FILED
NOT FOR PUBLICATION FEB 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DOUGLAS J. DIBIASI, No. 10-35213
Plaintiff - Appellee, D.C. No. 2:07:cv-00276-LRS
v.
MEMORANDUM *
STARBUCKS CORPORATION; LESLIE
RUFF; HEIDI PARR,
Defendants - Appellants.
and
SPOKANE COUNTY WASHINGTON;
OZZIE KNEZOVICH; DAVE REAGAN;
THOMAS EDELBROCK,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted February 7, 2011
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, PAEZ and IKUTA, Circuit Judges.
Appellants Heidi Parr, Leslie Ruff, and Starbucks Corporation appeal the
district court’s order denying their request for attorneys’ fees, costs, and statutory
damages pursuant to Washington State's anti-SLAPP statute, Wash. Rev. Code §
4.24.510. Ruff and Parr also appeal the district court’s denial of their request for
attorneys’ fees pursuant to 42 U.S.C. § 1988(b). We have jurisdiction under 28
U.S.C. § 1291. We affirm in part, reverse in part, and remand for calculation of
attorneys' fees, costs, and statutory damages.
The record establishes that Ruff complained to the police regarding Douglas
DiBiasi’s conduct in the Starbucks drive-thru; that this complaint was a matter of
concern to the police;1 and that DiBiasi sued Ruff, Starbucks, and Parr under
Washington law as a result of Ruff’s complaint. Therefore, the appellants met the
requirements for immunity under Wash. Rev. Code § 4.24.510 from DiBiasi’s
claims for malicious prosecution and discrimination. See Wash. Rev. Code
1
The police arrested DiBiasi for indecent exposure. He was not prosecuted.
2
§ 4.24.510.2 Contrary to the district court’s ruling at summary judgment,
appellants did not have to establish that they acted in good faith in order to qualify
for immunity; the plain language of Wash. Rev. Code § 4.24.510 and Washington
case law make clear that the state legislature removed the good faith requirement
for entitlement to immunity in 2002. See Bailey v. State, 191 P.3d 1285, 1290–91
(Wash. Ct. App. 2008). Moreover, the district court’s judgment that DiBiasi failed
to establish actual malice as a matter of law constituted a finding of good faith for
purposes of Wash. Rev. Code § 4.24.510, see Kauzlarich v. Yarbrough, 20 P.3d
946, 956 (Wash. Ct. App. 2001), and entitled appellants to statutory damages of
ten thousand dollars under Wash. Rev. Code § 4.24.510, see Bailey, 191 P.3d at
1291. DiBiasi has not cited any case indicating that the immunity defense under
2
Washington’s Anti-SLAPP statute provides in pertinent part:
A person who communicates a complaint or information to
any branch or agency of federal, state, or local government,
. . . is immune from civil liability for claims based upon the
communication to the agency or organization regarding any
matter reasonably of concern to that agency or
organization. . . . A person prevailing upon the defense
provided for in this section is entitled to recover expenses
and reasonable attorneys’ fees incurred in establishing the
defense and in addition shall receive statutory damages of
ten thousand dollars.
Wash. Rev. Code § 4.24.510.
3
Wash. Rev. Code § 4.24.510 is lost when a case proceeds to trial, and the plain
language of the statute and Washington case law suggest otherwise. See
Valdez-Zontek v. Eastmont Sch. Dist., 225 P.3d 339, 350–51 (Wash. Ct. App.
2010); Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now, 82
P.3d 1199, 1211 (Wash. Ct. App. 2004). Accordingly, the district court erred in
refusing to grant appellants statutory immunity, mandatory attorneys’ fees and
costs, and statutory damages under Wash. Rev. Code § 4.24.510, for DiBiasi’s
claims for malicious prosecution and discrimination.
The district court abused its discretion in failing to grant attorneys’ fees to
Heidi Parr under 8 U.S.C. § 1988(b). DiBiasi conceded at summary judgment that
he had insufficient evidence to support his allegations of conspiracy against Parr,
and the record indicates that he had all of the information needed to establish her
lack of knowledge or involvement before he filed his amended complaint. See
Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 962 (9th Cir. 2010)
(affirming the district court’s award of attorneys’ fees from the time the plaintiff
knew or should have known that there was no basis for its claims against
defendant); cf. Elwood v. Drescher, 456 F.3d 943, 949 (9th Cir. 2006).
Because the district court deemed DiBiasi’s allegations sufficient to support
a cognizable claim under 8 U.S.C. § 1983 against Ruff, and there is nothing in the
4
record to suggest that DiBiasi knew or should have known that his allegations
against Ruff were frivolous, Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055,
1062–64 (9th Cir. 2006), it was not an abuse of discretion for the district court to
deny Ruff attorneys’ fees under § 1988(b), Patton v. Cnty. of Kings, 857 F.2d
1379, 1381 (9th Cir. 1988) (affirming the district court’s grant of attorneys’ fees
where plaintiff’s claims were groundless).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
FOR CALCULATION OF ATTORNEYS’ FEES, COSTS, AND
STATUTORY DAMAGES.
5