Wednesday, January 12, 2011

Grewal v. Jammu (Cal. Ct. App. - Jan. 11, 2011)

When the Court of Appeal (or California Supreme Court) bothers to make some comments to the Legislature in a published opinion, I generally hope that people are listening.  Because it takes a bit for the judiciary to reach out to another branch, and when it does so, it's usually regarding an area that the judiciary has a great deal of both experience and expertise.  The judiciary speaks softly.  But it's more like E.F. Hutton than T.R. Roosevelt.  No stick.  But people listen.

I hope that's the case in reaction to this opinion.

It's another SLAPP appeal.  The resolution of which is less interesting than Justice Richman's comments to the Legislature.  Where he suggests that the Legislature should seriously consider repealing the provisions that authorize an automatic appeal when a party files for but loses an anti-SLAPP motion.

I think Justice Richman describes pretty accurately the problems engendered by automatic appeals.  Lots of these appeals are silly.  All of them delay the lawsuit a fair piece.  Sometimes substantially.  Because appeals take time, and meanwhile, the case is stayed.  Justice delayed is justice denied, and all.  So I am somewhat sympathetic to his views, and hopefully the Legislature will be as well.

But I'd nonetheless like to modify what Justice Richman says a bit.  As well as his suggestion.

It's true that some anti-SLAPP appeals are silly.  But some are meritorious as well.  Differentiating the two is not entirely easy.  And I'm not sure you entirely want to throw out the baby with the bathwater here.  There's a real problem -- the legitimate problem that motivated passage of the SLAPP statute in the first place -- of constitutional rights being potentially chilled by litigation.  We want to put a stop to that, and having an appeal helps to ensure that if the trial court gets it wrong, the defendant doesn't have to spend lots of money on legal fees in the meantime.  Because if they do, then we haven't taken away the chill on speech.

Justice Richman thinks that the possibility of filing a summary judgment motion or a writ solves this problem for cases in which an appeal might be meritorious.  I'm not entirely persuaded.  As for the former, filing such a motion costs a lot of money, takes a lot of time (including the required 75-day notice period), and often requires a boatload of discovery lest the motion be denied or continued.  Those are real problems.  As for the latter, given the number of denied writ petitions, and the short shrift they often (necessarily) receive, I'm not sure that's entirely adequate to solve the problem.  I'm can see why some one on the Court of Appeal might think  "Don't worry; we do a great job of solving this problem with discretionary review, since we're really awesome at separating the wheat from the chaff, and always step in when necessary."  But outsiders, including myself, aren't so convinced.  So neither solution seems entirely adequate to solve the chill.

But let me give an alternative.  For consideration by Justice Richman and/or the Legislature.

Justice Richman notes -- correctly -- that the problem with an automatic appeal is that it delays the lawsuit, typically by almost two years.  I agree that's too much.  So what about still allowing appeals but expediting them.  Opening brief due in 30 days; no stipulated or other extensions absent extraordinary circumstances.  Responsive brief due 30 days thereafter; reply brief (if any) 15 days thereafter.  All that's doable; the parties have already done the briefs below, and in these cases, that schedule is eminently feasible.  Once briefed, the anti-SLAPP appeals have priority.  The Court of Appeal has 30 days to schedule oral argument after briefs are filed.  Then pounds out its decision either quickly (could easily be within a week) or on the regular (90-day) schedule.  Whatever works.

Total time from start to finish:  Four to six months.  Sure, that's a delay in the underlying lawsuit.  But not a massive one.  Even a fraction of the discovery often takes up this period.  We'll thereby provide an appeal -- with the resulting safeguards -- but without the resulting delay.

I think that'd be the best of all possible worlds, and is a reasonable middle ground between what we have now and the solution advanced by Justice Richman.  It's a little bit of an administrative hassle, but eminently doable.  It also has precedent.  Both state and federal courts give certain appellate cases priority.  And the timeline I've suggested for anti-SLAPP cases is certainly more generous than, say, the one that applies to appeals of district court denials of motions by crime victims.  Which have to be decided by the Court of Appeals, soup to nuts, in seventy two hours.  I'd give the parties and Court of Appeal twenty times as much time to brief and resolve appeals in anti-SLAPP cases.  Call me generous.

So I think that Justice Richman is onto something here.  Not surprisingly.  I'd just suggest that his proposal to the Legislature be tweaked a little bit, and be a little more nuanced.

Maybe he'd in turn want to tinker with my proposal.  Perhaps if the trial court thought it was a close case, for example, it could have the power to expressly declare that "reasonable judicial minds could easily differ" with respect to the proper resolution of the anti-SLAPP motion, at which point the expedited schedule would not apply and the matter would be briefed pursuant to the usual provisions.  I'd be totally okay with that, and if a legislative committee wanted to add that, go right ahead.  I'm a flexible guy.

So I agree with Justice Richman as to the problem.  But the status quo has its advantages as well.  And I'm fairly confident there's a middle ground that properly obtains the benefits of both.