Anti-SLAPP denials are appealable as collateral orders, 9th Circuit says

Tim Kowal September 26, 2023

Congress has not enacted an anti-SLAPP statute like the ones in many states, such as California, which prohibit “strategic lawsuits against public participation.” Anti-SLAPP motions protect defendants sued for defamation or the like. But again, there is no federal anti-SLAPP law providing for such a motion.

Still, that has proved no problem for the 9th Circuit, which has seen fit to apply state anti-SLAPP statutes.

But aren’t these state anti-SLAPP laws procedural mechanisms? And state procedural statutes don’t apply in federal court, right? Well, that’s true, says the 9th Circuit, if we were to admit that anti-SLAPP motions are procedural devices. But we don’t admit that. The anti-SLAPP statutes enshrine a substantive right, and we can enforce those substantive rights through the federal procedural statutes for motions to dismiss and motions for summary judgment.

If you’ve followed the 9th Circuit’s legal fiction thus far, surely you’ll indulge one more. So now you’ve had your anti-SLAPP motion denied by the district court, and you want to appeal. But an anti-SLAPP motion in district court is governed as some amalgam of a motion to dismiss and a motion for summary judgment, and denials of such motions are not appealable.

No matter, says the 9th Circuit in Martinez v. ZoomInfo Tech. Inc., No. 22-35305 (9th Cir. Sep. 21, 2023), because there is the collateral order doctrine. An order is appealable as a collateral order when they are “conclusive”, and resolve important questions “separate from the merits,” and are effectively unreviewable on appeal from a final judgment. But it is hard to see how an anti-SLAPP denial is “conclusive” (because Code of Civil Procedure section 425.16 expressly states that no ultimate facts in the case “shall be affected by th[e] determination” on the motion). And anti-SLAPP denials are not “separate from the merits” (again, section 425.16 expressly requires the plaintiff to establish a probability that it “will prevail on” its complaint).

But that is the rule in the 9th Circuit. Denials of anti-SLAPP motions are appealable as collateral orders.

Judge Bress has frequently raised these criticisms with his colleagues, such as in Salveson v. Kessler. Given the seriousness of his criticisms, and the circuit split on the issue, it strikes me as uncongenial of his colleagues to ignore them.

(Thanks to Ray Mandlekar for the tip to this case.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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Anti-SLAPP denials are appealable as collateral orders, 9th Circuit says

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"A judge is a law student who grades his own papers." — H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King