Stanford Law School - Robert Crown Law Library

Filed 3/3/05

IN THE SUPREME COURT OF CALIFORNIA

VARIAN MEDICAL SYSTEMS,
INC., et al.,
)
Plaintiffs
and
Respondents,
S121400
v.
) Ct.App.
6
H024214
MICHELANGELO DELFINO et al.,
Santa Clara County
Defendants and Appellants.
Super. Ct. No. CV780187

Under Code of Civil Procedure section 425.16, subdivision (b)(1),1 a
defendant may move to strike any cause of action “arising from any act . . . in
furtherance of the person’s right of petition or free speech under the United States
or California Constitution in connection with a public issue . . . .” If the plaintiff
cannot demonstrate a “probability” of prevailing on that cause of action (§ 425.16,
subd. (b)(1)), then the trial court must strike the cause of action and award the
defendant attorney’s fees and costs (§ 425.16, subd. (c)). In 1999, the Legislature
made the denial of a special motion to strike under section 425.16 appealable. We
now determine whether the perfecting of an appeal from the denial of a special
motion to strike automatically stays all further trial court proceedings on the merits
upon the causes of action affected by the motion. We conclude that it does.

1
All further undesignated statutory references are to the Code of Civil
Procedure unless otherwise indicated.
1

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I.
Plaintiffs and respondents Varian Medical Systems, Inc. (Varian Medical)
and Varian Semiconductor Equipment Associates, Inc. (Varian Semiconductor)
are publicly traded companies. Varian Medical manufactures a variety of medical
products, and Varian Semiconductor manufactures equipment for use in the
semiconductor chip manufacturing process. For purposes of this action, Varian
Medical and Varian Semiconductor are the successors in interest to the original
plaintiff, Varian Associates, Inc. (Varian Associates).2 At the time of trial,
plaintiff and respondent George Zdasiuk was a vice-president of Varian Medical,
and plaintiff and respondent Susan Felch was a director at a Varian Semiconductor
research center.
Defendants and appellants Michelangelo Delfino and Mary Day are former
employees of Varian Associates. Zdasiuk fired Delfino in October 1998 for
harassing Felch and other coworkers. Two months later, Day resigned in
sympathy.
After leaving Varian Associates, Delfino and Day began posting numerous
derogatory messages about plaintiffs on the Internet. In response, plaintiffs filed
the instant action against Delfino in February 1999, alleging numerous federal and
state causes of action3 and seeking injunctive and monetary relief. Delfino then
removed the action to federal court. In federal court, plaintiffs added Day as a

2
In 1999, Varian Associates reorganized into three independent public
companies: Varian Medical, Varian Semiconductor, and Varian, Inc.
3
The original complaint alleged the following causes of action: (1) unfair
competition (Bus. & Prof. Code, § 17200 et seq.); (2) false advertising (Bus. &
Prof. Code, § 17500 et seq.); (3) libel; (4) slander per se; (5) violation of the
Lanham Act (15 U.S.C. § 1125a); (6) violation of Penal Code section 637.1; (7)
invasion of privacy—false light; (8) invasion of privacy—appropriation of name;
and (9) conspiracy.
2

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defendant in July 1999. In April 2000, the federal court granted defendants partial
summary judgment on plaintiffs’ federal claim and remanded the action back to
the superior court.
On remand, plaintiffs filed a third amended complaint in August 2000,
alleging seven causes of action predicated on defendants’ Internet postings about
plaintiffs.4 Each defendant then filed, for the first time, a special motion to strike
plaintiffs’ complaint as a strategic lawsuit against public participation (SLAPP)
under section 425.16 (the anti-SLAPP motions). 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.”
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. We 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 Zdasiuk and

4
These 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.
3

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Felch $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 (Mattel),
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 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.”
We 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.”
II.
Defendants contend an appeal from the denial of an anti-SLAPP motion
automatically stays all further trial court proceedings on the merits. Plaintiffs
counter 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
4

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appeal. According to plaintiffs, courts have the discretion to stay further
proceedings but are not compelled to do so. As explained below, we agree with
defendants.
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.”5 (§ 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
(Elsea).)
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 postjudgment [or postorder] proceedings on the matter would have any

5
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.”
5

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effect on the ‘effectiveness’ of the appeal.” (In re Marriage of Horowitz (1984)
159 Cal.App.3d 377, 381 (Horowitz).) “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 postjudgment or postorder 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.”6 (Elsea, supra, 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

6
(See, e.g., Lerner v. Superior Court (1952) 38 Cal.2d 676, 684 [holding that
an appeal from a custody order precludes the trial court from, as a practical matter,
enforcing the appealed order by permitting the father to send the child to school in
New Jersey]; Sacks v. Superior Court (1948) 31 Cal.2d 537, 540 [holding that an
appeal precludes the trial court from retrying the issues on appeal]; Williams v.
Wells Fargo Bank & Union Trust Co. (1941) 17 Cal.2d 104, 107 [holding that an
appeal precludes the trial court from executing the appealed order]; Stateler v.
Superior Court (1895) 107 Cal. 536, 539 (Stateler) [same]; Betz, supra, 16
Cal.App.4th at pp. 938-940 [holding that an appeal precludes the trial court from
vacating the appealed judgment or order]; Elsea, supra, 4 Cal.App.4th at p. 629
[same]; Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879,
890-891 [holding that an appeal precludes the trial court from issuing a subsequent
order that effectively enforces the appealed order]; Environmental Coalition of
Orange County, Inc. v. AVCO Community Developers, Inc. (1974) 40 Cal.App.3d
513, 525 [holding that an appeal from a preliminary injunction precludes the trial
court from modifying or dissolving the injunction]; Dallman v. Dallman (1958)
164 Cal.App.2d 815, 817-818 [holding that an appeal precludes the trial court
from modifying the appealed order]; Agnew v. Superior Court (1953) 118
Cal.App.2d 230, 234 (Agnew) [holding that an appeal precludes the trial court
from enforcing the appealed order].)
6

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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.4th 932, 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 (Prudential-Bache).)
7

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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, supra, 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.3d 377, 383-386 (United
Professional).)
A postjudgment or postorder 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, supra, 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 (Gray)), 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
8

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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 (Reed).)
With these principles in mind, we now consider 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 conclude they are, and
such proceedings are therefore stayed under section 916, subdivision (a).
We begin with the appealed order—the denial of an anti-SLAPP motion
under section 425.16. Section 425.16, subdivision (b)(1) provides that: “[a] cause
of action against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has established that there is
a probability that the plaintiff will prevail on the claim.”
Section 425.16, subdivision (b)(1) establishes “a two-step process for
determining” whether an action should be stricken as a SLAPP. (Navellier v.
Sletten (2002) 29 Cal.4th 82, 88.) First, the court must determine “whether the
defendant has made a threshold showing that the challenged cause of action”
arises from an act in furtherance of the right of petition or free speech in
connection with a public issue. (Ibid.) Second, the court must “determine whether
the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.) If
the defendant makes a threshold showing that the cause of action arises from an
act in furtherance of the right of petition or free speech in connection with a public
issue and the plaintiff fails to demonstrate a probability of prevailing, then the
court must strike the cause of action (§ 425.16, subd. (b)(1)) and award the
defendant “attorney’s fees and costs” (§ 425.16, subd. (c)). Section 425.16,
9

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subdivision (j) then provides that “[a]n order granting or denying a special motion
to strike shall be appealable under Section 904.1.”
The Legislature enacted section 425.16 to prevent and deter “lawsuits
[referred to as SLAPP’s] brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of
grievances.” (§ 425.16, subd. (a).) 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 a motion to strike under section 425.16 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-
10

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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 (Brar); 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, supra, 201 Cal.App.3d at p. 925.)
In reaching this conclusion, we reject plaintiffs’ analogy of an appeal from
the denial of an anti-SLAPP motion to an appeal from the denial of a preliminary
injunction (see Gray, supra, 60 Cal.App.2d at p. 571) or a motion to disqualify
counsel (see Reed, supra, 92 Cal.App.4th at pp. 453-455). Neither a motion for
preliminary injunction nor a motion to disqualify counsel resolves the merits of a
cause of action. Thus, the granting or denying of these motions is reconcilable
with any subsequent judgment on the merits. By contrast, an anti-SLAPP motion
goes “to the merits of the issues involved in the main action” (Union Oil Co. v.
Reconstruction Oil Co. (1935) 4 Cal.2d 541, 542-545) to the extent it addresses
the “probability . . . the plaintiff will prevail on the claim” (§ 425.16, subd. (b)(1)).
The granting of an anti-SLAPP motion is therefore irreconcilable with a judgment
in favor of the plaintiff. Moreover, unlike a motion to strike under section 425.16,
both a motion for a preliminary injunction and a motion to disqualify counsel
contemplate further proceedings on the merits regardless of how the trial court
resolves these motions. Thus, for purposes of section 916, an appeal from the
denial of an anti-SLAPP motion is not analogous to an appeal from the denial of a
preliminary injunction or an appeal from the denial of a motion to disqualify
counsel.
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The legislative history of the anti-SLAPP statutes makes this clear.
Contrary to plaintiffs’ assertions, this history is undoubtedly relevant to our
determination of the effect of an appeal from the denial of an anti-SLAPP motion
on further trial court proceedings on the merits. “ ‘ “The effect of an appeal from
the judgment . . . is purely a matter of statutory regulation, to be determined by a
construction of the statute under which the appeal is taken, and by the terms of
which, when clear and ambiguous, we are concluded.” ’ ” (In re Lukasik (1951)
108 Cal.App.2d 438, 444 (Lukasik), quoting Vosburg v. Vosburg (1902) 137 Cal.
493, 497.) Thus, our courts have consistently looked to such statutes and their
history for guidance in determining whether an appeal effects an automatic stay of
a trial court proceeding.7
The history of the anti-SLAPP statutes confirms our 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.” (Assem. Com. on Judiciary, conc. in Sen. amends. on Assem. Bill.
No. 1675 (1999-2000 Reg. Sess.) as amended July 12, 1999, p. 2.)

7
(See, e.g., Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091 [Code
Civ. Proc., § 206]; Waters, supra, 181 Cal. at p. 587 [Code Civ. Proc., former
§ 963]; People v. Schulz (1992) 5 Cal.App.4th 563, 571 [Pen. Code, § 1160];
United Professional, supra, 9 Cal.App.3d at pp. 384-385 [Code Civ. Proc., former
§ 409.1].)
12

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As originally introduced, Assembly Bill No. 1675 provided that “[a]n order
denying a special motion to strike shall be appealable under Section 904.1. Upon
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 Mar. 16, 1999, p. 2, italics added.) The Legislature later deleted the
conditional stay language italicized above. (See Assem. Bill No. 1675 (1999-2000
Reg. Sess.) as amended July 6, 1999, p. 2.) In analyzing the proposed deletion, the
Senate Committee on the Judiciary reported that “the perfecting of an appeal [from
an order granting or denying a special motion to strike] stays proceedings in the
trial court.” (Sen. Com. on Judiciary, analysis of Assem. Bill No. 1675 (1999-
2000 Reg. Sess.) as amended May 28, 1999, p. 3.) Following the deletion, the
Senate Rules Committee echoed this understanding in a subsequent analysis of
Assembly Bill No. 1675. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended
July 12, 1999, p. 3 [“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”].) Thus, the
Legislature, in enacting section 425.16, subdivision (j), clearly intended that the
perfecting of an appeal from the denial of an anti-SLAPP motion stay further trial
court proceedings on the merits.
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
13

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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.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as
amended July 8, 2003, p. 4.) 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. (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No.
515 (2003-2004 Reg. Sess.) as amended July 8, 2003, p. 4, italics added.) 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. Because we must follow the Legislature’s intent,
we agree with Mattel, supra, 99 Cal.App.4th 1179, and hold that an appeal from
the denial of an anti-SLAPP motion automatically stays further trial court
proceedings on the merits.8
In light of our holding today, some anti-SLAPP appeals will undoubtedly
delay litigation even though the appeal is frivolous or insubstantial. As the Court
of Appeal observed and plaintiffs contend, such a result may encourage defendants
to “misuse the [anti-SLAPP] motions to delay meritorious litigation or for other

8
Such an appeal does not, however, stay proceedings relating to causes of
action not affected by the motion.
14

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purely strategic purposes.” And “the benefit of preventing” the rare situation
where a trial court erroneously denies an anti-SLAPP motion and refuses to
automatically stay “all trials pending an appeal . . . is [arguably] outweighed by
the danger of encouraging meritless anti-SLAPP motions and appeals as a trial
strategy to simply delay the trial of meritorious cases.”
Such an assessment is, however, a question for the Legislature, and the
Legislature has already answered it. Thus, we can only minimize this danger by
encouraging our courts to resolve these motions and appeals as expeditiously as
possible. To this end, reviewing courts should dismiss frivolous appeals as soon
as practicable and do everything in their power to “ ‘prevent . . . frustration of the
relief granted.’ (Cal. Rules of Court, rule 24(b)(3).)” (Brar, supra, 115
Cal.App.4th at p. 1320.) And trial courts should not hesitate to award attorney’s
fees and costs to prevailing plaintiffs if the “special motion to strike is frivolous or
is solely intended to cause unnecessary delay.” (§ 425.16, subd. (c).) Hopefully,
these measures will somewhat reduce the risk of abuse.
III.
We now turn to the judgment in this case. Despite defendants’ appeal from
the denial of their anti-SLAPP motions, the trial court held a trial and entered a
judgment for plaintiffs. The trial, however, should have been automatically stayed
under section 916, subdivision (a). (See ante, at pp. 9-15.) Consequently, we find
that the trial court lacked subject matter jurisdiction over the matters on trial and
that the resulting judgment is therefore void.
“The principle of ‘subject matter jurisdiction’ relates to the inherent
authority of the court involved to deal with the case or matter before it.”
(Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1087.) Thus, in the
absence of subject matter jurisdiction, a trial court has no power “to hear or
determine [the] case.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d
15

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280, 288 (Abelleira).) And any judgment or order rendered by a court lacking
subject matter jurisdiction is “void on its face . . . .” (Rochin v. Pat Johnson
Manufacturing (1998) 67 Cal.App.4th 1228, 1239 (Rochin).)
Under section 916, “the trial court is divested of ” subject matter
jurisdiction over any matter embraced in or affected by the appeal during the
pendency of that appeal. (Betz, supra, 16 Cal.App.4th at p. 938.) “The effect of
the appeal is to remove the subject matter of the order from the jurisdiction of the
lower court . . . .” (Stateler, supra, 107 Cal. at p. 539.)9 Thus, “that court is

9
(See also, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1044 [“ ‘an
appeal from an order in a criminal case removes the subject matter of that order
from the jurisdiction of the trial court’ ”]; Gantner v. Gantner (1952) 38 Cal.2d
691, 692 [“The effect of an appeal is to remove the subject matter of the appeal
from the jurisdiction of the trial court”]; Lerner v. Superior Court, supra, 38
Cal.2d at p. 680 [“The loss of jurisdiction is so complete that even the consent of
the parties is ineffective to reinvest the trial court with jurisdiction over the subject
matter of appeal”]; People v. Mayne (1897) 118 Cal. 516, 522 [“By the appeal
from the order denying a new trial the subject matter of that order was removed
from the superior court, and while the appeal was pending that court had no
jurisdiction to change the order”]; Ruggles v. Superior Court (1894) 103 Cal. 125,
128 [“By the appeal the order or decree is set at large, and the subject matter
removed from the jurisdiction of the lower court, until the appeal has been
determined, and the matter remitted back from the appellate court”]; Ehret v.
Congeleum Corp. (1999) 73 Cal.App.4th 1308, 1317 [“When an appeal was filed,
the effect was to ‘ “remove[] from the jurisdiction of the superior court the subject
matter of the judgment” ’ ”]; Davis v. Thayer (1980) 113 Cal.App.3d 892, 912
[“ ‘An appeal removes from the jurisdiction of the trial court the subject matter of
the judgment or order appealed from, including all issues going to the validity or
correctness of such judgment or order’ ”]; Beresh v. Sovereign Life Ins. Co. (1979)
92 Cal.App.3d 547, 552 [“It is clear that ‘[i]n effect the appeal removed from the
jurisdiction of the superior court the subject matter of the judgment’ ”]; People v.
Mason (1960) 184 Cal.App.2d 182, 192 [“ ‘The effect of an appeal is to remove
from the jurisdiction of the trial court the subject matter of the judgment or order
appealed from’ ”]; People v. Blume (1960) 183 Cal.App.2d 474, 477 [“An appeal
removes the subject matter thereof from the jurisdiction of the trial court”];
Agnew, supra, 118 Cal.App.2d at p. 234 [“The effect of an appeal is to remove

(footnote continued on next page)
16

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without power to proceed further as to any matter embraced therein until the
appeal is determined.” (Ibid.; see also 2 Witkin, Cal. Procedure (4th ed. 1997)
Jurisdiction, § 319, p. 893 [“when the cause is taken over by a reviewing court on
appeal or other proceeding in review, the trial court is divested of jurisdiction of
the subject matter during the period of review, and has no power to vacate or
modify the judgment or otherwise to deal with the cause”].) And any
“proceedings taken after the notice of appeal was filed are a nullity.” (Davis v.
Thayer, supra, 113 Cal.App.3d at p. 912; see also Kinard v. Jordan (1917) 175
Cal. 13, 16 [finding that the lower court order “must be deemed a nullity”].) This
is true even if the subsequent proceedings cure any purported defect in the
judgment or order appealed from. (See Sacks v. Superior Court, supra, 31 Cal.2d
at p. 541 [“ ‘after the appeal was perfected, the lower court lost jurisdiction of the
cause and could take no step to defeat appellants of the right to prosecute their
appeal with effect. . . . A recognition of any other rule would lead to uncertainty
and confusion in litigation, and in effect would enable the lower court to review its
own proceedings’ ”]; People v. Sonoqui (1934) 1 Cal.2d 364, 367 [reversing a
judgment of conviction because the trial occurred before the remittitur issued].)
Indeed, section 916, as a matter of logic and policy, divests the trial court of
jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental

(footnote continued from previous page)

from the jurisdiction of the trial court the subject matter of the judgment or order
appealed from”]; Lukasik, supra, 108 Cal.App.2d at p. 444 [same]; Danley v.
Superior Court (1923) 64 Cal.App. 594, 598 [“ ‘When the appeal was perfected
the effect thereof was to remove the subject matter of the order from the
jurisdiction of the lower court’ ”]; Colusa etc. R.R. Co. v. Superior Court (1916)
31 Cal.App. 746, 761 [“The effect of the appeal being to remove the subject
matter of the order from the jurisdiction of the lower court”].)
17

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sense. (See Abelleira, supra, 17 Cal.2d at p. 288.) The purpose of the automatic
stay under section 916 is to preserve “the status quo until the appeal is decided”
(Elsea, supra, 4 Cal.App.4th at p. 629), by maintaining “the rights of the parties in
the same condition they were before the order was made” (Wolcott v. Hudner
(1924) 67 Cal.App. 704, 707). Otherwise, the trial court could render the “appeal
futile by altering the appealed judgment or order by conducting other proceedings
that may affect it.” (Elsea, at p. 629.)
In order to preserve the status quo and return the parties to “the same
condition they were before the order was made” (Wolcott v. Hudner, supra, 67
Cal.App. at p. 707), section 916 necessarily renders any subsequent trial court
proceedings on matters “embraced” in or “affected” by the appeal void—and not
merely voidable (§ 916). A contrary conclusion would allow the trial court to
render an appeal futile. If trial court proceedings during the pendency of the
appeal are consistent with the reviewing court’s resolution of the appeal, then the
appeal is, in effect, futile because the trial court has already granted the relief that
would have been granted on appeal. And if trial court proceedings during the
pendency of the appeal conflict with the reviewing court’s resolution of the
appeal, then the appeal will likely be futile because the prevailing party, in most
instances, will have no adequate remedy left. Because “the remedy by appeal
cannot be denied to an aggrieved party dissatisfied with the judgment or the order
appealed from by an act of the trial court in the action, at the behest or on the
motion of the respondent, after an appeal has been taken and is pending”
(Durbrow v. Chesley (1913) 23 Cal.App. 627, 629, italics added), the automatic
stay under section 916 must divest the trial court of fundamental jurisdiction over
the matters embraced in or affected by the appeal (see Mulvey v. Superior Court
(1913) 22 Cal.App. 514, 516 [“ ‘Common fairness and a sense of justice readily
suggests that while plaintiffs were in good faith prosecuting their appeals, they
18

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should be in some manner protected in having the subject matter of the litigation
preserved intact until the appellate court could settle the controversy’ ”]). Indeed,
the only way to ensure that the appealing party has a remedy on appeal is to
deprive the trial court of jurisdiction in its fundamental sense.10

10
Citing article VI, section 13 of the California Constitution and People v.
Pompa-Ortiz (1980) 27 Cal.3d 519, the concurring and dissenting opinion
contends we should disregard the purpose behind Code of Civil Procedure section
916 and over a century of unequivocal case law and apply an harmless error
analysis. Neither citation, however, supports this contention.

First, article VI, section 13 has no bearing on the question of whether Code
of Civil Procedure section 916 divests the trial court of fundamental jurisdiction
over matters on appeal. Indeed, jurisdiction “ ‘over the subject matter is given by
law’ ” and “ ‘nothing but an additional grant from the legislative authority can
extend that power over a class of cases formerly excepted.’ ” (Grannis v. Superior
Court (1905) 146 Cal. 245, 255.) Here, Code of Civil Procedure section 916, as a
matter of logic, policy, and overwhelming precedent, divests the trial court of
jurisdiction over the subject matter on appeal, and article VI, section 13 does not
and cannot reconfer such jurisdiction. (See Johnson v. Superior Court (1926) 77
Cal.App. 599, 604 [holding that lack of subject matter jurisdiction cannot be cured
under the miscarriage of justice provision of the California Constitution].)
Second,
People v. Pompa-Ortiz, supra, 27 Cal.3d 519—which did not
address the scope of the automatic stay—is inapposite. Unlike the error at issue in
Pompa-Ortiz—an irregularity in the preliminary hearing procedure—which may
be forfeited (see Pen. Code, § 996), the parties cannot invest a trial court with
jurisdiction during the pendency of an appeal. (See, e.g., In re Johannes (1931)
213 Cal. 125, 131 [“But when we are dealing with the question of the jurisdiction
of the subject matter of an offense, agreement of the parties or estoppel cannot
confer it”].) Moreover, the situation in Pompa-Ortiz is hardly analogous. In
Pompa-Ortiz, the defendant could have avoided the error by seeking writ review.
If the defendant had done so, the matter could have been “expeditiously returned
to the magistrate for proceedings free of the charged defects.” (Pompa-Ortiz, at
p. 529.) And even if the defendant had prevailed by writ, he could still have been
tried and convicted. (See Pen. Code, § 999 [“An order to set aside an indictment
or information . . . is no bar to a future prosecution for the same offense”].) By
contrast, in this case, defendants, by promptly appealing, did everything they
could to avoid the subsequent trial. And defendants, unlike the defendant in
Pompa-Ortiz, would have avoided the trial that subsequently occurred if they had
prevailed on appeal.

(footnote continued on next page)
19

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In this case, defendants’ anti-SLAPP motions encompassed all of plaintiffs’
causes of action. As such, all of the matters on trial were embraced in and affected
by defendants’ appeal from the denial of that motion (see ante, at pp. 9-15), and
the trial court lacked subject matter jurisdiction over these matters (see Betz,
supra, 16 Cal.App.4th at p. 938). Because the court lacked subject matter
jurisdiction over the matters on trial, the judgment in this case is “void on its
face . . . .” (Rochin, supra, 67 Cal.App.4th at p. 1239.) “When, as here, there is
an appeal from a void judgment, the reviewing court’s jurisdiction is limited to
reversing the trial court’s void acts.” (Griset v. Fair Political Practices Com.
(2001) 25 Cal.4th 688, 701 (Griset).) We therefore reverse the judgment in its
entirety.
Plaintiffs do not dispute that the trial court lacked subject matter
jurisdiction over the matters on trial if the trial should have been automatically
stayed under section 916, subdivision (a). Plaintiffs also do not dispute that the

(footnote continued from previous page)

In any event, the precedent overruled in Pompa-Ortiz is far different than
the precedents at issue here. In Pompa-Ortiz, we overruled a 20-year-old decision
that had erroneously construed the word jurisdiction to mean jurisdiction in its
fundamental sense. (See People v. Elliott (1960) 54 Cal.2d 498.) By contrast, the
concurring and dissenting opinion proposes to overrule several decisions including
a 70-year-old decision from this court. And, unlike the lone precedent at issue in
Pompa-Ortiz, the many California decisions construing the scope of the automatic
stay have consistently and unequivocally referred to the trial court’s lack of
subject matter jurisdiction—and not just its lack of jurisdiction. Where, as here,
numerous “precedent[s] applying authoritative, settled statutory construction that
ha[ve] been central to the analysis and holdings of these decisions” exist and the
Legislature has done nothing, “[t]he principles underlying the doctrine of stare
decisis apply with special force” and it would be inappropriate “to overrule or
disapprove” these precedents. (Barner v. Leeds (2000) 24 Cal.4th 676, 685, fn. 2.)

20

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judgment is void if the trial court lacked subject matter jurisdiction over the
matters on trial. Instead, plaintiffs contend the court may affirm on other grounds.
We do not, however, find these alternative grounds persuasive.
First, plaintiffs contend an untimely anti-SLAPP motion is not appealable
despite section 425.16, subdivision (j), and therefore does not invoke the
automatic stay provision of section 916, subdivision (a). (See Central Savings
Bank of Oakland v. Lake (1927) 201 Cal. 438, 442.) But we have long held that
even a void judgment or order is appealable if that judgment or order is otherwise
appealable. (Ewing v. Richvale Land Co. (1917) 176 Cal. 152, 154; see also
Griset, supra, 25 Cal.4th at p. 701 [implicitly recognizing that a void judgment is
appealable].) We see no reason to deviate from this principle where, as here, the
order is unquestionably appealable with no apparent exceptions. (See § 425.16,
subd. (j).)
Second, plaintiffs contend the Court of Appeal’s summary denial of
defendants’ earlier petition for writ of supersedeas seeking a stay pending appeal
is law of the case and requires affirmance. Recognizing that we previously held
that “a summary denial of a writ petition” should “not be given law of the case
effect” (Kowis v. Howard (1992) 3 Cal.4th 888, 897), plaintiffs propose an
exception to this rule in cases where, as here, the defendant argued that the court
had no discretion to deny relief. We have, however, rejected such an exception in
the past because it would hamper judicial economy (id. at p. 898), and see no
reason to reconsider it here. Leone v. Medical Board (2000) 22 Cal.4th 660, does
not compel a different conclusion. In Leone, we held that “an appellate court must
judge [a writ] petition on its procedural and substantive merits” if the “petition
was the only authorized mode of appellate review.” (Id. at p. 670.) An appellate
court need not do so, however, if the ruling “could also be reviewed on appeal
from the judgment ultimately entered in the action.” (Ibid.) As evidenced by this
21

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appeal, the trial court’s and Court of Appeal’s refusals to stay proceedings pending
appeal could be reviewed on an appeal from the judgment. Leone is therefore
inapposite. Accordingly, we find the judgment void and reverse the judgment of
the Court of Appeal.11
DISPOSITION
We reverse the judgment of the Court of Appeal with instructions to
remand the case for a new trial in accordance with our opinion.12
BROWN, J.
WE CONCUR:

KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.

11
The Court of Appeal dismissed defendants’ appeal from the denial of their
anti-SLAPP motions following the trial. In this appeal, defendants do not
challenge this dismissal or the trial court’s order denying the motions.
12
Following our grant of review, defendants filed a petition for writ of
supersedeas, seeking to stay enforcement of the judgment. Because we reverse the
judgment of the Court of Appeal, we now dismiss the petition as moot.
22

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CONCURRING AND DISSENTING OPINION BY GEORGE, C.J.
I agree with the majority’s conclusion that the trial court erred in
proceeding with the trial in this matter while an appeal from the denial of
defendant’s anti-SLAPP (strategic lawsuit against public participation) motion
(Code of Civ. Proc., § 425.16) still was pending in the Court of Appeal, but I
believe the error should be found harmless and thus, unlike the majority, I would
affirm the judgment.
There can be little question but that, under the circumstances of this case, a
reversal of the trial court’s judgment and a remand for a new trial would serve no
legitimate purpose. The trial court’s error — going forward with the trial while its
pretrial ruling on defendants’ anti-SLAPP motion still was on appeal — did not
affect the actual trial of the case, the jury’s verdict, or the content of the judgment
in any respect whatsoever. All that will be accomplished by a reversal is the
wasting of considerable time, effort, and resources.
The California Constitution provides that “[n]o judgment shall be set
aside . . . in any cause . . . for any error as to any matter of procedure, unless, after
an examination of the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13.) By statute, trial court error provides a ground for reversal
only if it affects “the substantial rights of the parties.” (Code Civ. Proc., § 475.)
No judgment may be reversed on the basis of an error or defect in the proceedings
unless “a different result would have been probable if such error . . . or defect had
1

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not occurred or existed.” (Ibid.) In the present case, it is undisputed that the error
complained of — the failure of both the trial court and the Court of Appeal to stay
proceedings pending appeal of the denial of defendant’s anti-SLAPP motion —
did not result in a miscarriage of justice.
Cases cited in the majority opinion contain language indicating that a trial
court lacks subject matter jurisdiction pending an appeal, but most of these cases
were decided in the procedural context of a petition that sought an extraordinary
writ to prohibit the trial court from conducting further proceedings pending an
appeal. (See maj. opn., ante, at pp. 15-17 & fn. 9.) But, as this court has
observed, the term “jurisdiction,” which is used in a variety of situations, “has so
many different meanings that no single statement can be entirely satisfactory as a
definition.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287.)
Most of the cases relied upon by the majority employ the language of fundamental
jurisdiction but were decided in a context that did not require reference to
jurisdiction in the fundamental sense, as opposed to jurisdiction in the broader
sense used in the context of writ proceedings.
There have been a few cases, procedurally analogous to the present one, in
which a judgment after trial was reversed because a prior appeal was pending at
the time of trial, based on the theory that the trial court lacked fundamental
jurisdiction pending the appeal. (See, e.g., People v. Sonoqui (1934) 1 Cal.2d 364
[after the defendants’ motion for a new trial was granted, the defendants were
retried and convicted while the People’s appeal of the decision on the new trial
motion was still pending; convictions reversed]; People v. Owens (1945) 71
Cal.App.2d 831 [pending the People’s appeal from the trial court’s postconviction
order granting the defendant’s motion for an arrested judgment, the defendant was
tried on new information; convictions reversed]; Rosenburg v. Bullard (1934) 2
Cal.App.2d 118 [pending the plaintiff’s appeal from order granting the defendant’s
2

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motion to set aside default judgment, case was tried and judgment was entered for
the plaintiff; judgment reversed].) These cases applied the principle that the trial
court lacked jurisdiction pending the appeal, but did not address the question of
whether reversal of such a judgment after trial in this context was in fact consistent
with the California Constitution’s provision prohibiting reversal absent a
miscarriage of justice. In each of these cases, a criminal conviction or civil
judgment was reversed even though there clearly was no miscarriage of justice —
the trial in each case was not affected in any way by the trial court’s error in going
forward during the pendency of the appeal. Indeed, in these cases, it was not the
party who took the pretrial appeal who benefited from the characterization of the
trial court proceedings as lacking in subject matter jurisdiction. Under these
authorities, if defendants rather than plaintiffs had prevailed after trial in the
present case, plaintiffs would be entitled to reversal of the judgment on the theory
that the trial court lacked subject matter jurisdiction to enter it, even though it
would be obvious that plaintiffs had suffered no harm. In short, I see no
justification for the anomalous results reached in these few cases and would
overrule or disapprove them.
In other contexts, this court has not hesitated to overrule or disapprove
earlier California decisions that applied a rule of automatic reversal without giving
due consideration to the California Constitution’s requirement that no judgment be
set aside absent a miscarriage of justice. (See, e.g., People v. Braxton (2004) 34
Cal.4th 798 [trial court’s failure to rule on a motion for new trial is subject to
harmless error analysis], overruling People v. Sarazzawski (1945) 27 Cal.2d 7;
Soule v. General Motors Corp. (1994) 8 Cal.4th 548 [no category of instructional
error in civil cases requires automatic reversal], overruling and disapproving
contrary implications in prior decisions; People v. Cahill (1993) 5 Cal.4th 478,
509-510, fn. 17 [holding that the erroneous admission of an involuntary confession
3

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is subject to harmless error analysis under the California Constitution], overruling
a line of inconsistent cases.)
We faced an issue analogous to the one presented here, in the context of the
previously well-settled rule that denial of a substantial right at the preliminary
hearing in a criminal case rendered the ensuing commitment illegal and entitled
the defendant to have the information set aside on timely motion. (See, e.g.,
People v. Napthaly (1895) 105 Cal. 641, 644-645.) The defendant may seek writ
relief to compel the setting aside of an information before trial on the ground that,
because of substantial error at the preliminary hearing, his or her commitment for
trial was illegal. (See, e.g., Jennings v. Superior Court (1967) 66 Cal.2d 867, 880-
881.) Applying reasoning very similar to that embraced in the majority opinion in
the present case, we held in People v. Elliot (1960) 54 Cal.2d 498, that the denial
of a substantial right at the preliminary hearing required reversal of a subsequent
conviction without a showing of prejudice. The theory behind this automatic
reversal rule was that “where the accused is not legally committed within the
meaning of section 995 of the Penal Code, the commitment is voidable. Upon
proper objection, the superior court has no jurisdiction to proceed.” (Greenberg v.
Superior Court (1942) 19 Cal.2d 319, italics added.)
Subsequently, however, this court reconsidered and rejected the per se
reversal rule that had been adopted in People v. Elliot. (People v. Pompa-Ortiz
(1980) 27 Cal.3d 519, 528-530.) We explained in Pompa-Ortiz that the “source of
the difficulty in Elliot is the uncritical use of the term ‘jurisdiction’ when assessing
the effect of an illegal commitment on the trial in superior court.” (Id. at p. 528.)
“The presence of a jurisdictional defect which would entitle a defendant to a writ
of prohibition prior to trial does not necessarily deprive a trial court of the legal
power to try the case if prohibition is not sought.” (Id. at p. 529.) We concluded
that irregularities in preliminary hearing procedures that are not jurisdictional in
4

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the fundamental sense must be reviewed, after trial, under the appropriate standard
of prejudicial error. Although the holding in Pompa-Ortiz is not directly
applicable here, that decision demonstrates that we should not uncritically apply
jurisdictional language from writ cases when considering whether an error requires
reversal on appeal from a final judgment.
We have acknowledged that an exception may be made to the general rule
that an error does not require reversal absent a showing of prejudice when the
error involves a structural defect in the conduct of the proceedings that results in
an unfair trial or “defies evaluation for harmlessness.” (Soule v. General Motors
Corp., supra, 8 Cal.4th at p. 579; People v. Cahill, supra, 5 Cal.4th at p. 501.)
Although an actual absence of jurisdiction in the fundamental sense would be the
type of fundamental defect that constitutes a miscarriage of justice and requires
reversal, the trial court’s lack of jurisdiction pending an appeal of a pretrial order
is not comparable to the type of jurisdictional problem that is properly
characterized as an absence of jurisdiction in its fundamental sense. In
Abelleira v. District Court of Appeal, supra, 17 Cal.2d at page 289, we described
lack of jurisdiction “in its most fundamental sense” as “an entire absence of power
to hear or determine the case, an absence of authority over the subject matter or
the parties.” As examples of lack of jurisdiction “in its most fundamental or strict
sense,” we noted that a state court has no jurisdiction to (1) determine title to land
outside its borders; (2) adjudicate the marital status of persons when neither is
domiciled within the state; (3) render a personal judgment against one not
personally served with process within its borders; or (4) determine a case where
the type of proceeding or amount in controversy is beyond the jurisdiction defined
for that particular court by statute or constitutional provision. (Ibid.)
In these examples, the absence of jurisdiction is complete. In such
circumstances, it is impossible for a reviewing court to conclude that “a different
5

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result would have been probable if such error . . . or defect had not occurred or
existed.” (Code Civ. Proc., § 475.) If a trial court proceeds to issue a judgment
even though it lacks fundamental jurisdiction over a party or the subject matter
(such as a piece of property or a marriage that exists outside the state), a different
result would be inevitable if the error had not occurred, because in the absence of
error the case would have been dismissed.
The temporary absence of jurisdiction in a trial court while an appeal is
pending is not comparable to these examples of the absence of fundamental
jurisdiction. Rather, it is more consistent with the description in Abelleira of the
broader meaning of lack of jurisdiction that justifies writ review, in which the trial
court lacks only the power “to act without the occurrence of certain procedural
prerequisites.” (Abelleira v. District Court of Appeal, supra, 17 Cal.2d at pp. 289-
290.) The procedural prerequisite that was lacking in the case before us was a
resolution of the pending appeal, which would permit the trial court properly to go
forward with the trial. Unlike the situation in which fundamental jurisdiction is
lacking, the absence of jurisdiction in this case was only temporary and only
partial. Once the appeal on the motion is resolved, the trial court regains
jurisdiction to try the case. Under Code of Civil Procedure section 916, the trial
court was not completely divested of jurisdiction over the case, and still could
conduct proceedings in collateral matters that did not affect the appeal. The trial
court (and the Court of Appeal as well) simply made an error in determining
whether or not trial of the case was a proceeding that was affected by or embraced
in the pending appeal, within the meaning of section 916.1

1
As the majority notes, plaintiffs do not rely on the theory that the trial court
did not lack fundamental jurisdiction in the sense described in Abelleira. The
parties’ failure to advance this position, however, does not preclude us from

(footnote continued on next page)
6

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Although it may be conceivable that, under some circumstances, the
conduct of proceedings in the trial court pending an appeal might constitute such a
fundamental defect in the proceedings that automatic reversal is required, that is
not the case where, as here, the case is tried pending the appeal of a pretrial order
and the pretrial order is ultimately upheld. In this situation, the reviewing court
readily can ascertain that the error had no effect on the outcome of the case and
that the result would have been the same even if the error had not occurred and the
trial had been stayed until after the resolution of the appeal.
Contrary to the majority’s conclusion, I do not believe that requiring
automatic reversal is necessary or effective to ensure a party’s right to preserve the
status quo pending an appeal, any more than automatic reversal is necessary to
preserve other legal rights, including constitutional rights, that are subject to
harmless error analysis. (See, e.g., People v. Cahill, supra, 5 Cal.4th at pp. 506-
507 [rejecting the argument that the erroneous admission of an involuntary
confession requires automatic reversal in order to deter improper law enforcement
conduct].) To recognize the possibility that an error may be deemed harmless
does not transform a trial court’s erroneous action into a correct one, nor does it
encourage trial courts to act unlawfully. If the trial court correctly interprets and
follows the mandate of Code of Civil Procedure section 916, the status quo will be
maintained until the appeal is resolved. If the trial court does not understand or
follow the law, the appellate court has the authority to protect the appealing

(footnote continued from previous page)

upholding the judgment. This court is not bound by the parties’ concessions on
issues of law. (Desny v. Wilder (1956) 46 Cal.2d 715, 729.)
7

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party’s interests, as well as its own power to act pending an appeal, by issuing a
writ to require the trial court to comply with section 916.
In the presumably rare instance in which both the trial court and the
appellate court misunderstand or fail to enforce the law, and proceedings continue
to judgment despite a pending appeal, the appellate court must examine all the
circumstances to determine whether the failure to stay the trial was prejudicial. If
the judgment is tainted by the trial court’s erroneous actions, reversal of the
judgment would be appropriate and consistent with California Constitution, article
VI, section 13.2 Reversing a judgment that ultimately was not affected by the
pending appeal, however, does not further the interests of justice in any way and is
not necessary to enforce the requirements of Code of Civil Procedure section 916.
Accordingly, I would overrule or disapprove prior California decisions to
the extent they purport to hold that a trial court’s action in erroneously going
forward with a trial while an appeal is pending constitutes an action taken in the
absence of fundamental subject matter jurisdiction that necessarily requires
automatic reversal of the judgment. I conclude that under article VI, section 13 of
the California Constitution and the applicable statutory provisions set forth above,
a trial court’s error of this nature may not properly be treated as reversible per se,
but rather justifies a reversal of a judgment rendered after trial only when there is

2
It is true that if it is ultimately determined that the defendant should not
have been required to go to trial, a reversal of the judgment will not totally cure
the harm because the defendant already will have been required to bear the anxiety
and expense of a trial. But the inadequacy of reversal as a complete remedy exists
whether reversal is mandated on a per se basis (based on the theory that the trial
court’s error resulted in an absence of jurisdiction in the fundamental sense) or is
mandated only upon a finding that the error actually was prejudicial. The vice of
the unwarranted invocation of lack of fundamental jurisdiction is that it compels a
reversal of the judgment even when it is clear that the error did not in the least
affect the validity of the judgment.
8

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an appropriate basis for finding the error to constitute a miscarriage of justice. In
the present case, the error clearly was not prejudicial, and I believe it defies both
common sense and the logic and policy of our state constitutional harmless error
provision to reverse the judgment and require a new trial in these circumstances.
The counterintuitive result arrived at by the majority is not the creature of
constitutional or statutory compulsion; it emanates entirely from earlier decisions
rendered by this court and the Courts of Appeal. I believe it is time to disavow
these self-imposed formalistic constraints and arrive at a fairer and more logical
outcome in this case and in future proceedings.

GEORGE, C.J.
9

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Varian Medical Systems v. Delfino
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 113 Cal.App.4th 273
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S121400
Date Filed: March 3, 2005
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Jack Komar
__________________________________________________________________________________

Attorneys for Appellant:

Horvitz & Levy, Jon B. Eisenberg, Jeremy B. Rosen; Law Offices of Randall M. Widmann, Randall M.
Widmann; and Glynn P. Falcon for Defendants and Appellants.

Cyrus Sanai as Amicus Curiae on behalf of Defendants and Appellants.

Levy, Ram & Olson, Karl Olson; Karlene W. Goller; Thomas W. Newton; Harold W. Fuson, Jr.; Stephen J.
Burns; Jonathan Donnellan; Davis Wright Tremaine, Duffy Carolan; Levine Sullivan Koch & Schulz,
James E. Grossberg; Riegels Campos & Kenyon and Charity Kenyon for California Newspaper Publishers
Association, Los Angeles Times, Hearst Communications, Inc., The Copley Press, Inc., Ang Newspapers,
Inc., McClatchy Newspapers, Inc., Press-Enterprise, Inc., Freedom Communications, Inc., and
McNaughton Newspapers as Amici Curiae on behalf of Defendants and Appellants.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Tom Greene, Chief
Assistant Attorney General, Theodora Berger, Assistant Attorney General, Edward G. Weil and Susan S.
Fiering, Deputy Attorneys General , for Bill Lockyer, Attorney General of the State of California as
Amicus Curiae on behalf of Defendants and Appellants.

Mark Goldowitz; Margaret C. Crosby; Peter Eliasberg; and Jordan Budd for California Anti-SLAPP
Project, American Civil Liberties Union Foundation of Northern California, ACLU Foundation of Southern
California and American Civil Liberties Union Foundation of San Diego and Imperial Counties as Amici
Curiae on behalf of Defendants and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Orrick, Herrington & Sutcliffe, Lynne C. Hermle, Matthew H. Poppe; Law Offices of Gerald Z. Marer,
Gerald Z. Marer; Farella, Braun & Martel, Douglas R. Young; Pillsbury Winthrop, Thomas V. Loran III,
Craig E. Stewart and Renée A. Jansen for Plaintiffs and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeremy B. Rosen
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800

Lynne C. Hermle
Orrick, Herrington & Sutcliffe
1000 Marsh Road
Menlo Park, CA 94025
(650) 614-7400

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Opinion Information

Date:	Docket Number:
Thu, 03/03/2005	S121400

Disposition
Mar 3 2005	Opinion: Reversed

Dockets
Dec 23 2003	Petition for review filed   By counsel for appellants {Michelangelo Delfino et al.,}.
Dec 23 2003	Received:   One volume of appendix of references in petition for review.
Dec 24 2003	Record requested
Dec 30 2003	Received Court of Appeal record   three boxes
Jan 5 2004	Request for depublication (petition for review pending)   filed by Cyrus M. Sanai (non-party)
Jan 8 2004	Request for depublication filed (another request pending)   Calif. Anti-Slapp Project (non-party)
Jan 12 2004	Request for depublication filed (another request pending)   California Newspaper Publishers Assoc. (non-party)
Jan 12 2004	Request for depublication (petition for review pending)   atty Yvonne M. Renfrew [non-party]
Jan 12 2004	Request for depublication filed (another request pending)   Law Offices of James J. Moneer (non-party)
Jan 12 2004	Answer to petition for review filed   by counsel for resp. (Varian Medical Sys., Inc.)
Jan 13 2004	Request for depublication filed (another request pending)   Lewis, Brisbois, Bisgaard, & Smith, LLP (non-party) (40k)
Jan 22 2004	Reply to answer to petition filed   by counsel for aplt. (Delfino and Day)
Feb 13 2004	Time extended to grant or deny review   to and including March 22, 2004
Feb 27 2004	Filed:   by counsel for aplts. (Delfino) letter re: new appellate decision.
Mar 3 2004	Petition for review granted; issues limited (civil case)   The issue to be briefed and argued is limited to the following: Does an appeal from the denial of a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., Section 425.16) effect an automatic stay of the trial court proceedings? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 10 2004	Certification of interested entities or persons filed   by counsel for aplts. (Delfino)
Mar 18 2004	Certification of interested entities or persons filed   by counsel for resp.(Varian Med.)
Mar 23 2004	Opening brief on the merits filed   by counsel for aplts. (M. Delfino, et al.)
Mar 23 2004	Stay application filed (separate petition pending - civil)   by counsel for aplts. (M. Delfino,et al.) Request for Temporary Stay w/ 2 vols. Exhibits
Mar 24 2004	Stay order filed   To permit further consideration of the issues raised by the petition for writ of supersedeas, all proceedings to enforce the trial court judgment in the above matter, including the contempt proceeding currently scheduled for March 29, 2004, are stayed until further order of this court. Respondents must serve and file any opposition to the petition for writ of supersedeas within seven (7) days from the date of this order. If respondents file an opposition, then petitioners may reply to the opposition within seven (7) days after the opposition is filed in this court.
Apr 1 2004	Opposition filed   by counsel for RPI (Varian Medical Systems, Inc.)
Apr 7 2004	Opposition filed   by aplts Selfino and Day.
Apr 23 2004	Answer brief on the merits filed   by counsel for resps. (Varian Med. Sys. Inc., et al.) (40k)
May 12 2004	Reply brief filed (case fully briefed)   by counsel for (Michelangelo Delfino and Mary E. Day)
May 24 2004	Received:   from counsel for deft and aplts. (Delfino) letter re: issues in pending petition for review.
Jun 10 2004	Received application to file Amicus Curiae Brief   w/brief, Calif. Newspaper Publishers Assoc., et al, in support of aplts. (non-party)
Jun 11 2004	Amicus curiae brief filed   by Bill Lockyer, Attorney General, in support of Appellants Michelangelo Delfino et al.
Jun 14 2004	Received application to file Amicus Curiae Brief   w/ brief, Calif. Anti-Slapp Project, et al., in support of aplt. (non-party) (40k)
Jun 18 2004	Amicus curiae brief filed   Calif. Newspapers Assoc. et al., An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 18 2004	Amicus curiae brief filed   by Calif. Newspapers Assoc., et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 18 2004	Permission to file amicus curiae brief granted   California Anti-Slapp Project, et al., (non-party)
Jun 18 2004	Amicus curiae brief filed   Calif. Anti-Slapp Project,et al., An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 18 2004	Permission to file amicus curiae brief granted   California Newspapers Association et al.,
Jul 2 2004	Response to amicus curiae brief filed   by counsel for resp. (Varian Medical Sys.) (40k) to a/c brief of Atty Gen. Lockyer
Jul 9 2004	Response to amicus curiae brief filed   by counsel for resp. (Varian Medical Sys.) (40k) to a/c brief of Calif. Newspaper Publishers Assoc. et al.,
Jul 9 2004	Request for judicial notice filed (granted case)   by counsel for resp. (Varian Medical Sys.,Inc.) in support of answer to a/c of Calif. Newspaper Publishers Assoc., et al.
Jul 14 2004	Opposition filed   by counsel for aplt. (Delfino) to Request for Judicial Notice
Jul 19 2004	Filed:   by counsel for respondent (Varian Med. Sys.) Reply in Support of Motion for Judicial Notice
Nov 3 2004	Case ordered on calendar   12/7/04 @ 2pm., San Diego
Dec 7 2004	Cause argued and submitted
Feb 3 2005	Filed:   by counsel for aplts. (Delfino) Letter re: newly issued relevant Court of Appeal opinion.
Feb 4 2005	Request for judicial notice granted   Respondents' motion for judicial notice in support of answer brief to amicus curiae California Newspaper Publishers Association, et al. filed on July 9, 2004 is granted.
Feb 8 2005	Opposition filed   Respondents (Varian Medical Systems, Inc. et al) object to the supplemental authority submitted by appellants filed on 2/3/05.
Mar 3 2005	Opinion filed: Judgment reversed   and Remanded. OPINION BY: Brown, J. --- joined by: Kennard, Baxter, Werdegar, Chin, Moreno, JJ. CONCURRING AND DISSENTING OPINION BY: George, C.J.
Mar 10 2005	Filed:   by The Mills Law Firm, Request for Modification of opinion (non-party)
Mar 18 2005	Opposition filed   by counsel for defts. and aplts. (Delfino and Day) to Request for Modification by Mills Law Firm
Mar 28 2005	Time extended to consider modification or rehearing   to an including April 29, 2005.
Apr 29 2005	Remittitur issued (civil case)
Jun 6 2005	Note:   records returned to CA/6
Jun 7 2005	Received:   receipt for remittitur from CA/6

Briefs
Mar 23 2004	Opening brief on the merits filed
Apr 23 2004	Answer brief on the merits filed
May 12 2004	Reply brief filed (case fully briefed)
Jun 11 2004	Amicus curiae brief filed
Jun 18 2004	Amicus curiae brief filed
Jun 18 2004	Amicus curiae brief filed
Jun 18 2004	Amicus curiae brief filed
Jul 2 2004	Response to amicus curiae brief filed
Jul 9 2004	Response to amicus curiae brief filed

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