). Timothy and Margie’s causes of action were divided.
In 2017, their partnership dissolution claim was severed and remanded to state
court. See id. at 817. Their contract claim was tried to a jury on April 16, 2018,1
and the district court held a bench trial on their partition claim on April 17 and 18,
2018. On May 30, 2018, and pursuant to Federal Rule of Civil Procedure 52(a),
the district court entered findings of fact, conclusions of law, and interlocutory
1
The district court issued a judgment on this claim on May 4, 2018, pursuant to
Federal Rule of Civil Procedure 54(b). We reversed and remanded for a new trial.
See DeMartini v. DeMartini, 833 F. App’x. 128, 132 (9th Cir. 2020).
1
judgment on the partition claim (“May 30, 2018 Judgment” or “Judgment”). The
May 30, 2018 Judgment ordered that the Grass Valley property “shall be
partitioned in kind and divided between Plaintiffs and Defendants in proportion to
their fifty percent interest in the property. The property shall be divided into a
northern subdivision and a southern subdivision.” The Judgment ordered Michael
DeMartini to submit a proposed plan for subdivision by June 30, 2018, and stated
that the partition in kind “must be completed no later than [June 30, 2019] or the
Court will appoint a referee to carry out its Order.” On June 30, 2018, Michael and
Renate filed a proposed subdivision plan, and on July 30, 2018, Timothy and
Margie opposed the plan.
On July 31, 2018, the district court issued a minute order noting that
“Defendants expressed an interest in buying out the Plaintiffs[’] interest in the
property at an appraised value” and ordering the parties to confer regarding an
agreement to partition by appraisal. On August 22, 2018, the court issued a minute
order noting that the parties had not filed the required written agreement to
partition by appraisal, agreeing with Timothy and Margie that Michael and
Renate’s submitted proposed partition plan was “insufficient,” and ordering the
parties to submit the names of potential referees. On November 27, 2018, the court
2
authorized Partition Referee Charles Farrar to oversee the physical partition of the
property.2
On May 10, 2019, Timothy and Margie filed a motion for attorneys’ fees
“pursuant to California Code of Civil Procedure section 874.040 which governs the
apportionment of costs, including attorneys’ fees, in a partition action.” On July
17, 2019, the court denied the motion as untimely based on the Local Rules of the
Eastern District of California, finding that there was “nothing left for [it] to
adjudicate” after the May 30, 2018 Judgment, and therefore any motion for an
award of attorneys’ fees was untimely after June 27, 2018.3 On August 28, 2019,
the district court denied Timothy and Margie’s motion for reconsideration because
it found the motion failed to comply with a prior order regarding filing
requirements.
2
The process of partition is on hold pending decision of this court. On October 18,
2019—five months after Timothy and Margie filed the relevant motion for
attorneys’ fees—Referee Farrar issued a report containing recommendations on
partition. The parties responded to the report with briefing. On February 7, 2020,
the district court issued a minute order stating that its authority to adopt the
Referee’s report “is contingent upon whether the May 30, 2018 [Judgment]
amounted to a final judgment.” The court’s February 7, 2020 order directs the
parties to file a joint status report within five days of our final decision in these
appeals.
3
As discussed below, Local Rule 293(a) states that “[m]otions for awards of
attorneys’ fees to prevailing parties pursuant to statute shall be filed not later than
twenty-eight (28) days after entry of final judgment.” E.D. Cal. L. R. 293(a).
3
II.
Absent special circumstances, our jurisdiction is limited to appeals from
“final decisions of the district courts.” 28 U.S.C. § 1291. As the majority correctly
notes, a final decision “end[s] the litigation on the merits and leave[s] nothing for
the court to do but execute the judgment.” Maj. at 2 (quoting Am. Ironworks &
Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 897 (9th Cir. 2001)). The May
30, 2018 Judgment satisfied this requirement.4
It is true that the district court labeled its May 30, 2018 Judgment an
“interlocutory judgment.” But the use of the word “interlocutory” is not
conclusive as to our appellate jurisdiction. “Appealability turns on the effect of the
ruling, not the label assigned to it by the trial court.” In re Slimick, 928 F.2d 304,
308 (9th Cir. 1990). And the district court used the word “interlocutory” as a term
of art, intending it to track California law and procedures for partition actions,
4
Whether the Judgment is a final order matters because an order granting or
denying a post-judgment motion for attorneys’ fees is an appealable final order.
See United States ex rel. Familian Northwest, Inc. v. RG & B Contractors, Inc., 21
F.3d 952, 954–55 (9th Cir. 1994). An order granting or denying an interim
attorneys’ fee petition is not. See Rosenfeld v. United States, 859 F.2d 717, 720
(9th Cir. 1988).
4
which, as explained below, treat an “interlocutory judgment in partition,”5 as a
term of art equivalent to a federal final judgment.
Under California law, partition is “the procedure for segregating and
terminating common interests in the same parcel of property.” 5 Miller & Starr,
Cal. Real Estate (2d. ed. 1989) § 12:13, 121. “In a partition, there is no change of
title between the tenants in common—it is simply a dividing up of what the parties
already own. After the partition each tenant in common has exactly the same
proportional interest in the property that he had prior thereto. The only difference
is that now his interest is in severalty, while prior to the partition it was in
common.” Rancho Santa Margarita v. Vail, 11 Cal. 2d 501, 539 (1938).
To accommodate this form of property division, California has a series of
procedural rules associated with partition. See generally Cal. Civ. P. Code
§ 872.010 et seq. California Civil Procedure Code § 872.720(a) declares that if a
“court finds that the plaintiff is entitled to partition, it shall make an interlocutory
judgment that determines the interests of the parties in the property and orders the
partition of the property and, . . . the manner of partition.” (emphasis added). The
California Supreme Court has made clear that despite the use of the term
5
See, e.g., Emeric v. Alvarado, 2 P. 418, 421 (Cal. 1884); Riley v. Turpin, 301 P.2d
834, 834 (Cal. 1956); Kenco Invs., Inc. v. Marsh, No. F077602, 2020 WL 3444435,
at *7 (Cal. Ct. App. June 24, 2020).
5
“interlocutory,” an interlocutory judgment in partition “is conclusive as to the
matters determined therein; that is, it is final upon the questions adjudicated in it
and is to all intents and purposes a final judgment from which an appeal may be
taken.” Pista v. Resetar, 270 P. 453, 454 (Cal. 1928) (internal citations omitted).
Under the California Civil Procedure Code, an interlocutory judgment in a
partition action is an immediately appealable order. § 904.1(9); see also Pista, 270
P. at 453; Stoffer v. Verhellen, 231 P. 233, 233 (Cal. 1925) (appeal from
interlocutory judgment). Any money judgment ordered in the interlocutory
judgment may be enforced immediately.6 Pista, 270 P. at 453. Accordingly, at the
intersection between state substantive and federal procedural law, see generally
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 (1938), the district court properly
looked to California law in determining the nature of the type of judgment it
entered in a California partition action.
6
California is not alone in allowing such interlocutory appeals. Hawai‘i, for
example, also does so. See Lambert v. Teisina, 131 Haw. 457, 462 (2014) (noting
that Hawai‘i state courts have “traditionally permitted appeals of nonfinal,
interlocutory orders that command the immediate transfer of property,” and “[t]hus
a partition confirmation order that effectively terminates property rights is . . .
appealable”).
6
But the fact that an “interlocutory judgment” in partition is an appealable
final judgment in California state courts does not end our inquiry. 7 The relevant
federal procedural questions are as follows: Did the May 30, 2018 Judgment end
the partition litigation on the merits? And was there anything for the district court
to have done after the entry of that judgment other than execute the judgment (and
resolve attorneys’ fees and costs)?
First, the Judgment resolved the merits of the partition dispute. It was issued
after a two-day bench trial, and in it, the court announced that it “hereby makes the
following findings of fact and conclusions of law pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure.” That Rule states that in an action tried without
a jury, “the court must find the facts specially and state its conclusions of law
separately” and that such “findings and conclusions may be stated on the record
after the close of the evidence or may appear in an opinion or a memorandum of
7
Of course, we look to federal law to determine whether a judgment is appealable.
“‘Congress has undoubted power to regulate the practice and procedure of federal
courts,’ so, generally, if a state procedural rule conflicts with a federal procedural
rule, the federal procedural rule controls.” Hamilton v. Wal-Mart Stores, Inc., 39
F.4th 575, 584 (9th Cir. 2022) (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 9–10
(1941)). But when we are considering appealability in a diversity case, state law
informs us as to the nature of the judgment, particularly when the judgment arises
from a uniquely state proceeding like partition. See, e.g., RSS WFCM2018-C44 -
NY LOD, LLC v. 1442 Lexington Operating DE LLC, 59 F.4th 586, 590–92 (2d Cir.
2023) (discussing state property law in order to determine jurisdiction pursuant to
28 U.S.C. § 1291).
7
decision filed by the court.” Fed. R. Civ. P. 52(a).8 Moving to the substance of the
Judgment, the court found that:
a. Plaintiffs Timothy P. and Margie DeMartini, husband and wife and as
joint tenants own an undivided fifty percent interest in the Grass Valley
Property, and Defendants Michael J. and Renate DeMartini, husband and
wife and as joint tenants own an undivided fifty percent interest of the
Grass Valley Property.
b. No other persons have any interest in the real property. There are no
liens against the property.
c. Plaintiffs are entitled to partition.
The Judgment then moves to the manner of partition and finds that “[t]he
rectangular shape of the Property lends itself to division across the middle (west to
east), resulting in a northern subdivision and a southern subdivision of roughly
equal shape. . . . The Court therefore finds that the Grass Valley Property may be
equitably subdivided and orders partition in kind.” In discussing partition in kind,
the Judgment notes that as “Michael J. DeMartini has already drafted a plan for
partitioning the property,” “it would be economically advantageous to all parties in
this action to permit Michael J. DeMartini to submit a proposed plan for partition.
. . . If his proposal is not acceptable to the Court, the Court will appoint a referee to
8
The Rule continues: “Judgment must be entered under Rule 58.” But as
discussed below, the absence of a separate Rule 58 judgment is not fatal to our
appellate jurisdiction. See infra at 11–12.
8
divide the property.” And the Judgment notes that following the order, “the parties
may agree to partition by appraisal and apply to the Court for approval of the
agreement.” Ultimately, the May 30, 2018 Judgment concludes with the order that
the Grass Valley Property “shall be partitioned in kind and divided between
Plaintiffs and Defendants in proportion to their fifty percent interest in the
property. The property shall be divided into a northern subdivision and a southern
subdivision.”
This order is a conclusive legal judgment on the merits of the partition
claims brought by the Appellants. It declares each party’s legal rights in the
contested property and orders a remedy—partition in kind. The Judgment outlines
the procedure for determining specific boundaries of the partitioned property and a
course of action in the event Michael’s proposed partition is not appropriate.
Essentially, the only thing left was to execute the judgment by dividing the
property, and as this court has held, “[a] mere ministerial order, such as an order
executing a judgment . . . is not a final appealable order.” Am. Ironworks, 248 F.3d
at 898.
Considering the May 30, 2018 Judgment final is also consistent with this
court’s precedent. In Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir. 1978),
we held that a partition judgment that was essentially “a declaration of rights to
respective parcels of land,” id. at 242 n.1, was a final, appealable order under 28
9
U.S.C. § 1291 even though “[t]he specific reservation of rulings, and the
scheduling of further proceedings . . . by the district court suggest that the
judgment of partition may be an interlocutory order, rather than the final
appealable judgment,” id. at 242. 9 The Sekaquaptewa order was final because it
“effectively transfer[red] separate possession and use of lands previously held
jointly”—even though it “[did] not direct the immediate delivery of property” and
contemplated future proceedings, including a survey. Id. at 243. So too here.
Even though the May 30, 2018 Judgment did not define the specific boundaries of
the partitioned property or direct immediate delivery, its legal effect is the division
of land previously held jointly into two separately held parcels. Although the
Referee’s final report was not filed with the district court until after Appellants
filed the instant appeals, the report is constrained by the legal conclusions of the
Judgment.
Likewise, in Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1101 (9th
Cir. 1998), we held that appellate jurisdiction was properly exercised over
foreclosure judgments that conclusively established liability for defaulted loans—
even though “[t]he district court retained jurisdiction for the sole purpose of
9
Noting the particular difficulty of “orders falling within the ‘twilight zone of
finality,’” the panel noted that “a decision is ‘final’ within the meaning of [28
U.S.C. § 1291] even if it is not necessarily the last order possible in a case.” Id.(internal quotations omitted).
10
holding the Defendants personally liable for any deficiency judgment remaining
after the judicial foreclosure sales.” Completion of the judicial foreclosure sale
was not a prerequisite for our jurisdiction; it was enough that the district court had
ordered the property securing loans to be sold. Id. So too here. The district court
has entered a judgment conclusively establishing the rights of the parties. Even if
the DeMartini litigants are unable come to consensus on the appropriate boundaries
of partition in kind and the relevant property must be sold, such a sale would be
analogous to a judicial foreclosure sale and would not disturb our jurisdiction.
The majority disagrees, reasoning that considering the May 30, 2018
Judgment final “is analogous to deciding liability and announcing that damages
was the appropriate remedy but leaving it for another day to determine the amount
of damages.” Maj. at 3. But there are cases in which the exact amount of money
awarded in damages is uncertain but there still exists a final, appealable decision.
Indeed, the Supreme Court has held that “a final judgment for money must, at
least, determine, or specify the means for determining, the amount” of money
awarded. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233
(1958); see also United States v. King Mountain Tobacco Co., Inc., 899 F.3d 954,
959 (9th Cir. 2018) (applying F. & M. Schaefer); Lovell v. Chandler, 303 F.3d
1039, 1049 (9th Cir. 2002) (noting that withholding appellate review in a class
action “in which the only remaining issue is punitive damages . . . would create
11
unnecessary delay and uncertainty” for litigants); Pauly v. U.S. Dep’t of Agric., 348
F.3d 1143, 1148 (9th Cir. 2003) (holding that district court order was final despite
partial remand to Department of Agriculture for mechanical recalculation of
recapture amount). In this case, the district court specified the means for
determining new property boundaries, and it was required to go no further. The
district court merely applied California’s substantive law on Timothy and Margie’s
California state law partition claim. It is unclear what, if anything, the district
court could do at this point post-trial other than execute the judgment.
I believe it is relevant that the district court held that its May 30, 2018
Judgment was a final judgment. In one of the orders Timothy and Margie
presently appeal, the district court denied their request for attorneys’ fees for
untimeliness because its “May 30 [2018] order amounted to a final judgment.”
The court wrote: “[T]he fact that the district court retains jurisdiction over a case
does mean it has not issued a final judgment. . . . Nothing in Plaintiffs’ argument
identifies a claim that has yet to be resolved.” Further, “the court-appointed referee
is doing nothing more than ‘execut[ing] the judgment.’” Though we review our
own jurisdiction de novo, Falck N. Cal. Corp. v. Scott Griffith Collaborative
Solutions, LLC, 25 F.4th 763, 765 (9th Cir. 2022), it is relevant that, according to
the district court, at this stage post-trial it has “nothing . . . to do but execute the
judgment.” Am. Ironworks, 248 F.3d at 897; see also In re Slimick, 928 F.2d at 307
12
(“A disposition is final if it contains ‘complete act of adjudication,’ . . . and clearly
evidences the judge’s intention that it be the court’s final act in the matter.”)
(internal citation omitted). As the district court has the power to enter final
judgments, its perspective on whether or not it has, in fact, issued a final judgment
is relevant.
Moreover, the fact that no separate judgment was issued pursuant to Federal
Rule of Civil Procedure 58 is not fatal to our jurisdiction. See Kirkland v. Legion
Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003) (“neither the Supreme Court nor this
court views satisfaction of Rule 58 as a prerequisite to appeal”). “Final decisions”
under 28 U.S.C. § 1291 are “typically” decisions “that trigger the entry of
judgment,” under Rule 58. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
103 (2009). That Rule requires that “every judgment . . . be set out in a separate
document,” and that “the clerk must, without awaiting the court’s direction,
promptly prepare, sign, and enter the judgment” when it is warranted. Fed. R. Civ.
P. 58(a)–(b). The May 30, 2018 Judgment warranted the issuance of a Rule 58
final judgment, but none was entered.
But, for appellate jurisdiction purposes, the absence of a separate judgment
does not matter. “Although Rule 58 requires the entry of a separate document, the
existence of such a document is not a prerequisite to appellate jurisdiction under
§ 1291.” United States v. Lummi Indian Tribe, 235 F.3d 443, 448 (9th Cir. 2000)
13
(citing Bankers Tr. Co. v. Mallis, 435 U.S. 381, 385 (1978)). “The sole purpose of
the separate-document requirement, which was added to Rule 58 in 1963, was to
clarify when the time for appeal . . . begins to run.” Bankers Tr., 435 U.S. at 384.
And “it could not have been intended that the separate-document requirement of
Rule 58 be such a categorical imperative that the parties are not free to waive it.”
Id. The parties here appear to have waived the requirement of a separate judgment
under Rule 58. Michael and Renate argue in their Answering Brief that the May
30, 2018 Judgment was a final judgment. And though Timothy and Margie argue
the May 30, 2018 Judgment was not a “final judgment,” they do not argue that we
lack jurisdiction to consider the appeals they filed.
But it also does not matter if the parties have not waived the separate
judgment requirement. Though Rule 58(a) and (b) generally require a separate
document setting forth judgment, Rule 58(c)(2) states that in cases in which “a
separate document is required,” “judgment is entered”:
[W]hen the judgment is entered in the civil docket . . . and the earlier of
these events occurs:
(A) it is set out in a separate document; or
(B) 150 days have run from the entry in the civil docket.
(emphasis added). Accordingly, under the Federal Rules, judgment was entered for
the purposes of appeal on Monday, October 29, 2018, 150 days after the May 30,
14
2018 Judgment. As the appeals before us were not filed until 2019, there is no
issue of prematureness under the Federal Rules.
III.
Because I believe we have jurisdiction over the appeals, I would reach their
merits. We review orders denying fees for an abuse of discretion. Meier v. Colvin,
727 F.3d 867, 869 (9th Cir. 2011). We also review the denial of a Rule 60(b)(1)
motion for reconsideration for abuse of discretion. Latshaw v. Trainer Wortham &
Co., Inc., 452 F.3d 1097, 1100 (9th Cir. 2006).
I would reject Timothy and Margie’s appeal of the district court’s order
denying their motion for attorneys’ fees. They argue that Local Rule 293(a)—the
district court’s basis for denying their motion—is incompatible with the substance
of the California Code of Civil Procedure sections regarding partition. But
conflicts over filing deadlines are procedural, and when state and federal
procedural rules conflict, “the federal procedural rule controls.” Hamilton, 39
F.4th at 584.
The district court did not abuse its discretion in denying Timothy and
Margie’s motion for attorneys’ fees pursuant to Local Rule 293(a), which states
that “[m]otions for awards of attorneys’ fees to prevailing parties pursuant to
statute shall be filed not later than twenty-eight (28) days after entry of final
judgment.” See also Guam Sasaki Corp. v. Diana’s Inc., 881 F.2d 713, 716 (9th
15
Cir. 1989) (noting that the abuse of discretion standard applies to a district court’s
application of local rules). The May 30, 2018 Judgment finally adjudicated the
parties’ interest in the relevant property, and the fee petition was not filed until
May 10, 2019—almost a year later. And May 10, 2019 was also far in excess of
twenty-eight days after 150 days had run from the May 30, 2018 Judgment. The
district court did not abuse its discretion in applying the Local Rules to determine
the deadline for an attorneys’ fee filing. And it was not an abuse of discretion for
the district court to consider its May 30, 2018 Judgment final. The court
interpreted “final judgment” in Local Rule 293(a) to mean the same thing as “final
decision” in 28 U.S.C. § 1291. And because I believe the May 30, 2018 Judgment
was a “final decision” for the purpose of § 1291, see supra at 4–12, I would affirm
the district court’s holding that Timothy and Margie’s fee petition was untimely.
Moving to Timothy and Margie’s appeal from the district court’s rejection of
their motion for reconsideration, I believe the district court erred in its reasoning.
The district court denied the motion for reconsideration in a text entry that stated
that Timothy and Margie had failed to comply with the Court’s Order Regarding
Filing Requirements. That Order reads in relevant part: “In any case where the
parties are represented by counsel, counsel contemplating the filing of any motion
. . . shall first contact opposing counsel to discuss thoroughly, preferably in person,
the substance of the contemplated motion and any potential resolution.” While
16
Timothy and Margie—the parties who filed the motion—were represented by
counsel, Michael and Renate were not represented by counsel before the district
court. Thus, the Order Regarding Filing Requirements did not apply to the motion
for reconsideration. But an “appeal from a denial of a Rule 60(b) motion brings up
only the denial of the motion for review, not the merits of the underlying
judgment.” Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989). Because I would
find that the district court did not abuse its discretion in denying Timothy and
Margie’s motion for attorneys’ fees, I would find that the district court’s error in its
reasoning as to the reconsideration motion was harmless.
17