Dowd v. City of L.A., Case No. CV 09–06731 SS.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Citation: 28 F.Supp.3d 1019
• Decision Date: 23 May 2014
• Docket Number: Case No. CV 09–06731 SS.
• Parties: Matthew DOWD, et al., Plaintiffs, v. CITY OF LOS ANGELES, Defendant.

28 F.Supp.3d 1019

Matthew DOWD, et al., Plaintiffs
v.
CITY OF LOS ANGELES, Defendant.

Case No. CV 09–06731 SS.

United States District Court, C.D. California.

Signed May 23, 2014.

28 F.Supp.3d 1029

Lucas H. Oppenheim, Stephen F. Rohde, Law Offices of Stephen Rohde, Los Angeles, CA, for Plaintiffs.

Laurie Rittenberg, Los Angeles City Attorney's Office, David W. Skinner, Dawn A. McIntosh, Deborah J. Fox, Margaret W. Rosequist, Meyers Nave Riback Silver and Wilson, Los Angeles, CA, for Defendant.

ORDER (1) GRANTING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS AND (2) GRANTING DEFENDANT'S MOTION FOR COSTS

SUZANNE H. SEGAL, United States Magistrate Judge.

I.

INTRODUCTION

On January 30, 2014, trial in this matter was held. The Court previously adjudicated several issues in an Order resolving the parties' cross-motions for summary judgment (“MSJ Order”). After a seven-day jury trial with United States Magistrate Judge Suzanne H. Segal presiding,¹ a duly sworn and instructed jury awarded Plaintiffs Matthew Dowd and David “Zuma Dogg” Saltsburg $2 in nominal damages each and Plaintiffs Peter Demian, Edward La Grossa, Anthony Brown, Nathan Pino, Louie Garcia and Rene Castro $1 in nominal damages each. (Dkt. No. 374). On February 27, 2014, the Court entered Judgment in favor of Plaintiffs in these amounts. (Dkt. No. 386).

On March 10, 2014, Plaintiffs filed a Motion for Attorneys' Fees and Costs pursuant to 42 U.S.C. § 1988 (Dkt. No. 387 & 389). That same day, Defendant filed a Motion for Costs pursuant to Federal Rule of Civil Procedure 68. (Dkt. No. 387). On March 25, 2014, Plaintiffs filed an Opposition to Defendant's Motion for Costs, (Dkt. No. 414), and Defendant filed an Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs. (Dkt. No. 417). On April

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8, 2014, Plaintiffs filed their Reply in support of their Motion for Attorneys' Fees and Costs, (Dkt. No. 427), and Defendant filed its Reply in support of its Motion for Costs. (Dkt. No. 431).

Having considered the parties' submissions and following the May 5, 2014 hearing on the motions, the Court (1) GRANTS Plaintiffs' Motion for Attorneys' Fees and Costs and awards Plaintiffs $601,902.50 in attorney's fees and $2,835.76 in additional costs, and (2) GRANTS Defendant's Motion for Costs and awards Defendant $13,384.93 in costs.

II.

BACKGROUND

A. Factual Background

This 42 U.S.C. § 1983 civil rights case arose out of Defendant City of Los Angeles' attempts, as set forth in Los Angeles Municipal Code (“LAMC”) § 42.15, to regulate vending and expressive activity on the Venice Beach Boardwalk (the “Boardwalk”). In 2005, the City suspended the 2004 version of LAMC § 42.15 (“the 2004 Ordinance”) in response to the legal challenge raised in Venice Food Not Bombs v. City of Los Angeles, No. CV 05–04998 DP (SS) (C.D.Cal.2005), and later adopted an amended version of the ordinance (the “2006 Ordinance”) as part of a 2006 settlement agreement. (Dkt. No. 287 at 2). In order to avoid the constitutional infirmities from which the 2004 Ordinance suffered, see Hunt v. City of Los Angeles, 601 F.Supp.2d 1158, 1170–72 (C.D.Cal.2009), the City subsequently amended the 2006 Ordinance and replaced it with a new version of § 42.15 (the “2008 Ordinance”) on May 19, 2008.² (Dkt. No. 287 at 3). To protect tourists, prevent altercations between Boardwalk performers, maintain clear lanes for emergency and public safety vehicles, and limit excessive noise pollution, the 2008 Ordinance provided that “[e]xcept as specifically allowed in this section, no person shall engage in vending” along the Boardwalk. (Id. at 2–3 (citing LAMC § 42.15(A))).

First, the 2008 Ordinance divided much of the available space on the Boardwalk into individual spaces designated as P–Zone and I–Zone spaces. LAMC § 42.15(2). In the P–Zone spaces, persons could “perform, engage in traditional expressive speech, and petitioning activities, and vend the following expressive items: newspapers, leaflets, pamphlets, bumper stickers, patches, buttons, or books created by the vendor or recordings of the vendor's own performances....” LAMC § 42.15(2)(a). In the I–Zone spaces, individuals could engage in the full range of permissible P–Zone activities plus “vending of expressive items created by the vendor, or the vending of expressive items that are inextricably intertwined with the vendor's message.” LAMC § 42.15(2)(b).

With limited exception, anyone wishing to use a P–Zone or I–Zone space during “Peak Seasons” was required to apply for an annual permit and enter into a lottery system by which spaces were assigned each day. (Dkt. No. 287 at 4 (citing Program Rules at pp. 2–3)). The person who won the space had priority access to the space. However, after 12:00 p.m., anyone

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(with or without a permit) could use any unoccupied space, provided that she (1) engaged in only P–Zone activities, and (2) relinquished use of the space to the permit-holder if and when the permit-holder returned. (Id. ). Outside of the P–Zones and I–Zones, anyone could engage in P–Zone activity and sell items “inextricably intertwined” with the vendor's message so long as she did not set up any “display table, easel, stand, equipment, or other furniture, use a pushcart or other vehicle....” LAMC § 42.15(D)(1)(a). On the west side of the Boardwalk, outside of the P- and I–Zones, anyone could engage in any P–Zone activity provided that it was not “vending” and did not “substantially impede or obstruct pedestrian or vehicular traffic, subject to reasonable size and height restrictions on any table, easel, or other furniture....” LAMC § 42.15(D)(1)(b).

Second, the 2008 Ordinance limited performers' noise levels on the Boardwalk. Between 9:00 a.m. and sunset on weekdays, noise levels could not exceed seventy-five decibels when measured at a distance of twenty-five feet away or ninety-six decibels when measured at a distance of one foot away. LAMC § 42.15(F)(1). Furthermore, performers were not permitted to use amplified sound anywhere on the Boardwalk except in specially designated P–Zone spaces between 9:00 a.m. and sunset. (Dkt. No. 287 at 5 (citing Program Rule at p. 4)).

In 2009, Plaintiffs filed this lawsuit raising facial and as-applied challenges to the 2006 and 2008 Ordinances, arguing that they violated the First and Fourteenth Amendments. (Id. at 6). Plaintiffs Dowd and Saltsburg also raised facial and as applied challenges to the Los Angeles City Council Rules of Decorum (the “Rules of Decorum”), which were applied against them on numerous occasions when they were ejected and banned from City Council meetings while voicing their concerns over LAMC § 42.15 during public comment sessions. (Id. at 7). On August 7, 2013, the Court granted in part and denied in part Plaintiffs' and Defendant's cross-motions for summary judgment, and ordered that this case proceed to trial on the following issues: (1) what damages, if any, did Plaintiffs suffer as a result of the 2008 Ordinance's unconstitutional ban on the use of amplified sound; and (2) what damages, if any, did Plaintiffs Dowd and Saltsburg suffer due to the unconstitutional enforcement of the Rules of Decorum against them on ten separate occasions. (Id. at 43–44).

At trial, the jury awarded Plaintiffs Dowd and Saltsburg $2 in nominal damages each and Plaintiffs Peter Demian, Edward La Grossa, Anthony Brown, Nathan Pino, Louie Garcia and Rene Castro $1 in nominal damages each. (Dkt. No. 374). The jury found that the amplified sound ban was “applied” against each Plaintiff in this case. (Id. at 3, 7, 11, 15, 19, 23, 27, 31). However, the jury concluded that no Plaintiff “prove[d] by a preponderance of the evidence that he suffered actual injury, such as economic damages, non-economic damages, or both, due to the adoption and application of the 2008 Amplified Sound Ban[.]” (Id. ). The jury also found that Plaintiffs Dowd and Saltsburg each failed to “prove[ ] by a preponderance of the evidence that he suffered actual injury due to the unconstitutional application of the City Council Rules of Decorum against him[.]” (Id. at 5, 9).

B. Procedural History

Plaintiffs filed the instant action on September 16, 2009. (Dkt. No. 1). On October 21, 2010, the Court granted in part Plaintiffs' motion for a preliminary injunction. The Court enjoined the amplified

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sound ban as well as the permit and lottery system set forth in LAMC § 42.15.³ (Dkt. No. 22 at 27). On May 9, 2011, the Court granted Plaintiffs' requests to substitute Stephen F. Rohde, Esq. as their attorney. (Dkt. No. 53). Plaintiffs filed their First Amended Complaint against Defendant on February 9, 2012. (Dkt. No. 76).

Plaintiffs filed a Motion for Summary Judgment, Or In The Alternative, Adjudication Of Issues on August 21, 2012. (Dkt. No. 168–1). First, Plaintiffs argued that the permit and lottery systems in the 2006 and 2008 Ordinances violated the First Amendment...