Appeal of Anti-SLAPP Ruling Does Not Stay the Rest of the Case from Going Forward

Timothy Kowal, Esq.
June 30, 2021

One tactical benefit of filing an appeal is the potential to stay the underlying proceedings. The automatic stay rule observes that only one court at a time may have jurisdiction over an issue, and protects the appeal from becoming moot before the appellate court has an opportunity to reach the merits.

But the automatic stay has many exceptions and limitations, many of which are illustrated in Wong v. Lee (D2d1 Jun. 29, 2021) no. B293892 (nonpub. opn.).

In this divorce and proper division case, the wife moved to have the husband declared a vexatious litigant, and the husband, in turn moved to SLAPP the wife's motion. The family court declared the husband a vexatious litigant, and denied his anti-SLAPP motion. The husband appealed from both orders, and argued his appeals stayed the rest of the proceedings from going forward, depriving the family court of jurisdiction.

The Automatic Appellate Stay Rule:

Code of Civil Procedure section 916, subdivision (a) provides in pertinent part: “[T]he 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.” (Code Civ. Proc., § 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.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian Medical Systems, Inc.).) “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.” (Varian Medical Systems, Inc., at pp. 196–197.)

The question in this case was: is the balance of trial proceedings "embraced in or affected by" the appeal of the denial of an anti-SLAPP motion? Or the appeal of a vexatious litigant finding? The husband also appealed an order denying his motion to disqualify the judge. Does that appeal stay the proceedings?

Answer: No to all three. For different reasons.

As for the denial of judicial disqualification, that order is not appealable in any event: it is reviewable exclusively by writ. So that appeal was defective. And a defective appeal cannot trigger a stay under Code of Civil Procedure section 916, subdivision (a). (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 [“The automatic stay, when it applies, arises upon a ‘duly perfected’ appeal. [Citations.] Since [the] appeal was invalid, it did not affect the trial court's jurisdiction to proceed.”].)

As for the appeal of the denial of the SLAPP motion, the appellant argued Varian Medical Systems, Inc. held that “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.” (Varian Medical Systems, Inc.supra, 35 Cal.4th at p. 186.) But the Supreme Court clarified that “[s]uch an appeal does not, however, stay proceedings relating to causes of action not affected by the motion.” (Id. at p. 195, fn. 8.)

And as for the vexatious litigant finding, that finding did not impact any of the other claims that went to trial. The trial had no “ ‘effect on the “effectiveness” of the [prior] appeal.’ ” (Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 189.) So, no stay.

(Comment: I wish this part of the opinion – regarding the SLAPP appeal – had been published, because in my recollection of researching this issue, the published cases are a little murky, and would give trial judges pause over whether the proceedings must be stayed pending appeal. This opinion would tend to buck them up a little.)

These examples are only the tip of the iceberg of stays pending appeal. Trial attorneys can bring a lot of value to their clients by consulting an appellate attorney on these issues.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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