Opinion
In July 2003 the Attorney General filed a complaint against attorney Harpreet Brar to obtain an order to make him stop filing lawsuits under California’s unfair competition law (Bus. & Prof. Code, § 17200). Allegedly, Brar has engaged in the sort of abuse of California’s unfair *1317 competition law which made the Trevor Law Group a household name in California in 2002 and 2003. The abuse is a kind of legal shakedown scheme: Attorneys form a front “watchdog” or “consumer” organization. They scour public records on the Internet for what are often ridiculously minor violations of some regulation or law by a small business, and sue that business in the name of the front organization. Since even frivolous lawsuits can have economic nuisance value, the attorneys then contact the business (often owned by immigrants for whom English is a second language), and point out that a quick settlement (usually around a few thousand dollars) would be in the business’s long-term interest. For the Trevor Law Group, the usual targets were auto repair shops. Brar’s main targets are nail salons.
California also has another law which is designed to put a quick end to lawsuits when they are based on the exercise of free speech and petition rights, generally known as the anti-SLAPP suit statute. (Code Civ. Proc., § 425.16.) SLAPP stands for “strategic lawsuit against public participation.” The archetype is when a developer sues neighborhood activists for having spoken out against the developer’s project in some public forum. The developer will often sue the activists for the torts of defamation or intentional interference with economic advantage. The anti-SLAPP law allows the activists to obtain quick relief by filing an “anti-SLAPP suit” motion under the statute. If it is determined that the suit really is one based on the exercise of free speech or petition rights, then the plaintiff, say our hypothetical developer, bears the burden of coming forward with some evidence showing it has a viable case. If not, the suit is quickly kicked out of court.
Ironically, Brar, the sue-er, decided to use the anti-SLAPP suit law to his own advantage to try to dismiss the Attorney’s General lawsuit against him. It is established that the exercise of petition rights can include the filing of lawsuits. (See
City of Cotati
v.
Cashman
(2002)
But the anti-SLAPP suit law has an interesting feature—the right to appeal even the denial of the motion. (Code Civ. Proc., § 425.16, subd. (j).) Typically, if you lose a motion in the trial court, you have to wait until the suit is over and there is a final judgment before you have the right to appeal.
The right to appeal has a certain logic to it. After all, what use is a mechanism to allow you to get out of a case early if it is undercut by an erroneous decision of the trial judge? The point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights. The right to appeal a denial of an *1318 anti-SLAPP motion is important because it protects the interest validated by the anti-SLAPP statute.
But the right to appeal has its own consequences. As we write, at least one appellate court has drawn the correlative conclusion that an appeal from the denial of anti-SLAPP motion also
stays
proceedings in the trial court. (See
Mattel, Inc. v. Luce, Forward, Hamilton & Scripps
(2002)
That brings us to the reason for this opinion, which is the Attorney General’s motion to dismiss the appeal, as frivolous, now pending before us. California courts have the inherent power to
dismiss
frivolous appeals. (See
Ferguson
v.
Keays
(1971)
The motion must be granted. This is about as patently frivolous an appeal taken for purposes of delay as is imaginable.
The anti-SLAPP statute specifically exempts actions brought by public prosecutors, including the Attorney General: “This section shall not apply to any enforcement action brought in the name of the People of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” (Code Civ. Proc., § 425.16, subd. (d).)
Against this plain statutory language, Brar posits only an ad hominem argument. (For a discussion of ad hominem arguments in legal and other rhetorical contexts, see
Huntington Beach City Council
v.
Superior Court
(2002)
It is, like all ad hominem arguments, quite irrelevant. Neither the statute nor anything in the Constitution contains an implied exception for times when the public prosecutor acts with a political motive. Surely it is safe to say that public prosecutors sometimes act with political motives, and if the Legislature had wanted to insert a “political motive” exception to the public prosecutor exemption in the anti-SLAPP statute it most certainly could have done so. We may therefore readily conclude that Brar’s one substantive argument is a loser, at a “mere glance.” (Cf.
In re Marriage of Flaherty, supra,
One of the reasons that the power to dismiss an appeal must be used with extreme rarity is that determination of whether an appeal is frivolous entails at least a peek at the merits—if not, as is usually the case, a thorough review of the record—and, having taken that look, the appellate court is in a position to affirm whatever was appealed rather than dismiss the appeal. As our Supreme Court said in
People v. Wende
(1979)
In the case before us, though, much appears to be gained by dismissal rather than affirmance—specifically, prevention of the abuse of the antiSLAPP statute to buy time from the day of reckoning in the trial court. Here, Brar’s appeal practically has the words “brought for reasons of delay” virtually tattooed on its forehead. Consider that under a rule of automatic stay, as envisioned by the Mattel case, the incentive to appeal even the denial of a patently frivolous anti-SLAPP motion is overwhelming. As we have noted, the defendant gets a very cheap hiatus in the proceedings, and that hiatus becomes doubly important in a situation where, as here, a public prosecutor is seeking an injunction to prevent the defendant from continuing the ongoing abuse of the legal system. Review on the merits, after briefing (as distinct from review, as here, of the papers on a motion to dismiss) only rewards a frivolous appeal.
*1320 As we said, if this appeal is not frivolous at a glance, no appeal is. A statute directly on point, an ad hominem argument to try to avoid that statute’s clear application, and ample circumstantial evidence of a motivation to delay proceedings in the trial court all demand immediate dismissal.
One more point: This court has the power to shorten the finality of this decision to “prevent. . . frustration of the relief granted.” (Cal. Rules of Court, rule 24(b)(3).) Accordingly, to prevent further delay occasioned by Brar’s appeal, this decision shall be final five days after its filing date. Our opinion is also without prejudice to the Attorney General to seek sanctions in the trial court against Brar for taking a frivolous appeal. It is to there that the case should now return.
Rylaarsdam, J., and Ikola, J., concurred.
Notes
There is, as we write, one nonfinal decision which disagrees with
Mattel
on the point,
Varian Medical Systems, Inc. v. Delfino
(2003)
Reporter’s Note: Review granted March 4, 2004.