A Ninth Circuit panel was one vote short of asking the Supreme Court to answer California law questions. In Walker v. Ford Motor Company, the federal appeals court, in an unpublished memorandum, affirmed the dismissal of a lawsuit for breach of an agreement to settle a personal injury case. Among other things, the plaintiff sought attorney fees he incurred in continued litigation of the action after the settlement fell apart.
The majority — Judges Milan Smith and Jacqueline Nguyen — relied on two California Court of Appeal opinions holding that attorney fees for continuing the lawsuit are not recoverable, and also concluded that the plaintiff wouldn’t win under the circumstances of the case before it even if such fees were recoverable in general. Judge Mark Bennett dissented, wanting the Supreme Court to decide the California attorney fee issues. He believed the Supreme Court would disagree with the two Court of Appeal opinions, which he said “are poorly reasoned and likely wrong” and which a third, recent appellate opinion expressly criticized.
The Ninth Circuit has specifically not sent questions to the Supreme Court before. (See here and here.)