1

Filed 8/18/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

THE MCGRAW-HILL COMPANIES, 

INC. et al.,

Defendants and Appellants.

 A140922

 (San Francisco City & County

 Super. Ct. No. CGC-13-528491)

The People, by and through the Attorney General, brought this action against

McGraw-Hill Companies, Inc. and Standard & Poor’s Financial Services LLC 

(defendants) for statutory violations arising out of defendants’ alleged business practice 

of inflating their credit ratings of various structured finance securities. The complaint 

alleged four causes of action, including two for violations of the California False Claims 

Act (CFCA). Defendants filed a special motion to strike the CFCA causes of action 

pursuant to section 425.16, subdivision (b) of the Code of Civil Procedure, the 

anti-SLAPP statute.1 The superior court denied the motion on the ground that the 

People’s enforcement action was exempt from the special motion to strike procedure 

pursuant to section 425.16, subdivision (d), which provides that “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.” Defendants filed a notice of appeal.

 

1 All statutory references are to the Code of Civil Procedure. And, to facilitate a 

clear analysis, we refer to the relevant provisions of section 425.16 by their subdivision 

designation.
2

The People filed a motion to dismiss the appeal, challenging this court’s 

jurisdiction to review the trial court’s order, relying on the express language of 

subdivision (d). Defendants opposed the motion, contending that this appeal is 

authorized by the express language of subdivision (i), which provides that “[a]n order 

granting or denying a special motion to strike shall be appealable under Section 904.1.” 

The motion was thoroughly briefed, and we held oral argument, which was vigorous 

indeed. We now rule, concluding that the order is not appealable, and we therefore grant 

the motion to dismiss the appeal.

2

BACKGROUND

Section 425.16

“In 1992, the Legislature enacted section 425.16, the anti-SLAPP statute, to 

provide for the early dismissal of unmeritorious claims filed to interfere with the valid 

exercise of the constitutional rights of freedom of speech and petition for the redress of 

grievances. [Citation.]” (Club Members for an Honest Election v. Sierra Club (2008) 

45 Cal.4th 309, 315; see also Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 

180, 192 (Varian) [section 425.16 enacted in order “to prevent and deter” SLAPP suits 

“ ‘brought primarily to chill the valid exercise of the constitutional rights of freedom of 

speech and petition for the redress of grievances.’ ”].) 

“Section 425.16 authorizes a defendant to file a special motion to strike any cause 

of action arising from an act in furtherance of the defendant’s constitutional right of 

petition or free speech in connection with a public issue. It establishes a procedure by 

which the trial court evaluates the merits of the lawsuit using a summary-judgment-like 

procedure at an early stage of the litigation. [Citations.]” (Haight Ashbury Free Clinics, 

Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1546-1547.) 

This special motion to strike procedure implements subdivision (b) of the statute 

which states: “A cause of action against a person arising from any act of that person in 

 

2

In light of our disposition of this motion, we deny defendants’ request for 

judicial notice which was filed in support of the merits of their appeal.
3

furtherance of the person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a public issue shall be 

subject to a special motion to strike, unless the court determines that the plaintiff has 

established that there is a probability that the plaintiff will prevail on the claim.”

When section 425.16 was originally proposed, the Attorney General expressed 

concern that it “might impair the ability of state and local agencies to enforce certain 

consumer protection laws.” (City of Long Beach v. California Citizens for Neighborhood 

Empowerment (2003) 111 Cal.App.4th 302, 307-308 (City of Long Beach).) Thereafter, 

the Governor vetoed versions of the bill that failed to address this concern. (See People 

v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 447 (Health 

Labs). Eventually, a provision was added to the proposed statute which recognized a 

prosecutorial exemption for enforcement actions to protect the consumer and/or the 

public. With the addition of this express exemption, the anti-SLAPP statute was enacted 

in 1992. (Ibid.) This exemption is set forth in subdivision (d), which states that 

section 425.16 “shall not apply to any enforcement action” brought by a public 

prosecutor. 

“As originally enacted in 1992, section 425.16 contained no provision for an 

immediate appeal of orders made pursuant to that section. [Citation.] Orders made 

pursuant to section 425.16 could be reviewed only as an appeal after judgment [citations] 

or by petition for an extraordinary writ. . . . [¶] In 1999 the Legislature added former 

section 425.16, subdivision (j) . . , providing an appeal may be taken directly from an 

order granting or denying a special motion to strike under section 425.16.” (Doe v. 

Luster (2006) 145 Cal.App.4th 139, 144-145 (Doe).) “The Legislature found it necessary 

to enact [former] subdivision (j) because, without the ability to appeal, a SLAPP 

‘defendant will have to incur the cost of a lawsuit before having his or her right to free 

speech vindicated.’ [Citation.]” (Varian, supra, 35 Cal.4th at p. 194.) This direct appeal 

provision is now set forth in subdivision (i), which states that orders granting or denying 
4

a special motion to strike “shall be appealable under Section 904.1.” And it is 

subdivision (i) on which defendants base their appeal.3

The Parties’ Contentions

The People contend that this appeal must be dismissed because the express 

language of subdivision (d) exempts this action from the direct appeal procedure set forth 

in subdivision (i). According to the People, the phrase “this section shall not apply” in 

subdivision (d) means what it says: that all of section 425.16, including subdivision (i), 

does not apply to a prosecutor’s enforcement action. The People also contend that the 

Legislature never intended for subdivision (d) findings to be subject to immediate 

appellate review. 

Defendants contend the trial court’s subdivision (d) order is made appealable by 

subdivision (i). They argue that there is nothing unclear or ambiguous about 

subdivision (i)’s statutory language which explicitly authorizes their appeal from the 

order denying their special motion to strike. Defendants also argue that the history of the 

anti-SLAPP statute reflects a legislative intent to create a right to immediately appeal any 

order granting or denying a special motion to strike. 

DISCUSSION

Although each party invokes a different provision of the anti-SLAPP statute, their 

respective interpretations are mutually exclusive. To resolve this conflict, we apply 

settled rules of statutory construction. 

“ ‘When interpreting a statute our primary task is to determine the Legislature’s 

intent. [Citation.] In doing so we turn first to the statutory language, since the words the 

Legislature chose are the best indicators of its intent.’ [Citations.] The Supreme Court 

has emphasized that the words in a statute selected by the Legislature must be given a 

 

3 Actually, defendants also cite to section 904.1, subdivision (a)(13), which states 

that an appeal may be taken from “an order granting or denying a special motion to strike 

under Section 425.16.” That subdivision was added to section 904.1 in 1999, to 

accommodate the newly added section 425.16, subdivision (j), now subdivision (i). 

(Stats. 1999, ch. 960 (A.B. 1675). It thus adds nothing to defendants’ position.
5

‘commonsense’ meaning when it noted: ‘ “Our first step [in determining the 

Legislature’s intent] is to scrutinize the actual words of the statute, giving them a plain 

and commonsense meaning. [Citations.]” [Citation.]’ [Citation.] Further, our Supreme 

Court has noted, ‘ “ ‘If the language is clear and unambiguous there is no need for 

construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the 

case of a statute) . . . .’ ” ’ [Citations.]” (Goldstein v. Ralphs Grocery Co. (2004) 

122 Cal.App.4th 229, 233.) 

Because this case requires us to interpret language from two subdivisions of the 

anti-SLAPP statute, we are particularly guided by the rule requiring us to “consider 

portions of a statute in the context of the entire statute and the statutory scheme of which 

it is a part, giving significance to every word, phrase, sentence, and part of an act in 

pursuance of the legislative purpose.” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 

1063.) 

Applying these rules leads to several conclusions. 

First, subdivision (b) is the linchpin of the anti-SLAPP statute: it authorizes the 

motion to strike procedure established by the Legislature in order to protect acts in 

furtherance of the constitutional rights to free speech and petition. 

Second, subdivision (d) completely exempts public enforcement actions from the 

subdivision (b) motion to strike procedure. Thus, for example, a subdivision (d) order 

does not require any judicial assessment of the nature of the defendant’s conduct or 

substantive evaluation of the merits of the plaintiff’s lawsuit. Rather, as stated by our 

colleagues in Division Five, the “anti-SLAPP remedy is unavailable” to a defendant in an 

action brought by a public prosecutor. (Health Labs, supra, 87 Cal.App.4th at p. 448.)

Third, the direct appeal right created by subdivision (i) unequivocally applies to an 

order granting or denying a special motion to strike pursuant to the procedures 

promulgated to implement subdivision (b). 

Finally, the direct appeal provision in subdivision (i) cannot be stretched to apply 

to a trial court determination that an action is exempt from the anti-SLAPP statute under 

subdivision (d). Subdivision (i) authorizes a direct appeal from a ruling on the merits of a 
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subdivision (b) special motion to strike. A subdivision (d) order is not a ruling on the 

merits of a special motion to strike, but rather a determination that the entire anti-SLAPP 

procedure does not apply to the case.

Defendants contend that the broad language of subdivision (i) manifests the 

Legislature’s “unambiguous intent that an immediate appeal should be available from any 

order granting or denying a motion to dismiss under section 425.16.” However,

interpreting subdivision (i) as authorizing an immediate appeal from a subdivision (d) 

finding would undermine the very function of the subdivision (d) exemption, subjecting 

the public prosecutor’s action to a specific type of judicial scrutiny that the exemption

expressly prohibits. Moreover, defendants’ over-broad construction of subdivision (i) not 

only fails to account for the language in subdivision (d), it would render that exemption 

meaningless, something a reasonable Legislature would not have intended. 

Defendants argue that the timing of the adoption of the two subdivisions reflects a 

legislative intent to authorize an immediate appeal from a subdivision (d) order. As 

noted above, subdivision (d) was part of the original anti-SLAPP statute enacted by the 

Legislature in 1992. Subdivision (i), on the other hand, was added by a 1999

amendment. So, defendants reason, if the Legislature had intended to except public 

enforcement actions from the broad right to an immediate appeal created by subdivision 

(i), “it would have said so.” This argument, however, ignores what the plain language of 

subdivision (d) actually says: the anti-SLAPP statute does not apply to prosecutor 

enforcement actions. In light of this preexisting exemption, it was not necessary for the 

Legislature to expressly carve out another exemption for public prosecutor actions in the 

text of subdivision (i). 4

 

4

This also disposes of defendants’ reliance on exemptions to the anti-SLAPP

statute contained in section 425.17, which was added in 2003. (See generally Goldstein, 

supra, 122 Cal.App.4th at p. 232.) Defendants argue that section 425.17, subdivision (e) 

shows that the Legislature knew how to create an exemption from the right of immediate 

appeal under subdivision (i) (and section 904.1, subd. (a)(13)), but did not do so for 

public prosecution actions. However, nothing more was needed for public prosecutor 

actions because of the clear language of subdivision (d) and its legislative history.
7

Defendants also contend that published authority compels the conclusion that 

subdivision (d) orders are immediately appealable under subdivision (i), citing three 

cases: Health Labs, supra, 87 Cal.App.4th 442; City of Los Angeles v. Animal Defense 

League (2006) 135 Cal.App.4th 606; and People ex re Lockyer v. Brar (2004) 

115 Cal.App.4th 1315. The essence of defendants’ argument is that in these cases the 

courts considered the merits of appeals from subdivision (d) orders.

As best we can determine—and, from comments by defendants’ counsel at oral 

argument, as best he can determine—no party in any of these three cases questioned the 

appellate court’s jurisdiction. Certainly, the opinions do not address the question whether 

a subdivision (d) order is appealable under subdivision (i). They thus do not avail 

defendants: “ ‘It is axiomatic that language in a judicial opinion is to be understood in 

accordance with the facts and issues before the court. An opinion is not authority for 

propositions not considered.’ [Citation.]” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 

659, 680; see also Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“Language used in 

any opinion is of course to be understood in the light of the facts and the issue then before 

the court, and an opinion is not authority for a proposition not therein considered”]; 

Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1278 [quoting Ginns].)

Citing Olson v. Corey (1983) 35 Cal.3d 390, 398 (Olson), defendants contend that 

an appellate court “necessarily” affirms its jurisdiction by hearing an appeal “[b]ecause 

courts are required to consider jurisdictional issues without regard to whether they are 

raised by the parties.” Defendants’ reliance on Olson is misplaced. In that case, one 

party filed a brief suggesting that the appeal had been taken from an nonappealable order, 

but all of the material parties urged the court to review the ruling on the merits. Rejecting 

that proposal, the Olson court stated that “since the question of appealability goes to our 

jurisdiction, we are dutybound to consider it on our own motion.” (Id. at p. 398.) Olson

is relevant here because, as happened there, doubt about the appealability of the order in 

question has been brought to the court’s attention. Olson does not, however, support 

defendants’ very different contention: that appellate courts must search for jurisdictional 

problems never raised by the parties.
8

Furthermore, defendants overlook Doe, supra, 145 Cal.App.4th 139, a case 

holding that the denial of a motion for attorney fees pursuant to subdivision (c) of 

section 425.16 is not immediately appealable under subdivision (i). There, the defendant 

argued that the order was appealable because other appellate courts had entertained

interlocutory appeals from subdivision (c) orders. (Id. at p. 150.) Rejecting the

argument, the court concluded, among other things, that a judicial opinion addressing the 

merits of an appeal which “does not suggest either that the parties raised the jurisdictional

issue or that the court considered it” is not authority for the proposition that the order is 

actually appealable. (Ibid.)

As noted at the outset of our analysis, both parties claim support for their 

respective theories in the legislative history of the anti-SLAPP statute. We question the 

need to resort to arguments about what the Legislature may have intended. (See 

Goldstein, supra, 122 Cal.App.4th at p. 233 [if statutory language is clear, no need to 

resort the legislative history].) Section 425.16 is not ambiguous when its subdivisions are 

considered together rather than at odds with each other. 

But were it relevant to this discussion, the legislative history of section 425.16 

reinforces our conclusion that decisions against defendants under subdivision (d) are not 

immediately appealable. “The legislative history of section 425.16 plainly implies” that 

its purpose was to prevent the harm caused by SLAPP plaintiffs, litigants who “do not 

care so much about winning their lawsuits as they care about delaying and distracting the 

defendant from his or her objective, which is generally economically adverse to those of 

the SLAPP plaintiff. SLAPP plaintiffs achieve their goal if their suits deplete the 

defendant’s resources and energy. [Citations.]” (Health Labs, supra, 87 Cal.App.4th at 

p. 450; see also City of Long Beach, supra, 111 Cal.App.4th at pp. 308-309.) 

But by their very definition public prosecutor enforcement actions are not SLAPP 

cases. “[A] public prosecutor’s enforcement action is not motivated by a retaliatory 

attempt to gain a personal advantage over a defendant who has challenged his or her 

economic ambition. The prosecutor’s motive derives from the constitutional mandate to 

assure that the laws of the state are uniformly enforced and to prosecute any violation of 
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these laws, so that order is preserved and the public interest protected. [Citations.] 

Nothing in the legislative history of section 425.16 implies that the problem the 

Legislature sought to rectify thereby was created by prosecutors bringing meritless 

enforcements actions.” (Health Labs, supra, 87 Cal.App.4th at p. 450.) 

To the contrary, the legislative history shows that the subdivision (d) exemption 

was enacted in order to preclude defendants from using the anti-SLAPP statute to impair 

the ability of state and local agencies to enforce consumer protection laws. (Health Labs, 

supra, 87 Cal.App.4th at pp. 446-447; City of Long Beach, supra, 111 Cal.App.4th at 

pp. 307-308.) Subjecting public prosecutors to the direct appeal process authorized by 

subdivision (i) would undermine legislative intent, because it would impede the public 

prosecutor’s efforts to protect the health and safety of the citizenry, delaying the 

enforcement action while the defendant pursues an appeal of the subdivision (d) 

determination. 

Defendants contend that the legislative history leading to subdivision (i) reflects 

an intent that every ruling on a special motion to strike would be subject to immediate 

appellate review. Specifically, they rely on evidence that proponents of the immediate 

appeal provision expressed concern that without the ability to directly appeal a section 

425.16 order, a defendant in an actual SLAPP suit might have to incur the cost of a 

lawsuit before having his or her right to free speech vindicated. (See Brar, supra, 

115 Cal.App.4th at p. 1317-1318; Doe, supra, 145 Cal.App.4th at p. 147.) 

As we recognized in a case that did not involve the subdivision (d) exemption, the

right to appeal can be important to the extent it protects defendants from the 

consequences of an erroneous denial of a meritorious anti-SLAPP motion. (Grewal v. 

Jammu (2011) 191 Cal.App.4th 977, 1000.) That said, we went on in Grewal, in a 

section entitled “A Losing Defendant’s Right to Appeal Is the Aspect of the Anti-SLAPP 

Statute Most Subject to Abuse” (id. at p. 1000-1003), to discuss Supreme Court and 

Court of Appeal opinions reflecting on the possibility for abuse, including quoting this 

observation by the Supreme Court in Varian, supra, 35 Cal.4th at p. 195: “In light of our 

holding today, some anti-SLAPP appeals will undoubtedly delay litigation even though 
10

the appeal is frivolous or insubstantial. As the Court of Appeal observed and plaintiffs 

contend, such a result may encourage defendants to ‘misuse the [anti-SLAPP] motions to 

delay meritorious litigation or for other purely strategic purposes.’ ” These concerns are 

a fortiori applicable here—an enforcement action by a public prosecutor. 

Health Labs, supra, 87 Cal.App.4th 442, one of the cases relied on by defendants, 

concludes with this terse summation, one pointedly applicable here: “We conclude that 

the classification created by subdivision (d)’s exemption of public prosecutors’

enforcement actions from anti-SLAPP motions bears directly on furthering the state’s 

legitimate interest of allowing prosecutors—who did not create the SLAPP problem—to 

pursue actions to enforce laws, unencumbered by delay, intimidation, or distraction.” (Id.

at p. 451.) 

DISPOSITION

The appeal is dismissed.
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_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Brick, J.*

* Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.

People v. McGraw-Hill Companies, Inc. et al. (A140922)
12

Trial Court: Superior Court of the City and County of

San Francisco

Trial Judge: Honorable Curtis E.A. Karnow

Attorneys for Defendants and Appellants: Morrison & Foerster, Melvin R. Goldman, 

Ryan G. Hassanein, Nicholas Napolitan; 

Cahill Gordon & Reindel, Floyd Abrams, 

Adam Zurofsky, Jason M. Hall, Peter J. 

Linken

Attorneys for Plaintiff and Respondent: Kamala D. Harris, Attorney General, 

Martin Goyette, Senior Assistant Attorney 

General, Fredrick W. Acker, Deputy 

Attorney General