FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID FABBRINI,
Plaintiff-Appellant, No. 09-16292
v. D.C. No.
CITY OF DUNSMUIR; BILL SANFORD; 2:07-cv-01099-
JOHN FISHER; KEITH ANDERSON; GEB-CMK
DOES 1 THROUGH 10, INCLUSIVE, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted
October 7, 2010—San Francisco, California
Filed February 11, 2011
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Louis H. Pollak, District Judge.*
Opinion by Judge Pollak
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
2317
FABBRINI v. CITY OF DUNSMUIR 2319
COUNSEL
Tania Beth Rose, San Francisco, California, for the plaintiff-
appellant.
J. Scott Smith, Sacramento, California, for the defendants-
appellees.
2320 FABBRINI v. CITY OF DUNSMUIR
OPINION
POLLAK, District Judge:
Plaintiff-Appellant David Fabbrini was sued by the City of
Dunsmuir, California (“the City”), for his failure to suffi-
ciently collateralize a municipal loan. The City’s lawsuit
included a request for declaratory relief regarding Fabbrini’s
obligations, as well as a fraud claim. Subsequently the City
voluntarily dismissed that lawsuit. Fabbrini then filed a fed-
eral court action against the City and various City officials,
alleging a § 1983 claim for malicious prosecution and a state
law defamation claim.
Pursuant to California’s anti-SLAPP statute, Cal. Civ. Proc.
Code § 425.16, the district court granted the City’s motion to
strike the defamation claim. In the same order, it denied the
City’s motion to dismiss the § 1983 malicious prosecution
claim. The court then awarded attorney’s fees to the City on
the basis of the successful anti-SLAPP motion, and later
granted summary judgment in favor of the City as to the
§ 1983 malicious prosecution claim. Fabbrini appeals the
summary judgment ruling and the award of attorney’s fees.
I. Malicious Prosecution
[1] The district court did not err in granting summary judg-
ment on the § 1983 malicious prosecution claim. The City
Council resolution approving the loan specified a 110% col-
lateral requirement, and Fabbrini admitted that the loan was
not fully collateralized. Accordingly, the City’s declaratory
action was brought with probable cause. See Sheldon Appel
Co. v. Albert & Oliker, 47 Cal. 3d 863, 886 (1989) (in a civil
malicious prosecution suit, probable cause exists if “any rea-
sonable attorney would have thought the claim tenable”).
[2] The district court also properly found that the City’s
fraud claim, which the City did not include in its amended
FABBRINI v. CITY OF DUNSMUIR 2321
complaint, could not form the basis of a § 1983 malicious
prosecution lawsuit. Even if it was the case that the fraud
claim might have been deemed lacking in probable cause, a
dropped claim cannot form the basis of a malicious prosecu-
tion action. See Jenkins v. Pope, 217 Cal. App. 3d 1292,
1300-01 (1990) (“To allow a malicious prosecution suit to be
based on a cause of action dropped from an amended com-
plaint would discourage amendment of pleadings to delete
theories which come to appear untenable.”); see also Crowley
v. Katleman, 8 Cal. 4th 666, 678 (1994) (suggesting that a
plaintiff can avoid malicious prosecution liability by dropping
untenable claims from a complaint that includes tenable
claims, but that a plaintiff remains liable if he or she fails to
amend in that manner).1
II. Attorney’s Fees
Awards of attorney’s fees are generally reviewed for abuse
of discretion, see Hensley v. Eckerhart, 461 U.S. 424, 437
(1983), but “any elements of legal analysis and statutory inter-
pretation which figure in the district court’s decision are
reviewable de novo.” Cabrales v. Los Angeles, 935 F.2d
1050, 1052 (9th Cir. 1991) (internal quotation marks omitted).
In the district court, the City filed in a single pleading the
motion to dismiss the § 1983 malicious prosecution claim and
the anti-SLAPP motion to strike the defamation claim. It is
undisputed that the City is entitled to fees for having prevailed
on the anti-SLAPP motion. But the district court also awarded
1
We are assuming, as did the parties, that a § 1983 malicious prosecu-
tion must meet the requirements of a malicious prosecution case in the
forum state. See, e.g, Awabdy v. City of Adelanto, 368 F.3d 1062, 1066
(9th Cir. 2004). As the issue has not been raised, we do not address
whether that precept is drawn into question in the current circumstances
by Hartman v. Moore, 547 U.S. 250 (2006); see id. at 258 (“[W]e cer-
tainly are ready to look at the elements of common-law torts when we
think about elements of actions for constitutional violations . . . but the
common law is best understood here more as a source of inspired exam-
ples than of prefabricated components . . . .”).
2322 FABBRINI v. CITY OF DUNSMUIR
fees for hours incurred on the § 1983 motion, to the extent
that any of those hours were “inextricably intertwined” with
the anti-SLAPP motion. We find that the district court erred
in awarding fees for the City’s defense against the § 1983
claim, even if that work was intertwined with the anti-SLAPP
portion of the motion.
[3] A district court may award attorney’s fees to a prevail-
ing § 1983 defendant “only where the action brought is found
to be unreasonable, frivolous, meritless or vexatious.” Patton
v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (quot-
ing Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421(1978)); see also 42 U.S.C. § 1988. In this case, the dis-
trict court did not rule that Fabbrini’s § 1983 claim was frivo-
lous. Thus, in awarding fees for hours spent on the motion to
dismiss the malicious prosecution claim, the district court
improperly awarded fees for time spent defending a § 1983
action that it had not found to be frivolous. See Quintana v.
Jenne, 414 F.3d 1306, 1311-12 (11th Cir. 2005) (where frivo-
lous § 1983 claims are joined with non-frivolous § 1983
claims, district court must award “fees attributable exclusively
to [the frivolous claim],” even though “some of the facts sup-
porting each claim were common to both claims”) (emphasis
added) (quoted with approval in Tutor-Saliba Corp. v. City of
Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006)). We accordingly
vacate the district court’s ruling insofar as it granted fees for
a portion of the § 1983 motion that it deemed to be inter-
twined with the anti-SLAPP motion. Unless the district court
makes a proper finding that the § 1983 claim was frivolous,
the City is entitled to fees only for work that is exclusively
attributable to the anti-SLAPP motion.2
2
The Supreme Court has recently granted certiorari in a case concerning
the availability of fees for intertwined work. Fox v. Vice, 594 F.3d 423
(5th Cir. 2010) cert. granted, 131 S. Ct. 505 (Nov. 1, 2010) (No. 10-114).
In Fox, the Fifth Circuit addressed whether a defendant, who was entitled
to fees for defending against frivolous § 1983 claims, was also entitled to
fees for hours spent on intertwined, non-frivolous state law claims. Fox,
FABBRINI v. CITY OF DUNSMUIR 2323
[4] The district court also erred in its award for the City’s
preparation of the motion for attorney’s fees. One of the
entries for hours spent on the fee motion included: “Research
various defenses and analysis of options for proceeding with
defense of lawsuit and develop plan . . . .” These tasks do not
relate to preparation of the fee motion. Although the remain-
der of the entry described hours spent on the fee motion, it
was error for the district court to award fees for the entire
entry. See Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th
672, 689 (2000) (“If counsel cannot further define his billing
entries so as to meaningfully enlighten the court of those
related to [the fee claim], then the trial court should exercise
its discretion in assigning a reasonable percentage to the
entries, or simply cast them aside.”). We accordingly vacate
that portion of the fee award and remand to the district court
for a determination of what proportion of this entry, if any, is
recoverable.
The balance of Fabbrini’s fee award arguments amount to
assertions that the district court’s award was imprecise or too
high, but none of those arguments demonstrates an abuse of
discretion.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
594 F.3d at 428-29. In this case, however, there was a fee award for a
§ 1983 claim that has not been deemed frivolous. Thus Fox does not deal
with the problem we confront here: that the award of fees for defending
against a non-frivolous, intertwined, § 1983 claim is not compatible with
the federal policy imposing restrictions on fee awards to § 1983 defen-
dants.