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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy LLP represented petitioners Michelangelo Delfino and Mary Day in this appeal from a defamation judgment for postings they made on their website and on various Internet message boards criticizing their former employer, Varian Medical Systems Inc., and several of its senior executives. The judgment for $775,000 in compensatory and punitive damages included a broad injunction ordering petitioners not to “publish, post, or otherwise disseminate, directly or indirectly, on the Internet or elsewhere” 23 categories of statements that the court found “untrue” and “false and defamatory.”

Prior to trial, petitioners had filed a special motion to strike the complaint under California’s Anti-SLAPP statute, Code of Civil Procedure section 425.16. The trial court denied the motion and petitioners appealed from that denial, but the trial court and Court of Appeal refused to stay the trial under Code of Civil Procedure section 916 while the anti-SLAPP appeal was pending. At the conclusion of the trial, the anti-SLAPP appeal was dismissed as moot.

On appeal from the judgment, the Court of Appeal struck most of the injunction but otherwise affirmed the judgment. The court rejected the argument that the trial court lacked subject matter jurisdiction to conduct the trial because of petitioners’ pending appeal from the denial of their anti-SLAPP motion. The Supreme Court granted review to resolve the jurisdictional question: Does an appeal from the denial of a special motion to strike under the anti-SLAPP statute effect an automatic stay of the trial court proceedings?

The Supreme Court held by a 7-0 vote that under Code of Civil Procedure section 916, “all of the matters on trial were embraced in and affected by defendants’ appeal from the denial of that motion and the trial court lacked subject matter jurisdiction over those matters.” By a 6-1 vote, the Supreme Court reversed the judgment, finding that the lack of subject matter jurisdiction in the trial court rendered the resulting trial completely void.

Amicus curiae briefs in support of Horvitz & Levy’s position were filed by (1) the Office of the Attorney General; (2) the California Newspaper Association, joined by many of the leading newspapers in the state, including the Los Angeles Times, the Oakland Tribune, and the San Francisco Chronicle; and (3) the California Anti-SLAPP Project, joined by the ACLU of Northern California, the ACLU of Southern California, and the ACLU of San Diego. Varian’s position generated no amicus curiae support.

The Varian opinion has been widely reported in the state and national press, with articles appearing in USA Today, the San Jose Mercury News, numerous other newspapers around the country who published the Associated Press story, the Los Angeles Daily Journal, the Recorder, the Silicon Valley Metro, the Reporters Committee for Freedom of the Press News Media Update, and the California Newspaper Association Legislative Bulletin. Horvitz & Levy LLP attorney Jeremy B. Rosen, who argued the case in the Supreme Court, was quoted in USA Today and the Associated Press, saying that “This [opinion] is a major victory for free speech.”