[VAR & VSEA] Re: Petition for Rehearing, Varian v. Delfino, H024214
Dear Acting Presiding Justices Premo and Associate Justices Elia and Wunderlich:
I am writing on behalf of the California Anti-SLAPP Project (CASP) to seek leave to file this letter in support of the appellants' petition for rehearing in the above matter regarding the issue of whether an appeal of an order denying a special motion to strike under C.C.P. section 425.16 automatically stays any related proceedings in the trial court. For the reasons set forth below, CASP believes that it does.
CASP is a public interest organization dedicated to the eradication of SLAPPs (Strategic Lawsuits Against Public Participation) in California. CASP was founded in 1991. Since then, CASP has monitored the implementation of the anti-SLAPP law in California courts, has assisted SLAPP targets and attorneys with the use of the law, and has worked with the California Legislature to improve it. CASP maintains a website at www.casp.net.
In 1991 and 1992, CASP worked very closely with the office of then-senator Bill Lockyer, the author of the bills which eventually enacted the California anti-SLAPP law, Code of Civil Procedure section 425.16 (Stats. 1992, c. 726), to secure support for that legislation. In 1997, CASP led a coalition that successfully worked for enactment of an amendment to the anti-SLAPP law, clarifying that the law is to be "construed broadly" and to overturn the narrow construction of the law in several court of appeal opinions. (Stats. 1997, c. 271.)
Most significantly for this letter, in 1999, CASP led a coalition that successfully worked for an additional amendment to the anti-SLAPP law, making the grant or denial of a special motion to strike an appealable order. (AB 1675 (Kuehl), enacting Stats. 1999, c. 960.) I helped write that amendment. In 2002, CASP was actively involved in the drafting of and securing support for SB 789 (Kuehl), which was passed by the Legislature but vetoed by the Governor. Substantially the same bill was passed again by the Legislature this year as SB 515 and was signed by the Governor. (Stats. 2003, c. 338.) It adds a new section to the Code of Civil Procedure, section 425.17, creating certain exemptions to section 425.16.
I am CASP’s founder and director, was lead counsel for the successful defendant and respondent in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, the first opinion by the Supreme Court arising under the anti-SLAPP law, and have also prevailed in three other published opinions under the anti-SLAPP law. My anti-SLAPP/First Amendment expertise has been recongnized in four court of appeal opinions. In its most recent opinion arising from section 425.16, the California Supreme Court cited a SLAPP practice guide which was co-written by me as evidence to support its reading of the legislative history of section 425.16 (Jarrow Formulas v. LaMarche (2003) 31 Cal.4th 728, 742, fn. 6.) I am on the board of the national SLAPP Resource Center.
In its opinion in this case, the Court held that the appellants’ appeal of the denial of their special motions to strike did not automatically stay the trial on the merits “because it would have no direct impact on an appeal from the order.”
This interpretation appears to be a classic case of bad facts making bad law. It is inconsistent with the intent and purpose of AB 1675, and undermines section 425.16, for the reasons discussed in appellants’ petition for rehearing at pages 2-6. I won’t repeat that analysis here, except to emphasis that the Court’s ruling that such an appeal does not automatically stay all related proceedings in the trial court seriously undermines the purpose of the immediate appeal.
I would also add that I was personally involved in the drafting of the original language in AB 1675 and in the decision to amend the bill in the Senate to delete the express stay provision. As reflected in the Senate Judiciary Committee’s bill analysis of AB 1675 for the hearing of June 29, 1999, the purpose of this amendment was to insure that the automatic stay on appeal in Code of Civil Procedure section 916 would apply to appeals of the grant or denial of a special motion to strike. Thus, the automatic stay extends to any discovery or trial on the causes of action challenged by the special motion to strike (which I have referred to herein as “related proceedings”), once the order on that motion has been appealed.
The legislative history of SB 515, which adds section 425.17 to the Code of Civil Procedure as of January 1, 2004, also supports this understanding. The purpose of this bill, as set forth in section 425.17, subdivision (a), is to prevent abuse of the anti-SLAPP law. To this end, the bill establishes two exemptions to section 425.16, contained in subdivisions (b) and (c) of section 425.17, for certain public interest litigation and certain lawsuits arising from commercial speech.
Significantly, subdivision (e) of section 425.17 provides that when a special motion to strike is denied based on an exemption in subdivision (b) or (c), the immediate appeal provisions in section 425.16, subdivision (j), and section 904.1, subdivision (a)(13), do not apply. The reason for this is that one of the evils that section 425.17 was designed to correct in these cases was that the filing of a meritless appeal from the denial of a meritless special motion to strike would unfairly delay trial court proceedings, because of the automatic stay in section 916.
The Senate Judiciary Committee analysis of SB 515 explains that SB 515 makes the statutory appeal stay in section 916 inapplicable to causes of action made exempt from section 425.16 by section 425.17.
Existing law provides that an order denying a special motion strike is applicable to the court of appeal. (section 425.16(j).) Existing law generally provides that the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby. (section 916.)
This bill would make those stay and appeals provisions inapplicable when a trial court denies a special motion to strike on the grounds that a cause of action is exempt pursuant to this bill.
(Senate Com. On Judiciary, analysis of SB 515 (2003-2004 Reg. Sess.) as a mended May 1, 2003, hg. Date May 6, 2003), p. 3; underlined emphasis in original; a copy of this bill analysis is attached hereto as Exhibit A.
This Senate Judiciary Committee bill analysis explains that the purposed of making the immediate appeal inapplicable when the exemptions in subdivision (b) or (c) applied was to eliminate abuse of the automatic stay under section 916 in such cases:
As to nullifying the right to an immediate appeal in these cases, CAOC [sponser of SB 515] asserts that current law is being used by defendants to unreasonably delay a case from being heard on the merits, thus adding litigation costs and making it more cumbersome for plaintiffs to pursue legitimate claims. … The filing of the meritless SLAPP motion by the defendant, even if denied by the court, is instantly appealable, which allows the defendant to continue its unlawful practice for up to two years, the time of appeal.
SB 515 would make the right to an immediate appeal inapplicable to SLAPP motions that are denied by the trial court based upon one of the new grounds. …
In SB 1651 [a predecessor to SB 515], CAOC had asserted that Section 916’s mandatory stay of proceedings is severely damaging to a plaintiff’s case, and that the mandatory stay creates an incentive for a defendant to file an meritlesss special motion and then appeal a denial, because that process ensures a delay of at least two years in the court’s hearing of the claim. In the meantime, costs are incurred, discovery is stalled and critical evidence can be lost or destroyed. … Even if the plaintiff prevails on appeal, and the motion is denied, the passage of time may have irreparably damaged the plaintiff’s case.
(id. At pp. 11-12 [bracketed explanation has been added].)
The Assembly Judiciary Committee’s analysis of SB 515 makes a similar point:
Generally the anti-SLAPP statute provides that an order granting or denying a special motion to strike is immediately appealable. In order to prevent the appeal process from frustrating the intent to prevent improper delay of actions in which the anti-SLAPP procedure is inappropriate, this bill provides that the denial of a special motion to strike because of an exemption does not trigger the anti-SLAPP appeal provisions.
(Assembly Com. On Judiciary, analysis of SB 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, hg. Date July 1, 2003), p. 8; a copy of this bill analysis is attached hereto as Exhibit B.)
As the statements quoted above indicate, when considering and enacting SB 515, the Legislature understood that the appeal of the denial of a special motion to strike would automatically stay related proceedings in the trial court, and therefore in the two areas in which this was believed to create a problem (corresponding to the exemptions in section 425.17, subdivision (b) and (c)), the Legislature decided to remove the right to immediately appeal.
As SB 515 indicates, when the Legislature has been persuaded that there are appropriate policy reasons to make the automatic stay in section 916 inapplicable to section 425.16 proceedings, it has taken action to do so. It is not the role of the courts to add additional exemptions.
This history is clearly consistent with CASP's and the appellant's understanding of the purpose and legislative history of AB 1675, as discussed in appellants' petition for rehearing and briefly above. It is inconsistent with this Court's conclusion that the appeal of the denial of a special motion to strike does not automatically stay related proceedings in the trial court.
Thank you for your attention to this matter.
Sincerely,
signed Mark Goldowitz"
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