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special motion to strike shall be appealable” under section 904.1. (§ 425.16, subd. (i).)
Section 904.1 likewise provides that “[a]n appeal . . . may be taken . . . [f]rom an order
granting or denying a special motion to strike under [s]ection 425.16.” (§ 904.1,
subd. (a)(13).) “ ‘ “If a judgment or order is appealable, an aggrieved party must file a
timely appeal or forever lose the opportunity to obtain appellate review.” ’ ” (Maughan v.
Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247 (Maughan).)
Appellate jurisdiction over a direct appeal is in this way clearly delineated. As our
Supreme Court has explained, “California follows a ‘one shot’ rule under which, if an
order is appealable, appeal must be taken or the right to appellate review is forfeited.” (In
re Baycol Cases I & II (2011) 51 Cal.4th 751, 762, fn. 8, citing § 906 [the powers of a
reviewing court do not include the power to “review any decision or order from which an
appeal might have been taken” but was not]; Kinoshita v. Horio (1986) 186 Cal.App.3d
959, 967 [“If [a] ruling is appealable, the aggrieved party must appeal or the right to
contest it is lost.”].)
It is no secret that failing to timely appeal a ruling that by statute is appealable
may result in the reviewing court’s inability to consider the eventual appeal. Case law is
replete with such instances after the grant of a motion to strike under the anti-SLAPP
statute. In Maughan, supra, 143 Cal.App.4th at page 1247, the court found it had no
jurisdiction to consider the appeal from an order granting the defendant’s motion to strike
the complaint under the anti-SLAPP statute, because the order was “final when made,
and thus appealable” despite the trial court’s later issuance of a judgment and related
order granting attorney fees and costs. In Russell v. Foglio (2008) 160 Cal.App.4th 653
(Russell), the court similarly concluded that it lacked jurisdiction to review the
anti-SLAPP order striking the complaint, because the order was “specifically, statutorily
appealable” (id. at p. 659) notwithstanding the appellant’s dispute over its validity (id. at
pp. 659-660). And in Melbostad v. Fisher (2008) 165 Cal.App.4th 987 (Melbostad), the
court accepted the appellant’s concession that failure to appeal the order granting the
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defendant’s anti-SLAPP motion precluded appellate review of “the correctness of that
ruling.” (Id. at p. 992.)
The chronology of the orders and the appeal in this case affords no basis to depart
from the conclusion reached in Maughan, Russell, and Melbostad. The trial court’s order
titled “Order Re Special Motion to Strike” stated after a detailed analysis that “[b]oth
special motions to strike the FAC [First Amended Complaint] are GRANTED as
Plaintiffs cannot show a probability of prevailing.” The clerk of the superior court filed
the order on November 22, 2016 and served notice of entry of the order by mail on the
same day. Kruger’s counsel served the notice of entry of judgment or order on
November 29, 2016. Under the applicable rules of court, plaintiffs had 60 days from the
trial court’s service of the file-stamped copy of the order, or from the notice of entry of
judgment or order to file the notice of appeal, or until January 23, 2017. (Rule
8.104(a)(1)(A), 8.104(e).) Plaintiffs did not file a notice of appeal until April 14, 2017,
well after expiration of the 60-day deadline. If a notice of appeal is filed late, we are
constrained to dismiss the appeal. (Rule 8.104(b).)
Plaintiffs’ arguments to the contrary are unavailing. They suggest that the
appeal from the anti-SLAPP order was timely, citing the January 23 judgment as the
“final” or operative order. In support, they contrast the “terse” language of the
November 22 order stating that the special motions to strike the complaint are granted
based on plaintiffs’ inability to show a probability of prevailing, against the more robust
language of the January 23 judgment, which again stated in present tense that Kruger’s
and Rothbard’s special motions to strike “are each granted” and further ordered that
plaintiffs’ complaint against defendants “is stricken.” Plaintiffs also assert that the
November 22 order contained a defective proof of service as to respondents Kruger and
Rothbard.
Neither contention has merit. The proof of service for the “order re special motion
to strike” was file-stamped November 22, 2016, by the clerk of the superior court and
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included counsel for Kruger, Rothbard, and Reyes.5 The service and filing of the notice
of entry of judgment or order “on the party filing the notice of appeal . . .” triggered the
60-day deadline for filing the notice of appeal. (Rule 8.104(a)(1)(A).) The order itself
plainly satisfied the statutory definition of an appealable order as an “order granting or
denying a special motion to strike” under the anti-SLAPP statute. (§§ 425.16, subd. (i),
904.1, subd. (a)(13).) The fact that the trial court did not rule on the request for attorney
fees and costs in the November 22 order did not render the order interim. (Maughan,
supra, 143 Cal.App.4th at p. 1247.)
The later issuance of the judgment of dismissal similarly had no effect on the
finality of the underlying anti-SLAPP order. Like in Russell, where the order granting
the motion to strike the complaint directed the defendant to prepare a form of judgment,
the November 22 order in this case granted respondents’ motions to strike the plaintiffs’
entire complaint and did not need “a further signed order to finalize the adjudication.”
(Russell, supra, 160 Cal.App.4th at p. 660.) The January 23 judgment plainly referenced
and attached the underlying order, which served as a “final determination of the rights of
the parties in this action” (Melbostad, supra, 165 Cal.App.4th at p. 996, citing § 577) and
effectively disposed of the case against Kruger and Rothbard. The judgment of dismissal
“appears to have served no purpose” (Melbostad, supra, at p. 997) insofar as it merely
recapitulated the order granting the motions to strike and ordered the payment of attorney
fees and costs, to be established by a separate motion.
Nor do the doctrines of estoppel and waiver, or invited error, apply. Appellants
argue that respondents bear some responsibility for the January 23 judgment, which