(CN) – A man who beat charges of exposing himself at Starbucks, but failed to show malicious prosecution, urged the 9th Circuit to deny the baristas attorneys’ fees.
Douglas DiBiasi was arrested in 2007 after three Spokane-area Starbucks employees claimed he was masturbating at a drive-up window. Spokane police dropped charges after the employees could not say for sure if they actually saw DiBiasi’s genitals, and Starbucks could not find the store’s videotape of the incident.
DiBiasi sued Starbucks employees Leslie Ruff and Heidi Parr, Spokane County, its sheriff, and the two arresting deputies for civil-rights violations.
In his complaint, DiBiasi said his obsessive-compulsive disorder causes him to “engage in involuntary repetitive actions.” DiBiasi claimed he was only reaching for his wallet and counting out money while he was at the store window.
A jury found in favor of the Spokane law enforcement defendants. U.S. District Judge Lonny Suko granted judgment as a matter of law to the Starbucks defendants but refused to award them attorneys’ fees because DiBiasi’s claims were not “frivolous, unreasonable, or groundless.”
Starbucks appealed the decision to the 9th Circuit.
In 2011 reversal, a three-judge panel said the Starbucks defendants had immunity under Washington’s anti-SLAPP statute, which shields from civil liability those who make a complaint to any branch of government. Since the statute provides for “reasonable attorneys’ fees in establishing the defense,” the panel remanded for fee calculations.
Sarko then awarded Starbucks, Ruff and Parr each $10,000, and allowed $156,797 in attorneys’ fees.
Representing DiBiasi in the latest appeal Monday, attorney Richard Wall told a three-judge panel that only certain fees related to the anti-SLAPP defense are recoverable.
Wall said that attorneys from Perkins Coie who represented the Starbucks defendants hired experts and conducted depositions “even though immunity is already established.”
“What they want to now say is we can go do all that anyway and then get paid for it at the end because we started out with immunity,” Wall said.
Perkins Coie should have raised an immunity defense immediately and appealed if the defense was rejected, DiBiasi’s attorney added, noting that anti-SLAPP is meant to “protect the defendant from having the burden of litigation expense.”
Rather than intending to cover attorneys’ fees for a lengthy trial, the writers of the statute meant to stop the lawsuit “in its tracks,” Wall said.
Judge Morgan Christen asked Wall how he would determine which attorneys’ fees were acceptable.
Wall replied that he’d look at the work done only to establish immunity, such as preparation for summary judgment.
Judge Michael Daly Hawkins wanted to know if Wall would be open to mediation about the fees.
“I am always open to mediation,” Wall said.
Starbucks attorney Mary Gaston, of Perkins Coie, was not so optimistic about mediation when asked the same question.
She said Starbucks had attempted mediation “on numerous, numerous times” without success.
Gaston said the District Court properly awarded the fees after a lengthy investigation. She said Perkins Coie removed some fees and what remains are “only those fees incurred as a result of establishing the defense.”
Gaston argued that the statute says “reasonable attorney fees should be provided,” and doesn’t say anything about the “fastest” way to prove an immunity defense.
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