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In CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (2022), the Ninth Circuit reaffirmed 20 years of decisions holding that special motions to strike under California’s “Anti-SLAPP statute” may be filed in federal diversity actions.  As the court reflected, circuits have split over the federal implementation of the various states’ Anti-SLAPP motions.  See id. at 1142–43.  But the Ninth Circuit’s position on this question has been long settled.  Id. at 1140.  And the Ninth Circuit’s latest published opinion on the issue does not reconsider the merits of the issue or even attempt to defend its rule against the criticism it has faced from other circuits and even Ninth Circuit judges.  See, e.g., Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (Kozinski, J. concurring).  Rather, the decision merely explains the court’s refusal to reverse itself.  The relative merits of its precedent and the strength of a party’s arguments against it are largely irrelevant; a Ninth Circuit panel is bound to follow the court’s past decisions except in exceptional circumstances.  See id. at 1140–43.

So, what is a litigant to do when it has a need and good faith basis to challenge otherwise binding case law from intermediate appellate courts?  Some discussion of the governing principles will help inform an approach.

Any conscious effort to overturn precedent must begin in the trial courts.  As goes almost without saying, federal district courts are bound by the decisions of circuit courts.  See, e.g., Hatter v. Dyer, 154 F. Supp. 3d 940, 951 (N.D. Cal. 2015) (citing Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008)).  They may only decline to follow circuit authority that has been overruled by or is “clearly irreconcilable” with an intervening decision by the U.S. Supreme Court or by the entire circuit sitting en banc.  Id. (citing Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003), and Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)).  To a lawyer, trained to argue that almost any given case is clearly irreconcilable with some other case, this may sound almost like a dare.  The bravado of counsel notwithstanding, district courts treat this as a high bar, upholding precedent whenever it can be reconciled with intervening higher authority.  Id. (citing Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012)).

California superior courts operate under similar standards.  They are generally bound by the published opinions of all courts of appeal, but may decline to follow appellate precedent if there has been a contrary decision of the California Supreme Court or U.S. Supreme Court.  See Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455–56 (1962); Wooden v. Raveling, 61 Cal. App. 4th 1035, 1042 (1998).  In practice, this proves to be as difficult to overcome as the standards applied in federal court.

Given that trial-level courts rarely break from appellate precedent, litigants looking to change common law will in nearly all cases need eventually to turn their attention to the appellate courts (after, of course, preserving the issue at the trial level).  In federal courts, however, they will continue to face significant difficulties, as CoreCivic reveals.  Like the district courts, a panel of circuit judges will not overturn a prior circuit decision unless it is “clearly irreconcilable” with an “intervening higher authority,” which is a “high standard” and difficult to overcome.  CoreCivic, 46 F.4th at 1141.  While frustrating to some litigants, this rule serves to maintain legal stability and predictability for parties.  Id.; accord Travelers, 831 F.3d at 1182 (Kozinski, J. concurring).  As a result, most challenges to precedent will need to pass through rejection not only by the district court but also by a circuit panel, before eventually being addressed (hopefully) to the circuit court sitting en banc.  See Hart, 266 F.3d at 1171.  This can be a long and arduous path, and parties should embark upon such a challenge with open eyes.

Parties in California Courts of Appeal will find a slightly lower bar.  First, the various appellate courts are not bound by the decisions of other districts or even by the decisions of other divisions within the same district.  See Cedars–Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 21 (1998); Apple Valley Unified School Dist. v. Vavrinek, Trine, Day & Co., LLP, 98 Cal. App. 4th 934, 947 (2002).  Thus, it is the rare case where an appellate court will feel bound by a prior decision.  Notwithstanding this comparative flexibility, California courts will generally adhere to precedent in order to promote predictability in the law for parties and courts.  See Mega Life & Health Ins. Co. v. Superior Court, 172 Cal. App. 4th 1522, 1529 (2009).  Parties should accordingly seek offer “compelling reasons” for courts of appeal to reconsider published precedents in California.  See Opsal v. United Svcs. Auto. Ass’n, 2 Cal. App. 4th 1197, 1203–04 (1991); People v. Bolden, 217 Cal. App. 3d 1591, 1598 (1990).

Of course, a challenge to an intermediate appellate decision is inevitably best directed to the U.S. or California Supreme Court.  But with certiorari and review being granted so rarely, parties may be well served to present their best argument, respectful of the principles discussed above, to the appellate courts.