If you’ve ever read a California Court of Appeal opinion closing out with “each side to bear its own costs on appeal,” you might have presumed that such wording forecloses an award of attorney fees on appeal. It’s okay, you’re probably not alone. And if you have thought that, and still do, now would be a good time to read a recent Court of Appeal decision which holds otherwise.

It would be nice if all appealable orders were listed under Code of Civil Procedure section 904.1.  After all, the statute purports to govern the issue. But any search that ends there on the assumption that if it’s not listed, it’s not appealable, is headed for disaster. As seasoned appellate practitioners know, 904.1 can be just the starting point on the long and winding road of appealability. Failure can mean that the right to appeal is lost—forever. (Van Beurden Ins. Service, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)

Section 904.1 even uses a somewhat deceptive structure. For example, informing the reader that “an appeal may be taken from any of the following.” (Emphasis added.) Maybe that’s just legislative wit, recognizing that although an appeal can be taken, not all appeals should be taken. Ask any Court of Appeal justice, right?

A recent California Supreme Court decision resolved the issue of what claims can be subject to a Code of Civil Procedure section 425.16 special motion to strike attacking an amended complaint. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637.) Specifically, the issue was whether an anti-SLAPP motion attacking an amended complaint could challenge claims already present in earlier versions of the complaint. The Court answered “no.”

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 ability to launch a preemptive strike against suits attacking speech or petitioning rights shouldn’t depend on which federal circuit has jurisdiction over the district court action. Yet that is how it stands right now when it comes to state law anti-SLAPP statutes deployed in federal diversity actions. At some point the United States Supreme Court will need to resolve the circuit split.

As it stands, the First, Fifth, and Ninth Circuits have allowed anti-SLAPP motions to be brought in federal court. The D.C. Circuit, however, has rejected them. The remainder of the circuits have not yet weighed in, leaving the district courts below them to decide the issue in the first instance. This could mean that a defendant is stripped of anti-SLAPP protection if an action is filed in federal court.