Kowal Law Group Logo
Court Split

Anti-SLAPP denials are appealable in the 9th Cir., but they shouldn’t be, says Judge Bress

Tim Kowal     May 1, 2023

The film production in which a prop-gun-wielding Alec Baldwin fatally shot the cinematographer spun off a civil lawsuit in Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.). But as the 9th Circuit holds, the civil case—involving a producer’s claims concerning his former lawyer’s business and tax practices—holds out no issues of public interest.

So uninteresting were the claims, in fact, and so devoid of protected conduct, that Judge Bress separately concurred to muse why this appeal should have sucked up a year of everyone’s time, while the case languished under a pointless appellate stay.

Judge Bress pointed out that the anti-SLAPP law, and the immediate right to appeal from denials of anti-SLAPP motions, are procedures specific to California law. The 9th Circuit has its own procedures, and under those procedures, there is no immediate right to appeal from SLAPP denials. (There is no federal SLAPP procedure at all, for that matter.)

“This piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither sound as a matter of law nor sensible as a matter of litigation management.”

Judge Bress’s concurrence is not the first time he has sounded this view. He raised it in the Flo & Eddie, Inc. v. Pandora Media, LLC case in 2022 (discussed here). Judge Bress there noted that:

  • Anti-SLAPP denials, which could only be appealable in federal courts as “collateral orders,” are literally not collateral because, by definition, anti-SLAPP motions involve the very gravamen of the case. “Gravamen” and “collateral” are, in fact, antonyms.
  • The rationale for treating anti-SLAPP denials as equivalent to final judgments is that the point of an anti-SLAPP motion is avoiding pointless litigation and trial. Without review of a denial of this summary proceeding, the movant would be deprived of that important objective. But the same is true of denials of other summary proceedings like motions to dismiss and for summary judgment. The quality of the argument, then, as measured by the number of votes to follow its lead, seems rather poor. (But see Englert v. MacDonell, 551 F.3d 1099, 1106 (9th Cir. 2009). The 9th Circuit declined to review a denial of an Oregon anti-SLAPP motion, because that Legislature did not make such denials appealable—suggesting there was no legislative determination that the right to appeal was a substantive right.)
  • The 9th Circuit’s precedent making SLAPP orders appealable as collateral orders is falling out of step with other circuits, including the 2nd, 7th, 10th, 11th, and D.C. Circuits. (Based on my AI-based research, currently only the 1st and 5th Circuits share the 9th’s rule of treating anti-SLAPP denials as immediately appealable.)

The 9th Circuit rule here—allowing immediate appeals and appellate stays after denials of anti-SLAPP motions—may be modified only upon U.S. Supreme Court decision or by the 9th Circuit sitting en banc. It is safe to say that Judge Bress is a reliable vote to overturn the rule.

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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"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

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

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

Leviticus

"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.)

"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

"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

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"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

"A judge is a law student who grades his own papers."

— H.L. Mencken

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram