[VAR & VSEA]"PETITION FOR REHEARING
INTRODUCTION
This petition for rehearing is filed for two reasons: (1) to urge the court to reconsider its ruling on the issue whether the pendancy of an anti-SLAPP appeal stays trial of the action while the appeal is pending; and (2) to call the court's attention to omissions and misstatements of issues and facts in the court's opinion (see Cal. Rules of Court, rule 28(c)(2)).
DISCUSSION
I.
THIS COURT SHOULD RECONSIDER ITS JURISDICTIONAL RULING IN LIGHT OF LEGISLATIVE HISTORY, ESTABLISHED RULES OF APPELLATE PROCEDURE, AND THE PURPOSE OF THE ANTI-SLAPP STATUTE.
A. The Legislature has expressed its intent that trial be stayed by an anti-SLAPP appeal.
The legislative history of the anti-SLAPP statute includes express indications of legislative intent that, pursuant to the appellate stay provisions of Code of Civil Procedure section 916, trial is to be stayed during the pendency of an anti-SLAPP appeal.
A Senate Judiciary Committee report on Assembly Bill 1675, the 1999 statutory amendment that created the right of appeal from an anti-SLAPP order, plainly states: "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." (Senate Com. on Judiciary, analysis of A.B. No. 1675 (1999-2000 Reg. Sess.) as amended May 28, 1999, hg. date June 29, 1999, p. 3, italics added [hereinfter Judiciary Com. Rep.]; see Motion for Judicial Notice filed simultaneously with this petition, exh. A [hereafter Motion].)
Similarly, a Senate Rules Committee report on Assembly Bill 1675 cites Code of Civil Procedure sectiom 916 and explains that "the perfecting of the appeal would stay proceedings in the trial court." (Sen. Rules Com., Off. Of Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended July 12, 1999, p. 2 [hereafter Rules Com. Rep.]; see Motion, exh. B.)
The intent that trial be stayed by appeal is also reflected in the drafting history of Assemblly Bill 1675. As originally introduced on March 16, 1999, the bill 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 (1999-2000 Reg. Sess.) as introduced March 16, 1999, italics omitted; see Motion, exh. C.) Shortly thereafter, an Assembly committee analysis observed that this provision “appears to add a redundant burden, first imposed at the trial court level…to demonstrate to the appellate court a ‘probable success on appeal’ as well as requiring the plaintiff to demonstrate irreparable injury in order to stay the action while the appellate court reviews the appeal.” (Assem. Republican Bill Analysis, Judiciary Com., analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as introduced March 16, 1999, italics added; see Motion, Exh. D.) The provision was deleted when the bill was amended in the Senate on July 6, 1999. (Sen, Amend, to Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended July 12, 1999; see Motion, exh. E.)
After the bill’s author prepared amendments deleting the express stay provisions, but before the deletion occurred, the Senate Judiciary Committee report, which stated that it “reflects [the] author’s amendments to be offered in Committee,” advised that “the perfecting of the appeal would stay proceedings in the trial court.” (Judiciary Com. Rep., supra, p. 3.) Subsequently, after the deletion occurred, the Senate Rules Committee report reiterated that, pursuant to Code of Civil Procedure, section 916, trial proceedings would be stayed by appeal. (Rules Com. Rep., supra, p. 2.)
This drafting history is significant in two respects. First, it confirms the Legislature intended for trial to be stayed, by showing that the Legislature considered it “redundant” to require a separate anti-SLAPP showing on appeal in order to stay trial. Second, it confirms the Legislature intended for the stay of trial to be automatic. By showing that the Legislature rejected language that would have vested the appellate courts with discretion to decide whether trial should be stayed. Plainly, the Legislature intended that the stay of trial is automatic, and not within the discretion of the appellate courts as this court thought. (see typed opn., p. 36.)
B. Because an appeal stays trial court proceedings that could affect the "effectiveness" of the appeal, an anti-SLAPP appeal necessarily stays trial because it could moot the appeal by precluding any "effectual" relief.
This court’s opinion restates the established rule of appellate procedure that an appeal stays trial court proceedings that “’would have any impact on the “effectiveness” of the appeal.’” (In re Marriage of Varner (1998) 68 Cal.App.4th 932, 938, quoting Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629; see typed opn., p. 35.) The opinion concludes that an appeal from an anti-SLAPP order does not stay trial “because it would have no direct impact on an appeal from the order,” explaining that, among other things, if plaintiffs prevail at trial “an appeal becomes moot.” (Typed opn., p. 36)
But the threat of mootness is precisely why trial is stayed. A corollary rule of appellate procedure defines a mooting event as one that makes it impossible for the appellate court to grant the appellant “any effectual relief.” (Giles v. Horn (2002) 100 Cal.App.4th 206, 227, internal quotation marks omitted.) That definition places mooting events squarely within the scope of an appellate stay, because the stay extends to trial court proceedings that would have an impact on the “effectiveness” of the appeal.
The standards for determining mootness and the scope of an appellate stay are identical. Both look to impact on the effectiveness of an appeal. If trial during the pendency of an appeal could moot the appeal by precluding the pendency of an anti-SLAPP appeal – then such trial would have an impact the effectiveness of the appeal and is within the scope of the appellate stay prescribed by Code of Civil Procedure section 916.
C. The purpose of the anti-SLAPP statute would be thwarted by permitting a SLAPP plantiff to burden the victim with trial costs during the pendancy of the appeal.
To permit trial during an anti-SLAPP appeal would burden the victim of a SLAPP suit with continuing trial costs during the pendency of the appeal. According to the 1999 legislative committee reports, that is precisely what the right of an appeal from an anti-SLAPP order was intended to prevent: “Without this ability [to appeal immediately], a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated.” (Judiciary Com. Rep., supra, p. 3; Rules Com. Rep., supra, p. 5.)
The purpose of a SLAPP suit is not to win on the merits, but to chill the exercise of constitutional rights by overwhelming the victim with burdensome litigation costs. (Judiciary Com. Rep., supra, p. 1; Rules Com. Rep., supra, p. 3.) The anti-SLAPP statute is intended to prevent such abuse of the judicial process. (Code Civ. Proc., § 415.16, subd. (a).) That legislative goal would be thwarted by burdening the defendant with the costs of trial during the pendency of an anti-SLAPP appeal. Moreover, without a stay of trial, the plaintiff would be able to impose this burden even if the trial court granted the anti-SLAPP motion, simply by appealing the anti-SLAPP order since the appeal would automatically stay the order (see Code Civ. Proc., § 916) but not a trial.
II.
THE OPINION CONTAINS MISSTATEMENTS AND OMISSIONS OF FACTS AND ISSUES.
A. The opinion contains misstatements of fact regarding message-board postings by persons other than defendants.
The court's opinion includes the following statements of fact regarding the nature of Internet message board postings by persons other than defendants:
. "With rare exceptions, the messages on the Yahoo! Board that were posted by persons other than defendants concerned the price of the stock and related issues such as, 'My broker sees Varian dropping to 35 before the breakup...,' and 'Does anybody know how much the profit sharing is this year.'"
. "Defendants' messages stood out from the messages authored by other people. Compared to the other postings, defendants' postings were especially vituperative personal attacks. If there were other postings on the boards they were more like Defendants’ postings, they were not part of the record.” (Typed opn., p. 9, italics added.)
In fact, as noted at pages 7-8 of Appellants’ Opening Brief, the record is replete with postings by other persons that were very much like defendants’ postings. These postings included frequent vituperative personal attacks on Delfino and Day – even death threats. (See AA 621-666, 1405-1469.) For example:
. “You will stop posting b**lsh*t messages about you being sued by Varian…[¶] You will place a loaded large caliber pistol in your mouth and pull the trigger.” (3 AA 621; see AOB 7.)
. “Hey, Mikey! Look behind you! [¶] HEE! HEE! Made ya’ look. I know you’re hearing footsteps all the time, seeing shadows move out of the corner of your eye, feeling things crawling on you…. When they finally strap on the funny white coat and haul you away, I hope I don’t hurt myself cheering and clapping. And you’d better hope that the authorities don’t find out about all that porn on your computer, or you may end up gibbering inside of a Federal prison.” (3 AA 666; see AOB 7-8.)
. “Mikey is going to DIE real soon,” “I heard Mikey will have a hard time appealing his case after he’s DEAD,” and “I arranged for you to have a visitor….[¶] Don’t say I didn’t warn you.” (7 AA 1411, 1417, 1433; see AOB8.)
Such postings by others, having nothing to do with "the price of the stock and related issues" (typed opn., p. 3), were hardly "rare exceptions" (ibid., but were daily occurrences-which merit reconsideration of the issue whether "defendants' postings were not...typical anonymous and outrageous postings." (Typed opn., 9.)
B. The opinion omits to address prior restraint issues.
The opinion does not address whether portions of the trial court's injunction [ geocities.com ] other than paragraphs 1,3, and 6 are unconstitutional prior restraints because, purportedly, only those three paragraphs include prohibitions of "future speech" within the scope of appellants' challenge to the injunction. (Typed opn., p. 23.)
In fact, paragraphs 2, 4, and 5 of the injunction also prohibit future speech, including the following:
". [A}ny written statement that uses any play on James Fair's name (including, but not limited to, "Fairy") to suggest that he is homosexual." (4 AA 892 [injunction paragraph 2].)
. The use of certain peoples' names "in an alias or part of an alias...." (4 AA 893 [injunction paragraph 4}.)
. Any "impersonat[ion]" of certain people. (Ibid.)
. Any use of the names of specified Varian entities "as all or part of an alias, on the Internet or elsewhere...." (4 AA 893 [injunction paragraph 5].)
These parts of the injunction should be addressed because they, too, prohibit future speech. They, too, are within the scope of appellants' assertion that the injunction is an unconstitutional prior restraint. They, too, are proscribed by this court's holding that the injunction's provisions are unconstitutional to the extent they "prohibit publications based upon their content and do not purport to limit that regulation in terms of time, place, or manner." (Typed opn., p. 29.)
C. The opinion omits the fact that plaintiffs' counsel claimed distribution of defendants' book [ mobeta.com ] would violate a court order.
On defendants' motion for an adjudication of contempt, the opinion omits the most important fact underlying the motion: that the letter from plaintiffs' counsel to Barnes&Noble.com asked for the bookseller's cooperation in preventing the distribution of defamatory material that "will violate a court order." That fact, which demonstrates that the letter did not "simply serve as notice...that the book contained defamation" (Typed opn., p.39) but also misrepresented the status of the stayed trial court judgment, was the basis for defendants' assertion of contempt by 'falsely pretending to act under authority of an order or process of the court." (Code Civ. Proc., § 1209, subd. (a)(4).)
CONCLUSION
For the foregoing reasons, we respectfully request this court to (1) reconsider its ruling on the issue whether the pendancy of an anti-SLAPP appeal stays trial of the action while the appeal is pending, and (2) rectify the factual misstatements and omissions in the court's opinion and address issues omitted from the opinion.
Dated: November 24, 2003
Respectfully submitted,
HORVITZ & LEVY LLP
Jon B. Eisenberg
Jeremy B. Rosen
By signed Jon B. Eisenberg
Attorneys for Defendants and Appellants
MICHELANGELO DELFINO and MARY E. DAY"
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