Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Federal Appeals

Anti-SLAPP Denials May Not Be Appealable Much Longer in the 9th Circuit

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.)

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There Are Few Requirements for a Notice of Appeal, But This 9th Cir. Appeal Is Dismissed for Failing Nearly All of Them

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed nearly all of them.
To prepare a valid notice of appeal, the notice simply needs to identify the appellants, the judgment being appealed, and the appellate court. Fed. R. App. P. 3(c)(1)(A)–(C). The appellant listed the wrong parties on the notice. And also the wrong case number. When the notice came to describing the judgment being appealed from, appellant listed the wrong judgment, too. The date of the judgment: also wrong.
Presumably, appellants correctly identified the Ninth Circuit as the court to which the appeal was taken.
Appeal dismissed.

Federal Practice Tip: California practitioners who are frequently told that the deadline to appeal can no-way-no-how be extended under any circumstances may forget that the deadline may be extended in federal appeals by motion to the district court. The Ninth Circuit here notes that appellant's amended notice of appeal might have saved its appeal had it sought the requisite extension of time to file it under Fed. R. App. P. 4(a)(5).

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