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Ninth Circuit:
Anti-SLAPP Motion Denials Are Not Immediately Appealable
En Banc Court Overrules Case Finding That Such Orders Qualify for Interlocutory Relief
By Kimber Cooley, associate editor
An en banc panel of the Ninth U.S. Circuit Court of Appeals held yesterday that an order denying a special motion to strike a complaint filed under California’s anti-SLAPP statute is not immediately appealable in federal court under the collateral decree doctrine, overruling a 2003 decision.
Under California law, a ruling on an anti-SLAPP motion is, by statute, immediately appealable.
Chief Judge Mary H. Murguia authored the opinion, in which Circuit Judges Milan D. Smith Jr., Michelle T. Friedland, Lawrence VanDyke, and Holly A. Thomas joined, saying:
“In Batzel v. Smith…, we held that we have jurisdiction to review such orders….Upon reexamination, we now conclude that a district court’s denial of a motion to strike under the California anti-SLAPP statute does not satisfy the requirements for an interlocutory appeal under the collateral order doctrine.…Accordingly, we overrule Batzel and dismiss this appeal….”
The court declined to reconsider other case law allowing the motions in federal court in the first place, saying in footnote that “we assume…that California’s anti-SLAPP statute applies” based on the 1938 U.S. Supreme Court decision of Erie Railroad Company v. Tompkins, which held that, in the absence of preemption concerns, district courts hearing state law claims are to apply state substantive law and federal procedural rules.
That aside prompted two concurring opinions, each taking a contrary position on the question of the applicability of the California law to proceedings in federal court. Circuit Judge Mark J. Bennett, joined by Circuit Judge Consuelo M. Callahan, asserted that California’s anti-SLAPP statute, Code of Civil Procedure §425.16, applies.
On the other hand, Circuit Judge Daniel Aaron Bress was joined by Circuit Judges Daniel P. Collins, Kenneth K. Lee, and Patrick J. Bumatay in arguing that the case “presented a golden opportunity for the en banc court to fix our mistaken precedent and hold that California’s anti-SLAPP statute does not apply in federal court.”
Parking Space Dispute
The question arose in a dispute between a La Jolla take-and-bake establishment, American Pizza Manufacturing (“APM”), and a resident, Ajay Thakore, after the City of San Diego converted parking spaces outside of the restaurant into 15-minute parking zones in late 2020.
Thakore and his company, Gopher Media LLC, also based out of La Jolla, filed a complaint against APM and its owner, Andrew Melone, in November 2021, asserting racial discrimination claims under 42 U.S.C. §§1981 and 1982, as well as negligence, defamation, and other causes of action. In the operative complaint, the plaintiffs claimed that Melone used racial slurs and threats against people of “Arab or Asian de[s]cent” and alleged:
“APM and Melone have and continue to engage in a campaign of harassment as to any member of the public that park in the Parking Spot that they do not approve of or who are not customers of APM.”
APM countersued, asserting defamation, trade libel, and unfair business causes of action under California law, alleging that Gopher Media paid its employees to generate more than 100 negative online reviews of the restaurant after exchanges between the parties over Thakore’s purported practice of parking in the restricted spots for extended periods of time.
Anti-SLAPP Motion
Thakore and Gopher Media responded by filing an anti-SLAPP motion, asking the court to strike the counter-complaint.
In April 2024, District Court Judge Ruth Bermudez Montenegro of the Southern District of California denied the request.
After hearing oral argument on the ensuing interlocutory appeal, Circuit Judges Sandra S. Ikuta, Ryan D. Nelson, and Bress directed the parties to file supplemental briefs “addressing whether this case should be heard en banc to reconsider (1) whether California’s anti-SLAPP statute applies in federal court, and (2) whether the denial of a motion to strike under California’s anti-SLAPP statute is immediately appealable under the collateral order doctrine.”
Neither side argued in favor of overruling the precedent establishing that the California statute applies in federal court. However, the parties took contrary positions on whether Batzel was correctly decided.
In March, a majority of non-recused active judges voted that the case be decided en banc.
Batzel Case
Addressing Batzel, Murguia pointed out that the panel in that case was concerned that a defendant might be compelled to defend against a meritless claim brought to chill free expression, absent the ability to file an interlocutory appeal. The court found “instructive” that §425.16 expressly provides that an order denying an anti-SLAPP motion may be immediately challenged in state court.
However, she noted that “[s]ince that time, several members of our court have called for reconsideration…due to an enduring disagreement about whether the denial of an anti-SLAPP motion meets the collateral order doctrine’s stringent requirements.”
Murguia acknowledged that the collateral order doctrine establishes a narrow exception to the general rule that appeals in federal court are limited to challenges to final decisions by the District Court. She wrote:
“To fall into this narrow class of appealable nonfinal orders, a district court decision must ‘[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.’ ”
Two-Part Failure
Saying that the anti-SLAPP denials fail the second two parts of the analysis, she noted that the statute requires courts to consider whether the claims arise from protected free speech activity and, if so, whether the plaintiff has established a probability of prevailing. The chief judge opined:
“These questions are not ‘neat abstract issues of law’ that can be decided once and will not reemerge at trial….Instead, the anti-SLAPP analysis intertwines factual and legal questions, which requires a court to go beyond ‘merely find[ing] that such merits may exist.’…Therefore, ‘[g]iven the fact-dependent nature of the anti-SLAPP analysis,’ the denial of an anti-SLAPP motion is not ‘conceptually distinct’ from the merits of a plaintiff’s claims.”
She added:
“Although we still recognize that some important interest may be lost if a defendant must wait to appeal a final judgment in an anti-SLAPP case—such as the potential unfairness of having to defend a meritless action all the way through trial—this lost interest does not render the decision ‘effectively unreviewable’…because deferring review of these motions until final judgment will not ‘so imperil[] the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.’…Indeed, our court has already reached this conclusion about orders granting an anti-SLAPP motion under California’s statute.”
Other Opinions
Bennett wrote:
“I join the majority opinion in full. But I write separately because I believe that California’s anti-SLAPP special-motion and attorney-fee-shifting provisions…create a substantive right. In substance, these provisions provide defendants with a pretrial claim for attorneys’ fees for plaintiffs’ abuse of the judicial process by filing a meritless SLAPP suit. No federal rule controls or directly collides with that right. Thus, the anti-SLAPP provisions apply in federal court under Erie Railroad…, and its progeny.”
Disagreeing, Bress pointed out that attempting to apply the substance of the California law has proved complicated, as various sections of the statutory scheme conflict with federal procedural rules.
As a result, he said that case law has removed certain provisions of the statute from application in federal court, including one providing for an automatic stay of discovery and another limiting the time frame for filing such motions to 60 days after service of the complaint, among others. Under those circumstances, he argued:
“What the majority has therefore left us with is a fee shifting statute for anti-SLAPP motions that merit this label in name only. They are really just motions to dismiss under Rule 12(b)(6) or summary judgment motions under Rule 56. They are subject to the same standards as those two types of motions….They follow the same discovery processes as those motions, just as the Federal Rules would normally allow….These types of motions would not have fee-shifting associated with them, absent an attorneys’ fees provision in some other relevant substantive state or federal law.”
The jurist added:
“When the issue presents itself again, which it surely will, I hope we will end our confusing efforts to meld federal and state procedural law. No authority permits us to blend these two bodies of law as we have, an endeavor that has bedeviled federal practice and left in its wake a version of the anti-SLAPP statute that bears no resemblance to the real thing.”
The case is Gopher Media LLC v. Melone, 24-2626.
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