Dowd v. City of Los Angeles
2014 U.S. Dist. LEXIS 91096
C.D. Cal.2014Background
- Plaintiffs (street performers and others) challenged Los Angeles Municipal Code § 42.15 and City Council Rules of Decorum under § 1983, alleging First Amendment violations (facial and as-applied). The litigation began in 2009 and proceeded through summary judgment and a seven‑day jury trial.
- The Court granted summary judgment to Plaintiffs on the 2008 ordinance’s amplified‑sound ban (facially unconstitutional) and on as‑applied challenges to the Rules of Decorum for two plaintiffs; most other claims were decided for the City. Trial was limited to damages.
- The jury awarded nominal damages totaling $10 (eight plaintiffs receiving $1–$2 each); judgment entered in Plaintiffs’ favor for that amount.
- Defendant served a Rule 68 offer on December 17, 2013 offering specified monetary amounts to (most) plaintiffs plus costs and attorneys’ fees incurred prior to the offer; Plaintiffs did not accept and later recovered less at trial.
- Post‑trial motions: Plaintiffs sought § 1988 attorneys’ fees and costs (~$995k fees; ~$23.9k costs). Defendant moved for costs under Rule 68 (post‑offer costs ~ $26k). The Magistrate Judge held a hearing and resolved both motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs are "prevailing parties" entitled to § 1988 fees despite only nominal damages | Plaintiffs: yes — they prevailed because the Court invalidated the amplified‑sound ban and granted as‑applied relief, producing public benefits beyond nominal damages | City: limited success, so fees should be small or denied | Held: Plaintiffs prevailed; nominal damages plus tangible public benefits justify an award of reasonable fees |
| Whether Defendant’s Rule 68 offer (Dec. 17, 2013) was valid and bars recovery of post‑offer fees/costs | Plaintiffs: Offer defective (not served/offered to all plaintiffs; ambiguous; procedural defects) so it cannot bar post‑offer fees | City: Offer met Rule 68 requirements (definite sums, unconditional, included accrued costs); valid | Held: Offer valid; because judgment obtained ($10) was less favorable than the offer, Plaintiffs barred from recovering any fees or costs incurred after Dec. 17, 2013 |
| Amount and reasonableness of pre‑offer fees (lodestar) and hourly rates | Plaintiffs: request lodestar based on four attorneys with high hourly rates (Rohde $850, Victoroff $750, Oppenheim $420, Talei $250) and specified hours | City: challenge rates and hours; propose substantially lower rates and reductions | Held: Court adjusted rates downward (Rohde $775, Victoroff $675, Oppenheim $375, Talei $200) and reduced some hours (including trimming Talei’s excessive time), producing a lodestar of $601,902.50 |
| Whether Defendant may recover post‑offer taxable costs and which categories are allowable | Plaintiffs: challenge Defendant’s procedure/timeliness and some cost items | City: seeks post‑offer costs; many items are taxable | Held: City entitled to post‑offer taxable costs of $13,384.93; court denied recovery for non‑taxable items (e.g., trial technician fees) but allowed daily transcripts, demonstratives, and exhibit notebook costs |
Key Cases Cited
- Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) (prevailing‑party rule and limits on fee recovery absent statutory authorization)
- Farrar v. Hobby, 506 U.S. 103 (1992) (nominal damages can create prevailing‑party status but degree of success informs fee awards)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method and reduction where plaintiff’s success is limited)
- Marek v. Chesny, 473 U.S. 1 (1985) (Rule 68 cost‑shifting applies to attorney’s fees included as costs under § 1988)
- Mahach‑Watkins v. Depee, 593 F.3d 1054 (9th Cir. 2010) (nominal damages can confer prevailing‑party status under § 1988)
- Wilcox v. City of Reno, 42 F.3d 550 (9th Cir. 1994) (nominal damages plaintiff must have tangible results beyond the award to justify fees)
- Guerrero v. Cummings, 70 F.3d 1111 (9th Cir. 1995) (Rule 68 offers that limit recovery to costs "incurred prior to" the offer bar post‑offer fee recovery)
- Herrington v. Cnty. of Sonoma, 12 F.3d 901 (9th Cir. 1993) (requirements for valid Rule 68 offers and construing ambiguities against the offeror)
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) (lodestar as the starting point for fee awards)