Appellate Court Sides With One Side In “Irreconcilable Conclusions” On The Appealability Issue.
In Ibbetson v. Grant, Case No. G060473 (4th Dist., Div. 3 Nov. 30, 2022) (unpublished), the appellate court was faced with the question of whether an anti-SLAPP fee award was immediately appealable after a prior SLAPP order grant or whether it had to await a final judgment down the way.
The 4/3 DCA panel, in an unpublished opinion authored by Acting Presiding Justice Bedsworth, dismissed the appeal.
It determined that there were two “irreconcilable” approaches on the appealability issue. The first was embodied in Doe v. Luster, 145 Cal.App.4th 139, 144-148 (2006) and Baharian-Mehr v. Smith, 189 Cal.App.4th 265, 275 (2010), which both held that a separate SLAPP fee award is not immediately appealable unless it is part of the SLAPP motion (where the fees are awarded at the same time as the SLAPP grant). The second approach was represented in City of Colton v. Singletary, 206 Cal.App.4th 751, 781-782 (2012), which held that the SLAPP fee award was separately appealable under the collateral order exception to the one final judgment rule. However, the Ibbetson panel decided that the Doe/Baharian-Mehr cases provided “the sounder approach,” especially given what the Legislature did in making SLAPP grants/denial immediately appealable but not including fee awards within that ambit. That led to a dismissal of the appeal; although, as we read the opinion, the adverse party can raise a challenge to it from any final judgment entered in the future.
BLOG OBSERVATION—This case might be seen as one which should have been published. However, given that the adverse party can appeal the issue from the final judgment, we will indicate that Justice Bedsworth rarely grants civil opinion publication requests. He believes there is too much law on the books already, so why add more unless there is something really special dictating a different conclusion.
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