[VAR & VSEA] Amicus Curiae in California Supreme Court
"Honorable Chief Justice George and Associate Justices:
I write pursuant to Rule 979 of the California Rules of Court, to urge depublication of the opinion in Varian Medical Systems, Inc. v. Delfino, Sixth District Court of Appeal Case Number H024214, decided November 13, 2003, modified December 12, 2003, and, as modified, reported at 113 Cal.App.4th 273.
I am a member of the State Bar of California who regularly litigates [both prosecuting and defending] anti-SLAPP motions brought pursuant to §425.16 of the Code of Civil Procedure. See, for example, (Second Dist., 1994) 27 Cal.App.4th 309 [33 Cal.Rptr.2d 446], the first published decision under §425.16, wherein I was counsel for Petitioner Wilcox; and ComputerXpress, Inc. v. Jackson (Fourth Dist., 2001) 93 Cal.App.4th 993 [113 Cal.Rptr.2d 625].
I direct my comments here primarily to Section IV E of the opinion, where the Court of Appeal [thereby parting ways with Second District Court of Appeal, which held directly to the contrary in Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (Second Dist., 2002) 99 Cal.App.4th 1179 [121 Cal.Rptr.2d 794]], holds that a defendant’s appeal from an order denying a special motion to strike made pursuant to §425.16 [an anti-SLAPP motion] does not automatically stay trial court proceedings in the action pursuant to §916(a) of the Code of Civil Procedure, which provides , in pertinent part:
”[T]he perfecting of an appeal stays proceedings in the trial court u0pon 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 motion and not affected by the judgment or order”
As plainly appears, the continued conduct of the trial court action is, indeed, “affected by” the appeal from the denial of the anti-SLAPP motion, since upon the outcome of that appeal hinges the answer to the question of whether the trial court may properly proceed at all.
It is respectfully submitted that in its zeal to avoid the possibility that unscrupulous defendants, using the say afforded by the plain language of §916, “could misuse the motions to delay meritorious litigation or for other purely strategic purposes” [113 Cal.App.4th 310-311], the Court of Appeal has altered what should have been its primary focus, i.e., the intent of the Legislature, which is precisely to avoid imposing upon defendants subjected to SLAPP suits the expense and other hardship and inconvenience which attend the necessity of defending against those suits.
In ruling as it did, of course, the Sixth District has not only subjected the defendant whose anti-SLAPP suit has been wrongly denied to the expense and attendant disadvantages of defending, but has done so in a context where the defendant will have no remedy at all for the expenses incurred in consequence of what all-too-often turns out to be the mistaken denial of his anti-SLAPP motion. This is so because:
1. While it is true that the ultimately successful defendant may be able to recover his attorneys fees for the prosecution of the motion and appeal pursuant to §425.16(c), that provision, as now generally understood and applied, does not permit him to recover anything other than the expense of his anti-SLAPP motion. Thus §425.16(c) provides to the defendant required to litigate the underlying action, perhaps for years, while his appeal is pending, no compensation whatever for the expenses incurred in the ongoing trial court proceedings.
2. Furthermore, under this Court’s decision Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 [123 Cal.Rptr.2d 19], the defendant whose anti-SLAPP motions was wrongly denied by the trial court in the first instance will [in most cases] be unable to recover those ongoing trail court expenses through the vehicle of an ensuing malicious prosecution action.
In short, a defendant whose anti-SLAPP motion is wrongfully denied will, at least in terms of freedom from unwarranted SLAPP litigation, be in little or no better position than would have obtained had the anti-SLAPP statute not existed at all. That can hardly be what the Legislature had in mind when, in 1999, it amended §425.16 to enlarge the rights available to SLAPP victims by, among other thins, making such an order appealable – something which it did presumptively cognizant of the existence, terms, and application of §916. [See, in this regard, the letter requesting depublication directed to this Court by the California Anti-SLAPP Project.]
[In this connection, of course, it is not only the defendant, but also the plaintiff, who may be subjected to wasted and unrecoverable litigation expense under the Varian holding. This is so because if the appeal is decided in the defendant’s favor prior to the rendition of judgment in the ongoing case, that case will then be dismissed with absolutely no prospect that the plaintiff may recover his pointless litigation expenditures in the interim.]
The resulting waste of both party and judicial resources cannot be justified.
While one can readily appreciate the view of the Sixth District that litigants such as those before it [who did not bring their anti-SLAPP motion until some one and one-half years after the litigation had commenced] ideally should not benefit from the automatic stay, this would seem to be a classic case of “bad facts make bad law.” While it well may be that the Legislature upon reflection, may wish to address any perceived potential for strategic exploitation of §916’s application, the fact is that the Legislature – whose exclusive province this is – has elected to permit appeals of orders entered pursuant to §425.16 to be controlled by the general law, here §916. Clearly, operation of the Legislative choice should not be "trumped" by "policy" considerations determined, sub silentio, by the Sixth District to outweigh the policy decisions which animated the actions and choices of the Legislature.
In summary: The Second District in Mattel, Inc. v. Luce, Forward, Hamilton & Scripps had it right, for which reason it is respectfully submitted that the contrary opinion in Varian should be depublished, thereby avoiding [or at least delaying] the day when this already overburdened court would otherwise be called upon to devote its resources to resolving the "split authority" created by the decision in Varian.
Very truly yours,
LAW OFFICES OF YVONNE M. RENFREW
signed YVONNE M. RENFREW"
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