While Code of Civil Procedure section 425.16 is alive and well in state courts, the statute may be on its way out in federal diversity cases in the Ninth Circuit. A very recent opinion from that court calls for en banc review, ostensibly to rule that no immediate appeal is available from the denial of an anti-SLAPP motion. But as anyone familiar with the Ninth Circuit’s treatment of California’s anti-SLAPP statute knows, there is a movement afoot to rule that this creature of state procedure has no place at all in federal court. Will California’s anti-SLAPP statute survive?

The unique features of the anti-SLAPP statute include: the immediate stay on discovery; the burden shift to the non-moving party to demonstrate—at the pleading stage—a reasonable probability of success; costs and attorney fees for bringing a successful SLAPP motion; and most notably, win or lose, the right to an immediate appeal. See Code Civ. Proc. § 425.16, subdivisions (b)(1), (c)(1), & (g); see also Code Civ. Proc. § 904.1 subd. (a)(13).

By contrast, only some of the statute’s unique features have survived in the Ninth Circuit. The Ninth Circuit has approved of the anti-SLAPP statute’s general applicability in diversity cases. And it has also allowed for the statutory award of costs and fees. See United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) (“Newsham”). The appellate court has also held that denial of a SLAPP motion is immediately appealable. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

But under the rubric of conflict with the Federal Rules of Civil Procedure, the Ninth Circuit has rejected some of the statute’s key features. For example, there is no immediate appeal from the grant of a SLAPP motion. Hyan v. Hummer, 825 F.3d 1043 (9th Cir. 2016). And there is no automatic stay on discovery because such a stay “collide[s] with the discovery-allowing aspects of Rule 56.” Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001).

On May 16, the Court of Appeals issued its opinion in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 2018 WL 2223990 (9th Cir. 2018). The Planned Parenthood decision is one to watch because it held that district courts should endeavor to treat SLAPP motions as either Rule 12(b)(6) motions or Rule 56 motions (summary judgment). More on that in a future post. But it is also worth watching because a two judge concurrence called for en banc review of a threshold issue: whether Batzel should be reversed so that absent district court certification, no interlocutory appeal can be taken when a SLAPP motion is denied.

Followers of the Court know that many circuit judges have suggested that California’s anti-SLAPP statute has no business at all in federal diversity cases. For example, former Chief Judge Alex Kozinski concluded that the statute is wholly procedural, precluding its operation under the Erie doctrine. Makaeff v. Trump University, 715 F.3d 254 (9th Cir. 2013) (Kozinski, CJ, concurring). And Circuit Judge Paul Watford, applying the conflict analysis the United States Supreme Court says is the test, concluded that “California’s anti-SLAPP statute bars claims at the pleading stage when Rule 12 would allow them to proceed.” Makaeff, 736 F.3d at 1189 (dissental). Other circuit judges have manifested similar objections or concerns.

So what will become of California’s anti-SLAPP statute in the Ninth Circuit? Even if en banc review is not granted in Planned Parenthood, there is a continuing debate within the court over the statute’s applicability. Will the statute be further reduced, so that other key features do not operate? In its reduced form, will it cease to perform the purpose for which it was enacted—early resolution of SLAPP suits? Or will there be a larger revolution, with a majority of judges banishing the statute from federal courtrooms? Time will tell. Stay tuned.

Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.