[VAR & VSEA]"Dear Chief Justice George and Associate Justices:
This letter in support of the above-referenced petition for review filed by Appellants Delfino and Day and alternative request for depublication is submitted pursuant to rules 28(g) and 979 of the California Rules of Court by Cyrus Sanai.
I. The Interest of Amicus.
I have no relationship with any of the parties in Varian. I am plaintiff and appellant in an appeal in the case of Sanai v. Saltz, set for oral argument on January 9, 2003 before Division 7 of the Second Appellate District. As this Court may be aware from the briefs filed with this Court,1 one of the key issues in the Sanai appeal is the effectof the perfection of an appeal of a denial of a Code Civ. proc. § 425.16 motion seeking to strike an entire complaint on the trial court proceedings while the appeal is pending. This issue arose because like in the Varian case, the trial Court elected to proceed with the case while the anti-slapp motion was pending. Also as in Varian, my motions for stay in the trial court and petition for supersedeas to the Court of Appeal based on Code Civ. Proc. § 916 were denied. Using reasoning no less erroneous than the trial court in Schoendorf v. U. D. Registry, Inc., (2002) 97 Cal.App.4th 227, the trial court dismissed by complaint. In my appeal, I rely squarely (though not exclusively) on the theory that all of the trial court’s actions were void and without effect because of the automatic stay pursuant to Code Civ. Proc. § 916 and the h9lding in Mattel v. Luce Forward Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1190. The holding in Varian creates a conflict of authority that should be resolved in favor of the position enunciated in Mattel, either by acceptance of the petition for review filed by Appellants Delfino and Day on this issue, or depublication of the Varian opinion.
1 In addition to the briefs filed with this Court in B163221, this Court may also review S0954491 (Respondent's petition for review of the denial of their mandamus petition seeking to reverse the denial of their anti-SLAPP motion) and S106371 (my request to publish the opinion of the Court of Appeals upholding the denial of the anti-SLAPP motion).
II. The Varian Court’s Error
In Varian, the Sixth Appellate District, while acknowledging that under Betz v. Pankow (1993) 16 Cal.App.4th 931, 938, a trial court’s actions in violations of an automatic stay are void, nonetheless rejected Mattel and held that a trial court’s actions are not automatically stayed pending appeal of the denial of a Code Civ. Proc. § 425.16 motion. Varian, supra, slip. Op. at 34 et seq.
The Code Civ. Proc. § 425.16 “anti-SLAPP” motion is “based on the need to screen out meritless cases at an early stage.” Jarrow Formulas Inc. v. La Marche (2003) 31 Cal.4th 728, 739 (citations and internal quotations omitted). The anti-SLAPP procedure requires a plaintiff to demonstrate “a prima facie” legal and factual case; thus “the Legislature’s detailed anti-SLAPP scheme ensur[es] that claims with the requisite minimal merit may proceed.” Jarrow, supra 31 Cal.4th at 740-1 (citations and internal quotations omitted).
The Legislature has amended the “detailed anti-SLAPP scheme” a number of times, most recently last year. The right to an interlocutory appeal was added in 1999 by A.B. 1675. The legislative history of this amendment to the anti-SLAPP statute makes it clear that the Legislature intended that perfecting an appeal of the denial of an anti-SLAPP motion would automatically stay the appeal pursuant to Code Civ. Proc. § 916.
A Senate Judiciary committee report on A. B. 1675 reads as follows:
CHANGES TO EXISTING LAW
Existing law provides that a cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue, is subject to a special motion to strike, unless the court, after considering the pleadings and supporting and opposing affidavits, determines that there is a probability that the plaintiff will prevail on the claim. (Code of Civil Procedure Section 425.16. Other further references are to this code unless indicated otherwise.)
Existing law specifies that the right to appeal is granted and governed by statute. (Code of Civil Procedure Sections 902 and 904.) Most judicial orders are not immediately appealable, but can be reviewed only as an appeal from the final judgment at the conclusion of the case. (Code Civ. Proc. § 904.1 Section 904.1; De Lao v. Superior Court (1951) 37 Cal.2d 711.)
Existing law provides that even if an order is not immediately appealable, the party may be able to obtain discretionary appellate review via an extraordinary writ petition. Writs typically allow the court of appeal to correct the error when the petitioner has no immediate right of appeal, no adequate remedy at law, and a beneficial interest in the outcome. (Sections 1068-1069, 1086, and Code Civ. Proc. § 1103.)
Existing law 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, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (Section 916.)
This bill would provide that an order granting or denying a special motion to strike shall be immediately appealable, and therefore, the perfecting of the appeal would stay proceedings in the trial court.
Sen. Judiciary Com., July 1, 1999 Report, Reg. Sess., found at leginfo.ca.gov (bold emphasis added.)
The Report goes on to state that:
According to the proponents, this bill would further the purposed of the anti-SLAPP statute 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.
The proponents contend that 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 appeal, which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP statute is useless and has failed to protect the defendant’s constitutional rights. The proponents assert that since the right of petition and free speech expressly granted by the U. S. Constitution are at issue when these motions are filed, the defendant should have the immediate right to appeal and have the matter reviewed by a higher court.
Sen. Judiciary Com., June 29, 1999 Report, Reg. Sess., found at leginfo.ca.gov
As originally introduced on March 16, 1999, A. B. 1675 included a provision that “pon the filing of such an appeal, all proceedings on any cause of action which is the subject of the appeal shall be stayed unless the plaintiff demonstrates to the appellate court probable success on the appeal and that the plaintiff will otherwise sustain irreparable injury.” (Assem. Bill No. 1675 (199-2000 Reg, Sess. As introduced March 16, 1999.) However, this provision, which suggested some kind of discretionary stay, was deleted when the bill was amended in the Senate on June 6, 1999. Sen. Amend, to Assem. Bill No. 1675 (1999-000 Reg. Sess.) June 6, 1999.
When interpreting the anti-SLAPP statute, this Court has always reviewed the legislative history to confirm that its interpretation of the statutory language is consistent with the Legislature’s intent, even when the language was so clear that no review of the legislative history was strictly necessary. See Jarrow, supra, 31 Cal.4th at 736 et seq; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59 et seq; Briggs v. Eden Council of Hope & Opportunity (1999) 19 Cal.4th at 1119. The Varian court’s holding that appeal of an order denying an anti-SLAPP motion does not result in an automatic stay is directly contrary to the intention of the Legislature expressed in the legislative history: “an order granting or denying a special motion to strike shall be immediately appealable, …therefore, the perfecting of the appeal would stay proceedings in the trial court.” Sen. Judiciary Com., July 1, 1999 Report, Reg. Sess.
The Varian opinion restates the established rule of appellate procedure that an appeal stays trail court proceedings that “’would have any impact on the “effectiveness” of the appeal. ‘” (In re Marriage of Varner (1998) 68 Cal.App.4th 932, 936, quoting Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629; see slip opn. P. 35.) The Varian court asserted that appeal of the denial of an anti-SLAPP order does not stay trial “because it would have no direct impact on an appeal from the order,” since if plaintiff prevails at trial “an appeal becomes moot” and that if defendant wins at trial, the only relevant issue becomes on of attorney's fees. However, it isprecisely the possibility that the "appeal becomes moot" that requires the automaticstay to go into effect. The purpose of the automatic stay rule is:
to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile.... Accordingly, whether a matter is "embraced" in or "affected" by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the "effectiveness" of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted.
Elsea, supra 4 Cal.app.4th at 629.
Allowing trial court proceedings to continue pending an appeal of the denial of an anti-SLAPP motion "has an impact on the 'effectiveness' of the appeal." If the trial results in a verdict for the plaintiff, the appeal is rendered moot. If the verdict is a win for defendant, then the appeal of the denial is mot as well (though arguably an attorneys fee recovery might be an issue).
This is precisely why an appeal of the denial of an anti-SLAPP order must automatically stay the action. The purpose of the anti-SLAPP procedure is to screen out meritless lawsuits at an early stage. If the trial court erroneously denies the motion to strike and the case goes to trial, then the entire appellate proceedings becomes an enormous waste of time for both sides. The Legislature amended the Code of Civil Procedure to allow immediate appealability of an order denying an anti-SLAPP motion to ensure that a full trial does not occur prior to the determination by the Court of Appeal that the denial of the anti-SLAPP motion is correct.
The Varian court was clearly concerned about the potential for abuse of the anti-SLAPP remedy as a tool to delay a deserving plaintiff's lawsuit. However, the Legislature took this issue into account when it crafted the anti-SLAPP remedy. "The Legislature ... has provided, and California courts have recognized, substantive and procedural limitations that protect plaintiffs against overbroad application of the anti-SLAPP mechanism." Jarrow, supra, 31 Cal.4th at 740 (citation omitted).
III. If the Petition for Review is not Granted, then this Court Should Depublish Varian.
If this Court does not wish to address the other questions presented in the Petition for Review, then this Court also has the option of restoring the correct rule of law by depublishing Varian. For the reasons set forth above, Varian should not be permitted to continue as authority contrary to the correct rule set out in Mattel, so if this court does not grant the Petition for review, it should depublish Varian.
IV. Conclusion.
For the reasons set forth above, this Court should either grant the petition to review the Court of Appeal's decision in Varian, case no. S121400, or depublish the Varian opinion.
Very truly yours,
signed Cyrus Sanai"
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