STEINHART & FALCONER LLP
ROGER R. MYERS (State Bar No. 146164)
LISA M. SITKIN State (Bar No. 194127)
333 Market Street, Suite 3200
San Francisco, California 94105
Telephone: (415) 777-3999
Facsimile: (415) 442-0856
Attorneys for Plaintiff
BUSINESS WIRE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
BUSINESS WIRE, a California corporation,
Plaintiff,
V.
JEFFREY S. MITCHELL, an individual;
WILLIAM ULRICH, an individual;
JANICE SHELL, an individual,
Defendants.
Case No. C 99-1987 CAL
PLAINTIFF BUSINESS WIRE'S
OBJECTIONS TO DEFENDANTS' EVIDENCE IN
SUPPORT OF DEFENDANTS'
SPECIAL MOTION TO STRIKE
UNDER CALIFORNIA CODE
OF CIVIL PROCEDURE '425.16
CAUSES OF ACTION
Date: August 20, 1999
Time: 9:30 a.m.
Judge: Charles A. Legge
Court Room: 10
Pursuant to Civil Local Rule 7.5 of this Court, plaintiff Business
Wire hereby objects to the evidence submitted by defendants in support
of their special motion to strike Business Wire's complaint as fol-
lows:1
1 Plaintiff makes these objections only with respect to the issues
raised in Phase I of these bifurcated proceedings (i.e_, whether
California Code of Civil Procedure ' 425.16 applies to any of Business
Wire's causes of action), and without waiving the right to file fur-
ther objections to defendants' evidence on the merits of Business
Wire's causes of action should this matter proceed to Phase II as to
any of Business Wire's causes of action.
Declaration of William Ulrich
P 2 (lines 2 & 8): Objection: The allegations of this paragraph con-
cerning the "educational" purposes of defendants' prior pranks are
without foundation and inadmissible conclusions and interpretations
regarding the documents referenced therein, all of which documents
speak for itself. Civil Local Rule 7.5(b) ("declarations shall contain
only facts ... and shall avoid conclusions and argument"); National
Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir.
1997) (conclusory allegations, without factual support, are inadmissi-
ble); Evans v. Unkow, 38 Cal. App. 4th 1490, 1496-98 (1995) (Under
California's anti-SLAPP statute, California Code of Civil Procedure '
425.16, motion must be opposed with admissible evidence, showing
proper foundation).
P 4 (3:6-9): Objection: The allegations of this paragraph are without
foundation and inadmissable conclusions and interpretations regarding
the investment registration form on the Webnode_com website, a docu-
ment that speaks for itself.
P 6 (3:21-25): Objection: The allegations of this paragraph concerning
changes to the Webnode.com website on April 2 are without foundation
and inadmissable conclusions and interpretations regarding text posted
at the Webnode.com web site that speaks for itself.
P 9 (4:20-22; 4:24-25; 5:2-5): Objection: The allegations of this
paragraph concerning the meaning of Business Wire's membership agree-
ment are without foundation and inadmissable conclusions, including
conclusions of law. Moreover, the allegations concerning declarant's
subjective belief about the meaning of contractual language are irrel-
evant and conclusory.
P 10: Objection: The allegations of this paragraph concerning defend-
ants' misrepresentations to Business Wire are without foundation and
inadmissable conclusions.
P 11: Objection: The comments of third parties concerning the subject
matter of this action -especially those of plaintiff Business Wire's
competitor - are irrelevant to any of the 'issues before the Court.
This lawsuit concerns defendants' misconduct in connection with its
submission of a fake press release to Business Wire under false pre-
tenses and the subsequent misuse of the BUSINESS WIRE trademark in
conjunction with that fake press release.
P 12 (5:20-21; 5:26-6: 1): Objection: The statement "I am informed and
believe that Business Wire was embarrassed and decided to take action"
is without foundation and an inadmissible conclusion. Moreover, state-
ments upon information and belief are inadmissible on a motion to
strike. Evans, 38 Cal. App. 4th at 1496-98; see also Local Rule 7.5.
The allegations of this paragraph concerning the meaning of text
posted on the Webnode.com web site are without foundation and inad-
missable conclusions and interpretations regarding the meaning of text
posted at the Webnode.com web site that speaks for itself.
P 13: Objection: The alleged statement of Cathy Baron Tamraz is inad-
missible hearsay, offered to prove the truth of the matter asserted.
P 14: Objection: The allegations of this paragraph concerning the
meaning of statements posted on the Webnode.com web site are without
foundation and inadmissable conclusions and interpretations regarding
statements that speak for themselves.
P 17: Objection: The allegations of this paragraph concerning litiga-
tion by Business Wire are without foundation and inadmissable conclu-
sions. Moreover, statements made upon information and belief are
inadmissible_
P 20: Objection: The self-serving statements in this paragraph are
without foundation and are inadmissible conclusions.
DATED: July 23, 1999
STEINHART & FALCONER LLP
ROGER R. MYERS
LISA M. SITKIN
Lisa M. Sitkin
Attorneys for Plaintiff
BUSINESS WIRE
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