California SLAPP Law

Does an anti-SLAPP appeal stay the entire action?

Seemingly, this question has been clearly answered ever since the Supreme Court ruling in Varian Medical Systems v. Delfino, way back in 2005, but I still see a lot of confusion on the topic.

The truth is that an appeal from a ruling on an anti-SLAPP motion (granting or denying) does as a general rule stay the action, but there is some nuance. Certain activities can still continue, and the stay may not apply to all claims and parties.

This week, we were surprised that the opposing counsel did not file any opposition to our motion for attorney fees, following our successful anti-SLAPP motion. I was hopeful that the lack of a response was intentional, based on the modest fee request. But I suspected that it had something to do with the appeal he had filed. Upon receiving my Notice of Ruling, granting the requested attorney fees, he called to say that he was shocked that I would go forward with the motion, knowing an appeal was pending. But as I explained to him, an appeal does not stay a motion for attorney fees.

An appeal also does not stay collection of those attorney fees.

In another case, we prevailed on an anti-SLAPP motion against an attorney, who was representing herself in a defamation action against my client. After the victory, as is my practice, I asked her if she wanted to pay the current attorney fees in order to avoid the extra expense of the motion for attorney fees.**

She chortled, “You can’t bring a motion for attorney fees, because I filed a notice of appeal regarding the ruling on the motion.”

After I prevailed on my motion for attorney fees, as is my practice, I called counsel to ask if she wanted to pay the (now greater) fees in order to avoid the extra fees for my time spent on collection, and the embarrassment of having her wages garnished at her law firm. (Yes, unlike typical collection efforts, the time spent on collecting attorney fees following an anti-SLAPP motion is recoverable.)

She chortled (what can I say? She’s a chortling fool), “You can’t seek to collect those attorney fees while an appeal is pending.”

Quick sidebar: This is a common misunderstanding, because it is true that the collection of “routine” fees and costs is stayed just by filing an appeal. No appeal bond is required. See Chapala Mgmt. Corp. v. Stanton, 186 Cal.App.4th 1532, 1546 (2010). But cases like Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1434 (2001) have held that attorney fees awarded following an anti-SLAPP motion are more akin to sanctions, and collection is not stayed pending appeal. To stop collection, an appeal bond must be posted.

We garnished the attorney’s wages and received 25% of each of her paychecks while we awaited a ruling on the appeal. We defeated her appeal, and this time she took us up on our offer for her to immediately pay the remaining balance plus the additional fees incurred to oppose the appeal, thereby saving herself the cost of another attorney fee motion and continued garnishment.

Allow me to take you through the Varian Medical Systems decision, because it lays out a good summary of the historical background on this point, and explains what is stayed pending appeal. These are the facts as summarized by the Supreme Court. Read the rest of this entry »