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Anti-SLAPP

Untimely appeal saved “as a matter of fairness”

Last updated on May 1, 2024 by Tim Kowal
California follows the “one shot rule” for appeals, meaning, you only get one shot to appeal, and if you miss that shot then you’re done. Courts follow the rule religiously. No sympathy allowed. But the Second District felt sympathy for the attorneys’ fees order in Norman v. Ross (D2d4 Apr. 23, 2024 No. B316971) [cert....Read More >>

Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motion

Last updated on January 31, 2024 by Tim Kowal
An anti-SLAPP motion is a species of motion to strike. So some authorities have held that this means California Rules of Court, rule 3.1322 applies, requiring that the challenged allegations be quoted chapter and verse. (Chop Won Park v. Nazari (D2d5 Jul. 25, 2023 No. B320483).) But District Three disagreed in the published portion of...Read More >>

No More Anti-SLAPPs in Fed Court? With Cory Webster

Last updated on January 30, 2024 by Tim Kowal
The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court. We also discuss that recent panel that departed from an...Read More >>

Should Anti-SLAPP denials be appealable in federal court? The 9th Circuit will take another look

Last updated on January 22, 2024 by Tim Kowal
There has been a steady drumbeat to revisit the 9th Circuit’s precedent making anti-SLAPP orders appealable. Anti-SLAPP orders are similar to orders on motions to dismiss or for summary judgment, but they invoke specific state-law procedures—procedures that do not quite track with federal rule 12(b) or rule 56. And federal courts do not apply state...Read More >>

Justice Baker is not a big fan of Costco

Last updated on January 11, 2024 by Tim Kowal
Costco charged a shopper with theft for putting a $117 package of Gillette razors underneath a big bag of dog food. The shopper sued for malicious prosecution, but the trial court granted Cosco’s anti-SLAPP, and the panel majority in Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.] affirmed. Making a...Read More >>

Liar in a Crowded Theater, with Jeff Kosseff

Last updated on November 29, 2023 by Tim Kowal
Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and...Read More >>

The Power of Anti-SLAPP Motions: Sept. 2023 Cases

Last updated on September 27, 2023 by Tim Kowal
Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery. On this episode of the California...Read More >>

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

Last updated on September 26, 2023 by Tim Kowal
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...Read More >>

Tim’s New Firm & Recent Cases

Last updated on August 8, 2023 by Tim Kowal
Tim announces his new firm, Kowal Law Group, APC, and discusses some legal tech with Jeff before moving on to recent cases, including:   Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page. Sign up for Not To Be Published, Tim Kowal’s...Read More >>

Judge Bress slags SLAPP appeals, and other recent cases

Last updated on May 9, 2023 by Tim Kowal
Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms: Judges should issue more sanctions against frivolous SLAPP motions. The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs. Jeff tries to stump Tim on a SLAPP appeal...Read More >>

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

Last updated on May 1, 2023 by Tim Kowal
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...Read More >>

Prelitigation Demand Letter Is Not Extortion

Last updated on January 19, 2023 by Tim Kowal
Sometimes, lawsuits involve allegations of embarrassing or even illegal conduct. And a prelitigation letter that references that conduct might be considered extortion. The trial court thought an attorney letter was extortion in *********************Flickinger v. Finwall (D2d8 Nov. 30, 2022) 85 Cal.App.5th 822. But the Court of Appeal disagreed, and published its opinion saying so. The...Read More >>

Yes, You Need a Court Reporter at the Hearing on a Motion for Anti-SLAPP Fees

Last updated on December 5, 2022 by Tim Kowal
Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of...Read More >>

Why Are Courts Sour on CEQA? Peter Prows Explains

Last updated on September 13, 2022 by Tim Kowal
“Something is very wrong with this picture.” This is how the Court of Appeal recently concluded a CEQA case—with finger pointed in CEQA’s direction. Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA. Peter talks with co-hosts Tim Kowal and Jeff...Read More >>

Striking Back Against Anti-SLAPPs: Three Tips for Opposing Anti-SLAPPs

Last updated on August 23, 2022 by Tim Kowal
Three recent cases remind litigants of some important tips when opposing anti-SLAPP motions: Spending money on litigation is not protected activity if the case is really about the misappropriation of the money. That’s Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.) (Tim’s writeup is here). Appealing an anti-SLAPP...Read More >>

Appropriating Money Is Not Speech, in the Anti-SLAPP Context

Last updated on August 15, 2022 by Tim Kowal
[Blog note: After this firm, joined by Jeff Lewis Law, filed a request for publication, on September 7, 2022 the court granted publication. The opinion is now published. ] Put on your anti-SLAPP issue-spotting glasses and see if you spot the issue in this fact pattern: Plaintiff sues his business partner for taking money from the...Read More >>

Denial of Fees for Defeating Anti-SLAPP Held Not Appealable, in Split of Authority

Last updated on July 18, 2022 by Tim Kowal
Almost any order having to do with an anti-SLAPP motion is appealable. Almost. In Kaplan v. Davidson (D2d7 Jul. 11, 2022 No. B312826) 2022 WL 2662982 (nonpub. opn.), Kaplan defeated Davidson’s anti-SLAPP motion. Orders granting or denying anti-SLAPPs are appealable. (Code Civ. Proc., § 904.1(a)(13).) Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees...Read More >>

Getting It Good and Hard: Courts Enforce 3 Strikes & Prop 57

Last updated on June 21, 2022 by Tim Kowal
H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.” In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is...Read More >>

SLAPP Fee Awards Are Automatically Stayed on Appeal: My Article in Cal. Litigation

Last updated on June 8, 2022 by Tim Kowal
California Litigation has published my article “Are Anti-SLAPP Fee Awards Stayed on Appeal?” in its Spring 2022 issue. You can access the online version here: https://bit.ly/3aFty3P A PDF of the article is here: Litigation-Volume-35-Number-1-2022, T. Kowal, Are Anti-SLAPP Fee Awards Stayed.pdf My article answers the question: Yes, anti-SLAPP fees are automatically stayed on appeal. But...Read More >>

Anti-SLAPP Denials May Not Be Appealable Much Longer in the 9th Circuit

Last updated on June 6, 2022 by Tim Kowal
The anti-SLAPP statute allows defendants to challenge complaints that chill the rights to speak and petition. But the rights to speak and petition have blurry and elastic boundaries. So often plaintiffs with legitimate claims get stuck defending SLAPP motions. Worse, when the plaintiff defeats a meritless SLAPP motion, the defendant gets to appeal. That’s what...Read More >>

The “Speedy” in Speedy Trial Becomes Relative, and the Limits of Scientology Arbitration: A Review of Jan. 2022 Cases on Ep. 25 of the Cal.App.Law.Pod.

Last updated on March 1, 2022 by Tim Kowal
Reviewing some 9th Circuit and California appellate cases of note from early 2022, appellate specialists Tim Kowal and Jeff Lewis discuss these juicy issues: Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in United States v. Olsen.) Can...Read More >>

SLAPP Fees Might Be Avoided by Dismissing Complaint, Published Appellate Decision Holds

Last updated on January 17, 2022 by Tim Kowal
From the “did they really have to publish this?” files: You cannot avoid anti-SLAPP fees by dismissing the offending allegations. That is already settled law. But in Catlin Ins. Co. Inc. v. Danko Meredith Law Firm, Inc. (D1d4 Jan. 11, 2022 no. A160358) ___ Cal.Rptr.3d ___ 2022 WL 101840, the plaintiff dismissed its complaint after...Read More >>

Implied Findings Doctrine Only Applies When the Trial Court's Reasons Are Correct — Here, They Were Wrong

Last updated on October 27, 2021 by Tim Kowal
One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment...Read More >>

Trial Court Has No Discretion to Consider an Untimely (by Three Years!) Anti-SLAPP Motion, Appellate Court Holds

Last updated on August 31, 2021 by Tim Kowal
Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.). But the statute says anti-SLAPP motions must be filed within 60 days...Read More >>

Trial court abused its discretion in striking evidence offered in anti-SLAPP reply brief

Last updated on December 16, 2020 by Tim Kowal
If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it. New evidence may not be submitted by an anti-SLAPP movant on reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).) So the trial court struck three reply declarations...Read More >>

Frivolous SLAPP Motions, and a Split of Authority on Costs Following Voluntary Dismissals

Last updated on December 3, 2020 by Tim Kowal
A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but sanctions are not available on appeal unless sought in a separate motion; and (3) whether a defendant may recover costs against a plaintiff who voluntarily dismisses claims may depend on which...Read More >>

No Safe Harbor Required to Sanction Frivolous Anti-SLAPP Motion, Fourth District Holds

Last updated on November 17, 2020 by Tim Kowal
Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult procedural hurdles of CCP 128.5, which requires a separate motion served 21 days before filing it? The Fourth Appellate District, Division Two, says yes, finding...Read More >>

The SLAPP That Breaks the Camel's Back

Last updated on October 30, 2020 by Tim Kowal
You will get a sense of the First District's frustration over this SLAPP appeal just by its disposition. The case is Oakland Bulk and Oversized Terminal LLC v. City of Oakland (D1d2 Sept 17, 2020) A157330. The Court does not merely affirm the order denying, without prejudice, the City of Oakland's SLAPP motion. No, the Court reverses...Read More >>

Appeals and Anti-SLAPP Law: California Appellate Law Podcast Episode 1 (Jul. 1, 2020)

Last updated on July 2, 2020 by Tim Kowal
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here. The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted...Read More >>

"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.)

"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

"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

"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

"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

“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

"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

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

Leviticus

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

— H.L. Mencken

"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

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