[VAR & VSEA] California Supreme Court ANSWER BRIEF ON THE MERITS
"I. INTRODUCTION
Respondents filed this lawsuit in February 1999 to end a relentless campaign ... by petitioners Michelangelo Delfino and Mary Day. ... Petitioners worked for Varian Associates, Inc. and directed obscenities, rude gestures, and ... accusations at respondents Susan Felch and other coworkers. ... in a steady stream of messages posted on Varian-related message boards. After this conduct had continued for several months, Respondents came to court seeking redress.
Petitioners have succeeded, however, in using this litigation as another tool .... They used discovery to embarass deponents and gather fodder for more message board postings. Other procedures--such as Petitioners' SLAPP motions and appeals, filed after 19 months of heavy litigation in response to Respondents' third amended complaint--were employed to drive up litigation costs and promote delay. A case that cried out for rapid resolution has now dragged on for more than five years, during which Petitioners have continued to post increasingly egregious and frightening Internet messages. These messages now number in the tens of thousands and are regularly directed not only at Respondents, but also at other Varian officers and employees, non-party witnesses, and their spouses, children, and other family members.
In this appeal, Petitioners seek to stretch out these proceedings even further by asking this Court to order a new trial based solely on an alleged procedural defect. At this point, there can be no doubt about the merits. Literally ten different judges have issued orders based on the meritorious nature of Respondents' claims.1 A 12-member jury agreed. Yet Petitioners want to throw out the results of a seven-week trial--with all the attendant burdens on respondents, the court system, and jurors--in order to repeat the exercise of trial, generate more appeals, and inflict more emotional pain on the many individuals such a ruling would affect. Respondents, on the other hand, seek finally to bring this case to a long-awaited close.
This Court should hold that the filing of an appeal from the denial of an anti-SLAPP motion does not deprive the trial court of jurisdiction to proceed with trial. It would be unjust ...
Petitioners' jurisdictional argument is based on C.C.P. §916(a),2 which provides that "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...." That provision is not applicable here because trial on the merits is not "embraced" in or "affected" by an order denying a SLAPP motion. A SLAPP motion presents a very different question than trial, such as whether the complaint arises out of certain types of protected conduct by the defendant. There is no overlap that would cause continued trial proceedings to interfere with the appellate court's jurisdiction over cause. Moreover, because an order denying a SLAPP motion is separately appealable, it is by definition, "collateral" to the main action and does not result in a broad automatic stay when appealed. Petitioners argue that an automatic stay is necessary so that trial does not moot the SLAPP appeal. Petitioners' Opening Brf., pp. 2, 5-7.) However, the only cases to consider this mootness issue--primarily in the preliminary injunction context--permit trial to go forward despite the possibility that it might moot a pending appeal.
An automatic stay also makes no policy sense. ...
1 In state court, Judges John Herlihy and Catherine Gallagher ... Judge Conrad Rushing ... Judge Neal Cabrinha ... Judge Jamie Jacobs-May ... Judge Jack Komar ... Justices Eugene Premo, Franklin Elia, and William Wunderlich ... In federal court, Judge Ronald Whyte ...
2 All statutory references in this brief are to the Code of Civil Procedure unless otherwise indicated.
II. STATEMENT OF RELEVANT FACTUAL AND PROCEDURAL HISTORY
...
Respondents commenced this action by filing a Complaint against Delfino om February 25, 1999 in Santa Clara County Superior Court ...
On April 16, 1999, Respondents filed a First Amended Complaint in federal court ...
On July 16, 1999, Respondents filed a Second Amended Complaint in federal court to add respondent Mary Day as a defendant ...
On August 21, 2000, after winning a contested motion for leave to amend, Respondents filed a Third Amended Complaint. ... Six weeks late, ... Petitioners ... filed special motions to strike the complaint pursuant to the anti-SLAPP statute. ...
... the Third Amended Complaint contained new allegations ...
On October 22, 2001, trial commenced in the Superior Court before a 12-member jury, plus alternates. ... Trial lasted seven weeks, with 26 witnesses and 266 documents in evidence. ... The trial court ruled upon dozens of motions in limine ... spent two days in chambers with counsel hammering out a detailed set of jury instructions ...addressed last minute discovery issues ... ruled on motions for nonsuit and directed verdict ... and addressed the many other matters that arise during a lengthy trial. The jury returned its verdict on December 13, 2001, after four days of deliberations. A punitive damages phase ensued, with additional testimony, argument, instruction, deliberation, and verdict. ... After further briefing and argument, a 12-page judgment was entered on February 13, 2002. ...
Respondents' sense of urgency to proceed to trial was amplified by the mounting tide of Petitioners' ... Internet messages posted throughout the litigation on a daily basis. By the time trial commenced, Petitioners admitted responsibility for over 13,000 postings, as well as additional statements on web sites they personally operated. ... not only Respondents, but also their spouses and children and every opposing declarant, witness, and attorney in this litigation. ... caused their victims to suffer great distress. ...
III. ARGUMENT
...
Section §916(a) provides that perfecting an appeal stays trial court proceedings upon the order appealed from and "the matters embraced therein or affected thereby,....but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." The question presented here is whether a trial on the merits is "embraced" in or "affected" by an order denying a SLAPP motion, such that a stay applies pending appeal ...
For a defendant to prevail on a SLAPP motion under section 425.16, ... the defendant must demonstrate that plaintiff's complaint arises from acts "in furtherance of the [defendant's] right of petition or free speech...in connection with a public issue...." (C.C.P. §425.16(b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) ...
... For example, in this case, the jury ... was not asked to decide whether Petitioners' conduct was "in furtherance of the person's right of petition or free speech" ...
Petitioners express the concern that, without an automatic stay, a SLAPP defendant with a meritorious appeal may be forced to incur cost of a lawsuit before the appeal is decided. Petitioners' Opening Brf., pp. 11-14.) ... In such instances, it can be expected that either the trial court or the appellate court will exercise its discretion to stay trial court proceedings pending the appeal. Thus, the defendant will suffer no burden at all except in the case of "rare mistakes."14 ...
It is worth noting that a reversal in this case on jurisdictional grounds would produce particularly perverse results. In the name of upholding the SLAPP statute, whose supposed purpose is to spare certain wrongly sued defendants the burden and expense of trial, the parties would be ordered to engage in two trials. ...
Section 425.16 merely provides that the denial of a SLAPP motion is appealable. (See C.C.P. §§425.16(j), 904.1(a)(13).) ...
The facts of this case illustrate why it would be ill-advised to rule that trial court proceedings are automatically stayed anytime a SLAPP is filed. ... would create boundless opportunities for mischief. ...
Petitioners violated the SLAPP statute ...
Several courts have held that a SLAPP motion may be filed within 60 days after service of an amended complaint. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 313-15; Lam v. Ngo (2001) 91 Cal.App.4th 832, 840-42.) The Yu case went so far as to allow the filing of a SLAPP motion in response to an amended complaint that did not add the allegations on which the motion was based. (Yu v. Signet Bank/Virginia, supra, 103 Cal.App.4th at 313-15.) The Yu holding is simply wrong. ...
Finally, the argument ignores the potential abuses of a rule allowing SLAPP motions in response to any amended complaint. ... The costs of permitting motions to strike any complaint far outweigh the non-existent benefits. The orderly administration of trial court proceedings should not be at the whim of a defendant with a SLAPP-happy trigger finger. ...
14 Petitioners argue that making stays discretionary will create "a potential for collateral litigation on every anti-SLAPP appeal." Petitioners' Opening Brf., pp. 13.) ...
IV. CONCLUSION
For the above reasons, this Court should affirm the Judgment of the Court of Appeal. In the alternative, this Court should remand the case to the Court of Appeal for further consideration of the issues raised herein.
Dated: April 22, 2004
Respectfully submitted,
LYNNE C. HERMLE (SBN 99779)
MATTHEW H. POPPE (SBN 177854)
ORRICK, HERRINGTON & SUTCLIFFE LLP
By: signed Matthew H. Poppe
Attorneys for Plaintiffs/Respondents
SUSAN B. FELCH, GEORGE ZDASIUK,
VARIAN MEDICAL SYSTEMS, INC., and
VARIAN SEMICONDUCTOR EQUIPMENT ASSOCIATES, INC."
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