J. Hyan v. Rosslyn Hummer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. P. HYAN, an individual, No. 14-56155

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-02004-

GAF-FFM

ROSSLYN BETH HUMMER, Esq., an

individual; ERIC C. PETERSON, Esq.,

an individual; RUTTER HOBBS AND OPINION

DAVIDOFF, INC., a corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Submitted June 7, 2016*

Pasadena, California

Filed June 14, 2016

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 HYAN V. HUMMER

Before: Stephen Reinhardt and Kim McLane Wardlaw,

Circuit Judges and Edward R. Korman,** Senior District Judge.

Per Curiam Opinion

SUMMARY***

Anti-SLAPP

The panel dismissed for lack of appellate jurisdiction an

appeal challenging the district court’s order granting a motion

to strike claims under California’s anti-SLAPP statute, arising

from an underlying California state court legal malpractice

action.

The panel held that the order granting an anti-SLAPP

motion was not a “final decision” over which the court could

exercise jurisdiction because the order dismissed two of the

defendants, but one defendant remained in district court.

The panel held that although the grant of an anti-SLAPP

motion to strike is treated as final in California courts, under

the Erie doctrine federal courts sitting in diversity apply

federal procedural law, and Fed. R. Civ. P. 54(d) clearly

states that the order on appeal here is not final. The panel

also held that the grant of an anti-SLAPP motion to strike is

**

The Honorable Edward R. Korman, Senior District Judge for the U.S.

District Court for the Eastern District of New York, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HYAN V. HUMMER 3

not reviewable under the collateral order doctrine because the

grant of an anti-SLAPP motion to strike is fully reviewable

on appeal from final judgment.

COUNSEL

Suzelle M. Smith, Don Howarth, Padraic J. Glaspy, and

Jessica L. Rankin, Howarth & Smith, Los Angeles,

California, for Plaintiff-Appellant.

Laurence L. Hummer, Laurence L. Hummer, A Law

Corporation, Los Angeles, California, for Defendants-

Appellees.

4 HYAN V. HUMMER

OPINION

PER CURIAM:

J.P. Hyan sued multiple defendants, alleging that they

have stymied his efforts to collect on a California state court

legal malpractice judgment. The district court granted a

motion filed by a defendant, appellee Rosslyn Beth Hummer,

to strike Hyan’s claims under California’s anti-SLAPP

statute, and Hyan appealed. Because the district court’s order

is not a “final decision” over which we may exercise

appellate jurisdiction, nor is it immediately appealable under

the collateral order doctrine, we dismiss the appeal for lack of

jurisdiction.

1. Hyan, a former client of the now-defunct law firm

Rutter Hobbes and Davidson (“RHD”), commenced a legal

malpractice action against the firm and some of its attorneys

in California court in 2010. The suit later settled for $7.5

million in March of 2012. RHD carried two malpractice

insurance policies, a primary insurance policy with Liberty

Surplus Insurance Company (“Liberty”) in the amount of $5

million, and an excess policy with Executive Risk Speciality

Insurance Company (“ERSIC”) with a $5 million policy

limit.

To date, however, Hyan has not been paid. It appears

from the record that at least two of the firm’s former

attorneys, Hummer and Eric Peterson, are currently

defendants in other malpractice actions that arose out of their

work at RHD, and they have issued demands that the

insurance companies defend them in these actions. Hyan

alleges that he has not been paid as a result of the competing

insurance claims. Hyan first attempted unsuccessfully to

HYAN V. HUMMER 5

intervene in an interpleader action commenced by ERSIC in

the hopes of sorting out the competing claims to the insurance

proceeds. See Exec. Risk Specialty Ins. Co. v. Rutter Hobbes

& Davidoff, Inc., 564 F. App’x 887 (9th Cir. 2014). He then

filed his own lawsuit in California court against RHD,

Liberty, Hummer, and Peterson, and the case was

subsequently removed to federal court. Relevant to Hummer,

Hyan alleges that her insurance demand induced Liberty and

RHD to breach their contractual obligation to pay him under

the March 2012 settlement. Hummer filed an anti-SLAPP

motion to strike1 Hyan’s claims, which the district court

granted without leave to amend. Hyan then appealed,

although proceedings involving the remaining defendants

have continued in the district court.

2. Before we may address the merits of Hyan’s appeal,

we must determine whether we have jurisdiction to do so.

We “have jurisdiction to review ‘final decisions’ on the

merits entered by the district courts.” Greensprings Baptist

Christian Fellowship Trust v. Cilley, 629 F.3d 1064, 1066

(9th Cir. 2010) (quoting 28 U.S.C. § 1291). A decision is

final when it “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” SEC

1

“California law provides for the pre-trial dismissal of certain actions,

known as Strategic Lawsuits Against Public Participation, or SLAPPs, that

masquerade as ordinary lawsuits but are intended to deter ordinary people

from exercising their political or legal rights or to punish them for doing

so.” Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013)

(citation omitted). To prevail on such a motion, “the moving defendant

must make a prima facie showing that the plaintiff’s suit arises from an act

in furtherance of the defendant’s constitutional right to free speech” or

petition. Id. If the defendant makes this showing, the “burden then shifts

to the plaintiff . . . to establish a reasonable probability that it will prevail

on its claim in order for that claim to survive dismissal.” Id.

6 HYAN V. HUMMER

v. Capital Consultants LLC, 453 F.3d 1166, 1170 (9th Cir.

2006) (quoting Caitlin v. United States, 324 U.S. 229, 233

(1945)). Hyan argues that the district court’s grant of

Hummer’s anti-SLAPP motion to strike is a “final decision,”

but the Federal Rules of Civil Procedure clearly state that

“any order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties” is not final. Fed. R.

Civ. Pro. 54(b) (emphasis added). The order on appeal here

dismissed two of the defendants named in Hyan’s suit,2 but

one defendant, RHD, remains in district court.3 Accordingly,

the order is not a “final decision” over which we may

exercise jurisdiction.

Hyan’s arguments in favor of the order’s finality can be

easily answered. First, he notes that the grant of an anti-

SLAPP motion to strike is treated as final in California

courts. See Cal. Civ. Proc. Code § 425.16(i). Under the Erie

doctrine, however, “it is long since settled that ‘federal courts

sitting in diversity apply state substantive law and federal

procedural law.’” Clausen v. M/V NEW CARISSA, 339 F.3d

1049, 1065 (9th Cir. 2003) (quoting Feldman v. Allstate Ins.

Co., 322 F.3d 660, 666 (9th Cir. 2003)). Rule 54(b), which

we must apply, clearly states that the order on appeal here is

not final.

2

The district court also granted Liberty’s motion to dismiss for failure

to state a claim in the same order in which it granted Hummer’s anti-

SLAPP motion. Hyan does not at this juncture appeal the dismissal of his

claims against Liberty.

3

It appears from the district court docket that Hyan has dismissed

Peterson entirely from the case.

HYAN V. HUMMER 7

Second, Hyan cites past cases in which this court

reviewed a decision granting an anti-SLAPP motion to strike.

See, e.g., Manufactured Home Cmties., Inc. v. Cnty. of San

Diego, 655 F.3d 1171 (9th Cir. 2011); Vess v. Ciba-Giegy

Corp. USA, 317 F.3d 1097 (9th Cir. 2003). In each of those

cases, however, the relevant order dismissed all defendants

from the case, making the orders final. See Manufactured

Home Cmties., 655 F.3d at 1176; Vess, 317 F.3d at 1102.

That this court has jurisdiction to review the grant of an anti-

SLAPP motion to strike that is part of an appealable final

decision, of course, does not suggest that the grant of an anti-

SLAPP motion to strike is appealable when it is not.

Third, Hyan argues that such an order must be appealable

because, under California law, the grant of an anti-SLAPP

motion to strike must be appealed within 60 days. See

Russell v. Foglio, 160 Cal. App. 4th 653, 659 (2008)). This

argument suffers from the same Erie problem as Hyan’s

argument based on California Civil Procedure Code

§ 425.16(i). Under California law, the appeal clock begins to

run upon a decision regarding the anti-SLAPP motion to

strike because such a decision is “specifically, statutorily

appealable.” Russell, 160 Cal. App. 4th at 659. In federal

court, by contrast, any non-final order may be appealed upon

entry of judgment, even if the deadline to appeal the specific

order has already elapsed. Am. Ironworkers & Erectors, Inc.

v. North Am. Constr. Corp., 248 F.3d 892, 897 (9th Cir. 2001)

(“A necessary corollary to the final judgment rule is that a

party may appeal interlocutory orders after entry of final

judgment because those orders merge into that final

judgment.”).

3. Although addressed only cursorily in his brief, Hyan

also asserts that the grant of an anti-SLAPP motion to reopen

8 HYAN V. HUMMER

is reviewable under the collateral order doctrine. The

collateral order doctrine allows for “appeal from a ‘narrow

class of decisions that do not terminate the litigation, but

must, in the interest of achieving a healthy legal system[,]

nonetheless be treated as final.’” SEC v. Capital Consultants

LLC, 453 F.3d 1166, 1171 (9th Cir. 2006) (alteration in

original) (quoting Dig. Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 867 (1994)). To qualify for immediate appeal

under the collateral order doctrine, an order must satisfy three

requirements: “[1] conclusively determine the disputed

question, [2] resolve an important issue completely separate

from the merits of the action, and [3] [be] effectively

unreviewable on appeal from a final judgment.” Id. (quoting

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

We need not discuss the first two requirements, however,

because we hold that the grant of an anti-SLAPP motion to

strike is fully reviewable on appeal from final judgment. The

erroneous grant of an anti-SLAPP motion to strike can be

fully remedied on appeal by remanding the case for

proceedings on the wrongly-struck claim or claims. To be

sure, waiting until final judgment to review an anti-SLAPP

motion to strike may frustrate a plaintiff’s interest in the

efficient resolution of his dispute. Such a concern, however,

does not merit use of the collateral order doctrine. See

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108–09

(2009) (“We routinely require litigants to wait until after final

judgment to vindicate valuable rights, including rights central

to our adversarial system.”). For this reason, the grant of a

motion for qualified immunity is not appealable under the

collateral order doctrine. See Krug v. Lutz, 329 F.3d 692, 694

n.2 (9th Cir. 2003).

HYAN V. HUMMER 9

As Hyan notes, we have previously held that the denial of

an anti-SLAPP motion to strike is appealable under the

collateral order doctrine. See DC Comics v. Pac. Pictures

Corp., 706 F.3d 1009, 1015–16 (9th Cir. 2013). It does not

follow, however, that the grant of a motion to strike is as

well. The denial of an anti-SLAPP motion to strike is not

fully reviewable on appeal after final judgment because the

statute provides an important right, “immunity from suit” that

would be “effectively lost if a case is erroneously permitted

to go to trial.” Id. at 1015 (internal quotation marks omitted).

No such loss of rights occurs when the review of a grant of

an anti-SLAPP motion to strike is delayed until the appeal of

final judgment.

Accordingly, the appeal is

DISMISSED for LACK of JURISDICTION.