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Hyan v. Hummer

United States Court of Appeals, Ninth Circuit

June 14, 2016

J. P. Hyan, an individual, Plaintiff-Appellant,
v.
Rosslyn Beth Hummer, Esq., an individual; Eric C. Peterson, Esq., an individual; Rutter Hobbs and Davidoff, Inc., a corporation, Defendants-Appellees.

          Submitted June 7, 2016 [*] Pasadena, California

         Appeal from the United States District Court No. 2:14-cv-02004-GAF-FFM for the Central District of California Gary A. Feess, District Judge, Presiding

          Suzelle M. Smith, Don Howarth, Padraic J. Glaspy, and Jessica L. Rankin, Howarth & Smith, Los Angeles, California, for Plaintiff-Appellant.

          Laurence L. Hummer, Laurence L. Hummer, A Law Corporation, Los Angeles, California, for Defendants-Appellees.

          Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges and Edward R. Korman, [**] Senior District Judge.

          OPINION

         SUMMARY [***]

         Anti-SLAPP

         The panel dismissed for lack of appellate jurisdiction an appeal challenging the district court's order granting a motion to strike claims under California's anti-SLAPP statute, arising from an underlying California state court legal malpractice action.

         The panel held that the order granting an anti-SLAPP motion was not a "final decision" over which the court could exercise jurisdiction because the order dismissed two of the defendants, but one defendant remained in district court.

         The panel held that although the grant of an anti-SLAPP motion to strike is treated as final in California courts, under the Erie doctrine federal courts sitting in diversity apply federal procedural law, and Fed.R.Civ.P. 54(d) clearly states that the order on appeal here is not final. The panel also held that the grant of an anti-SLAPP motion to strike is not reviewable under the collateral order doctrine because the grant of an anti-SLAPP motion to strike is fully reviewable on appeal from final judgment.

          OPINION

          PER CURIAM:

         J.P. Hyan sued multiple defendants, alleging that they have stymied his efforts to collect on a California state court legal malpractice judgment. The district court granted a motion filed by a defendant, appellee Rosslyn Beth Hummer, to strike Hyan's claims under California's anti-SLAPP statute, and Hyan appealed. Because the district court's order is not a "final decision" over which we may exercise appellate jurisdiction, nor is it immediately appealable under the collateral order doctrine, we dismiss the appeal for lack of jurisdiction.

         1. Hyan, a former client of the now-defunct law firm Rutter Hobbes and Davidson ("RHD"), commenced a legal malpractice action against the firm and some of its attorneys in California court in 2010. The suit later settled for $7.5 million in March of 2012. RHD carried two malpractice insurance policies, a primary insurance policy with Liberty Surplus Insurance Company ("Liberty") in the amount of $5 million, and an excess policy ...


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