What Is The Standard of Review On An anti-SLAPP Appeal?

Posted on July 26, 2010 by Adrianos Facchetti

I outlined in a previous post how risky it is for a losing plaintiff on an anti-SLAPP motion to appeal a trial court's ruling. The primary reason being that a prevailing defendant may be awarded his attorney's fees for opposing the SLAPP at the trial and appellate levels.

But in this post I want to lay off the doom and gloom (after all, it's another sunny day in Los Angeles) and discuss what the standard of review is if you (whether Plaintiff or Defendant) choose to appeal a trial court's ruling.

A "standard of review" is lawyer-speak for how much deference an appellate court will give to a lower court in reviewing its decision. In the anti-SLAPP context, the standard of review is de novo (which means "anew") because such orders present pure questions of law. This means the appellate court gives no deference to the lower court's ruling and decides the matter with fresh eyes.

This apparently relaxed standard may encourage a losing party to appeal, however, in reality, most appellate decisions end up affirming the trial court's ruling for a number of reasons which I won't go into here. That coupled with the specter of getting hit with attorney's fees should cause an appealing party to stop and think before file an appeal.

 

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Are You Sure You Want to File An Appeal?

Posted on March 4, 2009 by Adrianos Facchetti

The vast majority of defamation appeals are taken after a trial court has granted a special motion to strike, also known as an anti-SLAPP motion.  Most of these appeals are affirmed.  In other words, the appeals are unsuccessful.

And while most appeals (other than defamation) are unsuccessful, losing an appeal in the defamation context can be particularly costly.

The reason is attorney fees.

Section 425.16 of the California Code of Civil Procedure (the so-called "anti-SLAPP statute") provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." This includes fees and costs incurred in defending an appeal of an order granting a special motion to strike.

This is effectively a double whammy.  

The defendant is entitled to attorneys fees expended in bringing the motion in the trial court AND defending the losing appeal.  You get hit twice.

And you might be thinking, but how much can this really cost me?

Well, I've seen fee awards ranging anywhere between $15,000 and $30,000, and even more in some instances.  It is very expensive.

So I ask you again . . .  Are you sure you want to file an appeal?

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