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Bress Questions Why Ninth Circuit Permits Appeals From Anti-SLAPP Motion Denials
By a MetNews Staff Writer
Ninth U.S. Circuit Court of Appeals Judge Daniel Aaron Bress, in a concurring opinion yesterday, questioned why, in cases decided under California law, proceedings come to a halt while the denial of an anti-SLAPP motion is reviewed.
Hus opinion came in a case in which an order by District Court Judge Cormac J. Carney of the Central District of California denying an anti-SLAPP motion was affirmed. The appeal was brought by entertainment lawyer Hal “Corky” Kessler, sued by tax lawyer Kent Salveson over comments Kessler made to Variety.
Bress expressed doubts that the appeal should be entertained. Although the anti-SLAPP statute, Code of Civil Procedure §425.16, specifies in subd. (i) that “[a]n order granting or denying a special motion to strike shall be appealable,” federal courts, while applying substantive state law in diversity cases, follow federal procedure.
“This case is the latest example of why we should question whether we have jurisdiction under the collateral order doctrine over an interlocutory appeal of the denial of an anti-SLAPP motion,” Bress wrote, elaborating:
“The complaint in this case was filed in February 2022. The district court denied the defendant’s anti-SLAPP motion in April 2022, and the case has been stayed in the district court pending resolution of this interlocutory appeal. 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.”
No Public Issue
A memorandum opinion signed by Ninth Circuit Judge Salvador Mendoza Jr. and Joan N. Ericksen, a District Court judge for the District of Minnesota, sitting by designation, says that Kessler’s motion did not satisfy the first prong of the anti-SLAPP motion: that the suit is based on protected speech in connection with a public issue. The statements in Variety with which Salveson takes exception do not relate to a public issue, the judges said.
The article in Variety is titled, “ ‘Rust’ Producer’s Key Adviser — Her Dad — Pushed Tax Shelters and Hid Income, IRS Says.”
The producer of the film, which is not completed, is Emily Salveson; her father is Kent Salveson, a former client of Kessler.
Article in Variety
Variety’s article says that Emily Salveson “credited a team of accountants and attorneys for helping her get the company off the ground, including attorney Hal ‘Corky’ Kessler….” It continues:
“She did not cite her father. But according to Kessler, it was Kent Salveson who had hired him to draft some documents. Kessler told Variety that he spoke with the elder Salveson several times on the phone about how to adapt his tax incentive model to the film business. He recalled Salveson saying that he ‘beat the IRS’ in an earlier tax dispute.
“…Kessler did several drafts of the documents, but ultimately Kent Salveson said he was dissatisfied with the work.
“The whole experience left a sour taste, Kessler says.”
Salveson sued Kessler, claiming breaches of fiduciary duty and confidentiality and invasion of privacy.
Yesterday’s memorandum opinion says that “[t]he only public issue that Kessler identified in his anti-SLAPP motion before the district court was the October 2021 shooting on the set of the movie Rust, for which Salveson’s daughter was an executive producer.”
The Variety article says that the shooting of the film “has been shut down since Oct. 21, when the actor fired a prop gun and killed cinematographer Halyna Hutchins,” adding:
“Salveson, an executive producer on the film, and her business partner, Ryan Donnell Smith, have each been sued for allegedly failing to ensure a safe set. The tragedy has brought intense scrutiny on all aspects of the production, including Salveson’s proprietary financial model.”
The court’s opinion observes:
“But none of the challenged statements by Kessler in the Variety article connected [Kent] Salveson to the Rust shooting. Nor does Kessler show a sufficient connection between the challenged statements and any other issue of public interest. Even assuming a lawyer could properly assert an anti-SLAPP defense in a suit alleging breach of client confidences…, Kessler has not demonstrated that Salveson’s business dealings, tax practices, or Kessler’s prior representation of Salveson are matters of public interest within the meaning of the anti-SLAPP law.”
The case is Salveson v. Kessler, 22-55472.
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