[VAR & VSEA] "Dear Honorable Chief Justice George and Honorable Associate Justices:
I am writing on behalf of the California Anti-SLAPP Project (CASP) to request that the Court depublish the above opinion, pursuant to cal. rules of Court, rule 979.
CASP is a public interest organization dedicated to the eradication of SLAPP's (Strategic Lawsuits Against Public Participation) in California. CASP was founded in 1991. In 1991 and 1992, CASP worked very closely with the office of then-Senator Bill Lockyer, the author of the bills which eventually enacted the California anti-SLAPP law, Code of Civil Procedure section 425.16 (Stats. 1992, c. 726), to secure support for that legislation.
Since then, CASP has monitored the implementation of the anti-SLAPP law in California courts, has assisted SLAPP targets and attorneys with the use of the law, and has worked with the California Legislature to improve it. CASP maintains a web site at www.casp.net. In 1997, CASP led a coalition that successfully worked for enactment of an amendment to the anti-SLAPP law, clarifying that the law is to be "construed broadly" and to overturn the narrow construction of the law in several court of appeal opinions. (Stats. 1997, c. 271.)
Most significantly for this letter, in 1999, CASP led a coalition that successfully worked for an additional amendment to the anti-SLAPP law, making the grant or denial of a special motion to strike an appealable order. (AB 1675 (Kuehl), enacting Stats. 1999, c. 960.) I helped write that amendment. In 2002, CASP was actively involved in the drafting of and securing support for SB 789 (Kuehl), which was passed by the Legislature but vetoed by the Governor. Substantially the same bill was passed again by the Legislature last year as SB 515 and was signed by the Governor. (Stats. 2003, c. 338.) It added a new section to the Code of Civil Procedure, section 425.17, creating certain exemptions to section 425.16.
I am CASP's founder and director, was lead counsel for the successful defendant and respondent in Briggs v. Eden Council for Hope and Opportunity (1999)19 Cal.4th 1106, the first opinion by this Court arising under the anti-SLAPP law, and have also prevailed in three other published opinions under the anti-SLAPP law. My anti-SLAPP/First Amendment expertise has been recognized in four court of appeal opinions. In its most recent opinion arising from section 425.16, this Court cited a SLAPP handbook which was co-written by me as evidence regarding the legislative history of section 425.16 (Jarrow Formulas v. LaMarche (2003) 31 Cal.4th 728, 742, fn. 6) I am on the board of the national SLAPP Resource Center.
In its opinion in this case, the Court of Appeal held that the appellants’ appeal of the denial of their special motions to strike did not automatically stay the trial on the merits “because it would have no direct impact on an appeal from the order.” (Varian Medical Systems v. Delfino (2003) 113 Cal.App.4th 273, 310.) On this point, the Varian opinion conflicts with an opinion of the Second District in Mattel, Inc. v. Luce, Forward, Hamilton, & Scripps (2002) 99 Cal.App.4th 1179, 1189-1190, which held that the trial court proceedings were automatically stayed by the filing of an anti-SLAPP appeal.
The Varian court’s ruling on this issue is inconsistent with the intent and purpose of AB 1675, and undermines section 425.16, for the reasons discussed in appellants’ petition for review at pages 13-17. I won’t repeat that analysis here, except to emphasize that the Court’s ruling that such an appeal does not automatically stay all related proceedings in the trial court seriously undermines the purpose and utility of the immediate appeal.
The Varian opinion relies heavily on Reed v. Superior Court (2001) 92 Cal.App.4th 448, 453, which held that “an appeal from an order” which is “ ‘unquestionably collateral to the merits of the case’ “ (in Reed, an order regarding disqualification of counsel) “does not automatically stay the trail proceedings relating to the merits.” (Varian, supra at pp. 355-56.) However, Reed’s rationale does not apply to appeals of section 425.16 motions, because the appeal of the denial of an anti-SLAPP motion is not collateral to the merits of the case, but rather directly involves the merits of the challenged cause(s) of action. As Mattel properly held, “The special motion to strike was directed to the only cause of action asserted, malicious prosecution, and challenged its legal viability. This is also the focus of the appeal. It follows that the appeal embraces the entirety of the action and the automatic stay is triggered.” (Mattel, supra at p. 1190.)
The Varian court’s interpretation appears to be a classic case of bad facts making bad law. Indeed, appellants’ counsel felt constrained to acknowledge, in their petition for review, that appellants “have said some awful things on the Internet, often offensive and occasionally vile.” (Petition for review, p. 5; see also pp. 2 and 7.) In addition, appellants litigated this case for more than a year and a half before filing their anti-SLAPP motions. (Varian, supra, at p. 308.) In my experience, Varian is not factually or procedurally typical of cases where section 425.16 is invoked. Therefore, it appears most appropriate to depublish this opinion. This would remove the conflict with the Mattel opinion, which articulated the proper rule on this issue.
I was personally involved in the drafting of the original language in AB 1675, which (inter alia) would have created specific conditions for the appellate stay to apply under section 425.16, and in the decision to amend the bill in the Senate to delete this conditional stay provision. As reflected in the Senate Judiciary Committee’s bill analysis of AB 1675, the purpose of the amendment deleting the conditional stay language was to insure that the automatic stay on appeal in Code of Civil Procedure section 916 would apply to appeals of the grant or denial of a special motion to strike. (Sen. Com. On Judiciary, Analysis of AB 1675 (1999-2000 Reg. Sess.) as amended May 28, 1999, for hr. June 29, 1999, p. 3, quoted in appellant’s petition for review at p. 14.) Thus, the automatic stay extends to any discovery or trail or other trial court proceedings on the causes of action challenged by the special motion to strike (which I have referred to herein as “related proceedings”), once the order on that motion has been appealed.
The Senate Committee analysis of AB 1675 makes clear that the purpose of providing for an immediate appeal of an order denying an anti-SLAPP motion was so that defendants would not have to unnecessarily incur th costs of litigating a meritless SLAPP in the trial court:
According to the proponents, this bill would further the purpose 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 proponent 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.
(Id. at pp. 3-4.) By holding that the automatic stay does not apply to the appeal of the denial of an anti-SLAPP motion, Varian forces upon SLAPP defendants the very evil which the Legislature sought to prevent with AB 1675 – unnecessary litigation in the trial court. The unnecessary litigation will first be over whether a stay should be imposed, pending appeal. Then, if the trial court (which already denied the anti-SLAPP motion) denies a stay, defendants will be forced into further litigation on the merits in the trial court, and/or litigation in the court of appeal over whether there should be a stay.
Varian argued in the Court of Appeal that the legislative history of the 1999 (and 2003) amendments to section 425.16 are irrelevant, because the question of whether trial court proceedings are automatically stayed by an appeal of a section 425.16 motion is determined by section 916 of the Code of Civil Procedure, not by section 425.16. However, in reality this question is determined by the interplay between sections 916 and 425.16. The purpose and history of section 425.16 and its amendments are critical for determining whether, for purposes of the stay under section 916, trial court proceedings on the merits are embraced or affected by the appeal of a section 425.16 motion, or whether the appeal merely involves a matter which is collateral to the merits of the case. As the legislative history of AB 1675 indicates, it was the Legislature’s understanding, when it enacted the right to immediate appeal of orders denying section 425.16 motions, that the related trial court proceedings are embraced or affected by such an appeal, and it was the Legislature’s intent that the related trial court proceedings be stayed by such an appeal.
The legislative history of SB 515, which added section 425.17 to the Code of Civil Procedure as of January 1, 2004, also indicates that this was the Legislature’s understanding and intent. The purpose of this enactment, as set forth in section 425.17, subdivision (a), is to prevent abuse of the anti-SLAPP law. To this end, it establishes two exemptions to section 425.16, contained in subdivisions (b) and (c) of section 425.17, for certain public interest litigation and certain lawsuits arising from commercial speech.
Significantly, subdivision (e) of section 425.17 provides that when a special motion to strike is denied based on an exemption in subdivision (b) or (c), the immediate appeal provisions in section 425.16, subdivision (j), and section 904.1, subdivision (a)(13), do not apply. The reason for this is that one of the evils that section 425.17 was designed to correct was that the filing of a meritless appeal from the denial of a meritless special motion to strike in these cases would unfairly delay trial court proceedings, because of the automatic stay in section 916.
The Senate Judiciary Committee analysis of SB 515 makes the statuatory appeal stay in section 916 inapplicable to causes of action made exempt from section 425.16 by section 425.17:
Existing law provides that an order denying a special motion strike is appealable to the court of appeal. (Section 425.16(j).) Existing law generally 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. (Section 916.) …
This bill would make those stay and appeals provisions inapplicable when a trial court denies a special motion to strike on the grounds that a cause of action is exempt pursuant to this bill.
(Senate Com. On Judiciary, Analysis of SB 515 (2003-2004 Reg. Sess.) as amended May 1, 2003, for hg. May 6, 2003, p. 3; underlined emphasis in original; a copy of this bill analysis was attached as Exhibit A to CASP’s amicus letter in support of appellants’ petition for rehearing, dated December 2, 2003, and filed December 15, 2003, which is part of the Court of Appeal record, and copies of which were also sent to this Court.)
This Senate Judiciary Committee bill analysis explains that the purpose of making the immediate appeal inapplicable when the exemptions in subdivision (b) or (c) applied was to eliminate abuse of the automatic stay under section 916 in such cases:
As to nullifying the right to an immediate appeal in these cases, CAOC [sponsor of SB 515] asserts that current law is being used by defendants to unreasonably delay a case from being heard on the merits, thus adding litigation costs and making it more cumbersome for plaintiffs to pursue legitimate claims. ... The filing of the meritless SLAPP motion by the defendant, even if denied by the court, is instantly appealable, which allows the defendant to continue its unlawful practice for up to two years, the time of appeal.
SB 515 would make the right to an immediate appeal inapplicable to SLAPP motions that are denied by the trial court based upon one of new grounds. ...
In SB 1651 [a predecessor to SB 515], CAOC had asserted that Section 916's mandatory stay of proceedings is severely damaging to a plaintiff's case, and that the mandatory stay creates an incentive for a defendant to file a meritless special motion and then appeal a denial, because the process ensures a delay of at least two years in the court's hearing of the claim. In the meantime, costs are incurred, discovery is stalled and critical evidence can be lost or destroyed. ... Even if the plaintiff prevails on appeal, and the motion is denied, the passage of time may have irreparably damaged the plaintiff's case.
(Id. at pp. 11-12 [bracketed explanations have been added].)
The Assembly Judiciary Committee's analysis of SB 515 makes a similar point:
Generally the anti-SLAPP statute provides that an order granting or denying a special motion to strike is immediately appealable. In order to prevent the appeal process from frustrating the intent to prevent improper delay of actions in which the anti-SLAPP procedure is inappropriate, this bill provides that the denial of a special motion to strike because of an exemption does not trigger the anti-SLAPP appeal provisions.
(Assembly Com. on Judiciary, Analysis of SB 515 (2003-2004 reg. Sess.) as amended June 27, 2003, for hg. July 1, 2003, p. 8; a copy of this bill analysis was attached as Exhibit B to CASP's letter in support of appellant's petition for rehearing.
As the history of SB 515 indicates, when the Legislature has been persuaded that there are appropriate policy reasons to make the automatic stay in section 916 inapplicable to section 425.16 proceedings, it has taken action to do so. It is not the role of the courts to add additional exemptions.
This history is clearly consistent with the Mattel opinion and with CASP's and the appellants' understanding of the purpose and legislative history of AB 1675, as discussed above and in appellants' petition for rehearing. It is inconsistent with Varian's conclusion that the appeal of the denial of a special motion to strike does not automatically stay related proceedings in the trial court.
Thank you for your attention to this matter.
Sincerely,
signed Mark Goldowitz"
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