Fees in Starbucks Masturbation Spat Upheld

     SEATTLE (CN) – A man who beat charges of exposing himself at Starbucks, but failed to show malicious prosecution, must cover the baristas’ legal fees, the 9th Circuit ruled Thursday.
     Douglas DiBiasi was arrested in 2007 after three Spokane-area Starbucks employees claimed to have seen him masturbating at a drive-up window. 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, so Spokane police dropped the charges.
     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.”
     In 2011 reversal , a three-judge panel with the 9th Circuit said that 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.
     DiBiasi appealed that award, telling the 9th Circuit at hearing late last month that counsel for Starbucks at Perkins Coie should have raised an immunity defense immediately and appealed if the defense was rejected.
     Anti-SLAPP is meant to “protect the defendant from having the burden of litigation expense,” DiBiasi’s attorney Richard Wall said.
     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 added.
     The three-judge panel affirmed in a brief order published Thursday.
     “Appellees did not unnecessarily prolong the litigation because they repeatedly sought to dismiss the case on the theory that they were immune from suit under Wash. Rev. Code § 4.24.510,” the unsigned order states. “Further, we conclude that this defense was not a pure question of law. Under the circumstances of this case, in order to establish the defense it was necessary for appellees to conduct discovery and then move for summary judgment to obtain a ruling that appellees’ report to the police was made in good faith and was of the type that was ‘reasonably of concern to that agency.'”
     The court awarded $156,797.62 in attorneys’ fees and $18,319.79 in costs under Washington State’s anti-SLAPP statute.

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