Tuesday, October 02, 2012

Citibank v. Tabalon (Cal. App. Div. - Sept. 27, 2012)

This opinion could perhaps be right.  But let me suggest an alternative perspective as well.

The question is whether the denial of an anti-SLAPP motion is subject to an immediate appeal.  In most cases, the answer is clearly yes, because the statute expressly says so.

But what about cases filed as limited jurisdiction cases in Superior Court?  You'd think the answer would be the exact same, right?  Presumably the amount at stake doesn't matter; if it's subject to an immediate appeal in one case, it's likely subject to an immediate appeal in another.  Usually the same appellate rules apply to both limited and unlimited jurisdiction cases.  Plus, if we want an immediate appeal to stop people from suppressing free speech rights by filing lawsuits, we presumably don't care if the speech-suppressing lawsuit is for $24,999 or $25,001.  Same result, same appeal.

But the Appellate Division holds otherwise.  Relying largely on the plain language of the relevant statute.  Which the appellate division thinks is the first sentence of CCP 904.1, which states that "an appeal, other than in a limited civil case, is to the court of appeal," and which may be taken from an order denying a motion to strike.

But this isn't actually the relevant statutory language.  That sentence just indicates that appeals in limited civil cases don't go to the Court of Appeal (but instead go to the Appellate Division):  it doesn't necessarily say anything about whether an appeal is permissible or not.

The second sentence of the statute is actually the appropriate one to look at:  that's the one that says that "an appeal, other than in a limited civil case, may be taken from any of the following . . . . (13) From an order granting or denying a special motion to strike under Section 425.16."  That statutory authority for an appeal indeed applies only to unlimited cases; by contrast, the list of orders subject to immediate appeal in limited civil cases (in Section 904.2) is a more limited list, and doesn't include motions to strike.  So that section may well answer the question.

Now, I have a sense that this may be the result of Legislative oversight; that the statute was meant to authorize an appeal in both types of cases but just forgot to include motions to strike in the statutory section applicable to limited jurisdiction cases.  You could have an alternative view -- maybe no one cares about chilling free speech rights by forcing someone to hire a lawyer and go to trial in a lawsuit for $24,000 -- but I think the "oversight" explanation may facially be more plausible.  Still, that's what the statute says, so that's what we do.  So the result by the Appellate Division may make sense.

But the possibility that it's an oversight may also mean that, were I writing the opinion, I might have (1) explained the possible oversight and suggested that the Legislature take a look at it, and (2) in this particular case, perhaps treated the appeal as an alternative petition for mandamus -- as sometimes is permitted -- and potentially resolved it on that basis.

Again, maybe the result ends up the same.  But that way we're advancing the ball a little bit more than just saying that the statute says what it says and, right or wrong, we're just going to stop there.

So an alternative approach, even if not an alternative holding.