In Doing So, It Disagreed With Different Conclusions By Two Sister Appellate Courts.
Kaplan v. Davidson, Case No. B312826 (2d Dist., Div. 7 July 11, 2022) (unpublished) highlights a rift between this Division and other sister appellate courts on the question of whether denial of attorney’s fees to a plaintiff after a merits denial of a SLAPP motion is appealable. The 2/7 DCA, in the earlier decision of Doe v. Luster, 145 Cal.App.4th 139, 142 (2006), concluded it was not immediately appealable. Later, other appellate courts came to a completely different conclusion. (Baharian-Mehr v. Smith, 189 Cal.App.4th 265, 275 (2010); Chitsazzeh v. Kramer & Koslow, 199 Cal.App.4th 676, 680 n. 2 (2011).) Now, after considering the issue yet again, the Kaplan panel confirmed that Doe was correct and did not endorse the other sister court decisions, finding that the Legislature did not indicate such a denial order was immediately appealable under Code of Civil Procedure sections 425.16 or 904.1. It did not rule out that an extraordinary writ of mandate petition might be proper under the right circumstances.
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