Delfino

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.

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…

J., Concurring and Dissenting.—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…

Levy, Ram & Olson, Karl Olson, San Francisco; Karlene W. Goller, Los Angeles; Thomas W. Newton; Harold W. Fuson, Jr., La Jolla; Stephen J. Burns, Sacramento; Jonathan Donnellan; Davis Wright Tremaine, Duffy Carolan, San Francisco; Levine Sullivan Koch & Schulz, James E. Grossberg, Palm Springs; Riegels Campos & Kenyon and Charity Kenyon, Sacramento, 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, Berkeley; Margaret C. Crosby, Los Angeles; Peter Eliasberg, Los Angeles; and Jordan Budd, for California Anti-SLAPP Project, American Civil Liberties Union Foundation of…