                                                                           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                            NOT FOR PUBLICATION                             FEB 17 2011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.




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