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

Timothy Kowal, Esq.
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May 1, 2023
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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 www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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