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 for the past 20 years at least, the answer has been “no.” That is because that is how Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 answered the question, calling SLAPP fees a “nonroutine cost” and thus excepted from the automatic stay.
But the Legislature had abrogated the “routine vs. nonroutine” distinction way back in 1993. Dowling, it seems, did not catch the drift.
Fortunately, Quiles v. Parent (2017) 10 Cal.App.5th 130 noticed something was amiss. Quiles concluded, "there is a reasonable argument that nearly all postjudgment awards of costs in California courts should be subject to the automatic stay of section 917.1, subdivision (d), including attorney fees and unusual costs particular to specific statutes or contracts." The only exceptions that appear to be contemplated are for costs under section 998 and 1141.21, because these are expressly excepted in the statute.
The upshot: If you want an anti-SLAPP fee award to be automatically stayed on appeal, cite Quiles. It is the better reasoned case and more consistent with the statutes. But until the Supreme Court resolves this split, litigants who want to enforce anti-SLAPP fee awards pending appeal may still rely on Dowling.
"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
"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
"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
"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
"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
“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
"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
"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.)