Hasan

MEMORANDUM **

Contra Costa County (“the County”) appeals the district court’s award of attor *796 ney’s fees to Saed Hasan (“Hasan”) after a favorable jury verdict on Hasan’s employment discrimination claim. The County argues that the Rule 68 bar on collection of “costs” after a qualifying settlement offer also bars post-offer attorney’s fees under California law. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

The County argues that Cal.Civ. Proc.Code § 1033.5(c)(5) alters the meaning of Cal. Gov. Code § 12965 (b) for Rule 68 purposes, requiring that attorney’s fees be considered a component of costs. This argument was not made to the district court and absent exceptional circumstances, we do not consider an issue not so raised. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir.1985). The County argues that waiver should not apply because it raised Hasan’s entitlement to post-offer fees generally, and merely refines its attack on appeal with citation to section 1033.5(c)(5). Its citations on this point are distinguishable. Yee v. City of Escondido, 503 U.S. 519, 533-34 , 112 S.Ct. 1522 , 118 L.Ed.2d 153 (1992), and Lebron v. National R.R. Passenger Corp., 513…

I concur in the result. Defendants’ offer of judgment dated February 29, 2000 did not clearly and unconditionally offer plaintiff his attorneys fees. Athough the defendants offered to stipulate that plaintiff “shall be considered a ‘prevailing part/ solely for the purpose of filing an attorney fee application or motion,” they specifically reserved the right to assert “any other objections they may have to plaintiffs attorneys fee applieation/motion or any part thereof.” This was not an unconditional offer of plaintiffs entitlement to attorneys fees. See Herrington v. County of Sonoma, 12 F.3d 901, 907 (9th Cir.1993).

Defendants’ offer of judgment dated May 17, 2000 (“in the total amount of $200,000, inclusive of costs and reasonable attorneys fees, as determined by the court, incurred to the date of this offer”) was ambiguous. Was it a flat offer of $200,000? Or were costs and reasonable attorneys fees to be “determined by the court”? An offer of judgment under Rule 68 must be clear and unambiguous. Nusom v. COMH Woodburn, Inc., 122 F.3d 830, 833 (9th Cir.1997). This offer was neither.