Thursday, July 2, 2015

It's Like There Was a Contest to Pick the Most Awkward Neologism

West v. Arent Fox LLP, No. B255973 (D2d5, as modified Jun. 26, 2015)

A SLAPPback—yes, this ugly-looking half-capped term actually shows up in a statute—is an action for malicious prosecution brought against someone who previously prosecuted an action that was dismissed as a SLAPP under Code of Civil Procedure § 425.16. Because the Legislature decided it furthered the purpose of the anti-SLAPP protections to permit these kinds of suits, even though they themselves would invariably draw an anti-SLAPP motion, it passed § 425.18 to make it harder, but not impossible, to attack a SLAPPback with an anti-SLAPP motion. 


So § 425.18(c) exempts a SLAPPback from some of the more procedurally onerous parts of § 425.16, such as the discovery stay, the timing provisions, and the shifting of attorney fees. In instances where the motion is denied or only partially granted, § 425.18(g) also replaces the immediate right to appeal under §§ 425.16(i) and 904.1(a)(13) with a more limited writ review that must be sought within twenty days. That rule applied here, because the trial the court granted an anti-SLAPP motion and struck claims that everyone agreed were SLAPPbacks, but did not dispose of the whole case. Since plaintiff did not timely seek a writ, but instead filed a notice of appeal after the twenty days had run purporting to claim appellate jurisdiction under §§ 425.16(i) and 904.1(a)(13), there’s no jurisdiction to hear this case.

Appeal dismissed.

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