United States District Court, N.D. California
ORDER GRANTING MOTION FOR DAMAGES AND ATTORNEYS'
CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE
three years, Plaintiff Citizens for Free Speech 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.
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
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
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).
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
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
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
“Newly Asserted” Request for Nominal
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
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
Availability of Nominal Damages
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.”).
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.”),
it has nowhere held that nominal damages are not
available to a plaintiff to whom a policy is not
applied. 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, 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.
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.
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.
Not a De Minimus Victory
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).
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 ...