Does an anti-SLAPP appeal stay the action?

anti-SLAPP appeal stay

Does an anti-SLAPP appeal stay the entire action?

Seemingly, this question has been clearly answered ever since the Supreme Court ruling in Varian Medical Systems v. Delfino, way back in 2005, but I still see a lot of confusion on the topic.

As an example, I recently prevailed on an anti-SLAPP motion against an attorney, who was representing herself in a defamation action against my client. After the victory, as is my practice, I asked her if she wanted to pay the current attorney fees in order to avoid the extra expense of the motion for attorney fees.**

She chortled, “You can’t bring a motion for attorney fees, because I filed a notice of appeal regarding the ruling on the motion.”

After I prevailed on my motion for attorney fees, as is my practice, I called counsel to ask if she wanted to pay the (now greater) fees in order to avoid the extra fees for my time spent on collection, and the embarrassment of having her wages garnished at her law firm. (Yes, unlike typical collection efforts, the time spent on collecting attorney fees following an anti-SLAPP motion is recoverable.)

She chortled (what can I say? She’s a chortling fool), “You can’t seek to recover those attorney fees while an appeal is pending.”

We are currently receiving 25% of each of her paychecks while we await a date for oral argument on the appeal.

Allow me to take you through the Varian Medical Systems decision, because it lays out a good summary of the historical background on this point. These are the facts as summarized by the Supreme Court.

Appeals from Anti-SLAPP motions.

Defendants and appellants Michelangelo Delfino and Mary Day were former employees of Varian Medical Systems (“Varian”). Varian fired Delfino for allegedly harassing certain coworkers. Two months later, Day resigned in sympathy. (I guess it took awhile for the sympathy to kick in.)

After leaving Varian, Delfino and Day allegedly began posting numerous derogatory messages about Varian and other employees of Varian (“plaintiffs”) on the Internet. In response, plaintiffs filed an action against Delfino, alleging numerous federal and state causes of action.

Plaintiffs later filed a third amended complaint, alleging seven causes of action*** predicated on defendants’ Internet postings about plaintiffs. Each defendant then filed, for the first time, a special motion to strike plaintiffs’ complaint. The trial court denied the motions, finding that: (1) the motions were untimely; (2) plaintiffs’ causes of action did “not arise from ‘any act … in furtherance of [the] right of petition or free speech under the United States or California Constitution in connection with a public issue;’ ” and (3) plaintiffs demonstrated a “probability they will prevail on their claims.” That’s about as complete as loss as you can get.

Defendants appealed. Delfino also filed an ex parte application with the trial court and a petition for writ of supersedeas with the Court of Appeal, seeking to stay further trial court proceedings pending resolution of the appeal pursuant to section 916. The trial court denied the application, and the Court of Appeal summarily denied the petition. It also denied Delfino’s petition for review.

After a trial, the jury found defendants liable for libel, invasion of privacy (appropriation of name), breach of contract, and conspiracy, and awarded plaintiffs a total of $425,000 in compensatory damages. The jury further found that defendants acted with malice, fraud, or oppression, and awarded certain plaintiffs $350,000 in punitive damages. The trial court also issued a permanent injunction against defendants.

Following the entry of judgment, the Court of Appeal dismissed as moot defendants’ appeal from the order denying their anti-SLAPP motions. Soon after, defendants appealed the judgment. The Court of Appeal modified the injunction but affirmed in all other respects. In doing so, the court disagreed with Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, and held “that Code of Civil Procedure section 916 did not automatically stay trial of the lawsuit … and that therefore the trial court did not lack jurisdiction to conduct the trial.”

According to the court, the denial of an anti-SLAPP motion is a matter separate from the merits of the lawsuit itself, and the subsequent trial had “no direct impact on the appeal from the order” denying the motion. Thus, the courts in this case had the discretion to grant a stay but did not have to do so. Acknowledging that courts may erroneously refuse to grant a stay despite a meritorious appeal, the Court of Appeal nonetheless concluded “that the benefit of preventing such rare mistakes by automatically staying all trials pending an appeal from an order denying an anti-SLAPP motion is outweighed by the danger of encouraging meritless anti-SLAPP motions and appeals as trial strategy to simply delay the trial of meritorious cases.”

The issue presented on appeal.

The California Supreme Court granted review solely on the issue of whether “an appeal from the denial of a special motion to strike under the anti-SLAPP statute (§ 425.16) effects an automatic stay of the trial court proceedings.”

Defendants argued that an appeal from the denial of an anti-SLAPP motion automatically stays all further trial court proceedings on the merits. Plaintiffs countered that such an appeal does not effect an automatic stay of any trial court proceedings on the merits because those proceedings would have no effect on the appeal. According to plaintiffs, courts have the discretion to stay further proceedings but are not compelled to do so.

Appeal standard.

Subject to certain exceptions not relevant here, “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, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (§ 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a), “is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The automatic stay prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)

Section 916, subdivision (a) states in full: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, 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, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings “upon the matters embraced” in or “affected” by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. “[W]hether a matter is ’embraced’ in or ‘affected’ by a judgment or order within the meaning of section 916 depends on whether post-judgment or post-order proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381.) “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938 (Betz ).)

The fact that the post-judgment or post-order proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to “enforce, vacate or modify the appealed judgment or order.” (Elsea, 4 Cal.App.4th at p. 629 [“The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending”].) Or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal. (See, e.g., Hollaway v. Scripps Memorial Hosp. (1980) 111 Cal.App.3d 719, 723-724 [holding that a pending appeal precludes the trial court from issuing an order relieving the parents as plaintiff’s guardians and appointing new counsel for plaintiff because the order interferes with the conduct of the appeal].)

A trial court proceeding also affects the effectiveness of an appeal if the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable. Thus, an appeal from the denial of a motion to vacate a spousal support order precludes the trial court from terminating its jurisdiction over spousal support because the termination of jurisdiction is irreconcilable with possible outcomes on appeal. (See In re Marriage of Varner (1998) 68 Cal.App.4th932, 937.) Similarly, an appeal from an order declaring that the plaintiffs take nothing by way of deficiency after a judicial foreclosure precludes the trial court from setting aside the foreclosure, because it would permit the plaintiffs to recover a deficiency judgment notwithstanding the appeal. (See Nelson v. Orosco (1981) 117 Cal.App.3d 73, 80.) And an appeal from a judgment on the pleadings precludes a trial court from granting leave to amend the complaint because affirmance of the judgment is irreconcilable with an order granting leave to amend. (Olson v. Superior Court (1969) 274 Cal.App.2d 311, 314.)

Finally, a proceeding affects the effectiveness of the appeal if the very purpose of the appeal is to avoid the need for that proceeding. In that situation, the proceeding itself is inherently inconsistent with a possible outcome on appeal and must therefore be stayed under section 916, subdivision (a). Thus, an appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the merits. (See Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925.)

Ancillary or collateral matters.

By contrast, an appeal does not stay proceedings on “ancillary or collateral matters which do not affect the judgment [or order] on appeal” even though the proceedings may render the appeal moot. (Betz, 16 Cal.App.4th at p. 938.) For example, the Legislature has established that certain proceedings, by law, are collateral to the merits of an appeal despite their potential effect on the appeal. Thus, the Legislature, through its enactments, has established that a motion for a new trial is collateral to the judgment and may proceed despite an appeal from the judgment. (See In re Estate of Waters (1919) 181 Cal. 584, 587 (Waters ); see also Neff v. Ernst (1957) 48 Cal.2d 628, 634.) And the language and history of the lis pendens statute establish that a proceeding to expunge a lis pendens is collateral to an appeal from the judgment in the underlying action. (See United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d377, 383-386.)

A post-judgment or post-order proceeding is also ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal. (See Horowitz, 159 Cal.App.3d at pp. 382-383 [finding no automatic stay because the result of the proceeding could have been achieved through other procedures regardless of the outcome of the appeal].) Thus, an appeal from the denial of a preliminary injunction does not stay further trial court proceedings on the merits. Because the injunction “amounts to a mere preliminary or interlocutory order to keep the subject of litigation in status quo pending the determination of the action on its merits” (Gray v. Bybee (1943) 60 Cal.App.2d 564, 571), the affirmance or reversal of its denial does not and cannot eliminate the need for additional proceedings on the merits. Section 916 therefore does not automatically stay such proceedings. (See MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623; Gray, at p. 571.) Likewise, an appeal from an order denying a motion to disqualify counsel does not automatically stay further trial court proceedings on the merits because such proceedings would occur regardless of whether the reviewing court affirms or reverses the order. (See Reed v. Superior Court (2001) 92 Cal.App.4th 448, 453-455.)

Answering the question.

With this legal background, we now turn to the issue of whether trial court proceedings on the merits following an appeal from the denial of an anti-SLAPP motion are embraced in or affected by that appeal.

We begin with the appealed order – the denial of the anti-SLAPP motion.

The Legislature enacted the anti-SLAPP statute to prevent and deter “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Because these meritless lawsuits seek to deplete “the defendant’s energy” and drain “his or her resources” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074), the Legislature sought ” ‘to prevent SLAPPs by ending them early and without great cost to the SLAPP target’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65). Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. (See Simmons, at p. 1073.) In doing so, section 425.16 seeks to limit the costs of defending against such a lawsuit. (See Equilon Enterprises, at p. 65 [noting that the “short time frame for anti-SLAPP filings and hearings” and the “stay of discovery” pending resolution of the motion evidences the Legislature’s intent to minimize the litigation costs of SLAPP targets].)

Because granting an anti-SLAPP motion results in the dismissal of a cause of action on the merits (see Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [holding that the court should grant an anti-SLAPP motion “if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim”]), an appellate reversal of an order denying such a motion may similarly result in a dismissal. Such an appellate outcome is irreconcilable with a judgment for the plaintiff on that cause of action following a proceeding on the merits. Moreover, such a proceeding is inherently inconsistent with the appeal because the appeal seeks to avoid that very proceeding. Indeed, “[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317; see also Fabre v. Walton (Mass.2002) 781 N.E.2d 780, 784 [“The protections afforded by the anti-SLAPP statute against the harassment and burdens of litigation are in large measure lost if the petitioner is forced to litigate a case to its conclusion before obtaining a definitive judgment through the appellate process”].) In this respect, an appeal from the denial of an anti-SLAPP motion is no different than an appeal from the denial of a motion to compel arbitration. (See Prudential-Bache, 201 Cal.App.3d at p. 925.)

The history of the anti-SLAPP statutes supports this conclusion that section 916 stays all further proceedings on the merits during the pendency of an appeal from the denial of an anti-SLAPP motion. In 1999, the Legislature enacted section 425.16, subdivision (j) – which makes “[a]n order granting or denying a special motion to strike … appealable under Section 904.1” – as part of Assembly Bill No. 1675 (1999-2000 Reg. Sess.). The Legislature found it necessary to enact subdivision (j) because, without the ability to appeal, a SLAPP “defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated.”

The Legislature reiterated this intent in 2003 when it enacted section 425.17– which exempted certain types of actions from the special motion to strike procedure established in section 425.16. (See Eu v. Chacon (1976) 16 Cal.3d 465, 470 [“Although a legislative expression of the intent of an earlier act is not binding upon the courts in their construction of the prior act, that expression may properly be considered together with other factors in arriving at the true legislative intent existing when the prior act was passed”].) In creating this exemption, the Legislature expressly made the denial of an anti-SLAPP motion based on the section 425.17 exemption not appealable. (§ 425.17, subd. (e).) The Legislature did so because “[e]xisting law provides that an order denying a special motion to strike is appealable to the court of appeal” and “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.” Thus, the Legislature found it necessary to render the “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” under section 425.17. In doing so, the Legislature confirmed its intent that an appeal from the denial of an anti-SLAPP motion on non-section-425.17 grounds automatically stays further trial court proceedings on the merits. See Mattel, supra, 99 Cal.App.4th 1179, 1183 (an appeal from the denial of an anti-SLAPP motion automatically stays further trial court proceedings on the merits).

But what about causes of action not affected by the motion?

To be clear, an appeal from an anti-SLAPP motion does not always stay the action. Although rare, a situation can arise where there are remaining causes of action that are not affected by the motion. In such a case, the matter can proceed on those claims while the appeal proceeds, but in most instances the court will simply stay the matter so there need be only one trial.

Take as an example, a case where the plaintiff sues for defamation and conversion, and the claims are unrelated other than as to the parties. If an anti-SLAPP motion was granted or denied as to the defamation claim, theoretically the case could still proceed on the conversion claim while the appeal on the anti-SLAPP ruling was still pending. However, I’ve never seen that occur. Better to wait for a ruling on the appeal than to run the risk of having to conduct two trials.

But note, that is not the same thing as, for example, a motion for attorney fees following a successful anti-SLAPP motion. That is merely a housekeeping matter that can proceed even while the appeal is pending.


** I don’t anticipate that the opposition will simply write me a blank check, but we can argue back and forth about the amount without having to do so in conjunction with a formal motion for attorney fee. Any rational attorney should realize that the court is going to award my attorney fees, since they are required to do so. Even if opposing counsel assumes the court will reduce my requested fees (not a good assumption historically; I am almost always awarded all my requested fees because my requests are so low), at the very least, they should ask how much I am asking for and take it from there.

*** The causes of action included: (1) unfair competition (Bus. & Prof.Code, § 17200 et seq.); (2) false advertising (Bus. & Prof.Code, § 17500 et seq.); (3) libel; (4) invasion of privacy — false light; (5) invasion of privacy — appropriation of name; (6) conspiracy; and (7) breach of contract.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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