Travelers Casualty Insurance Co. of America v. Hirsh

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRAVELERS CASUALTY No. 14-55539

INSURANCE COMPANY OF

AMERICA, D.C. No. Plaintiff-Appellee, 2:13-cv-02504-GW-JC

v.

OPINION

ROBERT W. HIRSH,

Defendant-Appellant,

and

VISEMER DE GELT, LLC,

Defendant.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted June 8, 2016 Pasadena, California

Filed August 3, 2016

Before: Alex Kozinski, Ronald M. Gould, and Andrew D. Hurwitz, Circuit Judges. Per Curiam Opinion; Concurrence by Judge Kozinski; Concurrence by Judge Gould

SUMMARY*

California Anti-SLAPP Statute

The panel affirmed the district court’s denial of Robert Hirsh’s special motion under the California anti-strategic lawsuit against public participation (“anti-SLAPP”) statute, Cal. Civ. Proc. Code § 425.16, to strike the second amended complaint filed by Travelers Casualty Insurance Company of America.

Hirsh alleged that Travelers’ claims arose out of his representation of Travelers’ insured, Visemer De Gelt, as Cumis counsel; and his…

Concurrence by Judge KOZINSKI;

Concurrence by Judge GOULD

OPINION

In this diversity suit, Robert W. Hirsh appeals the denial of his special motion under the California anti-strategic lawsuit against public participation (“anti-SLAPP”) statute, Cal. Civ. Proc. Code § 425.16 , to strike the second amended complaint filed by Travelers Casualty Insurance Company of America (“Travelers”). We affirm.

1. Notwithstanding that the denial of the anti-SLAPP motion did not give rise to what traditionally would be deemed a final judgment (one resolving all claims in a suit), our precedents establish our *1181 jurisdiction to consider this appeal. “Because California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well.” Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003). We therefore have held that the denial of an anti-SLAPP motion is “an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026 ; see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir. 2013) (affirming appealability of denial of…

with whom Circuit Judge GOULD joins, concurring:

I must join because the opinion faithfully applies our circuit’s precedents, which accord federal-court defendants the procedural advantages of California’s anti-SLAPP law. See Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th Cir. 2003); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 , 970-73 (9th Cir. 1999). But I write once again to emphasize that our caselaw is wrong: These interloping state procedures have no place in federal court. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 272 (9th Cir. 2013) (Kozinski, C.J., concurring).

Our precedents have not aged with grace. Ever since we allowed them to take root, anti-SLAPP cases have spread like kudzu through the federal vineyards. A casual Westlaw search suggests that such cases have more than tripled over the last ten years. 1 And nowhere are anti-SLAPP cases more common than in the Ninth Circuit: The Westlaw data suggest that courts in our circuit have heard 80 percent of these cases over the same decade. 2 In *1183 other words, 80 percent of the problem is right here.

Fortunately, other circuits are starting to recognize this problem for what it is.…

concurring:

I join the per curiam opinion. I also concur in Judge Kozinski’s separate concurrence taking issue with circuit precedent permitting defendants in federal court to take advantage of California’s anti-SLAPP law. Although I previously joined in part the Batzel precedent that is challenged by Judge Kozinski, and my partial dissent did not disagree on the majority’s application there of collateral order doctrine to permit appeal of denial of anti-SLAPP motion, I am now persuaded by Judge Kozinski’s reasoning, as well as that of the D.C. Circuit in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333-

(D.C. Cir. 2015), that an anti-SLAPP motion has no proper place in federal court in light of the Federal Rules of Civil Procedure, and also that the collateral order doctrine does not provide a good fit for immediate appeal of denial of anti-SLAPP motions. Having recognized that there was error in the position that I previously joined, I recede from it.