Ninth Circuit reverses course on anti-SLAPP denial appeals

(CN) — The Ninth Circuit Court of Appeals on Thursday changed its longstanding precedent on whether it has jurisdiction to immediately hear appeals of denials of anti-SLAPP motions brought under California law in federal courts.

An en banc panel of 11 judges unanimously concluded that a district judge’s denial of a motion to strike under the California anti-SLAPP statute doesn’t satisfy the requirements for an interlocutory appeal under the so-called collateral order doctrine, which allows certain decisions by trial judges that do not end a case to be appealed immediately.

“We reach this conclusion because such an order does not resolve issues ‘completely separate from the merits of the action’ and does not render the decision ’effectively unreviewable on appeal from a final judgment,’” Chief U.S. Circuit Judge Mary Murguia, a Barack Obama appointee, said.

The ruling reverses the appellate court’s holding in a 2003 decision that found it had jurisdiction to review such denials of anti-SLAPP motions under California law. In that 2003 decision, the court found this kind of denial resolves a question separate from the underlying merits of a lawsuit in so far it looks only at whether such merits may exist without evaluating whether a plaintiff’s claim will succeed.

“But our experience with anti-SLAPP cases over the ensuing two decades has shown that the questions that must be answered to resolve an anti-SLAPP motion are in fact ‘inextricably intertwined with the merits of the litigation,’” Murguia wrote, noting an “enduring disagreement” among the Ninth Circuit judges on this issue as well as other circuit courts’ holdings that anti-SLAPP denials don’t meet the requirements of the collateral order doctrine.

California’s anti-SLAPP statute, short for strategic lawsuit against public participation, allows a defendant to seek quick dismissal of a lawsuit they believe is only aimed at stifling their First Amendment free speech rights. The law, which also entitles a successful defendant to recover their legal fees, can save a target from having to spend a fortune to fight meritless lawsuits by deep-pocketed plaintiffs.

When deciding a motion to strike under the anti-SLAPP statute, a judge will look at whether a defendant’s challenged conduct pertains to their free speech rights and whether the plaintiffs are likely to succeed on their claim.

“These questions are not ’neat abstract issues of law’ that can be decided once and will not reemerge at trial,” Murguia said. “Instead, the anti-SLAPP analysis intertwines factual and legal questions, which requires a court to go beyond ‘merely finding that such merits may exist.’”

In addition, the judge said, the California statute’s provision that allows for an immediate appeal of denials of anti-SLAPP motions in state court has no bearing on federal courts.

The Ninth Circuit case stems from a legal spat over parking spaces at a San Diego pizzeria that spiraled into cross claims of defamation, fake negative reviews, racial discrimination and First Amendment rights violations.

The lawsuit was brought in 2021 by Ajay Thakore and his company, Gopher Media, against Andrew Melone, the owner of American Pizza Manufacturing. It followed a series of confrontations when the parking spaces outside the pizzeria were converted into 15-parking zones and Thakore, who frequented a nearby business in which he’s part part-owner, left his car parked outside the pizzeria for extended periods of time.

Thakore accused Melone of harassment, discrimination, and unfair competition and specifically claimed Melone called him a racial slur, tried to intimidate him from parking in front of the pizzeria, and kicked his handicapped dog.

Melone filed a counter-complaint for defamation, trade libel and unfair business practices, claiming Gopher Media, under the control of Thakore, paid its employees to leave over one hundred negative reviews of American Pizza Manufacturing on websites such as Yelp and Google, and that Thakore made false statements about Melone and the pizzeria on Instagram.

When the district judge last year denied Thakore’s anti-SLAPP motion to strike Melone’s counterclaims, he brought the interlocutory appeal with the Ninth Circuit.

“American Pizza Manufacturing and Andrew Melone are grateful that the Ninth Circuit reversed its precedent that allowed litigants like Ajay Thakore and Gopher Media to stop a case dead in its tracks on the eve of trial by appealing frivolous anti-SLAPP motions," Owen Praskievicz, an attorney for Melone and his business, said in an email. “After nearly a year and a half since this appeal was filed, my clients now look forward to finally having their day in court to hold Thakore and his company accountable for their conduct.”

An attorney for Thakore and his company didn’t immediately respond to a request for comment.

In a concurring opinion, U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, joined by George W. Bush appointee U.S. Circuit Judge Consuelo Callahan, emphasized that California’s anti-SLAPP special motion and attorney fee-shifting provisions create a substantive right for defendants.

“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,” Bennett wrote. “No federal rule controls or directly collides with that right. Thus, the anti-SLAPP provisions apply in federal court.

U.S. Circuit Judge Daniel Bress, joined by U.S. Circuit Judges Daniel Collins, Kenneth Kiyul Lee and Patrick Bumatay, all four of whom are Trump appointees, agreed that the appellate court has no jurisdiction to hear interlocutory anti-SLAPP appeals, but they insisted that the anti-SLAPP law has no place in federal court at all.

“Today’s decision unfortunately ducks that issue,” Bress said. “In concluding that the denial of an anti-SLAPP motion is not immediately appealable under the collateral order doctrine, the majority opinion instead continues our multi-decade project of surgically altering the core components of the anti-SLAPP law to make it compatible with federal procedural law.”

The other judges on the en banc panel were Milan Smith Jr., a Bush appointee; Michelle Friedland, an Obama appointee; Lawrence VanDyke, a Trump appointee; and Holly Thomas, a Joe Biden appointee.

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