876 F.2d 366
UNITED STATES of America, Plaintiff-Appellee,v.Ramona Jean BURROUGHS, Defendant-Appellant.
No. 88-2383.
United States Court of Appeals,Fifth Circuit.
June 13, 1989.

H. Michael Sokolo, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Burroughs.
Michael J. Brown, Houston, Tex.  (Court-appointed), for defendant-appellant.
Frances H. Stacy, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Tom Roepke, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before BROWN, WILLIAMS and JOLLY, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:

1
Following her conviction for conspiracy to manufacture phenylacetone under 21 U.S.C. Sec. 841(a)(1) and Sec. 846, Ramona Jean Burroughs appeals.1   She claims that the district court's failure to give the jury an instruction Burroughs requested that defined the term "willfully" demands reversal.  Because this term is crucial to understanding the "specific intent" necessary to be found guilty of conspiracy and because Burrough's defense was based on an alleged lack of this intent, we find reversible error.  We grant Burroughs a new trial.2

I. Facts and Prior Proceedings

2
In October 1987, Robert Bolin mail-ordered glassware flasks from Paul Mills, the owner of Industrial Chemical Supply in Houston, Texas.  Bolin did not know that Mills cooperated with the Drug Enforcement Agency (DEA) by giving information as to suspicious drug activities.  About a week later Bolin phoned Mills from Pearl, Mississippi, to discuss the possibility of a drug transaction.  Bolin informed Mills that he manufactured illicit drugs and was looking for buyers.  After a trip to Houston for supplies, Mills arranged for Bolin to meet with undercover police officer Robert DiMambro who was posing as a buyer.  DiMambro agreed to purchase one pound of amphetamine that Bolin agreed to supply.  Bolin however never followed through on delivery.

3
Several weeks later, Bolin again contacted Mills in Houston saying he still wanted to go through with a deal, but that he was going to have to manufacture the methamphetamine himself.3   He explained that he needed the necessary chemicals and somewhere to produce the illicit drugs.  It was not until this point that Burroughs entered the picture.  She had accompanied Bolin from Mississippi to Houston where this contact with Mills occurred.  She was present during the discussions between Bolin and Mills, although she never participated in them.

4
After Bolin and Mills agreed that Bolin would produce methamphetamine, they contacted DiMambro to see if he was still interested.  DiMambro stated he was.  After further discussion, DiMambro agreed to buy three pounds and offered a warehouse for the manufacture of the drugs.

5
The next afternoon Bolin, Mills, Burroughs, and DiMambro met at Industrial Chemical.  Bolin selected the necessary materials at Mills' store paying $300 down out of the total purchase of $2400.  Burroughs at this point offered her "Discover" charge card to cover the balance.4   They then loaded the supplies into Burroughs' rental car and drove to a nearby warehouse.  The supplies were in boxes with no labels on the outside.

6
Once they arrived at the warehouse, Bolin and DiMambro set up the lab.  While Burroughs was either in the office adjoining the lab or watching them during this time, there is no evidence that she participated in any conversations concerning illegal drugs.  The only actual involvement that she had with the manufacturing process was that she helped unload the boxes, she accompanied the group to the hardware store for additional supplies, and at one time she piled the trash from the operation in the middle of the room.

7
After the lab was asssembled, Bolin, DiMambro, and Burroughs sat in the office adjoining the lab for the next five and a half hours.  Burroughs during this period sat around reading magazines and drinking soft drinks.  DiMambro testified that once Burroughs commented while she looked out the window at the rain that "this was a good day to do this."    She also told DiMambro that he could learn from Bolin because he was a good chemist.

8
At around 11:30 that night, Bolin and Burroughs returned to their hotel leaving DiMambro to monitor the reaction.  When they returned the following morning, they were arrested.

9
Bolin and Burroughs were charged with conspiracy to manufacture phenylacetone, and Bolin was charged additionally with one count of manufacturing.  They were tried jointly.  At their trial, Burroughs' defense was that she was only present because of Bolin and that her relationship with Bolin was strictly romantic.  She explained that she had known Bolin for around ten years because they had been neighbors, but that after he moved away four years ago, she had not seen him until a chance meeting.  She explained that they then began seeing each other and that she fell in love with him.  Burroughs was working fifteen-hour days, six days a week during this time so that they did not see each other very often.

10
Burroughs explained that she accompanied Bolin to Houston because she needed to get away and wanted to spend time with him, something they could not do in her hometown because he was married.  Upon his instruction, she purchased airline tickets to Houston with her Discover credit card.  When the two arrived in Houston, she also rented a car with her Discover card.  She maintained throughout her testimony that she only accompanied Bolin because she was in love with him and that she had no idea that illegal drugs were being manufactured even though she was present throughout all the meetings and at the warehouse.  She also denied offering her credit card as payment for the supplies.

11
To support this defense, she offered an instruction to the jury defining the term "willfully" as it is used in addressing the specific intent necessary for a finding of conspiracy.  The district court denied the inclusion of the definition in the instructions, stating that since conspiracy to manufacture illegal drugs is not a specific intent crime the definition was not correct.  The district court instead supplied a different definition of "willfully" in the charge.

12
The jury found Burroughs and Bolin both guilty of conspiracy and Bolin guilty of manufacturing the illegal substance.  We consider here the timely appeal by Burroughs.

II. The Refused Definition

13
The court defined the offense of conspiring to manufacture phenylacetone in the charge to the jury as follows:

14
For a defendant to be found guilty of this conspiracy, the prosecution must prove four things beyond a reasonable doubt:  Two or more persons in some way came to an understanding to accomplish a plan to manufacture phenylacetone;  the defendant willfully became a member of that conspiracy;  at least one of the participants, during the existence of the conspiracy, knowingly committed at least one act to fulfill the plan;  and the act was a willful effort to manufacture phenylacetone ...

15
The evidence does not need to show that the participants in the conspiracy had an express agreement.

16
The evidence need not establish that every conspirator was aware of or participated in every aspect of the conspiracy.

17
A person does not become a participant in the conspiracy if he has no knowledge of a conspiracy and only happens to act in a way which advances some purpose of the conspiracy.

18
The court then over Burroughs' objection instructed the jury that "the word 'knowingly' or 'willfully' in these instructions means that the act was done voluntarily and intentionally and not because of accident or mistake."    Burroughs had requested a definition of "willfully" from the Fifth Circuit pattern instructions that the court refused.  The requested definition defined "willfully" to mean that "the act was committed voluntarily and purposely, with the specific intent to do something the law forbids;  that is to say, with bad purpose either to disobey or disregard the law."    U.S. Fifth Circuit District Judges Association Pattern Jury Instruction (Criminal), Basic Instruction 9A, at 21 (1983).

19
The district court misperceived the necessary elements in a conspiracy charge.  The court treated a drug conspiracy charge as requiring only general intent.  Drug conspiracy, however, is a specific intent crime.  As such, it requires the government to prove that "the defendant voluntarily and intentionally violated the law."    United States v. Basey, 816 F.2d 980, 1002 (5th Cir.1987);  United States v. Gomez, 776 F.2d 542, 548-49 (5th Cir.1985).  See also United States v. Davis, 583 F.2d 190, 193 (5th Cir.1978) ("the requirement of willfulness connotes a voluntary, intentional violation of a known legal duty").  The jury should have been required to find that Burroughs intended to do something unlawful.  The charge as given failed to require that finding.

20
The district court, of course, had substantial latitude in framing its instructions.  United States v. Kimmel, 777 F.2d 290, 293 (5th Cir.1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986).  Accordingly, its refusal to deliver a requested instruction constituted reversible error only if the instruction:

21
"(1) is substantially correct;  (2) was not substantially covered in the charge actually delivered to the jury;  and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to present a given defense."

22
United States v. Mollier, 853 F.2d 1169, 1174 (5th Cir.1988) (quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir. Unit A May 1981).  Here the government cannot dispute the legal accuracy of the proffered definition.  See United States v. Fooladi, 746 F.2d 1027, 1030 (5th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985) (same definition of "willfully" from the Fifth Circuit pattern jury instructions accepted as adequate).  Thus our focus is on the second and third requirements of Mollier in ascertaining the harmlessness of the error by the district court.

23
A. The Second Requirement:  A Lack of Coverage of the Definition of "Willful"

24
Despite the misperception by the district court on the intent element of conspiracy, the government argues that Burroughs' defense was adequately covered elsewhere in the charge.  United States v. Rubio, 834 F.2d 442, 447 (5th Cir.1987).  The government points to the following language in the charge:

25
the mere presence at the scene of a crime, mere association with people involved in a crime, or knowledge that a crime is being committed is not sufficient to establish that a defendant was a conspirator unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

26
The government argues that this language gave the jury the opportunity to find Burroughs merely a "spectator."    This language, however, is not enough.  As long as the jury found Burroughs' actions "voluntary" and not because of "accident," Burroughs' defense was destined to fail under the instruction given.  The above language does not address the requisite intent to break the law by her "voluntary" actions.  It thus does not compensate for the district court's incorrect definition of "willful" or its omission of any reference to "specific intent," "unlawfulness," "purposeful intent to violate the law," or any like language that would have suggested the need to find specific intent.

27
The closing arguments also did not adequately present "specific intent" to the jury.  Closing arguments do not replace the words of the judge.  Where the defendant has otherwise demonstrated reversible error, as is the case here, "argument alone will never suffice to compensate for an omitted instruction."    United States v. Rubio, 834 F.2d at 447.

28
B. The Third Requirement:  A Serious Impairment of Burroughs' Defense

29
The definition of "willfully" was clearly crucial to Burroughs' defense that she did not have a "bad purpose" to violate the law.  See United States v. De La Torre, 605 F.2d 154, 156 (5th Cir.1979) (concept of "willfulness" held to be "crucial to a comprehension of the conspiracy charge").  By defining "willfully" incorrectly, the district court seriously impaired this defense.

30
The jury under the court's charge never had to address her intent to violate the law.  They only had to find that she "intentionally" and "not because of mistake" conspired to manufacture phenylacetone.  For example, they properly found she intentionally was present at the warehouse.  She admits that she was there on her own account.  She also admits that her actions such as cleaning up were done voluntarily.  What was crucial to her defense however is not what she did voluntarily but what her state of mind was as to what she was doing.

31
The definition by the court of "willfully" simply does not address the need to find that Burroughs desired to break the law.  If the correct instruction had been given, the jury could have made the same findings of voluntary, intentional behavior by Burroughs, while nevertheless finding her not guilty because of her lack of intent to violate the law.  Obviously, then, the court's leaving out the correct definition of "willfully" seriously impaired Burroughs' defense.

C. Mollier Distinguished

32
The government urges that this case is controlled by the holding in Mollier.    In Mollier we found no reversible error in the refusal of the trial court to include the defendant's instruction.  In Mollier, however, the dispute was over the definition of "knowingly," not "willfully."    853 F.2d at 1174.    The key distinction between the two cases is that the trial court in Mollier defined conspiracy as an agreement to accomplish "some unlawful purpose."    So the jury was adequately instructed that a "specific intent" to do something unlawful had to be found.  853 F.2d at 1175.    Here the district court failed to require a jury finding of unlawful purpose in the conspiracy charge.

III. Conclusion

33
Burroughs' defense throughout her trial was that she was only present in Houston because she wanted to get away to spend time with her boyfriend, Bolin.  She claimed throughout her trial that she did not know that Bolin was producing drugs that were illegal.  By failing to charge that there had to be the intent to violate the law, the jury was not properly instructed that Burroughs had to be proved to have the specific intent to violate the law to be found guilty.  Burroughs' defense was substantially impaired.  We must reverse and remand for a new trial.

34
REVERSED AND REMANDED.

1
 Burroughs was tried jointly with her alleged co-conspirator Robert Bolin.  While it is not clear from his brief the nature of his appeal, we address Bolin's appeal in a separate decision.  United States v. Bolin, 876 F.2d 370 (5th Cir. 1989).  Bolin in addition to being charged with conspiracy was charged with the substantive offense of manufacturing phenylacetone

2
 Other arguments on appeal made by Burroughs do not need to be addressed because of our reversal on the jury instruction.  Briefly, her claims include that the evidence was insufficient to convict her, that she should have been granted her motion to sever her trial from the trial of her alleged co-conspirator Bolin, that her sentence was based on materially erroneous information, and that the district court applied the United States Sentencing Guidelines incorrectly

3
 Burroughs and Bolin were charged with conspiracy to manufacture phenylacetone because that was the form of the substance at the time of the arrest.  Phenylacetone is a purcursor chemical to methamphetamine and amphetamine

4
 Burroughs claims that she did not offer the card for payment.  Testimony supporting Burroughs' story included Mills' admission that the store had discontinued taking credit cards several months before this transaction.  There was also never any imprint of her card made by Mills.  It may be that the card was merely produced for identification purposes


720 F.2d 659
Bsalesv.Texaco, Inc.
83-5024
UNITED STATES COURT OF APPEALS Third Circuit
8/8/83

D.N.J., Fisher, J.

AFFIRMED


73 Cal.Rptr.3d 87 (2008)
160 Cal.App.4th 653
Jack RUSSELL, Plaintiff and Appellant,
v.
Charrie FOGLIO, Defendant and Respondent.
No. B190168.
Court of Appeal of California, Second District, Division Eight.
February 28, 2008.
*88 McPherson & Kalmansohn, McPherson & Associates, Edwin F. McPherson, Los Angeles, and Tracy B. Rane for Plaintiff and Appellant.
Cohen and Cohen, Evan S. Cohen and S. Martin Keleti, Los Angeles, for Defendant and Respondent.
COOPER, P.J.
Plaintiff Jack Russell appeals following the grant of defendant Charrie Foglio's special motion to strike his complaint for slander and false light invasion of privacy, under Code of Civil Procedure section 426.15, the anti-SLAPP statute (undesignated section references are to the Code of Civil Procedure), and from the denial in part of his motion to tax costs, with respect to defendant's attorney fees. We conclude that plaintiff has failed to perfect an appeal from the anti-SLAPP order. We affirm the attorney fees order.

FACTS
The material allegations of the complaint were as follows. In February 2003, plaintiff was leader of the band Great White, which underwent a catastrophe when pyrotechnic effects it employed at a Rhode Island nightclub ignited polyurethane wall and ceiling installations, precipitating a fire that caused extensive loss of life and injuries.
Shortly after the fire, plaintiff decided that the band would tour the United States performing, to raise money for victims of the fire. Defendant, who had experience in the music industry and had known plaintiff for 20 years, was assigned by a management company to handle publicity for the band. Defendant also was deputized to work with a fire victims' fund, to which the band would be giving all profits from its tour.
Defendant allegedly performed poorly and dishonestly in various ways, and the management company terminated her. She then demanded that plaintiff fire the company and hire her as his personal manager. When plaintiff refused, defendant threatened that if she did not receive severance pay, she would tell the press or a Rhode Island grand jury that plaintiff and *89 the head of the management company (Steinman) were embezzling money from the victims' fund. Defendant proceeded to claim, falsely, that plaintiff and Steinman were stealing money from the tour. She allegedly made such statements to the press, people in the music industry, and Rolling Stone magazine, and they were republished by CNN Headline News.
The complaint alleged that defendant's statements were false, defamatory on their face, and made with knowledge or reckless disregard of their falsity (hereafter constitutional malice). As a result, plaintiff suffered damages personally, and several tour concerts were cancelled by their venues. Plaintiff alleged malice and prayed punitive damages. The second cause of action reiterated the first, and alleged that defendant's statements had placed plaintiff in a false light before the public. A third cause sought injunctive relief against further defamatory statements.
Defendant moved to strike the complaint under section 425.16, subdivision (b)(1). She averred that her alleged statements came within the free speech and public interest protections of section 425.16, subdivision (e)(4), and that many of the complaint's charges were themselves false.
In opposition to the motion, plaintiff submitted declarations by himself, Steinman, a former member of the band (Lardie), and the victims' fund's president (Potvin). The latter two testified, respectively, that defendant had told them that plaintiff was stealing and embezzling from the fund. Among other things, Steinman recounted that defendant had shared all of the tour's accounting records. He also stated that defendant had falsely told the fund and the press that he and plaintiff were stealing from the fund. Plaintiff testified to defendant's threat to claim theft unless she were paid severance. Principally based on Steinman's declaration regarding defendant's knowledge of the tour's finances, plaintiff argued that defendant had made her false accusations with knowledge or reckless disregard of their falsity.
Defendant, now in pro. per., filed extensive evidence in reply, including a declaration by a member of the fund's board. Plaintiff filed objections to much of this evidence, which included magazine and internet articles.
On March 4, 2005, the court rendered its order granting defendant's motion to strike. The court ruled that the statements allegedly made to Steinman and Potvin were privileged under Civil Code section 47, subdivision (c), which concerns communications between interested persons, without malice.[1] Absence of such malice was established by reason of the court's conclusion that plaintiff had not shown constitutional malice by clear and convincing evidence. The court ruled that the claim that defendant had made her statements because she had not been paid severance was insufficient to establish constitutional malice. The court stated the statement to Lardie had not been believed, and therefore had not caused special damages.
The 12-page "Order on Submitted Motion" was signed by the court, file-stamped, and accompanied by a clerk's endorsement of the date of mailing to the parties. The order concluded, "Defendant is ordered to submit a proposed form of judgment within 15 days." Defendant did not submit any form of judgment in response.
*90 Plaintiff proceeded to file a motion for reconsideration, on March 14, 2005. Plaintiff offered further evidence, and argued he could sustain his burden of showing "minimal merit" as to each element of his slander claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 95, & fn. 11, 124 Cal. Rptr.2d 530, 52 P.3d 703.)
Defendant again filed voluminous opposition, to which plaintiff filed numerous objections. Plaintiff then filed further declarations. The court held two hearings, the second being an evidentiary one concerning plaintiffs claim that defendant had submitted a forged declaration by the band's former tour manager. At these hearings, defendant was represented by new counsel, Keith Bray.
On June 9, 2005, the court filed its order denying the motion for reconsideration, on the basis the evidence plaintiff had tendered had been available for the original motion. (See § 1008, subd. (a).) The court ruled for defendant on the forgery question. The order stated that defendant could file a new bill of costs, to account for her attorney fees and costs for the reconsideration motion. The order concluded, "Defendant is to submit a form of judgment within 10 days." No such form was submitted.
On July 9, 2005, defendant's attorney Bray filed a memorandum of costs, claiming attorney fees of $10,140, witness fees of $3,090 for a questioned documents examiner, and $1,500 for a private investigator.
In support of the claimed attorney fees, Bray attached his declaration, stating he had been retained by defendant on April 29, 2005, three days before the first reconsideration hearing, at $300 per hour. He had spent a total of 33.8 hours on the case, about half of that in attending the two reconsideration hearings, and the rest principally in interviewing defendant and witnesses in preparation, and attending an earlier hearing on costs.
Plaintiff moved to tax costs. He argued that (1) the expert's fees were statutorily unrecoverable (§ 1033.5, subd. (b)(1)); (2) the same was true of investigator's fees (§ 1033.5, subds.(b)(2), (c)(2)); and (3) the attorney fees were unreasonable and excessive. Plaintiff observed that Bray had been admitted to the bar in June 2002, and had graduated from an apparently unaccredited law school. Plaintiff also submitted declarations from partners at two law firms. One stated that 2002 admittees at his firm were generally billed at $135 to $150 per hour, and that a law firm rate "anywhere near $300 per hour" for attorneys of that vintage was unknown to him. The other declarant stated that he too was unaware of any firm billing that rate for 2002 admittees; that it would be unreasonable; and that at no firm at which he had been a principal had lawyers in practice less than four years been billed at over $175 per hour.
Responding at the hearing, Bray averred that he was an independent family law practitioner, who had substantial trial experience (which he described) and overall experience and responsibility greater than and different from law firm associates of two years. He also represented that $300 was his normal rate, which his clients agreed to.
The trial court granted the motion to tax with respect to the expert's and investigator's fees, but denied it as to the attorney fees. The court found Bray's experience, the time constraint under which he undertook defendant's representation, his performance in defeating the forgery claim, and defendant's agreement to the $300 per hour fee all supported the fees claimed. The court also awarded fees for three further hours, or $900, for the hearing.
*91 On November 7, 2005, the court filed a "judgment," submitted by Bray, which adjudged the rulings on the motion to tax costs. On March 27, 2006, plaintiff filed a notice of appeal from this judgment. The notice of appeal recited that defendant had served the judgment the preceding month, and it attached and incorporated a copy of that judgment. This was the only notice of appeal plaintiff filed in the case.

DISCUSSION

1. Plaintiff Has Failed to Appeal From the Anti-SLAPP Order.
Plaintiffs arguments on appeal seek review and reversal of the anti-SLAPP order striking his complaint, as well as the subsequent "judgment" denying the motion to tax costs with respect to defendant's attorney fees. However, plaintiffs notice of appeal, upon which this appeal is based, addresses only the judgment regarding costs. Given the absence of a notice of appeal from the order granting the motion to strike, and that the notice of appeal before us was filed more than a year after the motion was granted, we requested and received briefing from the parties regarding whether we have jurisdiction to review the anti-SLAPP order. We conclude that we do not.
Plaintiffs time to commence an appeal from the order granting the anti-SLAPP motion expired well before plaintiff filed its only notice of appeal, in March of 2006. The trial court denied the motion to strike on March 4, 2005. That order was specifically, statutorily appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) On the same date, the superior court clerk mailed a file-stamped copy of the order to plaintiff. Under California Rules of Court, former rule 2(a)(1) and (f) (8.104(a)(f))[2], plaintiff had 60 days from this notification, or until May 3, 2005, in which to file a notice of appeal from the order. Because plaintiff filed a motion for reconsideration, the time for filing the notice of appeal was extended by former rule 3(d)(2) (8.108(e)(2)) to May 3, 2005 (90 days after the motion to reconsider was filed). Plaintiff did not, however, file any notice of appeal before that time expiredor until nearly 10 months later, when the notice of appeal re costs was filed.
Plaintiff disputes this analysis on several premises, but none of them is valid. First, plaintiff argues that mailing of the March 4, 2005 order did not commence the time for appeal under former rule 2(a)(1) (8.104(a)), because the order was not entitled "Notice of Entry," as the rule states. (Cf. Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 41 Cal.Rptr.3d 273.) But the "Notice of Entry" requirement is only an alternative one: under former rule 2(a)(1) (8.104(a)), the time for notice of appeal runs from the clerk's mailing of either "a document entitled `Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed." Here plaintiff was mailed a file-stamped copy of the order granting the motion to strike.[3]
Plaintiff further argues that the court's March 4, 2005 order granting the motion to strike was not an appealable order, *92 because the order directed defendant to prepare a form of judgment, and she did not do so. Plaintiff relies primarily on former rule 2(d)(2) (8.104(d)(2)), which provides that for purposes of former rule 2 (8.104) the date of entry of an appealable order, "if the minute order directs that a written order be prepared ... is the date the signed order is filed." Assuming arguendo that the present order came within this provision, the rule would not deprive the order of appealability. What former rule 2(d)(2) (8.104(d)(2)) does is demarcate the time of entry of an appealable order, for purposes of that rule. It does not purport to determine what is appealable; indeed, it applies by its terms to appealable orders. (See In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 685-686, 36 Cal.Rptr.3d 286 [minute order statutorily appealable; written order set time of entry].)
Moreover, the order granting the motion to strike did not come within the quoted language of former rule 2(d)(2) (8.104(d)(2)). The order was not a minute order, but a lengthy signed order. There was no need for a further signed order to finalize the adjudication. And in fact, the order directed that defendant prepare not a further, more formal order, but a judgment. That was what should have followed, the court having granted a motion to strike plaintiffs entire complaint. (Cf. Sunset Millennium, LLC, v. Le Songe, LLC, supra, 138 Cal.App.4th at p. 258, 41 Cal.Rptr.3d 273 ["The granting of the Code of Civil Procedure section 425.16 special motion to strike terminated the entire lawsuit as to defendant. Defense counsel submitted a proposed judgment...."] Although such a judgment would itself have been appealable, so was the order granting the motion to strike, by the terms of sections 425.16, subdivision (j) and 904.1, subdivision (a)(13).[4]
The time for filing an appeal from the anti-SLAPP order thus expired, long before plaintiff did file a notice of appeal not from that order, but from the costs order. Plaintiff proposes certain means to permit that appeal to include an appeal from the anti-SLAPP order, but they are not appropriate.
First, plaintiff suggests that the appeal may be saved by amending the judgment re costs to include denial of the anti-SLAPP order. Plaintiff bases this request on cases that have amended incomplete and hence nonappealable judgments to render them appealable. (E.g., Gombos v. Ashe (1958) 158 Cal.App.2d 517, 322 P.2d 933.) But the problem here is not the absence of an appealable order, granting the motion to strike. As we have explained, there was one, but plaintiff did not timely appeal from it.
Second, plaintiff invokes the doctrine that a notice of appeal should be liberally construed. ` (E.g., rule 1(a)(2) (8.100(a)(2)).) But as stated in plaintiffs lead authority, "notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from...." (Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289.) This doctrine applies primarily, as in that case, where the notice of appeal has misdescribed the judgment or order sought to be appealed from. Here, however, plaintiffs notice of appeal addressed and explicitly describedto the point of attaching a copyonly the judgment re costs. It would be beyond liberal construction to *93 view that notice of appeal as relating to a further and different order, rendered a year previously. Moreover, even if plaintiffs notice of appeal were construed as directed at the anti-SLAPP order, the appeal from it would be untimely and would have to be dismissed.
Accordingly, we are unable to find that an appeal from the anti-SLAPP order is properly before us.

2. Attorney Fees.
The award of defendant's attorney fees, recoverable under section 425.16, subdivision (c), is subject to review under established rules. "The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel, and the amount of time involved. [Citation.]" (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448, 121 Cal.Rptr.2d 275; accord, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096, 95 Cal. Rptr.2d 198, 997 P.2d 511.) The trial court possesses personal expertise in the value of the legal services rendered in the case before it. (Ibid.) On appeal, a fee award is reviewed for abuse of discretion. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 686, 43 Cal.Rptr.3d 148.)
Plaintiff attacks the award for Attorney Bray on grounds the $300 per hour rate claimed and allowed was excessive. Plaintiff so contends based on the facts that Bray had been a lawyer only since June 2002, that he had graduated from an unaccredited law school, and that his experience was in family law as opposed to defamation. These facts do not establish an abuse of discretion in the trial court's ruling.
From the standpoint of Bray's capability, experience, and performance, the identity of his law school made no difference. In the same respects, that Bray had become a lawyer two years and eleven months before he undertook the case also was not dispositive.[5] The trial court recognized Bray's representation that he brought to the case far more extensive trial experience than an average junior associate at a law firm would have had. That Bray's experience had arisen in the family law context was also not discrediting. What the court perceived as relevant about that experience was its practical extent. The court referred to Bray's "family law experience" simply as shorthand for his in-court experience.
Plaintiffs arguments also fail to take into account the court's observations concerning the quality of Bray's performance and the time constraints under which he undertook representation of defendant. These factors supported the court's determination of the value of counsel's work.
Ultimately, while expressing awareness of plaintiffs submission regarding junior associates' billing rates, the court concluded that Bray's experience, the exigency of the case, and "the demonstrated level of performance by counsel" justified the hourly fee level. Given all the circumstances, that ruling was not an abuse of discretion.

DISPOSITION
The judgment regarding costs is affirmed. The parties shall bear their own costs on appeal.
*94 We concur: RUBIN and EGERTON[*], JJ.
RUBIN, J.
I concur.
The plain meanings of Code of Civil Procedure section 425.16, subdivision (i) (formerly subd. (j)) and section 904.1, subdivision (a)(13) made the trial court's order granting respondent's motion to strike immediately appealable. I therefore agree with the majority that, because the appeal here was untimely, we do not have jurisdiction to reach the merits of the anti-SLAPP order. Our inability to address the merits may be an example of an unintended consequence that the Legislature did not anticipate when it made granting a motion to strike under the anti-SLAPP law an immediately appealable order. I therefore write this separate concurrence to suggest that the Legislature may wish to consider amending the statutes involving such an appeal.
It makes sense that denial of a motion to strike a complaint under the anti-SLAPP law is immediately appealable. Forcing a defendant to wait until a final judgment that might be months or years away arguably would frustrate the anti-SLAPP statute's purpose, which is to expeditiously end lawsuits that chill public participation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 194, 25 Cal.Rptr.3d 298, 106 P.3d 958 ["The Legislature found it necessary to enact 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.'"].) As the Assembly committee report discussing appeals under the anti-SLAPP statute noted:
"This bill furthers the purpose of the Anti-SLAPP Law ... by allowing the defendant to immediately appeal a denial of a special motion to strike. Without this ability, a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated. When a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of [mandate], which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the Anti-SLAPP Law is useless and has failed to protect the defendant's constitutional rights." (Assem. Com. On Judiciary, com. on Assem. Bill No. 1675 (1999 Reg. Sess.) April 20,1999.)
A plaintiff in SLAPP litigation occupies a different position than a defendant, and few plaintiffs, if any, are likely to have interests the anti-SLAPP law was designed to protect. Recall that the plaintiff initiates the lawsuitit is the defendant who claims the lawsuit chills the defendant's constitutional rights. There is no particular reason a plaintiff at the losing end of a successful anti-SLAPP motion to strike has any interests greater or more pressing than any other plaintiff who loses a dispositive pretrial motion, such as a demurrer or motion for summary adjudication or judgment. The plaintiff may be unhappy with the pretrial result, but, unlike a defendant subject to a SLAPP complaint, such a plaintiff bears no obviously greater burden in being forced like other plaintiffs to wait until the final judgment to appeal.
The legislative history of the appeal provision of the anti-SLAPP law does not illuminate why the Legislature made orders *95 granting a motion to strike immediately appealable, other perhaps than to offer balance between plaintiffs and defendants. As originally introduced in the Assembly Judiciary Committee, the appeal provision addressed only denial of a motion to strike. (A.B. 1675, subd (j); Stats.1999, ch. 960.) But several months later, the Senate Judiciary Committee amended the bill to make an order granting a motion to strike appealable. In discussing its amendment, the Senate report recited the reasons the Assembly had found for making denials immediately appealable. The Senate report then added: "The author is submitting amendments in Committee to clarify that the right to appeal would apply to motions granted or denied in order to assure that both the plaintiff and defendant are given equal rights to appeal an adverse order"in other words, balance. (Sen. Com. on Judiciary, com. on Assem. Bill No. 1675 (1999-2000 Reg. Sess.) June 29, 1999, pp. 3-4.)
In reaching for balance, the Legislature may have grabbed hold of unintended consequences, instead. One of two scenarios typically unfolds after a trial court grants an anti-SLAPP motion to strike. Under the first scenario, the court dismisses the entire complaint, freeing the defendant to move for its attorney's fees and an eventual final judgment; that scenario is the one that happened here. Under the second scenario, some causes of action remain and the case proceeds on those claims toward an eventual final judgment (which may include attorney's fees for the successful motion to strike). Under either scenario, no public policy reason exists to justify the cost to the parties and the courts of two separate appealsone from the granting of the motion to strike, and a second from the attorney's fee order and final judgment. Moreover, splitting the proceedings into two appeals creates a trap for the unwary, who may lose their right to appeal from the order granting the motion to strike while they await the final judgment. This is especially true in cases in which the trial court, as what happened here, grants the motion to strike the entire complaint. It is hard to imagine any benefit to the plaintiff in requiring it to appeal before final judgment is entitled.
And the trap is not limited to the unwary. At least one published decision shows even highly regarded and experienced counsel can overlook that an order granting a motion to strike is immediately appealable. In that decision, Maughan v. Google Technology, Inc. (2006) 143 Cal. App.4th 1242, 49 Cal.Rptr.3d 861, plaintiffs counsel sued Google. The trial court granted Google's motion to strike the complaint under the anti-SLAPP statute, effectively ending the lawsuit. (Id. at p. 1245, 49 Cal.Rptr.3d 861.) A few months later, the trial court awarded Google its attorney's fees and costs and entered judgment in its favor. The plaintiff appealed from the final judgment. On review, the appellate court found the appeal was untimely as to the motion to strike, and refused to address the merits of the order granting the motion. (Id. at pp. 1246-1247, 49 Cal.Rptr.3d 861.) Because the statutory language was plain, the Maughan court, like the majority here, correctly applied the law governing the timing of an appeal from an order granting a motion to strike a SLAPP complaint. I respectfully suggest, however, that the Legislature consider changing the statute.
NOTES
[1]  Steinman actually had not claimed that defendant had published her charges of theft to him.
[2]  The California Rules of Court were renumbered after the proceedings below. Using the term "rule," we cite the former rules, which governed, with parenthetical notation of the present rule numbers.
[3]  Plaintiff observes that not until later did he receive a copy of a document entitled "judgment" (the judgment re costs). But former rule 2(f) (8.104(f)) provides that as used in rule 2(a) (8.104(a)), "judgment' includes an appealable order if the appeal is from an appealable order."
[4]  Because the order was not preliminary to a further order granting defendant's anti-SLAPP motion, Herrscher v. Herrscher (1953) 41 Cal.2d 300, 259 P.2d 901, cited by plaintiff, is not on point.
[5]  It is incorrect for plaintiff to refer to Bray as a "second-year'' lawyer. Bray had more than three years licensure when he handled the crucial evidentiary hearing on reconsideration.
[*]   Judge of the Los Angeles Sup.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.


196 U.S. 573 (1905)
UNITED STATES
v.
MONTANA LUMBER AND MANUFACTURING COMPANY.
No. 125.
Supreme Court of United States.
Argued January 13, 1905.
Decided February 20, 1905.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
*575 Mr. Marsden C. Burch, Special Assistant to the Attorney General, with whom The Solicitor General was on the brief, for the United States.
There was no brief or appearance for defendant in error.
*576 MR. JUSTICE McKENNA, after making the foregoing statement, delivered the opinion of the court.
In the view we take of the case the answer to the second question becomes unnecessary. The answer to the first and third depends upon the effect of the grant to the Northern Pacific Railroad Company by the act of July 2, 1864.
*577 The third section of that act contains the usual granting words: "That there be, and hereby is, granted to the `Northern Pacific Railroad Company,' its successors and assigns," every alternate section of public land, not mineral, designated by odd numbers, on each side of the line of the railroad when definitely fixed.
It has been decided many times that such grants are in proesenti, and take effect upon the sections of the land when the road is definitely located, by relation as to the date of the grant. But the survey of the land is reserved to the Government (section 6); in other words, the identification of the sections  whether odd or even  is reserved to the Government; and by the act of July 15, 1870, making appropriations for the sundry civil expenses of the Government for the year ending June 30, 1871, it was provided, in regard to the grant to the Northern Pacific Railroad Company, that the cost of surveying must be paid by the company, and no conveyance should be made of the lands until such cost be paid. On account of that provision it was held in Northern Pacific Railroad Company v. Traill County, 115 U.S. 600, that the land of a railroad company was not subject to taxation. It was said, "to secure the payment of those expenses, it (the Government) decided to retain the legal title in its own hands until they were paid." See also New Orleans Pacific Railway Co. v. United States, 124 U.S. 124. The equitable title becomes a legal title only upon the identification of the granted sections. Deseret Salt Co. v. Tarpey, 142 U.S. 241. As expressed in Leavenworth &c. Railroad Co. v. United States, 92 U.S. 733, 741, "They" (the words "there be and is hereby granted") "vest a present title, . . . though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract." The right of survey is in the United States. It was error, therefore, in the trial court to admit the survey made by Ashley. It was also error to instruct the jury to return a verdict for the defendants. Until the identification of the even and odd-numbered sections the *578 United States retained a special property, at least, in the timber growing in the township; and this was sufficient to enable it to recover the value of the timber cut and removed by the defendants. A contrary conclusion would impair the Government's right of survey and force it into controversies over surveys made by the railroad or its grantees. It would enable the railroad company or its grantees to despoil the lands of their timber and leave them denuded, and, may be worthless, to the Government. Indeed it would reverse the statutory grant of powers and transfer the location of the sections from the Government to the railroad company. The extent and the effect of the power of the Government to make its own surveys is expressed and illustrated in the following cases: Maguire v. Tyler, 8 Wall. 650; Cragin v. Powell, 128 U.S. 691; United States v. McLaughlin, 127 U.S. 428; Blake v. Doherty, 5 Wheat. 358; Central Pacific Railroad Co. v. Nevada, 162 U.S. 512; United States v. Hanson, 16 Pet. 196; Les Bois v. Bramell, 4 How. 449; Mackey v. Dillon, 4 How. 421; Glenn v. United States, 13 How. 250; Smith v. United States, 10 Pet. 326.
There is nothing in Northern Pacific Railroad Company v. Hussey, 61 Fed. Rep. 231, which militates with these views. In that case relief was granted by injunction against a trespasser upon unsurveyed land at the suit of the railway company, its contingent interest being held sufficient for that purpose. The paramount control and property in the United States was not in question.
We, therefore, answer the first and the third question certified by the Circuit Court of Appeals in the affirmative.
MR. JUSTICE BREWER concurs in the result.