Legal News and Appellate Tips

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, “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.

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.

Caution: A Dismissed Appeal Is with Prejudice…unless the appeal is dismissed because it was premature.

If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice.

That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the dismissal order has to expressly state “without prejudice.”

The order dismissing an earlier appeal of a pretrial sanctions order in Bush v. Cardinale (Sep. 27, 2022) No. A158757 (nonpub. opn.) did not expressly state “without prejudice.” So when the appellant appealed the sanctions order again—this time after a final judgment—the respondent pounced. The respondent filed a motion to dismiss the appeal. And the respondent cited section 913, arguing the prior dismissal of the appeal was with prejudice.

But for every rule, an exception. Here, the prior appeal was from a nonappealable order—i.e., from a sanctions order of under $5,000. That meant the Court of Appeal never had jurisdiction over the prior order, and thus could never have affirmed, which in turn meant that the dismissal could not have been prejudicial.

So the motion to dismiss was denied. But on the merits, the sanctions order was affirmed anyway.

Comment/Question for Appellate Attorneys: But what if the prior sanctions order—against the attorney, not the party—had been deemed appealable as a collateral order?

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.)

No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”

But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?

While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).

So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?

An order enforcing a settlement agreement is an appealable order, but what about an order *denying* enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”[Denial of Motion to Enforce a Settlement Held Appealable]....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in *[Sanchez v. Westlake Services, LLC] (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In *Sanchez*, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

***The Upshot:*** When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable?

There is a split of authority on these questions, as noted in Thomas v. St. Joseph Health System (D4d3 Oct. 20, 2021) 2021 WL 4889873 (no. G059408) (nonpub. opn.). Seeing the writing on the wall on the defendants' motion to quash based on personal jurisdiction, the doctor-plaintiff dismissed his right-to-practice and unfair-competition lawsuit (which he would later refile in Texas). The defendants recovered the significant costs they had incurred through a number of depositions during jurisdictional discovery, and the plaintiff appealed.

The court noted a split of authority, but came down on the side of finding a cost order entered after a voluntary dismissal without prejudice is appealable as a final judgment. (But the court went on to affirm the cost order.)

The appealability holding seems to me clearly correct, with all due respect to the contrary authorities.

But I offer a few words of caution about strategic voluntary dismissals. When the "writing is on the wall" as it was in this case, authorities suggest the time to dismiss without prejudice is over.

Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)

But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.

The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.

The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.

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There are two reasons I am surprised the Court of Appeal published the opinion in Findleton v. Coyote Valley Band of Pomo Indians (D1d2 Sep. 29, 2021) 2021 WL 4452323 nos. A156459 etc., ---- Cal.Rptr.3d ----. The first is that it holds, more forthrightly than I have seen before, that a final collateral order is treated as a judgment for purposes of Code of Civil Procedure section 904.1(a)(1). That is, not only is the collateral order appealable, but orders following it are appealable too under section 904.1(a)(2). (This is a sensible rule, it is just not very well-supported in the statute.)

The second reason I am surprised the court published this opinion on the disentitlement doctrine — i.e., dismissal of an appeal — is because the appellant's disregard and contempt for the lower court's orders was so brazen, and the grounds for disentitlement so clear, that I fear this opinion might mislead readers. In fact, much less egregious violations than the ones in this case — much, much less — may warrant disentitlement.

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One exception to the normal rules of appealability is the collateral order. One example of a collateral order is in the relatively rare published order (in contrast to an opinion) dismissing the appeal in Dr. V Products v. Rey (D2d5 Sep. 8, 2021) 2021 WL 4129463 no. B312605. The collateral order there is an order denying a motion for attorney fees following dismissal of a misappropriation claim, which claim allegedly was filed in bad faith, thus entitling the prevailing defendant to fees under Civil Code 3426.4.

The order denying fees was collateral to the merits. And it was final. But still, the Second District Court of Appeal held — and rather unequivocally — that the order was not appealable as a collateral order.

Why? Because the order, though final and collateral, did not order the payment of money or performance of an act. And that is a necessary element in making a collateral order appealable.

Except, that is, in courts subscribing to the minority view.

(I happen to agree with the minority view. And unless you are in an appellate district that clearly has staked out its support for the majority view, you probably should assume your final collateral orders are appealable.)

Thanks to Alana Rotter for sharing this case.

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A recent case shows how recovery of costs can involve large dollar amounts – over $1.5 million – and the application of subtle legal principles and appellate procedure.

After four years of litigation in City of Los Angeles v. Pricewaterhousecoopers, LLP (D2d5 Jul. 8, 2021) no. B305583 (nonpub. opn.), the city eventually dismissed the case, and the contractor sought nearly $1.1 million in costs for electronic discovery. The trial court denied them all, and the contractor appealed.

After an interesting discussion on the appealability of the cost order, the Court of Appeal noted the trial court's statements on the record were ambiguous whether it misunderstood the scope of its authority, or whether it was exercising discretion. But the court ultimately held the trial court misunderstood its authority and thus committed reversible error. What convinced the Court of Appeal the trial court had erred on the law? "Although it is a close question in this case," the court noted, "given the City's [incorrect] primary argument that the costs ... are never recoverable ... we cannot presume the trial court understood the extent of its discretion...."

Takeaway: If you manage to persuade the trial court of your legal proposition, why not ask the trial court to exercise its discretion in your favor as well, just to be safe? Had the trial court also based its ruling on its discretion, the outcome likely would have been much different.