[VAR & VSEA] "REPLY TO ANSWER TO PETITION FOR WRIT OF SUPERSEDEAS
INTRODUCTION
Those of us who do appellate work sometimes forget how nasty it can get in the trenches of trial practice. This writ proceeding is a reminder.
Having reduced Delfino and Day to penury, Varian now seeks to have them jailed immediately through enforcement of a judgment we contend is void and unenforceable, before this court has a chance to decide whether we are right. Varian has also seized a few hundred dollars from each of Day’s teenaged daughters and refuses to return the money.
But the outrageousness of Varian’s conduct is not really the point. The point is that the judgment Varian seeks to enforce is void and unenforceable – a point made compellingly in the Opening Brief On The Merits, about which Varian’s opposition to supersedeas has nothing to say. That is why supersedeas should issue – to prevent the immediate incarceration of Delfino and Day through enforcement of a judgment subsequently determined to be void.
I.
ALL CONDITIONS ARE PRESENT FOR DISCRETIONARY SUPERSEDEAS BY THIS COURT.
As Varian points out, the case law elucidates five conditions for discretionary issuance of a writ of supersedeas: (1) the petitioner first sought a stay from the trial court (unless there is an unusual emergency); (2) the petitioner could be irreparably injured without supersedeas; (3) supersedeas will not unduly prejudice the respondent; (4) supersedeas will help to preserve the appellate court’s jurisdiction; and (5) the petitioner has raised substantial questions on the appeal. (Nuckolls v. Bank of California, Nat. Assn. (1936) 7 Cal.2d 574, 577-578; In re Marriage of Dover (1971) 15 Cal.App.3d 675, 679; Deepwell Homeowners’ Protective Assn. v. City Council (1965) 239 Cal.App.2d 63, 67; see Opposition to Petition for Writ of Supersedeas (Oppo.), pp. 21-22, 24-25.) All five conditions are present here.
A. Delfino and Day sought a stay from the trial court.
Varian claims Delfino and Day failed to seek a stay from the trial court before requesting supersedeas from this court. (Oppo., pp. 3, 21.) That is untrue. On March 8, 2004, Delfino and Day each filed declarations in the trial court urging a stay of the judgment upon this court’s grant of review. (Exh. 38, p. 476; exh. 39, p. 479.) Delfino even attached to his declaration a copy of his appellate counsel’s March 3, 2004 letter to Varian’s counsel stating that “any further efforts to enforce the trial court judgment are inappropriate.” (Exh. 39, p. 479; see exh. 33, p. 447.)
Thus, Delfino and Day, despite their lack of representation in the superior court, managed quite plainly to request the stay below. Varian’s counsel certainly understood this request, arguing in response that this court’s grant of review did not reinstate the Court of Appeal’s stay and thus the only remedy available to Delfino and Day, absent an appeal bond, was “through the issuance of a stay or writ of supersedeas by the Supreme Court.” (Exh. 36, p. 463.) Varian’s counsel virtually invited this writ petition without further ado below.
In any event, even if Delfino and Day had not first requested the stay below, such omission would have been excused by an “unusual emergency” (Nuckolls v. Bank of California, Nat. Assn., supra, 7 Cal.2d at p. 577) – the threat of their incarceration upon the imminent contempt proceeding.
B. Without supersedeas, Delfino and Day could be irreparably injured by incarceration.
Varian says that if Delfino and Day “are truly ‘indigent’ [citation] as they claim, it is difficult to understand how they will be irreparably harmed by enforcement of the judgment.” (Oppo., pp. 22-23; see also oppo., pp. 2-4.) But Varian’s goal – which its opposition to supersedeas does not disclaim – is not so much to collect money from Delfino and Day as to have them jailed for contempt in failing to produce paper securities that they swear do not exist.1/ That was the point of the contempt proceeding scheduled for March 29, 2004, now stayed by this court. With all their assets depleted, there is nothing left for Varian to take from Delfino and Day except their personal liberty. Jail is what Varian sought two years ago, before the Court of Appeal issued its writ of supersedeas, and jail is what Varian still wants.
Jail is irreparable injury.
There is also another threat of irreparable injury here – relentless harassment. Varian has retained two of California’s largest and priciest law firms to pursue Delfino and Day – targeting worthless (and exempt) household goods, unmarketable securities, and bank accounts containing just a few hundred dollars – in an enforcement effort the cost of which surely exceeds the collected amount by several orders of magnitude. Evidently Varian’s budget for this case is unlimited, bearing no relation to the amount of money collectible. One can only wonder what Varian’s collections counsel will try next if supersedeas does not issue.
1/ Varian complains that Delfino and Day failed to comply with the trial court's order to file statements under oath attesting to the absence of paper securities (oppo. p. 16), but the truth is that Delfino and Day ultimately filed those statements, albeit belatedly (see exh. 40, pp. 481-484).
C. Supersedeas will not harm Varian because Delfino and Day are indigent.
Varian claims it will be harmed by supersedeas because of the purported danger that Delfino and Day “will conceal assets” during the pendency of review. But there are no assets left to conceal. Relentless collection efforts by the likes of Pillsbury Winthrop LLP have produced nothing but a few hundred dollars from Tria and Tessa Day. That is why Varian has targeted worthless household goods and unmarketable securities.
D. Supersedeas will help to protect this court’s jurisdiction by preventing enforcement of the judgment before this court can determine whether the judgment is void.
Supersedeas will help to protect this court’s jurisdiction in deciding the question on review – whether an anti-SLAPP appeal stays trial court proceedings. If the answer is yes, then the stay makes Varian’s money judgment void and unenforceable for lack of subject matter jurisdiction. (See Opening Brief On The Merits (OBOM), pp. 14-17; exh. 50, pp. 534-537.) And if the judgment is void, then it determined nothing and does not support Varian’s argument that the judgment should be enforced without delay because Delfino and Day have been adjudicated to be tortfeasors. (See oppo., pp. 1, 4.)
Absent supersedeas, Varian could enforce the trial court judgment – which in the present context could only mean jail for contempt and other continued harassment – before this court could decide whether the judgment is enforceable. Supersedeas will ensure the efficacy of a decision that the judgment is unenforceable.
E. Delfino and Day have raised substantial questions on review.
The final condition for supersedeas is a showing that “substantial questions will be raised upon the appeal.” (Deepwell Homeowners’ Protective Assn. v. City Council, supra, 239 Cal.App.2d at p. 67.) Delfino and Day made that showing in their Opening Brief On The Merits, filed simultaneously with the supersedeas petition.
Varian has not responded on the merits of the questions raised. Instead, Varian argues that (1) this court decided those questions in 2000 by denying review of a previous Court of Appeal order refusing to stay trial pending the anti-SLAPP appeal, and (2) the anti-SLAPP motions were untimely because they were not filed within 60 days after service of Varian’s initial complaint. (Oppo., pp. 1, 25.) Neither point is correct. Denial of review is not an expression on the merits of the issues presented (Trope v. Katz (1985) 11 Cal.4th 274, 287, fn. 1), which this court will decide on the present grant of review. And the issue whether the anti-SLAPP motions were untimely is not before this court – the court having denied Varian’s request for review of that issue – so that their timeliness remains established by case law stating that an anti-SLAPP motion may be filed within 60 days after service of an amended complaint. (See Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 313-315; Lam v. Ngo (2001) 91 Cal.App.4th 832, 835.)
Our arguments on the merits of the issue presented for review – summarized in the writ petition and fully developed in the Opening Brief On The Merits – stand unrebutted by Varian’s opposition to supersedeas. Those arguments, in conjunction with the threat of incarceration, present a compelling case for supersedeas.
II.
SUPERSEDEAS ALSO LIES TO ENFORCE THE COURT OF APPEAL’S WRIT OF SUPERSEDEAS.
This writ petition also raises an interesting procedural question: Does a grant of Supreme Court review on fewer than all the issues presented supersede the Court of Appeal’s opinion on the remaining issues pending the Supreme Court’s decision? We believe the answer is yes – and we next explain why. However, this question need not be decided if this court agrees that discretionary supersedeas should issue for the reasons asserted above.
Rule 976(d) of the California Rules of Court says that “no opinion superseded by a grant of review, rehearing, or other action shall be published” unless the Supreme Court orders otherwise. Thus, rule 976(d) states the general proposition that a grant of review depublishes the Court of Appeal’s opinion. The expressly-stated premise of rule 976(d) is that the grant of review supersedes the Court of Appeal’s opinion. The rule says nothing to suggest what Varian urges – a special rule of partial supersession where this court grants review on fewer than all the issues presented. (See oppo., pp. 18-20.)
Rule 29.3(c) of the California Rules of Court indicates there is no such rule of partial supersession. Rule 29.3(c) states that if this court “decides fewer than all the issues presented by the case, the Supreme Court may remand the cause to a Court of Appeal for decision on any remaining issues.” If a partial grant of review did not supersede the Court of Appeal’s decision on the remaining issues pending the Supreme Court’s decision, then rule 29.3(c)’s authorization for remand on the remaining issues would be unnecessary, for those issues already will have been decided. Instead, rule 29.3(c) enables a decision on remaining issues after a partial grant of review, which can only be necessary because the partial grant supersedes the Court of Appeal’s decision on the remaining issues unless and until the Supreme Court remands for decision on those issues or orders publication of the Court of Appeal’s opinion under rule 976(d).
Varian quotes the following language in Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, footnote 12: “We need not address portions of the [Court of Appeal’s] opinion as to which the parties did not seek review, and the Court of Appeal’s opinion remains determinative on those matters.” (See oppo., p. 20.) The quotation, however, is taken out of context. In that case, the Supreme Court ordered publication of the Court of Appeal’s opinion on the remaining issues not decided on review. (Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc., supra, 43 Cal.3d at p. 709.) That publication order is why the Supreme Court observed that the Court of Appeal’s opinion would remain determinative as to those issues – not because of some sort of rule of partial supersession.
It makes sense that a partial grant of review fully supersedes the Court of Appeal’s opinion unless and until remand under rule 29.3(c) or a publication order under rule 976(d), because it is not always appropriate for the Court of Appeal’s decision on the remaining issues to take effect pending Supreme Court review. The Supreme Court’s decision on the issue presented could dispose of the entire litigation, so that pronouncements by the Court of Appeal on the remaining issues would be dicta. Or, as here, the Supreme Court could determine that the trial court judgment is void, so that the Court of Appeal’s decision on the remaining issues is likewise void. (See OBOM, p. 18; exh. 50, p. 538.)
Thus, the rule of Knouse v. Nimocks (1937) 8 Cal.2d 482, 483-484 – that a Court of Appeal opinion is entirely superseded when the Supreme Court takes the case – is still good law even under the post-Knouse process of partial review. That means the grant of review in this case wholly supersedes the Court of Appeal’s opinion, including the portion vacating the Court of Appeal’s writ of supersedeas, so that the writ has been reinstated and should be enforced by this court.
III.
VARIAN STILL REFUSES TO RETURN THE MONEY SEIZED FROM TRIA AND TESSA DAY.
The primary purpose of this supersedeas petition is to keep Delfino and Day out of jail until this court can determine whether the judgment Varian seeks to enforce is void and unenforceable. We also, however, seek return of the small sum of money Varian has taken from Day’s daughters, Tria and Tessa.
By letter dated March 18, 2004, we asked Varian to return the girls’ money. (Exh. 46, p. 499.) Varian’s collections counsel responded with a letter in which he denied levying on deposit accounts held in the names of family members and asserted a lack of “evidence that anything amiss has occurred.” (Exh. 47, p. 501.) Counsel said, however, that “f a mistake has been made” it will be “promptly rectified.” (Ibid.)
But time was of the essence. The contempt hearing was imminent, leaving us precious few days to prepare the supersedeas petition and no time to continue jousting with Varian’s collections counsel. We therefore filed the supersedeas petition, which includes all the evidence needed to show that, indeed, “a mistake has been made.” (See exhs. 42-45.)
Despite this evidentiary showing, Varian still refuses to return the girls’ money. Varian’s opposition to supersedeas denies everything – that the copies of Tria’s and Tessa’s bank account records (exh. 42) are true and correct (oppo., p. 5), that Varian took all the money from these accounts (oppo., p. 11), and the truth of the girls’ declarations describing how they earned the money (ibid.). According to Varian, the girls are liars. Varian even denies the patently undeniable: that we filed the Opening Brief On The Merits simultaneously with the writ petition. (Oppo., p. 5.)
Varian insists that the girls must seek relief in the trial court. (Oppo., p. 26.) Yet Varian’s opposition to supersedeas also implies that Varian might be willing to resolve the matter “informally” and “without the involvement of the court.” (Oppo., pp. 2, 26.)
Accordingly, on April 2, 2004, we commenced an email exchange with Varian’s collections counsel, proposing the return of the girls’ money based on the evidence presented in the writ petition. (Appendix, p. 1.) 2/ Counsel responded with a new demand for yet more evidence in the form of “account documentation,” saying Varian will not return the money unless we first provide “account statements, cancelled checks and deposit records” and then wait for Varian to “check the information contained in the declarations filed in support of the writ against the account documentation with respect to the two accounts[s] claimed to hold Ms. Day’s childrens’ funds.” (Appendix, p. 2.) We responded by expressing concern that there was not enough time for us to amass all that documentation and for Varian to “check” it before the filing deadline for this Reply. (Appendix, p. 3.)
After three days of silence, Varian replied on the afternoon of April 5, 2004, with some remarkable propositions: (1) “there are no accounts in the name of Tria and Tessa” (appendix, p. 4) – exhibit 42 plainly shows otherwise; (2) the matter might be resolvable “if you were to get the account documentation to us today” (ibid.) – a physical impossibility; (3) the California Supreme Court lacks “jurisdiction over any dispute related to the scope of the Wells Fargo Bank levies” (ibid.) – never mind Code of Civil Procedure section 923; and (4) an “unpublished case” indicates the documents are “relevant” (appendix, p. 10; see also p. 2) – surely counsel knows that unpublished cases are not citeable. And all this high-priced lawyering over $1,074.82!
Welcome to the trenches. This email exchange exemplifies the larger pattern of prevarication and abuse that makes supersedeas necessary here. Varian has made its position clear: it will deny, demand and delay until forced by court order to return the girls’ money.
2/ A copy of the complete email exchange is attached as an Appendix to this reply.
CONCLUSION
For the foregoing reasons, we ask that this court grant relief as prayed in the writ petition and that the order granting supersedeas include an award of petitioners’ costs (which we anticipate will be approximately $1,400).
Respectfully submitted,
HORVITZ & LEVY LLP
Jon B. Eisenberg
Jeremy B. Rosen"
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