Anti-SLAPP law continues to cause headaches for 9th Circuit

That's the top story in today's DJ about this opinion here, affirming a district court's denial of an anti-SLAPP motion against a case by Planned Parenthood. It's an interesting case. But where it really gets interesting is the special concurring opinion by Judge Gould (joined by Judge Murguia) urging the 9th Circuit to review en banc whether anti-SLAPP rulings should be reviewable by interlocutory appeal. The DJ points out that "Gould himself sat on a 2003 panel that first adopted the interlocutory appeal rule for anti-SLAPP motions, joining a majority opinion written by Judge Marsha S. Berzon that permitted the procedure. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)." In the past, several 9th Circuit judges have expressed the view that immediate appeals should not be allowed (e.g., Kozinski, Paez, Watford, Bea).

"I have since receded from that opinion because I now believe the interlocutory appeal of this issue incorrect, potentially conflicts with federal procedural rules, and burdens the federal courts with unneeded interlocutory appeals," Gould wrote, adding district court certification of an appeal should be required for anti-SLAPP denials.

He added further that 9th Circuit precedent allowing review of anti-SLAPP denials, but not grants, was "absurd." Gould also said that anti-SLAPP rulings were not collateral orders, rulings that "resolve claims separable from the action."

Law360's article on the case is 9th Circ. Clarifies Anti-SLAPP Law In Planned Parenthood Row.

Also of note, this published opinion from 2/7 that starts out with a wonderfully Frosty intro: "Good fences make good neighbors. Unless they obstruct an easement." (Full poem here.) (See also Ruebe v. Parsa, 2015 WL 67039 [pointing out Frost's California roots].)