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.