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"PETITION FOR REVIEW
To the Honorable Ronald M. George, Chief Justice of California, and to the Honorable Associate Justices of the Supreme Court of the State of California:
MICHELANGELO DELFINO, appellant, respectfully petitions this Court for review of the order of the Sixth District Court of Appeal filed in that court on November 17, 2000 denying his petition for writ of supersedeas and request for stay. A copy of the Order denying the petition for writ of supersedeas and request for stay(without opinion) of the court of appeal is attached as Exhibit 1.
ISSUE PRESENTED
An order granting or denying a special motion to strike a SLAPP suit, made pursuant to California Code of Civil Procedure section 425.16, is immediately appealable pursuant to California Civil Procedure section 904.1(a)(13). California Civil Procedure section 916(a) provides that such an appeal automatically stays proceedings in the trial court upon the order appealed from, or upon the matters embraced therein or affected thereby.
Should the timely filing of an appeal from an order denying a special motion to strike the complaint stay further proceedings in the trial court upon the matters embraced by the special motion to strike, or which are affected thereby?
INTRODUCTION
Petitioner and defendant, Michelangelo Delfino, has engaged in public discussions on the Internet of matters of public interest and in connection with various issues which were, or are, under consideration or review by various judicial or administrative bodies (i.e., Employment Development Dept. (EDD), California Unemployment Insurance Appeals Board (CUIAB), the Superior Court of California for Santa Clara County, and the U.S. District Court for the Northern District of California), and has published complex and elaborate Internet web-sites which report upon the statements, events and filings made in these various judicial proceedings. All of these activities are protected by the First Amendment to the U.S. Constitution and by the California Constitution, Article I, Section 2. Plaintiffs, particularly the corporate plaintiffs, have brought their lawsuit against Dr. Delfino for the purpose of preventing his exercise of free speech on matters of public concern and upon those matters which are before various administrative and judicial bodies.
Plaintiff, Varian Medical Systems, and the other corporate and individual plaintiffs, are all related to Varian Associates, Inc. which in April of 1999 split into three separate corporations which continued the employment of the two individual plaintiffs as manager and vice-president.
WHY REVIEW SHOULD BE GRANTED
Sometimes the obvious is the most difficult to perceive. Here, the trial and appellate have refused to stay further proceeding in the trial court, even though the statutory law is clear and mandatory. However, just because the statutory law is clear, there has been no California appellate decision found which has considered the issue of whether an automatic stay exists upon a denial of special motion to strike, or to what extent matters are stayed in the trial court. And, since the court of appeal reviews de novo the granting or denying of a special motion to strike, further proceedings in the trial court would effectively negate the appellate court’s review of the case, in that 1) costly discovery and trial proceedings will now ensue and for which the avoidance of such expenses have been specifically held by this court to a goal of the anti-SLAPP motion, and 2) the trial of the case will moot the final determination of the appellate court de novo review of the special motion to strike.
Without an Order from this court, the trial of case in Superior Court will probably be held long before the appeal in the Sixth District is decided. That result would be harsh, unfair, and unlawful.
FACTUAL AND PROCEDURAL HISTORY
A. THE FACTS
In October of 1998, Varian Associates, primarily on the unsubstantiated complaints of the two individual plaintiffs, terminated Dr. Delfino’s employment. Almost immediately, Dr. Delfino applied for unemployment benefits, which application was opposed by Varian. After a hearing before the CUIAB, Dr. Delfino was awarded benefits. During this administrative process, he questioned the veracity and motivation of Varian on an Internet public forum maintained by Yahoo!. He also questioned the direction of the corporation in its decision to seek IRS and shareholder approval for the corporate split-up. Approximately 60 such postings occurred before Varian and the two individual plaintiffs filed their Superior Court lawsuit on February 26, 1999. In the lawsuit, plaintiffs alleged causes of action for libel, slander, interference with business, unfair competition and other business torts. Some of plaintiffs’ claims were founded on federal laws.
B. PROCEDURAL HISTORY
Plaintiffs filed their lawsuit in Superior Court on February 26, 1999. Before filing any responsive pleadings, Dr. Delfino removed the case to the U.S. District Court upon the federal law questions, where the federal judge eventually granted Dr. Delfino summary judgment against Varian on its federal claims, and remanded the case back to the Superior Court on the remaining state law claims.
Again, before any responsive pleadings were required to be filed by him, Dr. Delfino timely filed his special motion to strike plaintiffs’ complaint (now called the "third" amended complaint, which plaintiffs had obtained leave of court to file). On November 1, 2000, the trial court, without explanation, denied the special motion to strike.
On November 7, 2000, Dr. Delfino filed his appeal from the order denying his special motion to strike.
C. THE COURT OF APPEAL’S DECISION
The Superior court, as well as the Sixth District Court of Appeal, has refused to recognize or grant a stay of proceeding in the trial court upon the matter embraced by, or affected by, the motion to strike. The Superior threatens to proceed with case to get it to trial while the appeal is pending. The superior refuses to recognize that there exists an automatic stay of matters embraced or affected by the order appealed from. Since the avoidance of costly and time consuming discovery is an announced goal of special motions to strike, further discovery proceeding threaten to undermine the statute (CCP§425.16(g)) and previous opinions of this court.
The denial of the writ of supersedeas by the Sixth District was made on November 17, 2000 without explanation.
Petitioner has no other legal, speedy, or adequate remedy other than to seek review by this court of the denial of the writ of supersedeas by the appellate court.
LEGAL DISCUSSION
Code of Civil Procedure section 425.16 provides a relatively quick, speedy, and (perhaps most importantly) cheap method to combat such lawsuits, by permitting a special motion to be made to strike such Strategic Lawsuits Against Public Participation (SLAPP’s). Petitioner made such a special motion to strike, which was ultimately denied by the Superior Court on November 1, 2000 (A copy of that Order is attached hereto as Exhibit 4). An immediate appeal was taken by petitioner on November 7, 2000, with notice of such to the trial court (A copy of the Notice of Appeal is attached hereto as Exhibit 3). At the time his appeal was filed, there were various pending discovery matters, including plaintiffs’ motion to compel, which had been stayed pursuant to CCP§425.16(g). The appeal was filed before the date that petitioner would have needed to file responsive pleading to the motion to compel discovery.
The day after the appeal was filed, plaintiffs applied to the court for an order setting forth a schedule for the parties, including this petitioner, to file demurrers, answers and other papers in an effort to advance the case to trial. Even though plaintiffs had notice of the appeal, and the trial court was also advised of the appeal, the trial proceeded to order the briefing and filing date schedule. (A copy of that Order is attached hereto as Exhibit 2)
On November 16, 2000, Petitioner applied to the trial court for an order vacating its Order of November 8th and to recognize the existence automatic stay of further proceedings in the trial court which affect or embrace the matters under appeal from the special motion to strike. The trial court refused to do so, advising that petitioner should attempt to get a writ of supersedeas from the appellate court. That same day, Petitioner filed for a Writ of Supersedeas and Request for Urgent Stay with the Sixth District Court of Appeal.
Plaintiffs, thereafter, further refused to recognize the continued existence of the automatic stay on appeal of the discovery matters, and they appeared at the call of the November 17, 2000 discovery motion calendar before Judge Cabrinha in order to take petitioners default for failing to file opposition papers to plaintiffs’ motion. Judge Cabrinha was advised of the filing for a Writ of Supersedeas, and continued the discovery motion until December 1, 2000 pending resolution of the writ.
Later that same day, November 17, 2000, the clerk of the court of appeal advised by phone that the Writ and Request for Stay had been denied by the Sixth District Court of Appeal. A copy of that Order was received by petitioner in the mail on November 20, 2000 and is attached hereto as Exhibit 1).
Since the court of appeal reviews de novo the granting or denying of a special motion to strike, further proceedings in the trial court would effectively negate the appellate court’s review of the case, in that 1) costly discovery and trial proceedings will now ensue and for which the avoidance of such expenses have been specifically held by this court and others to be a goal of the anti-SLAPP motion, and 2) the trial of the case will moot the final determination of the appellate court de novo review of the special motion to strike.1
The statutory scheme dictating an automatic stay is first founded upon Code of Civil Procedure § 425.16(j) which provides that the denial of a special motion to strike is appealable under Section 904.1.
CCP§904.1(a)(13) provides that order denying a special motion to strike under CCP§425.16 is appealable.
Code of Civil Procedure §916(a) provides that the perfecting of an appeal stays proceedings in the trial court upon the order appealed from or upon the matters embraced therein or affected thereby. There are numerous exceptions to that rule, set forth in Sections 917.1 through 917.9, and in Section 116.810, but none of those exceptions have any applicability here. Since there was no money or costs awarded, there is no requirement for an undertaking to be filed.
Petitioner’s special motion to strike the complaint goes to the very heart of the case. If it had been granted, the case would be over without trial or need for further discovery. If the de novo review by the appellate court results in the granting of the motion, the case will also be over. But allowing the case to proceed to trial in Superior Court violates the rule of CCP§916(a) and eviscerates any relief that the court of appeal might later provide petitioner. The statute (CCP§425.16) is to be construed broadly. Briggs v. ECHO (1999) 19 Cal.4th 1106, 81 Cal.Rptr.2d 471.
However, without a stay of proceedings in the trial court while the Sixth District Court of Appeal considers de novo the appeal of the denial of the special motion to strike the complaint, the mandate for construing the anti-SLAPP statute broadly will be little more than whispered words on deaf ears. The trial court will proceed to present the case to a jury and subject the petitioner to extensive and costly discovery proceedings, all the while the case is up on appeal to decide if it is even worthy of a trial or to engage in discovery proceedings.
The Petition for Review should be granted.
CONCLUSION
It is respectfully submitted that there exists an automatic stay of proceedings in the trial court which embrace or are affected by the Order appealed from, and that therefore the Petition for Review should be granted to ensure that the trial court does not rush to trial while the case is pending review by the appellate court.
November 26, 2000
Glynn P Falcon,
Attorney for Petitioner, Michelangelo Delfino"
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