9th Circuit clarifies anti-SLAPP motion appeal rules

California's anti-SLAPP statute is a powerful tool for disposing of meritless lawsuits that arise from a defendant's exercise of free speech or petition. But a trial court's ruling on an anti-SLAPP motion is far from the end of the road. In the California court system, most orders granting or denying an anti-SLAPP motion are immediately appealable. And a new decision from the 9th Circuit confirms that the rule is the same when a federal district court denies an anti-SLAPP motion to strike California law claims.

The take-away lesson: any defendant who is aggrieved by the denial of an anti-SLAPP motion based on California law - whether in state or federal court - should promptly assess whether there is a meritorious ground for appealing and, if so, file a timely notice of appeal.

California's anti-SLAPP statute, Code of Civil Procedure Section 425.16, allows the trial court to strike certain lawsuits - those arising from acts of speech or petition in the public interest - very early in the litigation, unless the plaintiff can establish a probability of prevailing on the merits. Anti-SLAPP motions have proliferated in recent years, as has case law analyzing whether various types of claims are subject to a SLAPP motion.

Recognizing the high stakes of an anti-SLAPP ruling, the state Legislature has expressly authorized an immediate appeal from orders granting or denying an anti-SLAPP motion. Code Civ. Proc., Sections 425.16(i) and 904.1(13). State Courts of Appeal routinely decide such appeals. E.g., Tuszynska v. Cunningham, 199 Cal. App. 4th 257, 266 (2011).

But anti-SLAPP motions don't always arise in state court: Defendants can also move to strike California law claims brought in federal court. Thomas v. Fry's Electronics, 400 F.3d 1206 (9th Cir. 2005). And like the Courts of Appeal, the 9th Circuit has historically allowed immediate appeals from interlocutory orders denying motions brought under California's anti-SLAPP statute.

Although both federal and California case law permit an immediate anti-SLAPP appeal, the basis for the appeal differs. In California, the right to appeal is statutory. In the 9th Circuit, by contrast, the immediate appeal arises under the "collateral order doctrine," which is an exception to the general federal rule (28 U.S.C. Section 1291) that only a "final decision" is appealable. The collateral order doctrine allows an appeal of a nonfinal decision that meets three criteria: It must conclusively determine the disputed question; it must resolve an important issue completely separate from the merits of the action; and it must be effectively unreviewable on appeal from the final judgment. See Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th Cir. 2003).

The 9th Circuit decided in Batzel that an order denying an anti-SLAPP motion meets all three criteria of the collateral order doctrine. First, the ruling is conclusive as to whether the anti-SLAPP statute requires dismissing the suit. Second, the ruling addresses whether the suit may have merit, a question distinct from the ultimate merits. And third, postponing review until the end of the case would defeat the very purpose of California's anti-SLAPP statute - protecting the defendant from being dragged to trial. In that respect, the 9th Circuit has analogized California's anti-SLAPP statute to an immunity and relied on U.S. Supreme Court precedent holding that orders involving federally-created immunities satisfy the collateral order doctrine.

More recently, however, the Supreme Court offered new guidance on the collateral order doctrine's "effectively unreviewable" requirement. In Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009), the court explained that a class of orders is not "effectively unreviewable" unless "delaying review until entry of final judgment 'would imperil a substantial public interest' or 'some particular value of a high order.'" Applying that standard, the court held that a discovery order requiring production of allegedly-privileged documents is not effectively unreviewable after the final judgment, because postponing review "does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel."

Mohawk's guidance led some to question whether the denial of an anti-SLAPP motion remains immediately appealable to the 9th Circuit. The 9th Circuit has now answered that question "yes."

In DC Comics v. Pacific Pictures Corp., 2013 DJDAR 409 (9th Cir. Jan. 10, 2013), a federal district court denied the defendant's anti-SLAPP motion to strike California law claims for intentional interference and unfair competition. When the defendant appealed from the denial, the plaintiff argued that the 9th Circuit lacked jurisdiction because under Mohawk, the denial was not "effectively unreviewable" at the end of the case. The 9th Circuit rejected that claim.

Emphasizing that the anti-SLAPP statute is an "immunity from suit," DC Comics explained that such immunities are always "'imbued with a significant public interest.'" The panel emphasized that this is especially true of anti-SLAPP immunity, which protects the highly-valued constitutional right to free expression. Moreover, unlike a defense against liability, an immunity from suit is "'effectively lost if a case is erroneously permitted to go to trial'" - a point highlighted by the state Legislature's decision to permit an interlocutory appeal.

Based on this reasoning, DC Comics reaffirmed that an order denying an immunity from suit is an appealable collateral order, even if an order denying a defense from liability would not be. The result is that a federal district court's denial of an anti-SLAPP motion to strike California law claims remains immediately appealable to the 9th Circuit.

DC Comics is an important reminder that time is of the essence for any federal court defendant that loses its anti-SLAPP motion to strike a plaintiff's California law claims. The denial is appealable, but the appellate clock runs quickly: A notice of appeal from an appealable collateral order must be filed within 30 days after entry of the order (extended to 60 days if the United States is a party). S.E.C. v. Capital Consultants LLC, 453 F.3d 1166, 1173 (2006); Fed. R. App. P. 4(a)(1). Defendants therefore should immediately evaluate whether there is a meritorious basis for appealing from the denial and if so, file a notice of appeal in the district court without delay.