Legal News and Appellate Tips

“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 Lewis about Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project.

Only law nerds are interested in CEQA? Think again: Former Rolling Stone writer Matt Taibbi recently penned an article about how CEQA is thwarting California’s ability to provide housing. We discuss that, too.

Peter also supplies Tim’s personal favorite new quote, via Justice Brennan: “See how easy it is to be a City Attorney?… If all else fails, merely amend the regulation and start over again.” (San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting).)

Also: The government gets anti-SLAPP protection for free speech? (See Vargas v. City of Salinas (2009) 46 Cal.4th 1.) Come on, SCOCA.

Finally, on the Lightning Round: A persuasive case for two spaces after a period?

Three recent cases remind litigants of some important tips when opposing anti-SLAPP motions:

1. 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.).

2. Appealing an anti-SLAPP dismissal and attorney-fees award against your client? Cite Quiles v. Parent for its holding that SLAPP fee awards are automatically stayed on appeal. Is the trial court refusing to honor the stay? You can seek a writ of supersedeas in the Court of Appeal, but if you want a reasoned opinion, you need direct review. For that, you’ll need to label your motion to enforce the stay as one for injunctive relief.

3. Opposing an anti-SLAPP motion filed outside the 60-day window? Reyes v. Escobar (D2d7 Aug. 12, 2022 No. B313575) 2022 WL 3334384 held that extending the time to file without considering the length of the delay, the reasons offered for the delay, and potential prejudice to the plaintiff, is an abuse of discretion.

Also: What questions do you want to hear appellate justices answer? The podcast will be hosting some retired appellate justices in future episodes, and we want to put to them the questions you’ve been itching to have answered. Email Tim at tkowal@tvalaw.com.

[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 partnership. But the plaintiff also alleges that the partner used the money to pay his lawyers on litigation.

Probably your ears perked up at the mention of “litigation.” And that’s what got the defendant’s attention in Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.). But he was wrong: merely spending money on litigation does not transform the misappropriation of the money into protected conduct.

The opinion is unpublished, but the court should publish it. Defendants continue to raise Rusheen v. Cohen in anti-SLAPP motions in an effort to escape misappropriation claims so long as some of the misappropriated money was spent on lawyers.

I saw almost the exact same scenario as Manlin in another case of mine a few years ago. The Court of Appeal came to the conclusion that taking money does not become protected just because it was spent on lawyers — just like Manlin. And it issued that holding in an unpublished opinion — just like Manlin. And so anti-SLAPPers are free to try again.

Until we get this holding nice and crystal clear in a published opinion, we are going to continue seeing repeat performances.

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.

Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees are appealable.

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). As that appeal involved both a denial of a SLAPP and a denial of SLAPP fees, the appellant thought it made sense to review both. The court took a hard pass: 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 it “absurd” that the SLAPP denial should be appealable but the SLAPP fee denial not appealable.

The unpublished Kaplan opinion sided with Doe. 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.”

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 favorable to criminal defendants.

• Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.

• But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

When the plaintiff defeats a meritless SLAPP motion, the plaintiff still may have to face a meritless appeal.

That’s what happened—twice—in the now-seven-year-old case of Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. Jun. 2, 2022). The founders of The Turtles sued Pandora for failing to pay for playing Turtles songs. Pandora filed anti-SLAPP motions arguing playing music was protected speech. Two appeals and seven years later, Pandora lost.

Judge Daniel Bress wrote a concurring opinion saying this is too much to take. The federal rules do not provide for the appealability of denials of anti-SLAPP motions. Instead, they have been held to be appealable as “collateral orders.” But a collateral order is an order that, among other things, is “completely separate from the merits of the action.” Will v. Hallock, 546 U.S. 345, 349 (2006). And an anti-SLAPP motion explicitly requires the moving party to prove the complaint lacks merit. So, by definition, an anti-SLAPP denial is not a collateral order.

(I tend to agree with Judge Bress.)

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

Reviewing some 9th Circuit and California appellate cases of note from early 2022, Jeff Lewis and I 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 the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

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 the defendant filed an anti-SLAPP motion. The court held, in a published opinion, that the trial court did not err in refusing to rule on the anti-SLAPP motion, thus never establishing the predicate to the defendant’s right to anti-SLAPP fees.

After you learn the facts, you will understand why both the trial court and the appellate court were not excited about rewarding this defendant with anti-SLAPP fees. But as Justice Brown notes in dissent, the majority should be more mindful of the problems this holding will create for worthy anti-SLAPP movants in the future.

Ultimately, what seems to me incongruous about the *Catlin v. Danko* rule — which requires anti-SLAPP movants to file a separate fee motion in the event the plaintiff voluntarily dismisses — is based on facts that *disfavor* the anti-SLAPP movant (because the anti-SLAPP motion was probably frivolous). This seems to me an odd way to develop case law interpreting a statute that is supposed to *favor* anti-SLAPP motions.

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal.

The appellant argued improper “blanket” rulings were the reason an anti-SLAPP motion was granted against him in *[Foley v. McElroy](https://casetext.com/case/foley-v-mcelroy?resultsNav=false&jxs=ca&tab=keyword)* (D4d1 Dec. 6, 2021 no. D077299) 2021 WL 5766572 (nonpub. opn.). But the Court of Appeal disagreed and affirmed.

Also: remember that anti-SLAPP orders are directly appealable. Do not wait around for a judgment.

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 against the appellant, the appellant still loses: the Court of Appeal will pretend the missing findings are there anyway.

So the respondents in Nielsen v. MacPherson (D4d3 Oct. 8, 2021) 2021 WL 4704890 (no. G059758) (nonpub. opn.) must have been feeling pretty buoyant about their chances on appeal. The plaintiff-respondents had defeated an anti-SLAPP motion, and then obtained a rare award of attorneys' fees. Awards of fees against anti-SLAPP movants are only available where the anti-SLAPP motion is frivolous or filed to cause unnecessary delay. (Code Civ. Proc., § 425.16(c)(1).) No such finding was made here, but the respondents argued it should be inferred under the implied findings doctrine.

The Court of Appeal disagreed. The doctrine probably will only apply to the extent it is consistent with the trial court's reasoning. The Court of Appeal will be less inclined to deploy the doctrine to rewrite the trial court's decision.

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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 of service of the complaint, and the defendant did not seek leave of court to file a later motion. The Fourth District Court of Appeal held leave must be granted before a late SLAPP motion is filed. The trial court apparently excused the untimeliness and instead denied the SLAPP motion on the merits. This was improper.

But even had leave been sought here, three years was well beyond the court's discretion to excuse: "None of the salutary purposes of the anti-SLAPP statute has been advanced by the motion, while the statute's potential abuse has been realized. Under these circumstances, the trial court could have exercised its discretion only by denying MCWE's anti-SLAPP motion as untimely."

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