Dc Comics v. Pacific Pictures Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DC COMICS, No. 11-56934

Plaintiff-Appellee,

D.C. No.

v. 2:10-cv-03633-

ODW-RZ

PACIFIC PICTURES CORPORATION ; IP

WORLDWIDE , LLC; IPW, LLC;

MARC TOBEROFF; MARK WARREN OPINION

PEARY , as personal representative of

the Estate of Joseph Shuster; LAURA

SIEGEL LARSON , individually and as

personal representative of the Estate

of Joanne Siegel; JEAN ADELE

PEAVY ,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, II, District Judge, Presiding

Argued and Submitted

November 5, 2012—Pasadena, California

Filed January 10, 2013

2 DC COMICS V . PACIFIC PICTURES

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit

Judges, and John W. Sedwick, District Judge.*

Opinion by Judge Reinhardt

SUMMARY**

Appellate Jurisdiction

The panel held that it had jurisdiction over an

interlocutory appeal of an order denying defendants’ motion,

pursuant to California’s anti-SLAPP statute, to strike certain

state law claims in an action under the Copyright Act.

The panel concluded that Batzel v. Smith, 333 F.3d 1018

(9th Cir. 2003), holding that the collateral order doctrine

permits a party to take an interlocutory appeal of an order

denying an anti-SLAPP motion, remains good law after the

Supreme Court’s intervening decision in Mohawk Indus. v.

Carpenter, 130 S. Ct. 599 (2009). The panel distinguished

Metabolic Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir.

2012), and Englert v. MacDonell, 551 F.3d 1099 (9th Cir.

2009), which addressed Oregon and Nevada anti-SLAPP

statutes more akin to defenses against liability than

immunities from suit. The panel noted that its holding

*

The Honorable John W . Sedwick, Senior United States District Judge

for the District of Alaska, 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.

DC COMICS V . PACIFIC PICTURES 3

comported with the conclusions of the First and Fifth

Circuits.

COUNSEL

Marc Toberoff, Keith G. Adams, and Pablo D. Arredondo,

Toberoff & Associates, P.C., Malibu, California, for

Defendants-Appellants Mark Warren Peary, as personal

representative of the Estate of Joseph Shuster; Laura Siegel

Larson, individually and as personal representative of the

Estate of Joanne Siegel; and Jean Adele Peavy.

Richard B. Kendall (argued) and Laura W. Brill, Kendall

Brill & Klieger LLP, Los Angeles, California, for

Defendants-Appellants Pacific Pictures Corporation; IP

Worldwide, LLC; IPW, LLC; and Marc Toberoff.

Jonathan D. Hacker, O’Melveny & Myers LLP, Washington,

D.C.; Daniel M. Petrocelli, Matthew T. Kline (argued), and

Cassandra L. Seto, O’Melveny & Myers LLP, Los Angeles,

California, for Plaintiff-Appellee.

OPINION

REINHARDT, Circuit Judge:

This case arises from the district court’s denial of

defendants’ motion, pursuant to California’s anti-SLAPP

statute, to strike certain of DC Comics’ state law claims. In

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), we held that

the collateral order doctrine permits a party to take an

interlocutory appeal of an order denying such a motion. We

4 DC COMICS V . PACIFIC PICTURES

must determine whether our decision in Batzel remains good

law after the Supreme Court’s intervening decision in

Mohawk Industries v. Carpenter, 130 S. Ct. 599 (2009). For

the reasons stated below, we conclude that it does, and

therefore that we have jurisdiction over this interlocutory

appeal.1

I. BACKGROUND

Jerome Siegel and Joseph Shuster jointly created the

character Superman in the mid-1930s, and thereafter began

seeking a publisher for comic strips featuring the new

superhero. Eventually, Detective Comics, the predecessor of

plaintiff DC Comics (collectively, “DC”) expressed interest,

and, on March 1, 1938, Siegel and Shuster conveyed

exclusive rights in Superman to DC in exchange for a flat fee;

Siegel and Shuster also were paid for each page of Superman

comics that they wrote and illustrated, and that DC published.

DC issued the first comic book featuring a Superman story,

Action Comics No. 1, later that year. Since then, Superman

has appeared in comic books, in newspaper strips, on the

radio, in television shows, and in numerous successful motion

pictures. He is known worldwide for his super-human

abilities: “faster than a speeding bullet, more powerful than

a locomotive, and able to leap tall buildings in a single

bound.”

Yet for all of his incredible abilities, and his commitment

to creating a more peaceful world,2 Superman has generated

1

W e address the merits of this appeal in a concurrently-filed

memorandum disposition.

2

See, e.g., Superman IV: The Quest for Peace (Warner Bros. 1987).

DC COMICS V . PACIFIC PICTURES 5

bitter financial disputes and frequent litigation. Siegel,

Shuster, and their heirs (including defendants Peary, Larson,

and Peavy) have been contesting DC’s ownership of various

aspects of the Superman copyrights on and off since the

1940s. The current case is one of many stemming from the

heirs’ efforts, pursuant to the 1976 Copyright Act, to

terminate the transfer of copyright to DC and thereby reclaim

title to the early Superman works written and illustrated by

his co-creators. See 17 U.S.C. § 304(c), (d).3 Ultimately, to

assist them in these efforts, the heirs entered into an

arrangement with Marc Toberoff, an attorney (also a

defendant in this action). Toberoff agreed to represent the

heirs, and also, with his companies (additional defendants),

to jointly develop future Superman works with them.

In this lawsuit, DC brings claims under California law

against the heirs, Toberoff, and his companies for intentional

interference with contractual relations, intentional

interference with prospective economic advantage, and

violation of California’s unfair competition law, Cal. Bus. &

Prof. Code §§ 17200 et seq. DC also brings various other

claims under state and federal law regarding the Shuster

heirs’ attempts to exercise termination rights pursuant to the

1976 Copyright Act (claims that are not the subject of this

appeal). The district court had subject matter jurisdiction

over the federal claims pursuant to 28 U.S.C. §§ 1331 and

1338(a) and supplemental jurisdiction over the state law

claims pursuant to 28 U.S.C. § 1367.

3

W e address interlocutory cross-appeals in another of these cases,

Larson v. Warner Bros. Entertainment, Inc., Nos. 11-55863, 11-56034

(relating to the copyright termination notices filed by the Siegel heirs), in

a concurrently-filed memorandum disposition.

6 DC COMICS V . PACIFIC PICTURES

Defendants filed a motion to strike DC’s intentional

interference and unfair competition claims pursuant to

California’s anti-SLAPP statute, Cal. Civ. Proc. Code

§ 425.16. The district judge denied the motion, holding that

defendants had failed to show that any of DC’s claims arose

from conduct falling within the protection of the anti-SLAPP

statute. Defendants filed a timely interlocutory appeal of the

district judge’s order, asserting that this court has jurisdiction

pursuant to the collateral order doctrine and our decision in

Batzel.4 DC contests our jurisdiction, contending that Batzel

is no longer good law.

II. DISCUSSION

A.

Federal appellate jurisdiction is generally limited to

review of “final decisions of the district courts of the United

States.” 28 U.S.C. § 1291. Under the collateral order

doctrine, however, the term “final decisions” encompasses

not only “judgments that ‘terminate an action,’ but also

[judgments in] a ‘small class’ of collateral rulings that,

although they do not end the litigation, are appropriately

deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 130 S.

Ct. 599, 605 (2009) (citing Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 545–46 (1949)). The doctrine applies

only to decisions “that are [(1)] conclusive, [(2)] that resolve

4

Proceedings continued in the district court on the other claims in this

action, relating to the termination notices filed by the Shuster heirs.

Subsequent to the filing of this interlocutory appeal, the district judge

granted summary judgment to DC on two of those claims. DC Comics v.

Pacific Pictures Corp., No. 10-cv-3633, 2012 W L 4936588 (C.D. Cal.

Oct. 17, 2012), notice of appeal filed, No. 12-57245 (9th Cir. filed Dec.

11, 2012).

DC COMICS V . PACIFIC PICTURES 7

important questions separate from the merits, and [(3)] that

are effectively unreviewable on appeal from the final

judgment in the underlying action.” Id. (quoting Swint v.

Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)).

Here, we are asked whether an order denying a motion to

strike made pursuant to California’s anti-SLAPP statute

meets these criteria. California’s legislature enacted the anti-

SLAPP statute in order to deter “strategic lawsuit[s] against

public participation”—that is, lawsuits “brought primarily to

chill the valid exercise of the constitutional rights of freedom

of speech and petition for the redress of grievances.” Cal.

Civ. Proc. Code § 425.16(a). The statute provides for a

special motion to strike that is intended to stop such lawsuits

early in the litigation process. Id. § 425.16(b).5 To prevail on

such a motion, a defendant must show that the suit arises

from protected speech or petitioning activities. In re

Episcopal Church Cases, 198 P.3d 66, 73 (Cal. 2009). If it

does, and the plaintiff cannot demonstrate that the lawsuit is

“legally sufficient and supported by a sufficient prima facie

showing of facts to sustain a favorable judgment if the

evidence submitted by the plaintiff is credited,” Wilson v.

Parker, Covert & Chidester, 50 P.3d 733, 821 (Cal. 2002),

then the claims are stricken pursuant to the statute, Episcopal

Church Cases, 198 P.3d at 73. California statutes specifically

permit a defendant in a state court action to take an

5

W e have held that such a motion is available against state law claims

brought in federal court. See Thomas v. Fry’s Electronics, 400 F.3d 1206,

1206 (9th Cir. 2005); accord Henry v. Lake Charles American Press LLC,

566 F.3d 164, 168–69 (5th Cir. 2009); Godin v. Schencks, 629 F.3d 79, 88

(1st Cir. 2010); but see 3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C.

2012), appeal pending, No. 11-7088 (D.C. Cir. filed Aug. 29, 2011)

(motion pursuant to District of Columbia anti-SLAPP statute not available

in federal court).

8 DC COMICS V . PACIFIC PICTURES

interlocutory appeal from the grant or denial of an anti-

SLAPP motion to strike. Cal. Civ. Proc. Code §§ 426.16(i);

904.1(13).

We held in Batzel v. Smith that we have jurisdiction,

under the collateral order doctrine, over interlocutory appeals

from the denial of a motion to strike made pursuant to

California’s anti-SLAPP statute. 333 F.3d 1018, 1025–26

(9th Cir. 2003). We determined that the first two

criteria—that the order be conclusive and that it resolve a

question separate from the merits—were clearly satisfied. Id.

at 1025. A decision on an anti-SLAPP motion is conclusive

as to whether the anti-SLAPP statute requires dismissal of the

suit. Further, we concluded, the denial of that motion

resolves a question separate from the merits, as it “merely

finds that such merits may exist, without evaluating whether

the plaintiff’s claim will succeed.” Id.

Regarding the third criterion, upon which the parties here

concentrate their arguments, we held in Batzel that the denial

of an anti-SLAPP motion would “effectively be unreviewable

on appeal from a final judgment.” Id. That decision was

based on two determinations. First, we held that California’s

anti-SLAPP statute was in the nature of an immunity from

suit, and not simply a defense against liability. Id. at

1025–26. Our analysis began with the statute itself, which

explicitly provides for immediate appeals of the denial of an

anti-SLAPP motion. Id. at 1025 (citing Cal. Civ. Proc. Code

§ 425.16(i)); see also Cal. Civ. Proc. Code § 904.1(13). We

quoted from legislative history emphasizing that the

DC COMICS V . PACIFIC PICTURES 9

California legislature, in rendering anti-SLAPP motions

immediately appealable, “wanted to protect speakers from the

trial itself rather than merely from liability”:

Without [the right of immediate appeal], a

defendant will have to incur the cost of a

lawsuit before having his or her right to free

speech vindicated. . . . [W]hen a meritorious

anti-SLAPP motion is denied, the defendant,

under current law, has only two options. The

first is to file a writ of appeal, which is

discretionary and rarely granted. The second

is to defend the lawsuit. If the defendant wins

[after having been unable to take an

immediate appeal], the anti-SLAPP law is

useless and has failed to protect the

defendant’s constitutional rights.

Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm.

Rep. on A.B. 1675, at 4) (all alterations but last in original)

(emphasis added). We then held that it was clear that

California’s anti-SLAPP statute was “in the nature of

immunity.” Id.

Second, we concluded that the denial of an immunity

from suit is effectively unreviewable on appeal from a final

judgment. We noted that the Supreme Court had held that

orders pertaining to immunities created by federal law ought

to be immediately appealable via the collateral order doctrine.

Id. at 1026 (citing Mitchell v. Forsyth, 472 U.S. 511, 525–27

(1985)). We held that that rule should apply equally to

immunities created by state law, and therefore that the denial

of an anti-SLAPP motion should be immediately appealable

10 DC COMICS V . PACIFIC PICTURES

via the collateral order doctrine. Id. at 1025–26 (citing Erie

R.R. Co v. Tompkins, 403 U.S. 64 (1938)).

Subsequently, the Supreme Court addressed the collateral

order doctrine in Mohawk Industries, in which it held that the

doctrine does not permit an interlocutory appeal of a

discovery order requiring production of documents over

which a party asserts attorney-client privilege. 130 S. Ct.

599, 606 (2009). The Court based its decision on its

conclusion that such orders did not satisfy the third criterion,

effective unreviewability. It noted that “[courts] routinely

require litigants to wait until after final judgment to vindicate

valuable rights, including rights central to our adversarial

system,” and stated that the correct consideration in

determining whether a judgment is effectively unreviewable

is whether “delaying review until the entry of final judgment

‘would imperil a substantial public interest’ or ‘some

particular value of a high order.’” Id. at 605–06 (quoting Will

v. Hallock, 546 U.S. 345, 352–53 (2006)). Only if “deferring

review until final judgment so imperils the interest as to

justify the cost of allowing immediate appeal of the entire

class of relevant orders” should the order be deemed

effectively unreviewable. Id. at 606. The Court concluded

that, as to discovery orders involving claims of attorney-client

privilege, “deferring review until final judgment does not

meaningfully reduce the ex ante incentives for full and frank

consultations between clients and counsel,” and thus held that

such an order should not be immediately appealable via the

collateral order doctrine. Id. at 607.

DC here urges us to reconsider our decision in Batzel,

contending, inter alia, that Mohawk Industries—and, in

particular, its articulation of when an order is effectively

DC COMICS V . PACIFIC PICTURES 11

unreviewable—has effectively overruled Batzel.6 Defendants

maintain that Batzel remains good law, and that we should

proceed to the merits of the district judge’s decision regarding

the anti-SLAPP motion.

B.

We affirm the validity of Batzel’s holding, and reject the

suggestion that the Supreme Court’s decision in Mohawk

Industries has overturned it.

In Mohawk Industries, the Supreme Court did not address

the first two criteria for applying the collateral order

doctrine—that the order be conclusive and resolve a question

distinct from the merits. 130 S. Ct. at 606. Thus, our

conclusion in Batzel that appeals from the denial of an anti-

SLAPP motion satisfy both of these criteria remains intact.

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc). As to the third criterion, effective unreviewability on

appeal from a final judgment, our conclusion in Batzel that

California’s anti-SLAPP statute functions as an immunity

from suit, and not merely as a defense against liability, is not

affected by the Supreme Court’s decision in Mohawk

Industries. The statutory text and legislative history we found

persuasive in Batzel remain equally compelling today, and we

are aware of no intervening change in the law that would

undermine that conclusion. DC’s challenge to our

jurisdiction thus turns on whether the Supreme Court’s

6

In cases since Mohawk Industries, we have assumed jurisdiction over

such interlocutory appeals without addressing whether the Supreme

Court’s decision affected our holding in Batzel. See, e.g., Roberts v.

McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir. 2011); Mindys Cosmetics, Inc.

v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010).

12 DC COMICS V . PACIFIC PICTURES

holding in Mohawk Industries that our inquiry should focus

on whether delaying review “‘would imperil a substantial

public interest’ or ‘some particular value of a high order,’”

130 S. Ct. at 605 (quoting Will, 546 U.S. at 352–53), has

undermined our rule that the denial of an immunity from

suit—whether created by state or federal law—is an

immediately appealable collateral order.

We conclude that it has not. In cases taking into account

the Supreme Court’s guidance in Mohawk Industries, we

have affirmed that an immunity from suit is different than a

defense against liability, in that an immunity from suit is

“imbued with a significant public interest” that is not always

present with regard to a defense against liability. Metabolic

Research, Inc. v. Ferrell, 693 F.3d 795, 800 (9th Cir. 2012).

“[W]hen a policy is embodied in a constitutional or statutory

provision entitling a party to immunity from suit (a rare form

of protection), there is little room for the judiciary to gainsay

its importance.” Id. (quoting Digital Equipment Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 879 (1994)) (internal

quotations omitted). Further, unlike a defense against

liability, an immunity from suit would be significantly

imperiled if we did not permit an immediate appeal, in that it

is “effectively lost if a case is erroneously permitted to go to

trial.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.

2011) (quoting Mitchell, 474 U.S. at 526). Accordingly, we

have held that whether an immunity created by state law

functions “as an immunity from suit or merely a defense from

liability” is dispositive in determining whether an immediate

appeal of an order denying an immunity should be available.

Id. (collecting cases from other circuits applying the same

distinction).

DC COMICS V . PACIFIC PICTURES 13

Applying this rule, we hold that the denial of a motion to

strike made pursuant to California’s anti-SLAPP statute

remains among the class of orders for which an immediate

appeal is available. This is especially so given the particular

public interests that the anti-SLAPP statute attempts to

vindicate. It would be difficult to find a value of a “high[er]

order” than the constitutionally-protected rights to free speech

and petition that are at the heart of California’s anti-SLAPP

statute. Such constitutional rights deserve particular

solicitude within the framework of the collateral order

doctrine. See Perry v. Schwarzenegger, 591 F.3d 1147,

1155–56 (9th Cir. 2010). The California legislature’s

determination, through its enactment of the anti-SLAPP

statute, that such constitutional rights would be imperiled

absent a right of interlocutory appeal deserves respect. We

must make particular efforts to accommodate the substantive

aims of states when, as here, we entertain state law claims as

a federal court sitting in diversity. See Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 436–37 (1996).

Our holding in no way conflicts with our prior holdings

addressing the availability of an immediate appeal pursuant

to Oregon and Nevada’s anti-SLAPP statutes. See Metabolic

Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir. 2012)

(Nevada); Englert v. MacDonell, 551 F.3d 1099 (9th Cir.

2009) (Oregon). As we held in those decisions, the

availability of an immediate appeal pursuant to the collateral

order doctrine may depend on the particular features of each

state’s law. Metabolic Research, 693 F.3d at 800–01;

Englert, 551 F.3d at 1106–07. At the time of our prior

decisions, the Oregon and Nevada anti-SLAPP statutes were

more akin to defenses against liability than immunities from

suit, in that they did not provide for any consistent right of

14 DC COMICS V . PACIFIC PICTURES

immediate appeal from the denial of an anti-SLAPP motion.7

These decisions were not inconsistent with Batzel, and they

are entirely consistent with our holding here.8

Further, we note that our holding comports with the

conclusions of other circuits to have addressed this issue.

The First Circuit has held that an immediate appeal is

available from the denial of a motion made pursuant to

Maine’s anti-SLAPP statute. Godin v. Schencks, 629 F.3d 79,

84–85 (1st Cir. 2010). The Fifth Circuit has held similarly

with respect to Louisiana’s anti-SLAPP statute. Henry v.

Lake Charles Am. Press LLC, 566 F.3d 164, 178 (5th Cir.

2009).

III. CONCLUSION

We hold that our decision in Batzel remains good law,

and that an order denying a motion to strike pursuant to

7

W e do not mean to imply that such a right to appeal must have been

expressly established by the state legislature in order to create an

immunity from suit. See Liberal, 632 F.3d at 1075 (relying on an

interlocutory appeal not set forth in state statutes, but rather made

available judicially through extraordinary writs); Henry v. Lake Charles

Am. Press LLC, 566 F.3d 164, 178 (5th Cir. 2009).

8

In any event, Englert has been superseded by changes to the underlying

statute. Subsequent to our decision, Oregon’s anti-SLAPP statute was

amended to specifically provide for a right of immediate appeal. Act of

June 23, 2009, ch. 449, § 1, 2009 Or. Laws 1194, 1194 (codified at Or.

Rev. Stat. § 31.150(1)); see also id. § 3, 2009 Or. Laws at 1195 (codified

at Or. Stat. § 31.152(4)) (stating that the purpose of the revised anti-

SLAPP statute is “to provide a defendant with the right not to proceed to

trial in cases in which the plaintiff does not meet the burden specified” by

the statute). Thus, the Oregon statute now likely affords immunity from

suit, as California’s does.

DC COMICS V . PACIFIC PICTURES 15

California’s anti-SLAPP statute remains immediately

appealable pursuant to the collateral order doctrine. We

therefore have jurisdiction over this interlocutory appeal, and

decide the merits in a memorandum disposition filed

concurrently herewith.