NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

RLI INSURANCE COMPANY, an Illinois

Corporation,

Plaintiff-counterdefendant-Appellant,

 v.

LANGAN ENGINEERING,

ENVIRONMENTAL, SURVEYING AND

LANDSCAPE ARCHITECTURE, D.P.C.,

a New York Professional Corporation;

LANGAN ENGINEERING AND

ENVIRONMENT SERVICES, INC., a

New York Professional Corporation,

Defendants-counterclaimants-Appellees,

and

TREADWELL & ROLLO, INC., a

dissolved California Coporation,

Defendant.

No. 19-17545

D.C. No. 3:19-cv-02022-SI

ORDER

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

FILED

JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Argued and Submitted January 15, 2021

San Francisco, California

Before: SCHROEDER, BYBEE, and R. NELSON, Circuit Judges.

RLI Insurance Company (RLI) appeals the district court’s denial of its

motion to strike Langan Engineering Company’s (Langan) bad faith counterclaim

pursuant to California’s anti-SLAPP statute, Cal. Civ. Pro. § 425.16, in its suit

against Langan for rescission of insurance contracts and recoupment. Because the

parties are fully familiar with the facts, we will not recite them here. The district

court had jurisdiction pursuant to 28 U.S.C. § 1332. Despite Langan’s arguments

to the contrary, we have jurisdiction pursuant to 28 U.S.C. § 1291 and the

collateral order doctrine. We review de novo a district court’s denial of an

anti-SLAPP motion to strike. Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595

(9th Cir. 2010). We affirm. 

We have consistently exercised jurisdiction over denials of anti-SLAPP

motions to strike pursuant to the collateral order doctrine. Batzel v. Smith, 333

F.3d 1018, 1026 (9th Cir. 2003), superseded in part by statute on other grounds as

stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017);

DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015–16 (9th Cir. 2013)

(reaffirming Batzel’s holding that the collateral order doctrine applies to

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anti-SLAPP motions). Although Langan asserts that the denial of a plaintiff’s

anti-SLAPP motion—as opposed to a defendant’s anti-SLAPP motion—is not

immediately appealable as a collateral order, we have distinguished only between

grants and denials of anti-SLAPP motions, rather than the party bringing the

motion. Compare Batzel, 333 F.3d at 1024–26 (finding that a denial of an

anti-SLAPP motion to strike is immediately appealable because an erroneous

denial is effectively unreviewable on appeal and the statutory interest in immunity

from suit cannot be remedied on final appeal), with Hyan v. Hummer, 825 F.3d

1043, 1047 (9th Cir. 2016) (per curiam) (finding that a grant of an anti-SLAPP

motion is not immediately appealable because it is “fully reviewable” and an

erroneous grant “can be fully remedied on appeal by remanding the case”). Thus,

we have exercised jurisdiction over the denial of a plaintiff’s anti-SLAPP motion

to strike. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013).1 We

have jurisdiction over the denial of RLI’s anti-SLAPP motion to strike. 

1

 Neither of Langan’s attempts to distinguish Maekaeff have merit. 

Regardless of whether appellate jurisdiction was contested by the parties, we found

that we had jurisdiction over the denial of the anti-SLAPP motion. Makaeff, 715

F.3d at 261. Additionally, the absence in Makaeff of an analysis of whether a

plaintiff has a substantive “right not to be tried” frames the issue incorrectly. It is

true that we have sometimes framed the right provided by the anti-SLAPP statute

as “an immunity from suit,” but this immunity serves only to prevent a movant

from being forced to litigate meritless claims and does not create total immunity

from suit. See Batzel, 333 F.3d at 1025. 

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The district court did not err in denying RLI’s motion to strike Langan’s bad

faith counterclaim. California’s anti-SLAPP statute subjects causes of action

“arising from any act . . . in furtherance of the person’s right of petition or free

speech” to a special motion to strike, unless the claimant demonstrates a

probability of success on the merits. Cal. Civ. Code § 425.16(b)(1). In

considering an anti-SLAPP motion, we engage in a two-part inquiry, first inquiring

whether the claim arises from protected activity and, if so, whether the claimant

has demonstrated a probability of success on the claim. Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1110 (9th Cir. 2003). Activity protected by the statute

includes filing litigation. Cal. Civ. Code § 425.16(e); see Navellier v. Sletten, 29

Cal. 4th 82, 90 (2002). Although Langan’s bad faith counterclaim references

RLI’s lawsuit, the claim is not “based on” RLI’s protected activity of filing suit. 

See City of Cotati v. Cashman, 29 Cal. 4th 69, 76–77 (2002) (“[T]he mere fact an

action was filed after protected activity took place does not mean it arose from that

activity.”). Langan’s counterclaim is based on an alleged underlying course of bad

faith conduct broader than RLI’s complaint alone, making reference to RLI’s suit

merely “evidence related to liability.” See Park v. Bd. of Trs. of Cal. State Univ., 2

Cal. 5th 1057, 1065 (2017) (emphasis in original). Langan’s counterclaim thus

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does not “arise from” RLI’s protected activity of filing suit and is not subject to an

anti-SLAPP motion to strike. 

Because Langan’s bad faith counterclaim does not arise from protected

activity, we do not reach Langan’s probability of success on the merits. The

district court did not err in denying RLI’s motion to strike.

AFFIRMED. 

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