Comics v. Pac. Pictures Corp.

• Decision Date: 10 January 2013
• Docket Number: No. 11–56934.,11–56934.
• Citation: 706 F.3d 1009
• Parties: DC COMICS, Plaintiff–Appellee, v. PACIFIC PICTURES CORPORATION; IP Worldwide, LLC; IPW, LLC; Marc Toberoff; 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; Jean Adele Peavy, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

706 F.3d 1009

DC COMICS, Plaintiff–Appellee,

v.PACIFIC PICTURES CORPORATION; IP Worldwide, LLC; IPW, LLC; Marc Toberoff; 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; Jean Adele Peavy, Defendants–Appellants.

No. 11–56934.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 5, 2012.

Filed Jan. 10, 2013.

Marc Toberoff, Keith G. Adams, and Pablo D. Arredondo, Toberoff & Associates, P.C., Malibu, CA, 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, CA, 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, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Otis D. Wright, II, District Judge, Presiding. D.C. No. 2:10–cv–03633–ODW–RZ.

Before: STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges, and JOHN W. SEDWICK, District Judge.^*

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 must determine whether our decision in Batzel remains good law after the Supreme Court's intervening decision in Mohawk Industries v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (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 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. See17 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.

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, 558 U.S. 100, 130 S.Ct. 599, 605, 175 L.Ed.2d 458 (2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). The doctrine applies only to decisions “that are [ (1) ] conclusive, [ (2) ] that resolve 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, 115 S.Ct. 1203, 131 L.Ed.2d 60 (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, 45 Cal.4th 467, 87 Cal.Rptr.3d 275, 198 P.3d 66, 73 (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, 28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733, 739 (2002), then the claims are stricken pursuant to the statute, Episcopal Church Cases, 87 Cal.Rptr.3d 275, 198 P.3d at 73. California statutes specifically permit a defendant in a state court action to take an interlocutory appeal from the grant or denial of an anti–SLAPP motion to strike. Cal.Civ.Proc.Code §§ 425.16(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 alsoCal.Civ.Proc.Code § 904.1(13). We quoted from legislative history emphasizing that the 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...