Varian SLAPP - "Plaintiff's Opposition to Delfino's and Day's Motion to Strike Third Amended Complaint Pursuant to C.C.P. § 425.16; Plaintiffs' Request for Attorney's Fees
I. INTRODUCTION
A SLAPP motion can only succeed if the defendant's speech relates to a public issue, the plaintiff is not likely to succeed on the merits, and the motion is filed within the time limits established by the SLAPP statute. None of these conditions is met here.
Plaintiffs' case is extremely strong. A preliminary injunction was already entered against defendant Delfino in federal court (where this case was pending prior to remand) based on a finding that "plaintiffs have established a strong likelihood that they can prove that defendant posted the alleged defamatory and harassing messages and that they will succeed on the merits of their claims." Certified Court Orders (6/28/00), Ex. 4, p. 3:19-21.1 The court later found by clear and convincing evidence that Delfino, acting in concert with Day, impersonated plaintiff Susan Felch in an Internet message in violation of an earlier court order. Id., Ex. 15, p. 7:3-6. The court held Delfino in civil contempt and entered a modified preliminary injunction that applied to Day and Delfino both. Id., Exs. 14, 15. Since then, Plaintiffs' case has grown even stronger due to the defendants' daily posting of additional defamatory and harassing Internet messages.
The defendants' speech does not relate to a public issue. To the contrary, their Internet campaign is directed primarily at two private individuals-plaintiffs Felch and George Zdasiuk-who have done nothing to make themselves the focus of media attention. Delfino and Day have attacked them, not because they are matters of public interest, but because Delfino and Day have a personal grudge against them arising out of their former employment at Varian. They falsely accuse Felch and/or Zdasiuk of being chronic liars, having extramarital sexual affairs, suffering from mental illness, being incompetent at work, secretly videotaping other people in the bathroom, harassing their co-workers, and being homophobic. Such diatribes have no place in public discourse. They are designed solely to cause as much harm as possible to the reputations and feelings of Felch and Zdasiuk.
1. The Ninth Circuit recently vacated the preliminary injunction, finding that it dissolved as a matter of law when the case was remanded to state court. The Ninth Circuit expressed no view on the merits of the preliminary injunction. See Poppe Decl., Ex. C.
Finally, the defendants' SLAPP motions are not timely. They are scheduled to be heard exactly 20 months after Plaintiffs filed the complaint, well beyond the SLAPP statute's 60 day time limit. Delfino and Day have been crying "SLAPP" in their Internet messages for over a year, but they allowed Plaintiffs to file three prior versions of the complaint without a challenge. In the meantime, Plaintiffs have invested a great deal in this case. It has been actively litigated on both sides, with dozens of motions and extensive discovery. The SLAPP motions are intended solely to impose an additional burden on Plaintiffs and delay the inevitable: a trial on the merits.
The defendants' motions to strike should be denied and, because they are frivolous and intended solely to cause delay, Plaintiffs should be awarded their attorneys' fees.
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POP QUIZ: Which TWO BIG Plaintiffs are not mentioned in the argument as to why this lawsuit is not a public issue? |
