Order On A Special Motion to Strike Is Immediately Appealable
Yesterday, the Second District issued an unfortunate reminder that CCP §§ 425.16, subd. (i), and 904.1, subd. (a)(13) make an order either granting or denying a Special Motion to Strike (Anti-SLAPP) immediately appealable. Waiting until entry of final judgment after the grant of a Special Motion to Strike that disposes of all of the issues in a case could mean waiving your right to appeal the decision at all. Russell v. Foglio (February 28, 2008) 73 Cal.Rptr.3d 87.
Plaintiff was successful on its Special Motion to Strike. Defendant mistakenly waited until the entry of final judgment in the case to appeal the court's order. The Second District found that it was too late and that the court no longer had jurisdiction to hear the appeal on that issue.
Interestingly, Justice Rubin's concurrence includes a request to the Legislature that amendment may be needed to protect the unwary. He argues that a more workable solution may be to have a denial of a Special Motion to Strike to be immediately appealable, but not necessarily the granting of such an order.
