[VAR & VSEA] Technicality Has Libel Verdict in Danger
An anti-SLAPP appeal was pending for two research scientists beign sued by ex-employers when the trial began.
By Craig Anderson
Daily Journal Staff Writer
"SAN JOSE —The precedent-setting libel verdict against two research scientists who waged a long campaign of invective on Internet message boards against their old bosses is suddenly in jeopardy – on a legal technicality.
The California Supreme Court granted a petition Wednesday by Michelangelo Delfino and Mary Day to review last year’s 6th District Court of Appeal ruling upholding a $775,000 jury verdict against them. The pair’s former employer, Varian Medical Systems, had sued them for defamation.
The court’s decision to grant the petition has nothing to do with the merits of the case – or with the question of where free-speech rights stop and defamation starts on freewheeling Internet message boards. Varian Medical Systems v. Delfino, S121400.
Instead, the justices were interested in whether the lower courts erred in allowing the trial to go forward while the plaintiffs appealed the denial of their motion to declare the litigation a strategic lawsuit against public participation, a SLAPP.
”If we prevail, then the entire judgment is gone for lack of jurisdiction,” said Jon Eisenberg, a Horvitz & Levy partner in Oakland who represents Delfino and Day. “They would have to retry the case.”
Delfino and Day moved in 2000 to get the lawsuit declared a SLAPP before the trial. Conrad Rushing, who now sits on the 6th DCA but was a Santa Clara County Superior Court judge at the time, rejected the motion and allowed the trial to proceed. Delfino and Day’s attorneys appealed, but the trial went forward anyway.
Eisenberg argued that was clear error, because all appeals must be exhausted before a trial begins.
”You can’t go to trial while an appeal is pending,” he said. “It doesn’t matter whether or not the appeal would have succeeded.”
He cited the case of Mattel Inc. v. Luce Forward Hamilton & Scripps, 99 Cal.App 4th 1179, in which the 2nd District Court of Appeal ruled a trial must await resolution of the defendant’s anti-SLAPP motion. That appellate panel subsequently affirmed the trail court’s denial of the motion.
Matthew Poppe, an attorney with Orrick Herrington & Sutcliffe who represents Varian, played down the significance of the court’s order. He said overturning the entire verdict and ordering a retrial, as defendants are requesting, is “pretty unlikely outcome.”
Poppe predicted the Supreme Court would be reluctant to overturn the results of a seven-week jury trial on a legal technicality when Delfino and Day have never persuaded any court of the merits of their anti-SLAPP motion.
”It’s sort of a form of harmless error,” he said.
He added Delfino and Day were late in filing their anti-SLAPP motion. “it’s supposed to be filed 60 days after the lawsuit,” Poppe said. “In this case, it was filed a year and a half afterward.”
Poppe speculated that the justices might want to “set the record straight” and clear up any confusion between the appellate rulings in Mattel and Varian.
Eisenberg remained confident the state Supreme Court will overturn the 6th District ruling, which he said has left courts and litigants uncertain over whether trials can proceed even while anti-SLAPP appeals are pending."
San Francisco Daily Journal (MAR 4, 2004)
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