Almost any order having to do with an anti-SLAPP motion is appealable.
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 are appealable, as an “order after an appealable order.” (Code Civ. Proc., § 904.1(a)(2); Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244.)
But Kaplan’s motion for fees for defeating the anti-SLAPP was denied. And on appeal, Kaplan learned that this is the one order after an anti-SLAPP motion that is not appealable.
The court followed the holding of Doe v. Luster (2006) 145 Cal.App.4th 139, 142 (Doe). The Doe reviewed both a denial of an anti-SLAPP motion and a denial of fees. Although the former was appealable, the latter was not. The statute makes orders on anti-SLAPP motions appealable, but not orders on anti-SLAPP fee motions. And there is “no creditable argument that combining the two motions—one that results in an immediately appealable order; one that does not—somehow transforms the nonappealable order into one that is appealable.” (Id. at p. 150.)
No creditable argument? Had Doe gone too far? The Fourth District, Division Three thought so. In Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr), the court thought that, so long as it has to review the anti-SLAPP denial, it might as well review the fee denial. After all, to defer the latter issue “artificially separates two intertwined issues” and potentially wastes judicial resources. (Id. at p. 274.) This “would result in absurd consequences the Legislature never contemplated.” (Id. at p. 275.)
The unpublished Kaplan opinion sided with Doe. “The decision whether to allow an immediate appeal from the denial of a request for attorneys’ fees is a policy decision for the Legislature to make.”
But whether the Second District thinks there is a “creditable argument” that SLAPP fee denials are appealable, there is an argument supported by published authority. Despite the conflict in authority, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”
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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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