Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

No. 87-5992.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding.

Before FARRIS and REINHARDT, Circuit Judges, and HOWARD D. McKIBBEN,^**  District Judge.

MEMORANDUM^* 

The trial court did not abuse its discretion in refusing to award attorneys' fees to Leona Grigsby. Regardless of whether Grigsby could be considered a prevailing party, the district court correctly ruled that an award of attorneys' fees would be inappropriate under the five factors outlined in Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir. 1980): (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether an award of fees against the opposing party would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question involving ERISA; and (5) the relative merit of the parties positions. Id. at 453.

First, Grigsby argues that factors one and five weigh in her favor because Pacific Bell lost its motion for a preliminary injunction, as well as its motion to add other parties to the suit. However, the fact that Pacific Bell lost two motions during the course of the litigation does not amount to "culpability" or "bad faith." Furthermore, the "relative merit" of Pacific Bell's position, that the Board's order was invalid because California Labor Code Sec. 132(a) was preempted by ERISA, was completely vindicated in the California Court of Appeal.

Grigsby argues that factor four supports her position because she sought to resolve an important legal issue regarding preemption under ERISA. However, it was not Grigsby who raised the preemption issue, but rather Pacific Bell.

Grigsby also argues that factor three weighs in her favor because it was unnecessary for Pacific Bell to bring a federal action when it had the opportunity to and did assert its preemption argument effectively in state court. Although we recognize that based on the record before us the district court could have exercised its discretion to abstain from jurisdiction, it was not compelled to do so.

The only factor that clearly weighs in favor of Grigsby is the ability of Pacific Bell to satisfy an award of fees. However, this factor alone is not sufficient to justify an award of fees.

We find no abuse of discretion.

AFFIRMED.