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Citizens for Free Speech, LLC v. County of Alameda

United States District Court, N.D. California

March 8, 2017




         For three years, Plaintiff Citizens for Free Speech[1] has argued that it is entitled to display the billboards that it erected in Alameda County without County approval. Although Citizens maintained its signs during the pendency of this litigation, this litigation is all but completed, and Citizens has won neither injunctive relief entitling it to display the signs, nor compensatory damages. Nevertheless, Citizens now asserts that it is the prevailing party, and moves the Court for nominal damages and attorneys' fees. See Mot. (dkt. 126). While the County asks the Court to disallow both, the Court must follow the law of the circuit. Accordingly, as explained below, the Court will award Citizens nominal damages of $1 and greatly reduced fees.


         On September 4, 2014, the Court granted a preliminary injunction for Citizens. See Order Granting Motion for Preliminary Injunction (dkt. 34). The Court held that Citizens was likely to succeed in its challenges to sections 17.18.130 and 17.54.080 of the County's zoning ordinance, because section 17.18.130 gave County officials unfettered discretion, and because there were no procedural safeguards to ensure that County officials would render decisions under sections 17.18.130 and 17.54.080 in a timely manner. Id. at 15-17. On September 4, 2014, the Court entered the injunction. See Preliminary Injunction (dkt. 50).

         Following the Court's Order Granting in Part and Denying in Part County's Defendant's Motion for Summary Judgment (dkt. 71), the County amended section 17.18.130, curing the constitutional deficiencies that Citizens had alleged, and rendering moot Citizens' challenge to that section, see Order on Cross-Motions (dkt. 105) at 7-13. Citizens then abandoned its challenge to section 17.54.080. See Order Granting in Part and Denying in Part County's Defendant's Motion for Summary Judgment at 9 n.9.

         In July 2016, the Court issued a lengthy order on the parties' cross-motions for summary judgment, holding that section 17.52.520(A) (a provision that favored signs by public officials) violated the equal protection clause, as it was content-based and did not withstand strict scrutiny. See Order on Cross-Motions (dkt. 105) at 26. The County prevailed as to all of the remaining claims, including Citizens' other equal protection claim. See id. Following that order, the County amended section 17.52.520(A), removing the constitutionally flawed language. See Request for Judicial Notice (dkt. 117) Ex. 1. Subsequently, the Court dissolved the preliminary injunction at the County's request. See Mot. to Dissolve Inj. (dkt. 121); Motion Hearing (dkt. 125).


         Citizens now moves for nominal damages, and for an award of attorneys' fees under 42 U.S.C. § 1988(b) and California Code of Civil Procedure § 1021.5. See generally Mot.

         A. Nominal Damages

         “Common-law courts traditionally have vindicated deprivations of certain ‘absolute' rights that are not shown to have caused actual injury through the award of a nominal sum of money.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986) (internal quotation marks omitted); see also Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419, 426 (9th Cir. 2008) (same). Further, “[n]ominal damages serve . . . to clarify the identity of the prevailing party for the purposes of awarding attorney's fees and costs in appropriate cases.” See Cummings v. Connell, 402 F.3d 936, 943 (9th Cir. 2005), amended, No. 03 17095, 2005 WL 1154321 (9th Cir. May 17, 2005).

         Citizens argues that nominal damages are appropriate because the Court's grant of summary judgment on the single equal protection claim vindicated its fundamental rights, but it suffered no pecuniary damages, as its signs are still up. Mot. at 2-3. The County responds that Citizens' challenge to section 17.52.520(A) is moot following that section's amendment, and that Citizens' “newly asserted prayer for nominal damages cannot save” it, because Citizens is not entitled to nominal damages. See Opp'n (dkt. 127) at 7. The Court addresses both arguments.

         1. “Newly Asserted” Request for Nominal Damages

         The County is correct that Citizens did not explicitly request nominal damages in its Complaint, but this is not fatal. The prayer for relief in the Complaint sought, among other things, “actual, consequential, and other special damages in an amount according to proof at trial” and “such other and further relief as the Court deems just, equitable, and proper.” See Compl. (dkt. 1) at 9. Although some courts have denied nominal damages where a plaintiff indisputably never sought nominal damages, see, e.g., Daskalea v. Wash. Humane Soc'y, 710 F.Supp.2d 32, 44 (D.D.C. 2010), Citizens identifies a Ninth Circuit case in which the court allowed plaintiffs to pursue nominal damages although they had not sought them in their original complaint, only amended to add a nominal damages claim once the defendant moved to dismiss for mootness, “and never made any tactical decision not to request damages.” See Reply (dkt. 128) at 1 (citing Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1018 n.2 (9th Cir. 2010)). Although the plaintiffs in that case actually amended their complaint to add a request for nominal damages, and Citizens has not, the Court would permit Citizens to amend here if it sought to do so. Citizens has not sought to do so-instead it argues that its current Complaint covers nominal damages. See Reply at 1. The Court agrees. See Hynix Semiconductor Inc. v. Rambus, Inc., 527 F.Supp.2d 1084, 1100 (N.D. Cal. 2007) (citing Basista v. Weir, 340 F.2d 74, 87-88 (3d Cir. 1965)) (request for “such other and further relief as the Court may deem appropriate” suffices to request nominal damages).

         So long as there is a viable request for nominal damages in the case, then the equal protection claim is not moot. See Johnson, 623 F.3d at 1018 (“prayer for nominal damages . . . prevents those claims from becoming moot.”); see also O'Connor v. Denver, 894 F.2d 1210, 1216 (10th Cir. 1990) (“repeal and amendment of the Code did not moot plaintiffs' claim for nominal damages”).

         2. Availability of Nominal Damages

         The County also contends that nominal damages are not available for a facial challenge, in which the law at issue is never applied to the plaintiff. See Opp'n at 6, 8-10. There is out-of-circuit support for this position. See, e.g., CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 624 (3d Cir. 2013) (quoting Eide v. Sarasota Cty., 908 F.2d 716, 722 (11th Cir. 1990) (“When a litigant challenges the legality of a zoning law on the theories that the law violates equal protection . . . for ‘a facial challenge, the remedy is the striking down of the regulation. In the case of an as applied challenge, the remedy is an injunction . . . and/or damages.”); id. at 628 (“We find no authority . . . for the proposition that a plaintiff is entitled to nominal damages simply based on the existence of a zoning law that has never been applied to it.”); Granite State Outdoor Advert., Inc. v. City of St. Petersburg, Fla., 348 F.3d 1278, 1283 (11th Cir. 2003) (“Given that we upheld as constitutionally sound the provisions of the sign ordinance that applied to Granite . . . Granite is not entitled to nominal damages.”); Daskalea, 710 F.Supp.2d at 44 (“while a plaintiff may be entitled to nominal damages for a violation of his procedural due process rights, even absent proof of an injury, a plaintiff is not entitled to nominal damages, even absent proof that his procedural due process rights were in fact violated.”).

         But the best that the County can point to in this circuit is that the nominal damages cases in Citizens' opening brief involved a law or policy actually being applied to a plaintiff. See Opp'n at 8 (citing Jacobs, 526 F.3d 419; Estate of Macias v. Ihde, 219 F.3d 1018 (9th Cir. 2000)). The Ninth Circuit noted in one of those case that the plaintiff's injury was caused by an unlawful policy, see Jacobs, 526 F.3d at 426-27 (explaining that plaintiff had standing to bring non-moot nominal damages claim because she alleged an injury in fact “caused by . . . policy.”), [2] but it has nowhere held that nominal damages are not available to a plaintiff to whom a policy is not applied.[3] While this Court held earlier in this case that nominal damages are not available for an overbreadth challenge under the First Amendment, see Order on Cross-Motions at 13-14 (citing Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 907 (9th Cir. 2007)), the claim at issue is an equal protection claim. Even accepting the County's characterization of Citizens' claim as a facial equal protection claim, [4]the County points to no carve-outs for such claims, and even concedes: “The Ninth Circuit has never considered whether nominal damages are available in facial challenges generally.” Opp'n at 10.

         Thus, although there is some logical appeal to the County's argument, there is currently not support for it in the Ninth Circuit. Instead, the Ninth Circuit has stated quite broadly that “In this Circuit, nominal damages must be awarded if a plaintiff proves a violation of his [or her] constitutional rights.” Estate of Macias, 219 F.3d at 1028 (quoting Floyd v. Laws, 929 F.2d 1390, 1403 (9th Cir. 1991)). “A district court bound by circuit authority . . . has no choice but to follow it.” Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir. 2001). This Court has held that Citizens prevailed on its equal protection claim based on section 17.52.520(A), which privileged government speech over speech by private speakers, like Citizens. See Order on Cross-Motions at 26. Accordingly, Citizens is entitled to nominal damages. See Estate of Macias, 219 F.3d at 1028. The Court will award Citizens nominal damages of one dollar to acknowledge the “importance to organized society” that its constitutional rights “be scrupulously observed.” See Jacobs, 526 F.3d at 426.

         B. Attorneys' Fees

         A plaintiff who receives nominal damages is a prevailing party under 42 U.S.C. § 1988(b). Farrar v. Hobby, 506 U.S. 103, 112 (1992). “[A] plaintiff ‘prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.” Id. at 111-12. “A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” Id. at 113. Citizens is therefore a prevailing party. See id. at 112.[5]

         1. Not a De Minimus Victory

         The County argues that, even if the Court awards Citizens nominal damages and thereby finds it to be a prevailing party, the Court should award no fees. See Opp'n at 13 (citing Farrar, 506 U.S. at 112).

         A technical or insignificant nominal damages award does not negate a plaintiff's prevailing party status, but “it does bear on the propriety of fees awarded under § 1988.” Farrar, 506 U.S. at 114. In Farrar, the plaintiff in a civil rights case sought damages of $17 million but received only $1 in nominal damages. Id. at 114. Although Farrar was the prevailing party, the Court recognized that, given such a discrepancy, “[i]n some circumstances, even a plaintiff who formally ‘prevails' under § 1988 should receive no attorney's fees at all.” Id. at 115. Thus, “[w]hen a plaintiff recovers ...

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