Gunn v. Drage

(1) Where Federal Rule of Civil Procedure 58 requires entry of a separate document as the judgment, judgment is not considered entered until “the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a)” and such a separate document is filed. Fed. R. App. P. 4(a)(7)(A)(ii). (2) If a defendant moves to strike an anti-SLAPP motion “on purely legal arguments,” courts must analyze the motion under Rules 8 and 12, but where a defendant asserts “a factual challenge,” courts must treat the motion to strike as “a motion for summary judgment,” triggering discovery. Planned Parenthood Fed’n of Am., Inc. v. Ctr. For Med. Progress, 890 F.3d 828, 833 (9th Cir.), as amended, 897 F.3d 1224 (9th Cir. 2018). (3) “'[A] cause of action arising from a lawyer’s conduct, when the conduct includes advice to a prospective client on pending litigation,’ is also protectable [under the anti-SLAPP statute].” Taheri L. Grp. V. Evans, 72 Cal. Rptr. 3d 847, 853 (2008).

Gunn claimed that her ex-partner breached their release and settlement agreement (“RSA”), and Drage encouraged them to do so. Gunn appealed the district court’s denial of her motion for additional time to file an appeal and the court’s order granting Drage’s motion to dismiss plaintiff’s complaint in accordance with California’s Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute. Gunn assigned error to (1) the finding that her appeal was not timely, (2) the consideration of evidence in analyzing the first prong of the anti-SLAPP statute, and (3) the finding that her complaints fell under the anti-SLAPP statute.

Where Federal Rule of Civil Procedure 58 requires entry of a separate document as the judgment, judgment is not considered entered until “the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a)” and such a separate document is filed. Fed. R. App. P. 4(a)(7)(A)(ii). Since the judgement was not filed as a separate document until May 1, Gunn’s appeal filed on May 28 was in fact timely.

If a defendant moves to strike an anti-SLAPP motion “on purely legal arguments,” courts must analyze the motion under Rules 8 and 12, but where a defendant asserts “a factual challenge,” courts must treat the motion to strike as “a motion for summary judgment,” triggering discovery. Planned Parenthood Fed’n of Am., Inc. v. Ctr. For Med. Progress, 890 F.3d 828, 833 (9th Cir.), as amended, 897 F.3d 1224 (9th Cir. 2018). Because Drage asserted a factual defense by establishing that she provided legal advice regarding the RSA to Gunn’s ex-partner as his attorney in anticipation of litigation, the Court held that district courts can entertain evidence under both steps of an anti-SLAPP analysis.

“'[A] cause of action arising from a lawyer’s conduct, when the conduct includes advice to a prospective client on pending litigation,’ is also protectable [under the anti-SLAPP statute].” Taheri L. Grp. V. Evans, 72 Cal. Rptr. 3d 847, 853 (2008). The Court held that Drage’s activities as a lawyer advising her client are protected by the anti-SLAPP statute and since Gunn’s claims for relief were based on Drage’s protected activity, her complaint was properly dismissed.

Order finding the notice of appeal untimely is vacated, and the order dismissing the case is AFFIRMED.