Wednesday, July 15, 2015

"When the heck can you appeal anti-SLAPP motions?"

That's the title of today's DJ article by Jens Koepke, who untangles the mess of CCP 425.16, 425.17, and 425.18.
I'm Confused, Oh WaitWhat has long been clear - because the anti-SLAPP statute spelled it out - is that an order denying or granting a special motion to strike under Section 425.16 is immediately appealable. Sections 425.16(i) and 904.1(a)(13); Ruiz v. Harbor View Community Ass'n, 134 Cal. App. 4th 1456, 1460 n.1 (2005). Although it took much longer, it is also settled that in federal court a denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine (at least under California's version of the anti-SLAPP law). DC Comics v. Pacific Pictures Corp., 706 F.3d 1009, 1015 (9th Cir. 2013); but see Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064, 1067-68 (9th Cir. 2010) (granting of anti-SLAPP motion with leave to amend not appealable under the collateral order doctrine because it didn't conclusively determine the issues). 
"the only route to challenge the denial of a motion to strike a SLAPPback claim (or a grant as to only some of the causes of action) is a statutory writ, not an appeal."
"the only appellate avenue from a denial of an anti-SLAPP motion under Section 425.17 or under Section 425.16(d) would be a common law writ, not an appeal or a statutory writ." 
"The mandatory award of attorney fees to the prevailing defendant in an anti-SLAPP motion under subdivision (c) is also appealable as "an order made after a[n] [appealable] judgment" (namely the immediately appealable order granting the anti-SLAPP motion). See Melbostad v. Fisher, 165 Cal. App. 4th 987, 992-95, relying on Section 904.1(a)(2) (2008).
In contrast, an order denying attorney fees to a prevailing plaintiff who overcomes an anti-SLAPP motion - which fee award is essentially discretionary under subdivision (c) - is not immediately appealable."
Over in the Recorder today, Myron Moskovitz offers Tips for Writing a Powerful Statement of Facts.

  • The 'facts' must be in the record.
  • Comply with the standard of review
  • State the standard of review you are following
  • Cite the record
  • Don't stretch the record
  • Include facts that hurt you
  • Quote important language
  • What to call the parties? (Use names, not designations)
Image result for watchmanAnd how are 9th Circuit judges reacting to Harper Lee's new novel "Go Set a Watchman"?
The DJ (in Legal Profession Confronts the Transformation of Atticus Finch) quotes Judge Trott: "I was hugely dismayed. I'm not going to read this book."
Judge Reinhardt: "I'm trying to cancel my order, and if it comes anyway, I won't read it."
[Meanwhile, the WSJ reports today (7/16): "It looks like readers want to sort out their own feelings about Atticus Finch. Barnes & Noble Inc., the largest U.S. bookstore chain, said Harper Lee's new novel "Go Set a Watchman" set a one-day sales record for adult fiction by number of units sold."]