Legal News and Appellate Tips

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms:

1. 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.

2. Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong two, what happens if the defendant fails to re-argue prong one on appeal? (Answer: forfeiture.)

Next, we wonder why appellate courts insist on an oral record even for hearings where there is no testimony and nothing remotely interesting going on.

Discovery sanctions awards may be appealable, but for other discovery awards—even those made on the same basis as the sanctions award on appeal—don’t count on it. Courts hate them.

A litigant failed to timely request a statement of decision before the end of a short trial.

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.”

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.

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m.

Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline. One minute late.

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs?

• Do you have to separately appeal from the fees and costs award? (Yes…usually.)

• How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometimes.)

• If you win the underlying appeal, what happens to the fees and costs award? (It goes away automatically…in theory.)

We discuss these questions and more in this nuts-and-bolts episode of the California Appellate Law Podcast.

On this cases-and-tidbits episode, Jeff Lewis and I discuss:

• Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed.

• Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows the letter has to be really bad, but some judges find extortion where there isn’t any. That can be chilling. Which may be why the Court of Appeal published this recent opinion finding no extortion, thus reversing the trial court.

• Are DVRO or CHROs prior restraints on speech? Czodor v. Luo (Jan. 10, 2023, G060756) suggests narrowly tailoring the restrained speech to statutory abuse.

• Could AI tell the difference between extortion and a permissible demand letter? We discuss one attorney’s proposal that judges replace their law clerks with AI.

• Mitchell v. Mitchell (Jan. 27, 2023, A164780) reminds us that attacking trial court or opponent is not a viable strategy.

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 unsavory allegations were between a homeowner and his contractor. The owner, in a drunken conversation with the contractor, confessed he’d taken money illegally as kickbacks during his overseas trips for his employer, Apple. The contractor eventually quit his job, allegedly based on trepidation of taking ill-gotten money.

When the homeowner demanded payment, the contractor’s attorney responded with a matter-of-fact statement that litigation “[could] result in Apple opening an investigation into [plaintiff's] relationships with vendors.”

The Court of Appeal said this was not extortion because the letter was sent to the owner’s attorney—not to the attorney directly. And the letter was responding to the owner’s demand letter—it was not a threat out of the blue. And the letter defended the contractor on the merits—rather than merely stand on the force of the threat. And the statement that litigation may bring the kickbacks issue to light was not a threat to report to prosecution, but merely a matter-of-fact observation.

So the order denying the defendant’s anti-SLAPP motion was reversed with directions to grant the motion. And the defendant will recover his attorney fees for both his motion and the appeal.

(I am surprised that the trial judge thought this was even close to extortion. It does not seem like a close call to me.)

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.”

The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases on this point, and the Ibbetson opinion, while trying to reconcile to disparate cases, potential added to the confusion.

The important takeways:

1. Don’t count on anti-SLAPP fee awards being independently appealable.

2. But don’t count out the possibility they might be appealable as collateral orders.

If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising.

On the perennial topic of deadlines for posttrial motions and appeals, we found yet another exception — if you file a DQ motion, that tolls the posttrial deadlines. Jurisdictional my left foot.

And finally, a new anti-SLAPP case with an expansive application of the litigation privilege.

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 anti-SLAPP fees? The answer given in Beck v. Yozura (D4d2 Nov. 7, 2022) No. B313689 (nonpub. opn.) is:

Yep, you need a reporter's transcript.

Even if it really seems kind of silly to require a reporter's transcript, like in Beck, where the defendant’s anti-SLAPP resulted in the dismissal of exactly zero causes of action. He just got one allegation stricken.

But that was enough for a $25,000 fee award, without any reductions for the partial success. The appellate court reasoned that, although the trial court’s order did indicate it considered reducing the award, there was no reporter's transcript, so maybe it considered it there.

Takeaways:

1. Bring a court reporter to all dispositive hearings, even if they involve only questions of law and no testimony. Always assume the Court of Appeal will reach for the fact of the lack of a reporter's transcript for an easy affirmance—even if the reporter's transcript pretty clearly could have added nothing to the analysis.

2. Remember to consider requesting a statement of decision before submitting on a motion for attorney fees.

We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them appealable in some situations but not in others.

The latest entry in the milieux is Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), where the trial court granted an anti-SLAPP motion to a cross-complaint—but only partially, so the case was not dismissed—and then the aggrieved cross-complainant appealed the resulting fee award. The Court of Appeal held that the fee award was not an appealable order, and so dismissed the appeal.

The court’s reasoning is straight to the point: The anti-SLAPP statute, Code of Civil Procedure section 425.16, says that orders granting or denying anti-SLAPP motions are appealable, but the statute says nothing about the appealability of fee awards. Without statutory authority making an order appealable, that’s the end of the analysis: anti-SLAPP fee orders are not appealable.

This seems sensible. But there are problems. One problem is the fact that this same court held that a SLAPP fee award was appealable in Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265. Another problem is that an award of SLAPP fees is a collateral order for money, and thus appealable under the collateral-order doctrine. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751.) The court’s responses to these problems are, in my view, less than satisfying.

Earlier this year, the almost $25,000 in sanctions turned heads in Clarity Co. Consulting, LLC v. Gabriel (D2d6 Apr. 12, 2022) 77 Cal.App.5th 454. (Jeff Lewis and I covered Clarity in episode 31 of the California Appellate Law Podcast.)

But there are two important lessons about anti-SLAPP motions in the case, involving a garden-variety contract complaint for failing to pay a service agreement. They are worth bookmarking, as they still come up too often in anti-SLAPP motions:

1. Just because there is litigation-related activity alleged in the complaint, that does not necessary make the complaint a SLAPP. It is only a SLAPP if the activity is the “principal thrust or gravamen” of the cause of action. Yes, you already knew that. And that is what Clarity held: everbody knows that, so if you don’t know it by now and file an anti-SLAPP motion based on incidental litigation activity, get ready to get sanctioned.

2. Just because there is speech alleged in the complaint does not mean it is subject to the SLAPP statute. The speech has to be relate to a public issue or issue of public interest. (That is why there are two “Ps” in the acronym.) Yes, you already knew that, too. But that is Clarity’s point: everybody knows that, so if you insist on filing an anti-SLAPP motion based on private speech, get ready to get sanctioned.

Finally, the Clarity court offers this PSA on behalf of appellate attorneys everywhere:

“[T]rial attorneys who prosecute their own appeals … may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450, 77 Cal.Rptr.2d 463.)”