Are Anti-SLAPP Fee Awards Stayed on Appeal? The Better Side of a Split of Authority Says Yes

By Timothy M. Kowal

Let’s start with what might be described as an inverted judgment — a scenario common in anti-SLAPP actions: The underlying judgment amount is much less than the costs because the costs include a large award of attorney fees. The size of the cost award draws an appeal.

On appeal, what happens to that oversized cost award — is it stayed automatically, or does the appellant have to post a bond? For the past 20 years, the assumed answer has been: anti-SLAPP fee awards are not automatically stayed. But that is not necessarily correct. The better answer is: it depends.

The general rule in civil cases is that an award of costs is automatically stayed on appeal. But there is an exception to that rule, and that exception has been interpreted differently in two decisions of the Courts of Appeal. The first decision, Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, makes the exception very large, so that unless a bond is posted, many types of costs are enforceable on appeal. These include fee awards in anti-SLAPP actions. Lawyers and judges have mostly followed this decision, mostly uncritically, so the assumed rule has been that anti-SLAPP fees are not stayed on appeal.