Ninth Circuit Reverses and Remands To Craft Fee Recovery Only for anti-SLAPP Work.
In Fox v. Vice, No. 10-114 (U.S. Sup. Ct., cert. granted, 131 S. Ct. 505 [Nov. 1, 2010]), the United States Supreme Court will consider whether attorney’s fees can be awarded for intertwined work when the civil rights claims are determined to be frivolous and fee-worthy in nature. The next case deals with a somewhat related, yet different, issue: can a defendant collect fees for nonfrivolous civil rights work under an anti-SLAPP motion successful on a different claim?
The answer is no, according to the Ninth Circuit in Fabbrini v. City of Dunsmuir, Case No. 09-16292 (9th Cir. Feb. 11, 2011) (for publication).
The problem with the district judge’s award was not in allowing recovery for the anti-SLAPP win on a defamation claim. However, the district judge also awarded fees to the defense even though plaintiff’s federal civil rights claim was never found to be nonfrivolous in nature. (Fees are only awardable to defendants in a civil rights suit if the § 1983 claim is found to be frivolous. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).) The fee time work on the civil rights claim could not be added to the anti-SLAPP recoery unless there was a proper finding the civil rights claim was frivolous in nature. Also, the district court erred in its award of time for “fees on fees,” especially given that some of the entries did not relate to fee motion preparation. Reversed and remanded.
