DEFENDANT DELFINO'S REPLY BRIEF IN SUPPORT OF HIS DEMURRER TO 3RD AMENDED COMPLAINT
"Introduction
You would think by the fourth attempt at a complaint that plaintiffs would have been able to get it right. They haven't. They have been working on the complaint allegation for almost 2 years and they have yet to set forth a clear, intelligible, complaint.
Libel Claims
The four plaintiffs keep repeating that they have been defamed by various postings, yet they continue to fail to specifically set forth even the rudimentary facts necessary to establish such a cause of action, at least not one that can withstand a demurrer for uncertainty. What they have done is shuffle 156 pages from various Internet websites and said: 'Here. One of these must be defamatory. You figure it out because we [plaintiffs] haven't yet.' That is not the way it works. In order for a statement to be libelous, the fact finder must take into account the total context of alleged defamatory words. As extensively analyzed by the District Court in Nicosia, one must take into account not only the words used, but the context and forum in which they were uttered. Libel cannot occur in a vacuum, but that is exactly what plaintiffs have this court approve. In order for this defendant, the court, and ultimately the jury, to determine what is or is not libelous, the time, date, place, words used, readership, and many other factors will have to be considered. Plaintiffs don't want us to have that information, so they play 'hide the ball.' Guess where, when, how, and what was said by whom to whom. They have conducted endless discovery and know what was said, to whom by whom and where and when it was said. Yet they donÌt provide that information to defendants or to the court. Because if they did, then defendants could advise the court as to each alleged defamatory posting that 1) it was not one of their postings, 2) it was not their alias, 3)that it was not a message board that they posted to, 4) and/or that the message needs to be understood in the context of other messages, issues, or events. To do that, defendants need to know the time, date, message number, message board site, aliases used, and generally nature of the readership. But that is their game. They know they have already falsely accused defendants of postings that they know he did not do. They have quietly struck six of the 14 aliases and numerous Internet postings from their current complaint. Yet plaintiffs persist in making generalized statements that 'these postings are defamatory' without identifying the postings with any of the specific identifying facts that might allow us to determine the context that the messages arose. Often times, plaintiffs' fail to even specify what it was written that was libelous, we are just left to guess what was said.
The 3rd amended complaint sucks, and the demurrer should be sustained and plaintiffs required to separate the wheat from the chaff by specifically setting forth the identifying parameters of each posting that they alleged to be defamatory.
Unfair Competition
Without belaboring each and every cause of action asserted by plaintiffs to be a model of clear and intelligible pleadings, a quick look at the corporate plaintiffs' cause of action for unfair competition reveals that these corporate plaintiffs are thrashing about for dear life to find some way to stay in this lawsuit. They dismiss the federal summary judgment issued against them on these causes of action, claiming that their California claims are different. How? They havenÌt alleged even one factual assertion that qualifies for protection under either the common law or state statutory unfair competition laws. They claim that state law does not require 'competition' to qualify for unfair competition, but they fail to reveal that it at least requires consumer protection. Where is Varian trying to protect the consumer? In the concurrently filed anti-SLAPP motions, Varian has failed to reveal any facts that would support a state or common law unfair competition claim, even though they have had over 20 months of discovery to come up with something, and even though the nature of the Anti-SLAPP motions are similar to summary judgment motions in that they require plaintiffs to demonstrate facts which might tend to show they have a probability of prevailing on the merits of their suit. But these mighty Fortune 500 corporate plaintiffs have totally failed to bring forward any admissible evidence in their SLAPP opposing papers showing that they have been victimized by these two, puny, individual defendants in any state or common law unfair competition or false advertising causes of actions.
The demurrers to the claims of the corporate plaintiffs should be sustained without leave to amend, or in the alternative, the corporate plaintiffs should be stricken from the lawsuit pursuant to the concurrently filed anti-SLAPP motions.
CONCLUSION
There are two individuals and two corporate plaintiffs in this action. The corporations are using their power over their employees (the 2 individual plaintiffs) to incorporate them into an obvious SLAPP lawsuit in a futile attempt to hide behind those individuals to avoid detection of the fact that this is just a SLAPP suit Ò bought and paid for, in fact controlled by, the two corporate giants in order to impose their view of the world, and upon defendants, and to suppress defendants' right of free speech. They have failed, for the fourth time, to file a clear, intelligible and legally cognizable complaint. Instead, they re-file the same tired old SLAPP allegations that has lost for them, both in the federal district court and, now, before the 9th Circuit Court of Appeals. Plaintiffs enjoy playing 'hide the ball' with their allegations, leaving defendants to guess what it is they are to defend against. But in final analysis [as well be shown in defendants special motion to strike this SLAPP lawsuit] plaintiffs are, in effect, attacking defendant's First Amendment rights, and this court should stand back and see this lawsuit for what it actually is, and sustain these demurrers, without leave.
Dated: October 23, 2000
Glynn P. Falcon, Attorney for Michelangelo Delfino, defendant."
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