Dowd v. City of Los Angeles (28 F. Supp. 3d 1019, 2014)

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, 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 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. (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 (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 ease 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 Salts-burg 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-eeonomie 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 sound ban as well as the permit and lottery system set forth in LAMC § 42.15. (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 because they granted the City unbridled licensing authority. (Id. at 17-20). Second, Plaintiffs asserted that the 2006 and 2008 Ordinances constituted unconstitutionally vague, content-based regulations that were not sufficiently tailored to the City’s alleged interests. (Id. at 21-32). Third, Plaintiffs challenged the amplified sound ban as an unreasonable time, place and manner restriction. (Id. at 32-35). Fourth, Plaintiffs argued that the prohibition on setting up or taking down in a designated space after sunset was unconstitutional because it failed to advance any legitimate government interest. (Id. at 36). Fifth, Plaintiffs contended that the prohibition on using props over four feet tall in performance spaces constituted an unreasonable prior restraint on street performers who use such props. (Id. at 36-37). Sixth, Plaintiffs challenged the rule that groups in large act performances had to rotate every hour because it failed to advance any legitimate government interest, (Id. at 37-38). Seventh, Plaintiffs facially attacked the Rules of Decorum as unconstitutionally vague and a presumptively invalid “viewpoint-based” regulation. (Id. at 38 — 40). Seventh, Plaintiffs Dowd and Saltsburg claimed that the Rules of Decorum were unconstitutionally applied against them when they were ejected and temporarily barred from attending City Council meetings due to their use of profanity and other harsh language while criticizing City Council members during public comment sessions. (Id. at 42-45). On September 21, 2012, Defendant filed its Opposition and requested that the Court grant Defendant summary judgment on all claims. (Dkt. No. 208 at 37).

On August 7, 2013, the Court issued the MS J Order, in which it granted in part and denied in part the parties’ cross-motions for summary judgment. (Dkt. No. 287). First, the Court granted summary judgment in favor of Defendant on Plaintiffs’ challenges to the 2006 Ordinance on the . ground that these claims were tim'e-barred. (Id. at 9-10). Second, the Court granted summary judgment in Defendant’s favor on the constitutionality of the 2008 Ordinance’s permit and lottery system. (Id. at 10-22). Third, the Court granted summary judgment in Plaintiffs’ favor on their argument that the 2008 Ordinance’s ban on the- use of amplified sound was facially unconstitutional. (Id. at 22-24). Fourth, the Court granted summary judgment in Defendant’s favor on the 2008 Ordinance’s restriction on equipment height. (Id. at 24-7). Fifth, the Court granted summary judgment to Defendant on the constitutionality of the rotation requirement for large act/performance groups. (Id. at 27-28). Sixth, the Court granted summary judgment in favor of Defendant on the 2008 Ordinance’s restriction on all activity in designated spaces between 9:00 a.m. and sunset. (Id. at 29). Seventh, the Court granted summary judgment in favor of Defendant on Plaintiffs’ facial challenge to the Rules of Decorum, but granted summary judgment in Plaintiffs’ favor with respect to their as-applied challenge to the application of the Rules against Plaintiffs Dowd and Salts-burg on certain occasions. (Id. at 29-43). Eighth, the Court denied summary judgment on the issue of damages. (Id. at 43). The case then proceeded to trial and a jury awarded Plaintiffs $10 in nominal damages. (Dkt. No. 374).

Plaintiffs filed their Motion for Attorneys’ Fees and Costs on March 10, 2014 seeking $995,042.32 in attorneys’ fees and $23,911.83 in costs. (Dkt. No. 388 at 1). That same day, Defendant filed its Motion for Costs seeking $23,389.26 in costs incurred after December 17, 2013, i.e., the date that Defendant made a settlement offer to Plaintiffs pursuant to Federal Rule of Civil Procedure 68. (Dkt. No. 387 at 3). On March 25, 2014, Plaintiffs filed their Opposition to Defendant’s Motion for Costs, (Dkt. No. 414), and Defendant filed its Opposition to Plaintiffs Motion for Attorneys’ Fees and Costs, which argues that Plaintiffs are entitled to, at most, $124,000 in attorneys’ fees. (Dkt. No. 417 at 7). On April 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). On May 5, 2014, the Court held a hearing on the parties’ motions.

III.

DISCUSSION

A. Plaintiffs Are Entitled To Attorney’s Fees In This Action Pursuant To 42 U.S.C. § 1988

“In the United States, parties are ordinarily required to bear their own attorney’s fees — the prevailing party is not entitled to collect from the loser.” Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Pursuant to this “American Rule,” prevailing parties are not entitled to attorney’s fees “absent explicit statutory authority.” Id. (internal quotation marks omitted). However, for private civil rights actions brought pursuant to 42 U.S.C. § 1983, “Congress has established an exception to the ‘American Rule’ that ‘the prevailing litigant is ordinarily not entitled to collect [counsel fees] from the loser.’ ” Sole v. Wyner, 551 U.S. 74, 77, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007) (quoting Alyeska Pipeline Service Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). This exception; which is codified under 42 U.S.C. § 1988, “authorizes federal district courts, in their discretion, to ‘allow the prevailing party ... a reasonable attorney’s fee as part of the costs.’ ” Id. (quoting 42 U.S.C. § 1988(b)). Plaintiffs filed the instant civil rights action pursuant to § 1983. Despite receiving only nominal damages at trial, the Court finds that Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to reasonable attorney’s fees.

1. Plaintiffs “Prevailed” And Are Entitled To Fees

“[I]n order to qualify for attorney’s fees under § 1988, a plaintiff must be a ‘prevailing party[,]’ ” and a party “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.” Farrar v. Hobby, 506 U.S. 103, 110, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir.2013) (same). The Supreme Court and Ninth Circuit recognize that “[a] plaintiff who receives a nominal damage award for a § 1983 claim is a prevailing party under § 1988.” Mahach-Wat- kins v. Depee, 593 F.3d 1054, 1059 (9th Cir.2010); see also Farrar, 506 U.S. at 112, 113 S.Ct. 566. However, while a nominal damages award “does not affect the prevailing party inquiry[,]” “it does bear on the propriety of fees awarded under § 1988.” Farrar, 506 U.S. at 114, 113 S.Ct. 566 (the degree of a plaintiffs success does not affect his eligibility for a fee award, but is relevant to whether a party is entitled to fees); see also Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (a plaintiffs' degree of success is the “most critical factor” bearing on the reasonableness of a fee award). Thus, a party receiving only nominal damages must also achieve “other tangible results- — such as’ sparking a change in policy or establishing a finding of fact with potential collateral estoppel effects” — to support an award of attorney’s fees. Wilcox v. City of Reno, 42 F.3d 550, 554-55 (9th Cir.1994); see also Benton v. Oregon Student Assistance Comm’n, 421 F.3d 901, 906 (9th Cir.2005).

To determine whether a plaintiff has succeeded in some additional way justifying an award of attorney’s fees under § 1988, a district court must consider three factors: (a) the difference between the amount recovered and the damages sought; (b) the significance of the legal issue on which the plaintiff has prevailed; and (c) whether the plaintiff accomplished some public goal. See, e.g., Mahach-Watkins, 593 F.3d at 1059 (citing Farrar, 506 U.S. at 121, 113 S.Ct. 566 (O’Connor,. J„ concurring)); Cummings v. Connell, 402 F.3d 936, 947 (9th Cir.2005). Here, these factors favor an award of reasonable attorney’s fees to Plaintiffs.

a. Difference Between Amount Recovered And Amount Sought

Plaintiffs recovered significantly less at trial than they requested. Although Plaintiffs sought, in the First Amended Complaint, damages against the City “according to proof at trial,” (Dkt. No. 76 at 38), they requested hundreds of thousands of dollars in damages at trial. As discussed above, the jury reached a verdict in Plaintiffs’ favor, but awarded Plaintiffs only $10 in nominal damages. The resulting “substantial difference between the judgment recovered and the recovery sought suggests that [Plaintiffs’] victory [wa]s in fact purely technical.” See Farrar, 506 U.S. at 121, 113 S.Ct. 566 (O’Connor, J., concurring). However, “the difference between the amount recovered and the damages sought is not the only consideration,” and “an award of nominal damages can represent a victory in the sense of vindicating rights even though no actual damages are proved.” Id. While this single factor may weigh against an award of attorney’s fees, the Court finds that the other factors set forth in Farrar favor awarding Plaintiffs reasonable attorney’s fees in this case, as discussed below.

b. Significance Of The Legal Issues On Which Plaintiffs Prevailed

The second factor looks to the significance of the legal issue on which a plaintiff has prevailed, and both the general importance of the legal issue and the extent of a plaintiffs success are relevant at this stage of the inquiry. See Mahach-Watkins, 593 F.3d at 1061. Plaintiffs raised a wide range of First Amendment challenges to LAMC § 42.15 and the City Council’s Rules of Decorum. Ultimately, Plaintiffs prevailed on their claims that the amplified sound ban was facially unconstitutional and that the Rules of Decorum were unconstitutionally applied to Plaintiffs Dowd and Saltsburg when they had not actually disrupted the City Council meetings at issue.

“Free speech is the ‘matrix, the indispensable condition, of nearly every other form of freedom.’ ” United States v. Giese, 597 F.2d 1170, 1208 (9th Cir.1979) (quoting Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). As such, the freedoms encompassed by the First Amendment “ ‘always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause.’ ” Vasquez v. Rackauckas, 734 F.3d 1025, 1042 (9th Cir.2013) (quoting First Nat’l Bank of Boston v. Bellotti 435 U.S. 765, 780, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). Courts afford traditional public fora, such as the Boardwalk, special protective status under the First Amendment. Seattle Affiliate of Oct. 22nd Coalition to Stop Police Brutality, Repression and Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 797 (9th Cir.2008). Similarly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 1215, 179 L.Ed.2d 172 (2011); see also Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 400, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (Stevens, J., concurring) (protection of political speech lies at the heart of the First Amendment).

Although Plaintiffs did not prevail on all or even most of their claims against the City, their limited success involved legal issues at the core of the First Amendment, namely regulating speech in a traditional public forum and punishing speech that is critical of elected officials. Moreover, the Ninth Circuit has indicated that, in making á fee determination, it is appropriate to consider the importance that sister circuits afford a legal issue, see MahadWWatkins, 593 F.3d at 1061, and courts outside this circuit consistently find First Amendment issues sufficiently important to support an award of attorney’s fees. See, e.g., Zinna v. Congrove, 680 F.3d 1236, 1240 (10th Cir.2012); Lippoldt v. Cole, 468 F.3d 1204, 1223-24 (10th Cir.2006). Accordingly, the legal significance of the First Amendment issues on which Plaintiffs prevailed weighs strongly in favor of a fee award.

c. Whether Plaintiffs Accomplished Some Public Goal

In Wilcox, the Ninth Circuit clarified that after Farrar, a plaintiff receiving only nominal damages must achieve “tangible results” beyond nominal damages, such as “sparking a change in policy,” to be entitled to attorney’s fees under § 1988. Wilcox, 42 F.3d at 555. Plaintiffs “spark[ed] a change in policy” to the extent the Court declared the amplified sound ban unconstitutional. Though Defendant repealed and replaced the 2008 Ordinance in its entirety prior to the Court’s MSJ Order, (see Dkt. No. 417 at 8), the City would have been free to impose a similar sound ban had Plaintiffs not succeeded on their amplified sound ban claim. Because Plaintiffs prevailed, the City is no longer free to revert to the 2008 Ordinance and impose an amplified sound ban that falls uniquely and unfairly on the shoulders of street performers. Plaintiffs’ success on this claim will therefore not only inure to the benefit of Plaintiffs and other performers like them, but also to the public at large given the Boardwalk’s historical significance as a traditional public forum. See Wilcox, 42 F.3d at 556-57 (upholding fee award where the lawsuit achieved the following “admirable results”: (1) the jury determined a city policy to be unconstitutional; (2) the jury further determined that the policy caused injury to plaintiff; (3) the lawsuit likely precipitated the change in city policy during the pendency of the litigation; and (4) the judgment would prevent the city from reverting to its old policy or a similar policy).

Beyond the amplified sound ban, Plaintiffs Dowd and Saltsburg also successfully challenged the application of the Rules of Decorum to their use of profanity and other sharp language while criticizing elected officials, which did not “actually disrupt” a City Council meeting. The Ninth Circuit has recognized that a plaintiff receiving. nominal damages accomplishes some public goal where his victory makes it less likely that similar constitutional violations will occur in the future. In Mahach-Watkins, the Ninth Circuit was “unwilling to conclude that no public goal was served” by the plaintiffs receipt of nominal damages on an excessive force claim despite the California Highway Patrol’s refusal to discipline the officer involved or change its policies. Mahach-Watkins, 593 F.3d at 1063 (that the CHP did not intend to alter its use of force policy did not mean that plaintiffs lawsuit failed to accomplish a public goal because the jury’s verdict would likely (1) deter the officer defendant from engaging in future unconstitutional conduct, and (2) protect others like plaintiff by establishing a deterrent to officials involved in establishing and implementing arrest policies). Similarly, in Guy v. City of San Diego, 608 F.3d 582 (9th Cir.2010), the Ninth Circuit rejected the district court’s conclusion that the plaintiffs excessive force lawsuit did not give rise to any tangible benefit other than the award of nominal damages. Id. at 589-90. Again, despite the lack of evidence that the police department changed its investigation procedures or modified its use of force policies, the Guy court concluded that the “jury verdict that some of [the officer defendant’s] force was excessive offers clear and important guidance to the police department which is a sufficiently tangible result.” Id. at 590. Because it was “logical to expect, in the face of th[e] jury verdict, that the police department would take a closer look at the level of force used by its police officers after they have subdued a suspect[,]” the Ninth Circuit found that the plaintiff achieved a result “justifying] some amount of costs and attorney fees.” Id.

Plaintiffs’ successful as-applied challenge to the Rules of Decorum achieved a sufficient public goal. In granting summary judgment in Plaintiffs’ favor, the Court noted that “it appears from the video evidence that the City Council and the representative of the City attorney do not always require a disruption beyond the breach of the Rules of Decorum. Additionally, they appear to interpret the use of profanity as an actual disruption per se.” (Dkt. No. 287 at 38). The Court classified criticizing city council members as political speech “at the heart of the First Amendment,” and concluded that using profanity in making these criticisms does not justify the removal or barring of an individual from city council meetings. (See id. at 39-40).

Based on this ruling, the City will likely reevaluate the way it conducts City Council meetings, thus making it less likely that individuals partaking in public comment sessions will be punished for engaging in protected political speech. Indeed, the Court noted that the City “would do well to consider revising the Rules of Decorum to make it clear that an actual disruption is required before a speaker can be ejected” because such a, revision “would provide clear guidance to the City Council to help it conduct its business within the bounds of the First Amendment.” (Dkt. No. 287 at 33 n. 8). There is little doubt that the Court’s MSJ Order will serve as a guidepost for the City as it attempts to enforce or revise its Rules of Decorum to avoid treading on the public’s First Amendment rights. Moreover, Plaintiffs’ success in this litigation will likely deter council-members’ understandable impulse to eject or suspend speakers who subject them to offensive but constitutionally permissible criticism.

In sum, this litigation produced tangible results beyond nominal damages that weigh in favor of a fee award in this case. Because of the significance of the legal issues on which Plaintiffs prevailed and the public benefit that this litigation achieved, the Court finds that Plaintiffs are prevailing parties entitled to attorney’s fees.

B. Plaintiffs Are Barred From Recovering Costs Or Attorney’s Fees Incurred After December 17, 2013, Due To Their Rejection Of Defendant’s Rule 68 Offer Of Judgment

1. Rule 68

Federal Rule of Civil Procedure 68(a) provides that “[a]t least fourteen days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” The opposing party then has fourteen days to accept the offer of judgment before the offer lapses and is deemed withdrawn. See Fed.R.Civ.P. 68(a), (b). If the opposing party does not accept the offer and “the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Fed.R.Civ.P. 68(d).

The “plain purpose” of Rule 68 and its cost-shifting provision “is to encourage settlement and avoid litigation.” Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (“The Rule prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon trial on the merits.”). The “critical feature” of Rule 68’s fee-shifting provision is “that the offer be one that allows judgment to be taken against the defendant for both the damages caused by the challenged conduct and the costs then ac crued.” Marek, 473 U.S. at 6, 105 S.Ct. 3012 (emphasis in original). The Supreme Court has noted that the drafters of Rule 68 were not concerned “so much with the particular components of offers, but with the judgments to be allowed against defendants.” Id. (offer that lumped defendant’s proposal for damages with their proposal for costs was valid because “it is immaterial whether the offer recites that costs are included, whether it specifies the amount the defendant is allowing for costs, or, for that matter, whether it refers to costs at all. As long as the offer does not implicitly or explicitly provide that the judgment not include costs, a timely offer will be valid”). The Ninth Circuit has therefore recognized that “[t]he requirements for a valid Rule 68 offer are simple.” Herring-ton v. Cnty. of Sonoma, 12 F.3d 901, 907 (9th Cir.1993). A Rule 68 offer of judgment must (1) specify a definite sum for which judgment may be entered, (2) be unconditional, and (3) include costs then accrued. See id.

To determine whether an offer of judgment meets Rule 68’s requirements, a court will apply “the usual rules of [contract] construction.” Id. (citing Erdman v. Cochise Cnty., Arizona, 926 F.2d 877, 880 (9th Cir.1991)). “[A]mbiguities will be construed against the offeror as the drafting party and, where such ambiguities are found to exist, extrinsic evidence of the parties’ actual intentions will- be examined to clarify those ambiguities and arrive at the meaning of the offer’s material terms.” Id.

2.Defendant’s Rule 68 Offer Of Judgment Was Valid

Defendant served Plaintiffs with a Rule 68 offer of judgment on December 17, 2013 (the “Offer”). (See Dkt. No. 387-2 at 2-4). The Offer, which Plaintiffs did not accept, provided as follows:

[Defendant City of Los Angeles (‘the City’) hereby offers to allow judgment to be taken against it and in favor of plaintiffs as follows:

1. In the amount of $10,100 to plaintiff Matthew Dowd;

2. In the amount of $10,100 to plaintiff David Saltsburg;

3. In the amount of $5,100 to plaintiff Peter Demian; -

4. In the amount of $5,100 to plaintiff ' Edward La Grossa;

5. In the amount of $5,100 to plaintiff Anthony Brown;

6. In the amount of $5,100 to plaintiff Nathan Pino;

7. In the amount of $5,100 to plaintiff Louie Garcia;

8. In the amount of $5,100 to plaintiff Rene Castro; and

9. Costs incurred prior to the date of this offer by plaintiffs which shall include attorneys’ fees in an amount to be determined by the Court.

Acceptance by less than all plaintiffs shall be deemed a rejection of this offer. This Rule 68 offer does not constitute an admission of liability by or on behalf of the City, and the City expressly denies liability for any amount. (Id. at 3).

On March 10, 2014, Defendant filed a motion to recover $26,389.26 in costs that it incurred after December 17, 2013, ie., the date it served the Offer on Plaintiffs. Defendant also contends that because Plaintiffs recovered only $10 in nominal damages at trial, as compared to the more favorable $50,800 they were offered, they are barred from recovering any costs, including attorney’s fees, that they incurred after Defendant made its Rule 68 offer of judgment. (See Dkt. No. 417 at 11-17, 29).

Plaintiffs argue that, as a threshold matter, the Offer was defective and therefore cannot bar Plaintiffs recovery of costs, including attorney’s fees, post-dating December 17, 2013. Plaintiffs argue that the Offer was defective for three reasons: (1) the Offer was contingent on acceptance by “all plaintiffs” but did not offer money to all plaintiffs and was not served on all plaintiffs; (2) the Offer was unreasonable and abusive because it required acceptance by “all plaintiffs” despite failing to offer Willie Lee Turner or Jesse Brown any monetary incentive to accept; and (3) the Offer failed to comply with Rule 68’s procedural requirements because it did not set forth a period within which to respond and did not remain open for the requisite fourteen-day period. (See Dkt. No. 414 at 2-6; see also Dkt. No. 389 at 25-30). For the reasons discussed below, the Court disagrees and finds that Defendant’s Rule 68 offer of judgment was valid.

a. Failure To Include Jesse Brown And Willie Lee Turner In The Offer

Plaintiffs argue that the Offer was “facially incapable of acceptance” because it provided that “acceptance by less than all plaintiffs shall be deemed a rejection[,]” but included no offer of money or judgment to Jesse Brown or Willie Lee Turner, nor was the offer served directly on these plaintiffs. (Dkt. No. 389 at 27; see also Dkt. No. 414 at 3-4). Plaintiffs claim that “[a]t the time of the Offer there were not eight Plaintiffs, there were ten, including [Jesse Brown] whom neither the Court nor any party could notify of the Offer.” (Dkt. No. 414 at 3). Thus, “the City made it impossible for the Plaintiffs against whom it seeks to invoke the Offer to effectively accept the Offer[ ]” because acceptance by the eight Plaintiffs named in the Offer would have constituted a rejection thereof absent the agreement of Mr. Brown and Mr. Turner. (Id. at 4). The Court disagrees with Plaintiffs’ contentions.

As to Mr. Brown, Mr. Rohde and his law firm moved to withdraw as counsel for Mr. Brown on August 16, 2012 on the ground that “despite written requests for cooperation on March 26, March 27, March 28, April 4, April 9, April 18, April 29, May 10, June 30 and August 9, 2012,” Mr. Brown’s failure to respond-“rendered it unreasonably difficult” for Mr. Rohde and his associates to effectively represent him. (Dkt. Nos. 132 & 132-1 at 2-3). The Court granted Mr. Rohde’s request to withdraw on September 25, 2012 and noted that there was no current address information for Mr. Brown and that, according to Mr. Rohde, no one had heard from Mr. Brown in several months. (Dkt. No 234 at 2). On November 5, 2013, Defendant moved to dismiss Mr. Brown as a plaintiff in this action, (Dkt. No. 288), and Plaintiffs did not oppose this motion. (See Dkt. No. 289 at 2). On December 5, 2013, the Court vacated the December 9, 2013 hearing date on Defendant’s motion to dismiss Mr. Brown and notified counsel that the matter would be decided without oral argument. (Dkt. No. 290). Twenty-one days after Defendant filed its Rule 68 Offer, on January 7, 2014, the Court dismissed Mr. Brown from this action. (Dkt. No. 303). The Court noted that Mr. Brown “has not provided the Court or Defendant with a valid, current address. He has also failed to appear for his deposition on two occasions. Mr. Brown has not been represented by counsel in this action since September 25, 2012 when the court granted an application by his former counsel ... to withdraw.” (Id. at 1-2). These facts justify Defendant’s decision not to offer money to Mr. Brown, who apparently had lost interest in this litigation. Indeed, in light of the foregoing, the Court finds that Mr. Brown was not truly a .“plaintiff’ in any meaningful sense of the word when Defendant served its Rule 68 offer on December 17, 2013.

Plaintiffs argue that they could not have reasonably believed that acceptance of the Offer was- possible absent Mr. Brown’s agreement. (Dkt. No. 414 at 4). The Court disagrees. Given the background described above, it was unreasonable for Plaintiffs to believe that Defendant, in an “attempt to abuse Rule 68,” {id.), intended to preclude acceptance by requiring acceptance of “all plaintiffs” while neglecting to serve Mr. Brown, who had not participated in this litigation in over a year and for whom no valid contact information existed. Plaintiffs urge the Court to see Defendant’s bad faith at every turn, but provide no credible support for the suggestion that Defendant structured the Offer in a way so as to render acceptance impossible. Indeed,’ the Court agrees with Defendant that had it included Mr. Brown in the Offer and attempted to serve him, it is likely that Plaintiffs would be accusing the City of abusing Rule 68 by requiring acceptance of an in-name-only and unreachable plaintiff. (Dkt. No. 431 at 7). Thus, Mr. Brown’s approval was not a predicate to the Offer’s acceptance, and it was unreasonable for Plaintiffs to believe that acceptance was impossible absent Mr. Brown’s assent.

With respect to Mr. Turner, the Court finds that the Offer required acceptance by Mr. Turner to the extent it provided that “[acceptance by less than all plaintiffs shall be deemed a rejection of this offer.” Mr. Turner, prior to the Rule 68 Offer, had entered into a unique stipulation with Defendant concerning only his claims. On December 13, 2013, the parties stipulated that Mr. Turner “ha[d] no remaining claims to be heard at trial ..., provided that [Mr.] Turner reserve[d] this right to appeal any and all prior judgments by this Court.” (Dkt. No. 291 at 2). On December 17, 2014, the Court granted the parties’ stipulation. (Dkt. No. 292).'

Even though Mr. Turner stipulated that he “had no remaining claims to be heard at trial,” Mr. Turner was nevertheless a party to this action when Defendant made its Rule 68 offer. The Court has reviewed the stipulation, and, based on its plain language, there is no reason to conclude that the parties or the Court intended to dismiss Mr. Turner from the case. See United States v. Petty, 80 F.3d 1384, 1387 (9th Cir.1996) (“Like any other contract, we must interpret [a stipulation] so as to carry out the intention of the parties.”); Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.1999) (“Whenever possible, the plain language of a contract should be considered first.”). Rather, the stipulation provided only that Mr. Turner had no remaining claims to pursue at trial, but reserved his right to appeal the Court’s judgments, including the Court’s summary judgment ruling that resolved certain claims against Turner.

Second, the Defendant’s Rule 68 offer’s failure to mention Mr. Turner by name did not render the Offer ambiguous. Defendant’s offer of judgment clearly set forth the dollar amounts that the City was willing to pay to settle this matter. (See Dkt. No. 387-2 at 3). Defendant’s omission of Mr. Turner is therefore unambiguous: Defendant offered Mr. Turner $0 to settle his remaining claims against the City. The offer contained other incentives for Turner to settle, however, as discussed below. Given the parties’ stipulation that Mr. Turner had no remaining claims, ie., no damages, to pursue at trial, Defendant’s unwillingness to offer Mr. Turner a specific amount for his claims is logical.

It is “manifestly unjust” to allow a party to argue “after the fact that [a Rule 68] offer really means more than it says[,]” Erdman, 926 F.2d at 880 (internal quotations omitted), and courts may not “inject ambiguity” into a Rule 68 offer by “listing those things it does not promise[.]” Herrington, 12 F.3d at 907. Although Mr. Turner was not named in the Offer, Defendant expressly offered to allow judgment to be taken in favor of “plaintiffs” provided that '“all plaintiffs” accepted the Offer. (Dkt. No. 387-2 at 3). Plaintiffs have not provided any persuasive reason to conclude that Mr. Turner did not qualify as a “plaintiff” at the time the Offer was made. To the contrary, Plaintiffs admit that Mr. Turner was a plaintiff when Defendant made its offer of judgment. (See Dkt. No. 414 at 3 (“At the time of the Offer, there were not eight Plaintiffs, there were ten.”)). Therefore, Mr. Turner’s acceptance was required and Plaintiffs had no reasonable basis to conclude otherwise.

Third, that the proof of service attached to the Offer did not name Mr. Turner is immaterial given that the Offer was served on Mr. Rohde, who represented Mr. Turner, (Dkt. No. 889 at 22), as well as the other Plaintiffs in this litigation. (Dkt. No. 387-2 at 4). Federal Rule of Civil Procedure 5(b) provides that if a party is represented by an attorney, “service under this rule must be made on the attorney unless the court orders service on the party.” Service was made on Mr. Turner’s attorney, Mr. Rohde, and it was therefore effective.

b. Requirement That All Plaintiffs Accept

Plaintiffs also challenge the Offer on the ground that it unreasonably and abusively required the acceptance of “all plaintiffs,” but did not provide Mr. Brown and Mr. Turner any monetary incentive to tender their acceptance. (Dkt. No. 414 at 5). Plaintiffs appear to argue that Defendant sought to create disagreement among Plaintiffs by offering some of them money to settle while offering others (namely, Mr. Brown and Mr. Turner) nothing, thereby rendering uniform acceptance unlikely.

To begin, the Ninth Circuit has expressly approved of Rule 68 offers that require the acceptance of multiple plaintiffs. See Lang v. Gates, 36 F.3d 73, 75 (9th Cir.1994). Although Plaintiffs argue that “[vjarious courts have expressed concern over the tactical abuse of offers under Rule 68 which contain ‘acceptance by all’ conditions[,]” the Ninth Circuit has not. Furthermore, Plaintiffs have not provided any evidence that the Offer was merely a “sham” designed to afford Defendant the' benefits of a Rule 68 offer, but preclude acceptance. Defendant had little to gain by proceeding to trial after the Court’s MSJ Order, and Defendant’s offer, which significantly exceeded the amount of money that Plaintiffs received at trial, was reasonable.

As the Court has already discussed, Mr. Brown was not an active participant in this litigation at the time Defendant made its Rule 68 offer of judgment. Instead, he was on the cusp of being dismissed from this action without protest from Plaintiffs’ attorney, Mr. Rohde, who withdrew as Mr. Brown’s counsel over a year earlier. Defendant had no reason to offer Mr. Brown money to settle claims that he had no intention of pursuing. Thus, it was reasonable and proper to omit Mr. Brown from the Offer altogether.

With respect to Mr. Turner, the Court granted the parties’ stipulation on December 17, 2014 that Mr. Turner did not have any claims to pursue at trial, but reserved his right to appeal the Court’s earlier rulings. (Dkt. No. 292). Plaintiffs argue that despite the parties’ stipulation, the Offer was abusive because it gave Mr. Turner “no incentive to accept whatsoever.” (Dkt. No. 414 at 5). The Court disagrees.

First, had Plaintiffs, including Mr. Turner, accepted the Offer, Mr. Turner would have been able to immediately pursue any appeal that he intended to make. Thus, Mr. Turner had the incentive of accepting the offer to expedite a possible reversal of the adverse summary judgment rulings that pertained to him. The offer of judgment would have no impact on Mr. Turner’s right to appeal, which he preserved through a separate stipulation. Second, Defendant offered Plaintiffs, including Mr. Turner, their then-accrued costs, which included attorney’s fees. Third, by accepting Defendant’s Rule 68 offer of judgment, Plaintiffs, including Mr. Turner, could have insulated themselves from any requirement that they pay Defendant’s costs in this litigation. Thus, Mr. Turner, like each Plaintiff in this action, had ample incentive to accept Defendant’s Rule 68 offer of judgment.

Plaintiffs' also claim that the Offer was unreasonable as to Mr. Turner because it was “hopelessly ambiguous!,]” failing to specify the Offer’s effect on (1) Turner’s right to appeal, (2) “whether judgment against the City would be entered in Turner’s favor if the offer was accepted!,]” or (3) “what claims it would be entered in light of the Court’s [MSJ] Order.” (Dkt. No. 389 at 29-30). However, by its plain language, the Offer imposed no express or implied limitation on Mr. Turner’s (or any other Plaintiffs) right to appeal the Court’s judgments. Plaintiffs cannot invalidate the Offer by reference to limitations that, according to the Offer’s plain language, simply do not exist.

The Ninth Circuit has made clear that a court cannot read ambiguity into an otherwise clear Rule 68 offer by “listing those things it does not promise!.]” Herrington, 12 F.3d at 907. In Herrington, the Ninth Circuit expressly rejected an attempt to invalidate a Rule 68 offer on the ground that it omitted any reference to a party’s right to appeal. See id. (“The offer is clekr on its face, and we reject the [plaintiffs’] efforts to inject ambiguity into the settlement offer by listing those things that it does not promise, e.g., that the [defendant] will not proceed with any other appeals.... ”). Here, contrary to Herrington, Plaintiffs ask the Court to invalidate the Offer because of what it fails to mention, ie., Plaintiffs’ appellate rights. Because the Court may not create ambiguity where none exists by seizing on an offer’s non-existent terms, Plaintiffs’ argument must fail.

Plaintiffs also argue that Blair v. Shanahan (“Blair I”), 795 F.Supp. 309, 313-17 (N.D.Cal.1992), which Defendant cites in support of the Offer’s validity, (see Dkt. No. 417 at 17), actually renders the Offer defective. In Blair I, the district court rejected a defendant’s attempt to vacate or modify an accepted Rule 68 offer that was silent on each party’s appellate rights. See 795 F.Supp. at 313-17. The Blair I court explained that because neither the Rule 68 offer nor the plaintiffs acceptance of the offer mentioned the right to appeal, there was no “uncertainty as to the terms of the agreement[.]” Id. at 314 (“[O]bjectively read, the Rule 68 [wa]s silent as to appeal rights” and “there was no misunderstanding as to any material term of the Rule 68 offer”). Id. Thus, “[i]n the contract that was offered and accepted, there was a meeting of the minds as to every material term.” Id. Relatedly, the court rejected the argument that the judgment was invalid due to mutual mistake. See id. at 315-16. The court explained that a mistake regarding “appeal rights in the offer” was impossible because appeal rights were not part of “the terms of the agreement itselff.]” See id. On appeal, the Ninth Circuit found that the plaintiffs right to appeal did not survive his acceptance of the Rule 68 offer, but nevertheless upheld the district court’s decision not to vacate or modify the consent judgment in Blair I. Blair v. Shanahan (“Blair II”), 38 F.3d 1514, 1518 (9th Cir.1994) (“The simple fact is ... that the right to appeal was not a term of the agreement.... The consent judgment stands.”).

Plaintiffs argue that because the Blair plaintiffs right to appeal did not survive his acceptance of a Rule 68 offer, there is no “per se” rule that a plaintiffs right to appeal is preserved when a Rule 68 offer is silent regarding appellate rights. According to Plaintiffs, the lack of a “per se” rule renders the Offer in this case fatally ambiguous because Plaintiffs had no way of knowing or predicting the Offer’s effect on Mr. Turner’s (or any other Plaintiffs) right to appeal the Court’s judgments. However, Plaintiffs misunderstand the meaning of Blair II. Notwithstanding its holding that the plaintiffs right to appeal did not survive his acceptance, the Ninth Circuit upheld the lower court’s refusal to vacate or modify the consent judgment due to misunderstanding, mistake, or ambiguity. See id.' at 1518. In doing so, the Ninth Circuit echoed the district court’s reasoning that uncertainty regarding terms absent from an offer of judgment is not a proper basis for invalidating a Rule 68 offer. See id.; see also Blair I, 795 F.Supp. at 313-16.

The clear takeaway from Blair I and Blair II is that where a Rule 68 offer is silent regarding the right to appeal, the offer’s actual impact on a party’s appellate rights is a question distinct from and irrelevant to the validity of the offer of judgment. Furthermore, in Blair II, the Ninth Circuit concluded that the plaintiffs right to appeal did not survive because the defendant’s offer of judgment expressly provided that the plaintiffs claims would be “dismissed with prejudice” upon acceptance. See Blair II, 38 F.3d at 1521. Here, the parties previously stipulated that Mr. Turner retained his right to appeal the Court’s judgments, and the Offer did not require the dismissal of Mr. Turner’s claims with prejudice. Accordingly, it was unreasonable for Plaintiffs to believe, based on Blair II, that Mr. Turner’s right to appeal would not survive his acceptance of the Offer.

For the foregoing reasons, Defendant’s Rule 68 Offer was neither abusive nor fatally ambiguous as to Mr. Turner. However, even if one found the Offer ambiguous, there is strong extrinsic evidence that Plaintiffs and Defendant understood that Mr. Turner’s right to appeal would survive his acceptance of the Offer. See Herrington, 12 F.3d at 907 (court may look to extrinsic evidence to determine parties’ intent). A mere four days prior to Defendant’s offer of judgment, the parties stipulated that Mr. Turner retained the right to appeal the Court’s judgments. (Dkt. No. 291). Neither party raised any concerns regarding Mr. Turner’s right to appeal after Plaintiffs received the offer of judgment, a very short time after the parties stipulated to preserve Turner’s right to appeal. This stipulation is strongly probative of the parties’ mutual intent that Mr. Turner’s appellate rights be preserved. Once the Court granted the parties’ stipulation, Mr. Turnér’s right to appeal was protected by a court order. It is doubtful that Plaintiffs or Defendant interpreted the Offer, which was altogether silent on the issue of appellate rights, as stripping Mr. Turner of the very right to appeal that the Court, pursuant to the parties’ stipulation, had just preserved. This extrinsic evidence indicates that contrary to Plaintiffs’ suggestion, the parties understood that Defendant’s Offer had no impact on Mr. Turner’s (or any other Plaintiffs) right to appeal the Court’s judgments.

c. Compliance With Rule 68’s Procedural Requirements

Plaintiffs argue that because Defendant failed to “vigorously adhere” to Rule 68’s procedural requirements, the Offer is invalid. (Dkt. No. 414 at 5). First, Plaintiffs argue that the Offer is invalid because “it sets forth no period within which to respond.” (Id.). However, Rule 68(a) provides that “[i]f, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.” Rule 68(b) also explains that an “unaccepted offer is considered withdrawn, but it does not preclude a later offer.” "Reading these provisions together, Rule 68 clearly provides a party fourteen days to accept a Rule 68 offer of judgment before the offer lapses and is deemed withdrawn. See Whitehouse v. Target Corp., 279 F.R.D. 285, 289-90 (D.N.J.2012) (“[U]nless an Offer of Judgment is accepted in accordance with Rule 68(a) within 14 days after service upon the opposing party, the offer will be deemed withdrawn with the resulting consequences specified in Rule 68(d).”). Thus, Rule 68 clearly provides the time-frame for acceptance, and Plaintiffs have not cited any authority requiring a defendant to recite Rule 68’s fourteen-day deadline to render an offer of judgment valid.

Second, Plaintiffs argue that the Offer violated Rule 68’s “14-day requirement because its terms prevented the City from holding it open throughout the statutory period.” (Dkt. No. 414 at 6). Plaintiffs claim that because the Offer required acceptance by “all plaintiffs[,]” the Offer immediately terminated when, prior to fourteen days after its service, one of the Plaintiffs expressed to Mr. Rohde that he did not want to accept the Offer. (Id.). However, this choice by a single Plaintiff cannot be used against Defendants to invalidate the Offer. To the extent Plaintiffs complain that the Offer terminated upon its rejection by one Plaintiff, (see Dkt. No. 414 at 6), they take issue with the usual rules of contract law that govern Rule 68 offers. See, e.g., Collins v. Thompson, 679 F.2d 168, 171 (9th Cir.1982) (“.Generally, rejection or counteroffer terminates the power to accept the previously-made offer.”); Restatement (Second) of Contracts § 38(1) (1981) (“An offeree’s power of acceptance is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention.”).

Moreover, assuming that a Plaintiff in this' case told Mr. Rohde to reject the Offer during the fourteen-day period when the Offer was pending, the Court is not persuaded that this constituted a true rejection of the Offer. A rule that a plaintiff rejects and consequently terminates a defendant’s settlement offer any time he expresses to his attorney or co-plaintiffs, in private, that he does not want to accept the offer, is not only practically unenforceable, it would also render settlement unreasonably difficult. In this action, Plaintiffs do not allege that any Plaintiff caused Mr. Rohde to formally tender his rejection to the City within fourteen days of the Offer’s service on Plaintiffs, and the Court will not use the confidential communications between Mr. Rohde and his clients to determine when the Offer was rejected.

In sum, Plaintiffs, have not offered any convincing reason to doubt the validity of the Offer, and the Court finds that Defendant’s Rule 68 offer of judgment was valid. The Offer satisfied Rule 68’s requirements. Moreover, it manifested Defendant’s willingness to enter into an agreement with Plaintiffs, in turn justifying Plaintiffs’ understanding that their assent to that bargain was invited and would conclude it. See Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 784 (9th Cir.2012) (listing requirements of a valid contract offer).

3. Plaintiffs May Not Recover Any Attorney’s Fees Or Costs Incurred After December 17, 2013

“Rule 68 provides that if a timely pretrial offer of settlement is not accepted and ‘the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after making the offer.’ ” Marek, 473 U.S. at 5, 105 S.Ct. 3012 (emphasis in original). Thus, Rule 68 encourages settlement by “forcing a plaintiff to weigh the risk of incurring post-offer costs and fees he may not be able to recover even if successful on his claims.” Herrington, 12 F.3d at 907. The term “costs” in Rule 68 “was intended to refer to all costs properly awardable under the relevant substantive statute or other authority. In other words, all costs properly awardable in an action are to be considered within the scope of Rule 68 ‘costs.’ ” Marek, 473 U.S. at 9, 105 S.Ct. 3012. “Since Congress expressly included attorney’s fees as ‘costs’ available to a plaintiff in a § 1983 suit, such fees are subject to the cost-shifting provision of Rule 68.” Id. at 9-11, 105 S.Ct. 3012 (holding that plaintiffs were not entitled to $139,692 in post-offer legal fees where they recovered $8,000 less than defendant’s Rule 68 offer and noting that this result was “consistent with the policies and objectives of § 1988 ... [to] encourage[ ] plaintiffs to bring meritorious civil rights suits[ ]”); see also Family PAC v. Ferguson, 745 F.3d 1261, 1264-65 (9th Cir.2014) (discussing Marek); Herrington, 12 F.3d at 907 (“Because attorney’s fees are included as costs of a federal civil rights action under 42 U.S.C. § 1988, the cost-shifting provision of Rule 68 applies to limit a prevailing plaintiffs recovery of fees in a section 1983 action if the plaintiff rejects an offer that exceeds his damages award.”).

The Court notes that a plaintiff who rejects a more favorable Rule 68 offer is not entitled to attorney’s fees for post-offer time spent preparing a fee application or otherwise litigating the attorney’s fees issue. Typically, “time spent in establishing entitlement to an amount of fees awardable under section 1988 is compensable.” Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir.1986). However, Supreme Court and ‘Ninth Circuit precedent compel the conclusion that a plaintiff cannot recover any post-offer attorney’s fees if he accepts an unambiguous offer of judgment or rejects a more favorable Rule 68 offer.

In Holland v. Roeser, 37 F.3d 501 (9th Cir.1994), the Ninth Circuit considered whether a § 1983 plaintiff who accepts a Rule 68 offer may recover attorney’s fees for preparing a post-offer fee petition. Id. at 503. Before resolving this question, the Ninth Circuit noted that in Marek, the Supreme Court held only “that a plaintiff in a § 1983 action who rejects a Rule 68 offer and ultimately recovers less than the offered amount is not entitled to recover post-offer costs or fees.” Id.

Although the Holland court then granted the plaintiffs post-offer fees, including fees incurred preparing a fee petition, the Ninth Circuit did so only on the narrow ground that the particular Rule 68 offer that the plaintiffs accepted' — which offered the plaintiffs a “sum of ... $500 plus costs now accrued and reasonable attorney fees as determined by the Court” — contained specific language not found in Rule 68 that was “broader than the cost provision [in Rule 68] and might extend to those fees not already accrued.” Id. at 502, 504. Construing this language against the defendant, the Ninth Circuit upheld the district court’s award of post-offer fees. Id. at 504. However, the court noted that “an offer of judgment limiting itself to the language of Rule 68 and referring only to ‘costs now accrued’ ” would have barred the plaintiffs’ recovery of all post-offer attorney’s fees. Id. at 504, 504 n. 1.

In Guerrero v. Cummings, the Ninth Circuit confirmed that where a plaintiff accepts an offer of judgment that clearly limits a plaintiff to costs incurred prior to the offer, recovery of any post-offer attorney’s fees is not permitted. Guerrero v. Cummings, 70 F.3d 1111 (9th Cir.1995). The Rule 68 offer in Guerrero closely paralleled the Offer in this case, offering the plaintiffs a sum of money “plus reasonable attorney fees and costs incurred ... prior to the date of this offer in an amount to be set by the court.” Id. at 1112-13. In denying the plaintiffs post-offer fees, the Ninth Circuit explained that the phrase “incurred prior to this date” modified “reasonable attorney fees and costs[,]” thereby strictly limiting fees and costs to those incurred prior to the date of the offer. Id. at 1113. While the plaintiffs argued that disallowing post-offer fees undermined § 1988’s purpose, the Ninth Circuit cited Marek for the proposition that subjecting civil rights plaintiffs to Rule 68’s settlement provisions does not curtail their access to the courts or deter them from bringing suit, but simply requires plaintiffs to “ ‘think very hard about whether continued litigation is worthwhile.’ ” Id. at 1114 (quoting Marek, 473 U.S. at 11, 105 S.Ct. 3012).

In the current action, Defendant offered Plaintiffs a sum of money plus “costs incurred prior to the date of this offer by plaintiffs which shall include attorneys’ fees in an amount to be determined by the Court.” Thus, the Offer unambiguously limited Plaintiffs to costs, including attorney’s fees, incurred prior to the Offer. There is np doubt that had Plaintiffs accepted the Offer, they would now be barred from recovering any and all. post-offer attorney’s fees, including fees incurred litigating the attorney’s fees issue. See Guerrero, 70 F.3d at 1113-14; see also Marquez v. Harper Sch. Dist. No. 66, 2012 WL 2469545, at *13-14 (D.Or. June 26, 2012) (denying plaintiffs supplemental motion for attorney’s fees for hours spent preparing fee petition where plaintiff accepted Rule 68 offer that contained language limiting plaintiff to attorney’s fees and costs incurred prior to the date of the offer), aff'd and rev’d on other grounds, 546 Fed.Appx. 659, 660 (9th Cir.2013).

Because Plaintiffs did not accept the Offer and obtained a less favorable judgment, the plain language of Rule 68(d) and Marek bar them from recovering all post-offer fees, including fees incurred litigating the attorney’s fees issue. See Fed.R.Civ.P. 68(d) (“If the judgment that the' offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”) (emphasi