...And here are the 7 claims that have been requested by the Varian (VAR & VSEA), Susan B. Felch, George Zdasiuk SLAPP Plaintiffs:
"...FIRST CLAIM FOR RELIEF
(Unfair Competition Against All Defendants)
44. Varian Medical and Varian Semiconductor reallege and incorporate by reference paragraphs 1 through 43 above.
45. The acts described above constitute unfair competition in violation of the common law of the State of California and Cal. Bus. & Prof. Code ßß 17200 et seq. in that such acts were committed pursuant ot business activity and were and continue to be unlawful, unfair, and fradulent
46. The acts described above are unlawful in that they violate California Business and Professions Code ßß 17500 et seq., California Civil Code ß 45, California Civil Code ß 45a, Calfornia Penal Code ß 653m, U.S.C. ß 1125 (a), and 18 U.S.C. ß: 1512, as well as California common law relating to false light invasion of privacy, appropriation of name invasion of privacy, and the temporary restraining order and preliminary injunction issued in this case pursuant to Fed. R. Civ. P. 65.
47. The acts described above are unfair in that they offend established public policies and are immoral, unethical, oppressive, unscrupulous and substantially injurious to consumers, and the gravity of the harm caused by defendants' acts far outweighs their utility.
48. The acts described above are fraudulent in that members of the public are likely to be deceived as to the authors of the emails and as to the quality of the products and the value of the stock of Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor, among other things.
49. As a direct and proximate cause of defendants' acts, Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor, have sustained injury to their reputation, their goodwill, their employees, and the functioning of their businesses, The general public has been harmed by the misleading and falsely attributed statements made by defendants as to the value of Varian's stock, the quality of Varian products, and the management of Varian's business. Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor, as wll as Varian employees and the general public have suffered irreparable harm as a result of defendants' activities, and will continue to suffer irreparable harm that cannot be adequately remedied at law unless defendants and all persons acting in concert with them are enjoined from engaging in any further such acts of unfair competition.
SECOND CLAIM FOR RELIEF
(False Advertising Against All Defendants under Cal. Bus. & Prof. Code ßß 17500 et seq.)
50. Varian Medical and Varian Semiconductor reallege and incorporate by reference paragraphs 1 through 49 above.
51. In engaging in the wrongful conduct allege above, defendants have attempted to make or disseminate or have caused to be made or disseminated before the public in California statements concerning the business and services of Varian Associates and its successors-in-interst, including Varian Medical and Varian Semiconductor, which are untrue and misleading and which defendents know, or by the exercise of reasonable care should know, are untrue and misleading.
52. Defendants have also misappropriated the names of Susan Felch, George Zdasiuk, and other Varian employees in an effort to deceive the public regarding the origin of their messages and Varian's or Varian's employees' affiliation with, association with, or endorsement of defendants' messages, and in a manner that is likely to deceive the public in that regard.
53. In engaging in the wrongful conduct alleged above, defendants acted with the intent to induce the public to sell and to refrain from purchasing the stock of Varian Associates nd its successors-in-interest, to purchase the stock of Varian Associates' competitors (including MoBeta), to refrain from purchasing the products and services of Varian Associates and its successors-in-interest, to purchase the products and services of Varian Associates' competitors (including MoBeta), to avoid otherwise commercially dealing with Varian Associates and its successors-in-interest, and to otherwise deal commercially with Varian Associates' competitors (inlcuding MoBeta).
54. Varian Associates and its successors-in-interst, including Varian Medical and Varian Semiconductor, have been damaged by plaintiffs' wrongful conduct.
55. Varian Associates and its successors-in-interst, including Varian Medical and Varian Semiconductor, as well as the general public, have no adequate remedy at law and have been and will continue to be irreparably harmed by defendants' conduct unless defendants are enjoined from continuing to engage in the conduct alleged herein.
THIRD CLAIM FOR RELIEF
(Libel Against All Defendants)
56. Plaintiffs reallege and incorporate by reference paragraphs 1 through 55 above.
57. Between October 1998 and the trial of this matter, defendants published on the internet to third parties numerous emails and messages ('emails'), copies of several of the most egregious of which are attached hereto.
58. These emails contain false information regarding Varian Associates, Varian Medical, Varian Semiconductor, their products, services, commercial activities and business practices, and their employees, including Felch and Zdasiuk.
59. These emails are libelous on their face because they impute a lack of chastity to Felch, have a tendency to injure Felch in her occupation, charge Felch with improper and immoral conduct, charge Felch with dishonesty, and subject Felch to hatred, contempt, ridicule, and obloquy.
60. These emails are libelous on their face because they have a tendency to injure Zdasiuk in his occupation, charge Zdasiuk with improper and immoral conduct, charge Zdasiuk with dishonesty, and subject Zdasiuk to hatred, contempt, ridicule, and obloquy.
61. These emails are libelous on their face because they have a tendency to injure Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor, in their business, charge them with improper, immoral, and illegal conduct, and charge them and their officers and directors with dishonesty.
62. These emails are clearly libelous in nature without reference to any extrinsic materials.
63. These libelous Internet postings were seen and read by persons who reside in and around California and elsewhere.
64. As a proximate result of the above-described publications, Plaintiffs have suffered loss of reputation, contempt, ridicule, obloquy, loss of goodwill, and hurt feelings, and Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor, have additionally been hurt in their business, all to Plaintiffs' general damage.
65. As a further proximate result of the above-described publications, Felch and Zdasiuk have suffered the following special damages: injury to their trades, professions, and occupations.
66. As a further proximate result of the above-described publications, Varian Medical and Varian Semiconductor have suffered the following special damages: injury to their property and business, increased security costs, and lost employee productivity.
67. The above-described publications were made by defendants with malice, oppression, and fraud in that defendants knew that they were falsely impersonating and defaming Plaintiffs and knew and intended that their publications would injure Plaintiffs and cause them severe distress, and thus Plaintiffs seek an award of punitive damages.
68. Plaintiffs have no adequate remedy at law and have been and will continue to be irreparably harmed by defendants' conduct unless defendants are enjoined from continuing the conduct alleged herein. <
FOURTH CLAIM FOR RELIEF
(Invasion of Privacy - False light - Against All Defendants)
69. Felch and Zdasiuk reallage and incorporate by reference paragraphs 1 through 68 above.
70. Between October 1998 and the trial of this matter, defendants, without Felch's consent, invaded Felch's right to privacy by publishing on the Internet emails that falsely identified Felch as the author of the emails and that thereby attributed to Felch actions that she did not take and statements, opinions, and beliefs that were not her own and that she did not have.
71. Between October 1998 and the trial of this matter, defendants, without Zdasiuk's consent, invaded Zdasiuk's right to privacy by publishing on the Internet emails that falsely identified Zdasiuk as the author of the emails and that thereby attributed to Zdasiuk actions that he did not take and statements, opinions, and beliefs that were not his own and that he did not have.
72. Many of the statements that are the basis of the invasion of privacy are attached hereto and incorporated herein as if set out in full.
73. The disclosures by defendants created publicity in the sense of public disclosure to a large number of people in that the Internet sites on which defendants placed these emails are accessible to computer users around the world, and people responded to the emails and the content of the emails, thereby showing that other people were reading defendants' emails.
74. The publicity created by defendants placed Felch in a false light in the public eye in that the emails were falsely attributed to Felch, and the emails contained false statements and inaccurately portrayed the quality of Varian's products, the competence of Varian's management, including but not limited to Felch, the chastity and fidelity of Felch, the satisfaction of Varian employees with their jobs and with Varian management, and the value of Varian's stock.
75. The publicity created by defendants placed Zdasiuk in a false light in the public eye in that the emails were falsely attributed to Zdasiuk, and the emails contained false statements and inaccurately portrayed the quality of Varian's products, the competence of Varian's management, including but not limited to Zdasiuk, the satisfaction of Varian employees with their jobs and with Varian management, and the value of Varian's stock.
76. The publicity created by defendants was offensive and objectionable to Felch and Zdasiuk and to a reasonable person of ordinary sensibilities in that it made Felch and Zdasiuk the objects of pity and ridicule and attributed to them characteristics, conduct, and beliefs that are false and placed Felch and Zdasiuk before the public and their colleagues, fiends, and relatives in a false position.
77. The publicity created by defendants was done with malice in that it was made either with knowledge of its falsity or in reckless disregard of its truth in that defendants knew that Felch and Zdasiuk were not the author of the emails and had no basis in fact for attributing to them the statements contained in the emails.
78. As a proximate result of the above disclosures, Felch and Zdasiuk were exposed to contempt and ridicule, suffered loss of reputation and standing in the community, and were caused to suffer humiliation, embbarassment, hurt feelings, and mental anguish and suffering, all to their general damage in an amount according to proof.
79. As a further proximate result of the above-mentioned invasion of privacy, Felch has suffered injury to his occupation, to his special damage in an amount according to proof.
80. As a further proximate result of the above-mentioned invasion of privacy, Zdasiuk has suffered injury to his occupation, to his special damage in an amount according to proof.
81. In making the disclosures described above, defendants were guilty of oppression, fraud, and malice, in that defendants made the disclosures with the intent to vex, injure, and annoy Felch and Zdasiuk, and with a willful and conscious disregard of the rights of Felch and Zdasiuk. Felch and Zdasiuk therefore seek an award of punitive damages.
82. Defendants have continued to publish the offensive emails. Unless and until enjoined and restrained by order of this court, defendants' continued publication will cause Felch and Zdasiuk great an irreparable injury in that they will suffer continued humiliation, embarrassment, hurt feelings, and mental anguish. Felch and Zdasiuk have no adequate remedy at law for the injuries being suffered in that a judgment for monetary damages will not end the invasion of privacy and each new false email published by defendants will continue to cause the public to view Felch and Zdasiuk in a false light.
FIFTH CLAIM FOR RELIEF
(Invasion of Privacy - Appropriation of Name - Against All Defendants)
83. Felch and Zdasiuk reallege and incorporate by reference paragraphs 1 through 82 above.
84. Between October 1998 and May 1999, defendants, without Felch's consent, invaded Felch's right to privacy by appropriating Felch's name by publishing on the Internet emails that falsely identified Felch as the author of the emails.
85. Between October 1998 and May 1999, defendants, without Zdasiuk's consent, invaded Zdasiuk's right to privacy by appropriating Zdasiuk's name by publishing on the Internet emails which falsely identified Zdasiuk as the author of the emails.
86. Many of the statements that are the basis of the invasion of privacy are attached hereto and incorporated herein as if set out in full.
87. The appropriation was unauthorized and without the consent of Felch or Zdasiuk.
88. Defendants appropriated Felch's and Zdasiuk's names because the use of their names furthered defendants' malicious scheme to harm Felch, Zdasiuk, Varian Associates and its successors-in-interest, including Varian Medical and Varian semiconductor, Varian's employees, and their reputations.
89. The appropriation was for defendants' advantage in that it furthered defendants' scheme to have revenge upon Plaintiffs and Varian's employees in retaliation for the circumstances relating to Delfino's termination of employment with Varian Associates.
90. As a proximate result of the above approriation of names, Felch and Zdasiuk were exposed to contempt and ridicule, and suffered loss of reputation and standing in the community, all of which caused Felch and Zdasiuk humiliation, embarrassment, hurt feelings, mental anguish, and suffering, all to their general damage in an amount according to proof.
91. As a further proximate result of the above-mentioned invasion of privacy, Felch has suffered injury to his occupation, to his special damage in an amount according to proof.
92. As a further proximate result of the above-mentioned invasion of privacy, Zdasiuk has suffered injury to his occupation, to his special damage in an amount according to proof.
93. In appropriating Felch's and Zdasiuk's names, defendants were guilty of oppression, fraud, and malice, in that defendants made the disclosures with the intent to vex, injure, and annoy Felch and Zdasiuk, and with a willful and conscious disregard of Felch's and Zdasiuk's rights. Felch and Zdasiuk therefore seek an award of punitive damages.
94. Defendants have continued to publish the offensive emails in which they appropriate Felch's and Zdasiuk's names. Unless and until enjoined and restrained by order of this court, defendants' continued appropriation will cause Felch and Zdasiuk great an irreparable injury in that they will suffer continued humiliation, embarrassment, hurt feelings, and mental anguish. Felch and Zdasiuk have no adequate remedy at law for the injuries being suffered in that a judgment for monetary damages will not end the invasion of privacy and each new email falsely attributed to them published by defendants will continue to cause harm to Felch and Zdasiuk.
SIXTH CLAIM FOR RELIEF
(Conspiracy Against All Defendants)
95. Plaintiffs reallage and incorporate by reference paragraphs 1 through 94.
96. Between October 1998 and the trial of this matter, defendants and each of them knowingly and willfully conspired and agreed among themselves to engage in the wrongful conduct set forth above.
97. Defendants did the acts and things herein alleged pursuant to, and in futherance of, the conspiracy and above-alleged agreement.
98. Doe defendants 2 through 20 furthered the conspiracy by cooperation with or lent aid and encouragement to or ratified and adopted the acts of defendant Delfino in that such Doe Defendants allowed Delfino to use their computers to accomplish the wrongs set forth above and/or themselves posted some of the emails that are the subject of this Complaint.
99. Plaintiffs are informed and believe and thereon allege that the last overt act in pursuance of the above-described conspiracy occurred on or about February 18, 2000, on which date defendants posted their most recent wrongful email on the Yahoo! message boards for Varian Medical and Varian Semiconductor. Plaintiffs are informed and believe by defendants repeated statements that they will post until they are dead that defendants will continue to engage in overt acts at least until the trial of this matter.
100. As a proximate result of the wrongful act herein alleged, Plaintiffs have been generally damaged in an amount according to proof.
101. In doing the things herein alleged, defendants acted willfully and with the intent to cause injury to Plaintiffs and to Varian's employees. Defendants were therefore guily of malice and oppression and fraud in conscious disregard of Plaintiffs' rights and the rights of Varian's employees, thereby warranting an assessment of punitive damages in an amount appropriate to punish and deter others from engaging in similar misconduct.
SEVENTH CLAIM FOR RELIEF
(Breach of Contract Against All Defendants)
102. Plaintiffs reallege and incorporate by reference paragraphs 1 through 101 above.
103. Plaintiffs, as persons whom defendants have defamed, impersonated, harassed, embarrased, and distressed, are intended third-party beneficiaries of the service agreement or agreements between Yahoo! Inc. and defendants.
104. Defendants have breached their obligations under their service agreement or agreements with Yahoo! Inc. by harassing, embarassing, and causing distress and discomfort upon Plaintiffs; by transmitting via Yahoo Chat unlawful, harmful, threatening abusive, harassing, defamatory, vular, obscene, hateful, and otherwise objectionable content; and by impersonating Plaintiffs and other persons.
105. Defendants' breach has caused Varian unjustifably to suffer a loss of good will and a damaged business reputation, as well as other damages.
106. Defendants' breach has caused Felch and Zdasiuk to suffer emotional distress, humiliation, embarrassment, hurt feelings, and mental anguish, and has damaged their business reputations, as well as causing them other damages.
107. By reason of the foregoing, defendants are liable to Plaintiffs in an amount to be determined at trial. ..." |
