DEFENDANT'S, MARY DAY'S, REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER AND MOTION TO STRIKE
"INTRODUCTION
In an opposition which largely ignores points raised by Defendant, DAY, in support of her Demurrer and Motion to Strike, the Plaintiffs persist in making unsupported and conclusory allegations in an effort to justify their action against DAY. Rather than meet the merits of the arguments raised by DAY in her moving papers, the Plaintiffs try to obfuscate the issues raised for the obvious reason that they cannot refute DAY's contentions which derive their support from the facts, the underlying record and California law.
DISCUSSION
The Plaintiffs do not dispute the contention raised by DAY that the first time she posted anything on the Internet was on August 13, 1999. They don't do so as they cannot produce or point to a single e-mail that DAY posted on the Internet prior to that time. They simply point to an amorphous mass of postings hoping that something will stick when they figuratively throw them against the wall.
More importantly, the e-mails which Plaintiffs contend are defamatory which are supposedly attached to the Third Amended Complaint are anything but. As the postings reveal, DAY has spoken out against the corporate Plaintiffs which are public figures and the individual Plaintiffs for bringing this meritless action against her. She is entitled to do so, as she has set forth in her moving papers, pursuant to the United States and California constitutions. Indeed, as DAY points out, the Plaintiffs refer to an amorphous mass of some 156 exhibits and contend that DAY posted them and, even more inexplicably, that all of the postings are libelous on their face. A reading of the postings, even those posted by DELFINO, belies this contention. In a libel action the complaint must contain a sufficient statement of the language alleged to be defamatory in order to notify the Defendant of the charge he or she must answer. (See Granges v. Crall (1915) 27 Cal. App. 313, 315) DAY is left to guess which postings Plaintiffs attribute to her, which they attribute to DELFINO and which contain what libelous statements.
The Court must determine as a matter of law whether a publication is libelous on its face. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546; Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277, 288-289) If material published is not fairly susceptible of a defamatory meaning, it is proper to dismiss the action. (Mellen v. Times-Mirror Co. (1914) 167 Cal. 587, 593; Polygram Records v. Superior Court (1985) 170 Cal.App.3d. 543, 551; Arno v. Stewart (1966) 245 Cal.App.2d. 955, 955-960) Whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion is determined by the "totality of circumstances" test, which is a review of the meaning of the language in context and its susceptibility of being proved true or false. (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal. App. 3d 720, 724-725) Statements that cannot be reasonably interpreted as stating actual facts are entitled to protection under the U.S. Constitution. (id.)
In this matter, the decision that this Court must make is readily at hand, for by reviewing the alleged defamatory postings attached to the pleading and then comparing them with the alleged libelous statements made in Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394 and Nicosia v. DeRooy (1999 Northern District Cal.) 72 F.Supp.2d. 1093, which the Courts in both cases found were not actionable, the inescapable conclusion that DAY cannot be held accountable for defamation is apparent.
Plaintiffs have, as they have done consistently in this litigation, lumped DELFINO and DAY together and treat them as one. There is no basis in fact for them doing so and they have no support whatsoever to bolster their claim that DAY engaged in wrongdoing, to wit, was acting in a conspiracy of some sort with DELFINO. They point to a Kinko's video, a video which is inadmissible as evidence in any event, and then go on to mischaracterize what the video shows. They also point to the fact that DAY gave away a computer which DELFINO used to make postings on the Internet. As DAY has pointed out in her companion Motion to Strike re SLAPP suit, the Plaintiffs ignore the fact that DAY gave away the computer because it was not working properly and could not be fixed and it was her birthday at the time. In order to establish that DAY was acting as a co-conspirator with DELFINO, Plaintiffs must, as a matter of law as DAY has pointed out in her moving papers, establish that DAY actively participated in some wrongdoing. If DAY did not make any defamatory statements or assist DELFINO in doing so, she cannot be held liable as a co-conspirator. Simply being present at Kinko's does not make DAY liable as a co-conspirator, again as DAY has pointed out in her moving papers.
As Plaintiffs have done in the past, they repeatedly point to the Federal District Court's imposition of injunctive relief against DAY. As DAY has pointed out in her moving papers, she filed no opposition to the request for injunctive relief because, first of all, it was a contempt proceeding against DELFINO, and, more importantly, the District Court did not require her to post any opposition. DAY has successfully appealed the imposition of the injunction.
What is of far greater importance, however, and again a matter which the Plaintiffs ignore, is that Plaintiffs attempted to impose a temporary restraining order on DAY which DAY, because she was on notice, opposed. The Federal District Court found that there was insufficient evidence to find that DAY could be liable for the claimed of conduct. This ruling of which DAY has requested this Court take judicial notice, establishes that the postings that Plaintiffs allege DAY made, the same postings attached to the Third Amended Complaint, were not made by DAY and were not actionable.
Plaintiffs do not address the issue of the insufficiency of their pleading as regards their use of the word "VARIAN" throughout their Third Amended Complaint, a term which encompasses three publicly traded corporations. As DAY has set forth in her moving papers, it cannot be ascertained which corporate Plaintiff is complaining of what, or what publications pertain to what Defendant.
Perhaps the most telling point to be taken which reveals the Plaintiffs' opposition as lacking merit, is the very brief they submit. In that brief, they set forth what apparently they contend are the most serious statements which they allege are defamatory. Again, comparing those statements to those which were found wanting by the Courts in Ferlauto and Nicosia, it must be conclusively found that the Plaintiffs have failed to state facts sufficient to constitute a claim against DAY for defamation or, for that matter, any other wrongdoing.
Finally, it is important to understand the lengths to which the Plaintiffs will go to misstate the underlying record, mischaracterize and misstate the alleged defamatory statements and mislead the Courts which have been struggling with the meritless claims brought against DAY. This is best revealed by the opposition to DAY's claim for costs on her appeal in the 9th Circuit. The 9th Circuit Court of Appeal Order reversing the grant of a preliminary injunction against DAY by the District Court is attached hereto and marked Exhibit A and is a document of which DAY requests this Court take judicial notice. After DAY prevailed on appeal, she filed her request for costs. Thereafter, the Plaintiffs filed their motion to deny DAY her costs on appeal. A copy of the Plaintiffs' motion is attached hereto and marked Exhibit B and is a document of which DAY requests this Court take judicial notice.
In their papers the Plaintiffs make a variety of statements, all of which are without support in the underlying record and which, inter alia, accuse DAY, without any basis in fact, of committing perjury, a very serious charge. As the old adage goes, "When the facts are against you, argue the law. When the law is against you, argue the facts. When the facts and the law are against you, give them hell." Here, after several pleadings the Plaintiffs find themselves without any factual basis to support their claims and are faced with California law establishing that they cannot state a claim against DAY. Their opposition on appeal was wholly without merit as are their claims in this action. Therefore, as they did on appeal and in the District Court, the Plaintiffs have resorted to the third method of prosecuting claims, namely, to give DAY hell. They have done so by making arguments without support in fact or law and by twisting the underlying record to fit their own designs.
All that DAY requests this Court to do in ruling on her Demurrer and Motion to Strike is to look beyond the brief filed by Plaintiffs and their unsupported contentions and conclusions and, rather, to the actual postings themselves and to the law as it exists in California. DAY is confident that should this Court do so, it will grant the relief she has requested here.
DATED: October 23, 2000.
RANDALL M. WIDMANN
Attorney for Defendant, DAY"
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