Varian SLAPP PLAINTIFFS' OPPOSITION TO DEMURRERS OF DELFINO AND DAY
"I. INTRODUCTION
This case has been actively litigated for more than 11/2 years. Plaintiffs have filed three prior versions of the complaint. Defendants Delfino and Day have each filed answers and affirmative defenses and Delfino has filed counterclaims. Extensive discovery has occurred: the parties have taken 14 depositions, produced thousands of documents, and exchanged dozens of interrogatory responses and other written discovery responses. Dozens of motions have been filed, including motions for TRO, motions for preliminary injunction, and motions for summary judgment. At one point, the case was six days from a scheduled trial date in federal court. In preparation for the scheduled federal pretrial conference, ...
Despite this procedural history, Delfino and Day have now filed demurrers as if this case were brand new. They claim they do not understand Plaintiffs' allegations, ... They also assert that the complaint fails to state a claim, ... The demurrers should be overruled ...
II. DEMURRER STANDARDS
In considering a demurrer, the complaint is to be "liberally construed, with a view to substantial justice between the parties." Cal. Code of Civil Proc. ß 452; see also Tenants Ass'n of Park Santa Anita v. Southers, 222 Cal. App. 3d 1293, 1297 (1990). To this end, the factual allegations of the complaint, and those arising by reasonable implication, must be deemed true. Tenants Ass'n, 222 Cal. App. 3d at 1297; Bush v. California Conservation Corps, 136 Cal. App. 3d 194, 200 (1982). The plaintiff's ability to prove its allegations, or possible difficulties in making such proof, are of no concern in ruling on a demurrer. Committee on Children's Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 213-14 (1983); Herman v. Los AngelesCounty Metro. Transp. Auth., 71 Cal. App. 4th 819, 824 (1999). A demurrer lies only where defects appear on the face of the complaint. Cal. Code of Civil Proc. ß 430.30(a).
Neither a general nor a special demurrer can be directed to anything except the entire complaint or a count; it will not lie to part of a cause of action or count. Cal. Code of Civil Proc. ß 430.50; PH II v. Superior Court, 33 Cal. App. 4th 1680, 1682 (1995); 5 B.E. Witkin, California Procedure (Pleading) ß 910 (4th ed. 1997). The prayer, which is not part of the cause of action, is not subject to a demurrer. Grieves v. Superior Court, 157 Cal. App. 3d 159, 163 (1984); 5 Witkin, supra, ß 910.
III. ARGUMENT
A. Plaintiffs' Complaint States Facts Sufficient to Constitute a Cause of Action.
Delfino and Day have filed a general demurrer claiming that the Third Amended Complaint fails to state facts sufficient to constitute a cause of action. The pleading is sufficient, however, and the demurrers should be overruled.
1. Libel Claim - Third Cause of Action.
In their third cause of action, Plaintiffs allege that Delfino and Day posted dozens of libelous messages about them on the Internet. ... Plaintiffs repeat many of the libelous statements verbatim in their complaint. ... Plaintiffs have also attached copies of many libelous Internet messages to their complaint. ... The Internet messages falsely accuse Plaintiffs of engaging in extramarital affairs, being chronic liars, being incompetant at their jobs, suffering from mental illness, sabotaging laboratory equipment, and much more. ...
A libel claim has the following elements: (1) intentional or negligent publication (2) of a defamatory statement (3) concerning the plaintiff (4) causing damages. Cal. Civ. Code ß 45; 5 Witkin, Summary of Cal. Law (Torts) ßß 476-495 (9th ed. 1988); Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). The complaint alleges intentional publication by Delfino and Day, ... it alleges defamatory statements concerning Plaintiffs, ... and it alleges damages, ... The complaint also alleges that the statements were false, ... even though falsity is not an element of a libel claim (it is an affirmative defense). See Lipman v. Brisbane Elementary School Dist. 55 Cal. 2d 224, 233 (1961); Ringler Assocs., Inc. v. Maryland Gas Co., 80 Cal. App. 4th 1165, 1180 (2000). ...
Delfino and Day both argue that their Internet postings are not defamatory. It is notable, however, that neither Delfino nor Day actually discusses any of their individual postings. They must know their postings contain classic examples of defamatory speech.
Initially, it should be pointed out that a demurerr cannot be directed to anything except the entire complaint or a count; it will not lie to part of a cause of action. Cal. Code of Civil Proc. ß 430.50; PH II, 33 Cal. App. 4th at 168; 5 Witkin, supra (Pleading) ß 910. This means that the defendants' demurrers to the libel cause of action must be overruled if Plaintiffs identify even a single defamatory posting. Plaintiffs can easily satisfy this requirement because the complaint identifies dozens of defamatory postings. Plaintiffs will discuss several examples here to demonstrate the validity of their claims.
Several of the defendants' Internet messages falsely accuse plaintiffs Susan Felch and George Zdasiuk of engaging in extramarital sexual affairs. Some of these messages falsely imply that Felch has used sex to advance her career. Such accusations are defamatory per se. See, e.g., Cal. Civ. Code ß 46(4); Shumate v. Johnson Pub. Co., 139 Cal. App. 2d 121, 131 (1956). Examples of Internet postings containing such statements read as follows:
...
The so-called research center, building 7, looks like a ghost town, with the IIS manager Sue Felch doing as much as she has ever done...The only thing that makes any sense, and I'm gropping [sic], is there is a dress with a stain on it somewhere...find the dress and you might make money!!!
...
...
Several other Internet messages falsely accuse Felch and Zdasiuk of being "liars" or "chronic liars." Such accusations are also defamatory. ... Some of the Internet postings containing such statements read as follows:
...
Without question, Susan B. Felch, Manager of the Ion Implantation Laboratory in Palo Alto and Vice President George Zdasiuk of the Ginzton Technology Center are chronic LIARS.
I also hear [Felch] won't be leaving Palo Alto for 6 months. It is my concern that she [will] continue to disrupt the Company during this time. In my experience, I believe she has acted as a manipulative liar,or worse yet, as a neurotic hallucinator.
...
Other Internet messages falsely accuse Felch and Zdasiuk of being incompetant at their jobs. Statements are defamatory if they impute to a person "general disqualification in those respects which the office or other occupation peculiarly requires," or if they impute "something with reference to his office, profession, trade, or business that has anatural tendency to lessen its profits." ... Examples of Internet postings containing such statements read as follows:
...
If you think this Zdasiuk is the right person to make our brachtherapy product a winner then that's great....All I'm doing is expressing some doubt about what appears to be a non-technical person attempting a highly technical and challenging job.
VP George Zdasiuk is supposed to come up with a 'breakthrough' technology for medical. The only thing I have seen him do is gain weight.
...
The above postings are more than edequate to support a claim for defamation, but they are not alone. Delfino and Day have also made other provably false factual statements about Plaintiffs, including that they suffer from mental illness, they are homophobic, they secretly videotape coworkers and children in company bathrooms, they engage in workplace harassment, and much more. ... Accordingly, the complaint adequately pleads that Delfino and Day made defamatory statements about Plaintiffs.1
... Delfino argues that Plaintiffs' libel claim is deficient because Plaintiffs did not plead that they complied with California Civil Code section 48a. This is a frivolous argument because Delfino is not within the class of persons the statute was enacted to protect.
Section 48a provides that, in any action for damages for the publication of a libel in a newspaper, the plaintiffs shall only recover special damages "unless a correction be demanded and be not published." ...
Delfino and Day are not engaged in the profession of news dissemination, ... They are engineers who once worked in that capacity for Varian and now operate a medical device company called MoBeta, Inc. ... The Internet messages on which this action is based are not the result of efforts to "collect, collate, evaluate, reduce to communicable form, and communicate the news." Rather, they consist of defendants' recounting of alleged events in their own not-so-recent personal experience. ...
Day argues that the injunctive relief requested by Plaintiffs would constitute a prior restraint of speech in violation of the United States and California constitutions. ...
Fortunately, there is no need to delve into the question of prior restraint at this time. Plaintiffs' request for an injunction is a part of their prayer for relief. It is not part of the cause of action and is therefore not subject to a demurrer. ...
Delfino and Day claim that plaintiffs were required to plead special damages. As established above, however, most or all of the Internet postings in this case are libelous per se. ... Therfore, Plaintiffs did not have to plead special damages. See, e.g., Jimeno v. Commonwealth Home Builders, 47 Cal. App. 660, 663 (1920). Had it been necessary for Plaintiffs to plead special damages, the courts require much less particularity in connection with a general demurrer than a special demurrer. ... Plaintiffs' damages allegations, ... comply with these standards and suffice to withstand the general demurrers.
2. Invasion of Privacy Claim (False Light) - Fourth Cause of Action.
The elements of a cause of action for false light invasion of privacy include: (1) publicity (2) that places a person in a false light in the public eye and (3) that would be objectionable to a reasonable person. ... Thus, if Plaintiffs' libel claim is valid, their claim for false light invasion of privacy is also valid.
3. Claim for Misappropriation of Name - Fifth Cause of Action.
The fifth cause of action alleges that Delfino and Day misappropriated Plaintiffs' names by using variations of "Susan Felch" and "George Zdasiuk" as their Internet aliases. ... They did so with the intent to make it appear that Felch and Zdasiuk had posted the messages themselves. ...
Day argues that nobody who read the postings could have believed that they were actually posted by Felch and Zdasiuk. ...
Delfino claims that Plaintiffs' failed to allege that the misappropriation of their names was done without their consent. ... However, under the common law, Plaintiffs need only plead that the misappropriation of their names was to "defendant's advantage, ..." ...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." ...
4. Unfair Business Practices - First Cause of Action.
Plaintiffs' first cause of action alleges that Delfino and Day violated Cal. Bus. & Prof. Code ßß 17200 et seq., ...
Plaintiffs allege that Delfino and Day have engaged in unlawful, unfair, and fraudulent conduct as part of a business activity. ... Delfino and Day argue that the claim is deficient because Judge Whyte held, in a written decision addressing Plaintiffs' federal Lanham Act claim, that Delfino and Day did not compete with Plaintiffs. However, competition is not an element of a Section 17200 claim. ...
5. False Advertising - Second Cause of Action.
Delfino and Day demur to Plaintiffs' false advertising claim on the same grounds as the Section 17200 claim. Their arguments were addressed in the previous section.
6. Conspiracy - Sixth Cause of Action.
The sixth cause of action asserts that Delfino and Day conspired to commit the defamatory and harassing acts described in the complaint. Delfino argues that a conspiracy claim cannot succeed without an underlying civil wrong. ... Day argues that Plaintiffs can not establish a conspiracy without demonstrating that she engaged in an "overt act" in support of the conspiracy. However, that is not the function of a demurrer, which assumes the allegations of the complaint are true. See, e.g., Tenants Ass'n, 222 Cal. App. 3d at 1297; Bush, 136 Cal. App. 3d at 200.
7. Breach of Contract - Seventh Cause of Action.
the seventh and final cause of action asserts that, by posting defamatory and harassing messages on Yahoo message boards, Delfino and Day violated their service agreement with Yahoo and are liable to Plaintiffs as third party beneficiaries. Delfino argues that Plaintiffs have not alleged any "legally cognizable contract damages" because they seek damages for emotional distress and loss of reputation. ...
Emotional distress damages are recoverable in a breach of contract action when the nature of the contract "put[s] the defendants on notice that a breach thereof would result in emotional and mental suffering by the plaintiff as well as other forms of compensable damage." Wynn v. Monterey Club, 111 Cal. App. 3d 789, 801 (1980). This is merely an extension of the general rule that the measure of damages for breach of contract includes "all the detriment... which, in the ordinary course of things, would likely to result" from the breach. Cal. Civ. Code ß 3300. ...
1. Varian Medical and Varian Semiconductor can base their libel claims on statements that concern their employees, Felch and Zdasiuk, if those statements were made "in direct relation to the trade or business of the corporation." Washburn v. Wright, 261 Cal. App. 2d 789, 793 (1968). Obviously, Internet messages claiming that Felch and Zdasiuk are incompetant, harass coworkers, videotape coworkers in the company bathroom, sabotage company equipment, and discriminate in hiring decisions meet that criterion. Furthermore, the corporate plaintiffs do not base their libel claims exclusively on statements about Felch and Zdasiuk. ... Thus, Varian Medical and Varian Semiconductor have adequately pled a cause of action for libel.
B. The Defendants' Uncertainty Objections Are Meritless.
Delfino and Day have filed special demurrers objecting to numerous aspects of the complaint on the ground of uncertainty. The special demurrers should be overruled because the defendants have waived this objection and the complaint is not uncertain.
Plaintiffs have filed four versions of the complaint; ... Delfino and Day have never before sought clarification of Plaintiffs' claims. ...
...These objections have been waived because they were not raised in connection with any of the previous complaints. ... Although Delfino and Day could not have filed "demurrers" in federal court, where this case was previously pending, comparable procedures were available to them there in the form of a motion to dismiss or a motion for more definite statement. See F.R.C.P. 9(g), 12(b)(6), 12(e). Their failure to use those procedures constitutes a waiver. ...
This case was originally filed by Varian Associates, Inc. ... In the First Amended Complaint, Varian Associates was replaced as plaintiff by Varian Medical and Varian Semiconductor, the respective employers of Felch and Zdasiuk.
Delfino and Day argue that the complaint makes unclear references to "Varian." The references are too numerous to discuss individually, but in each case the meaning of the term is clear from its context. ... These references are not ambiguous.
Day also alleges uncertainty with respect to statements in the complaint that "Varian Associates" and "its employees" were defamed or otherwise wronged. ... The reference to Varian Associates is clear and accurate, not uncertain.
...
Day contends there is an inconsistency in the complaint because, on the one hand, it states that the defendants' Internet postings are libelous on their face, ..., while on the other hand, it provides explanatory statements regarding certain postings, ... However, there is no inconsistency. A statement may be defamatory on its face even though it uses implication or insinuation to accomplish its purpose. ... In ruling on a demurrer, "our inquiry is not to determine whether the publication may have an innocent meaning but rather to determine if it reasonably conveys a defamatory meaning....In making that determination we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the publication." Id.2 The explanatory statements in the complaint identify the implications and insinuations that a reasonable person would read into the defendants' Internet postings. ...
Delfino contends that the complaint does not adequately identify the "time, date, place, location, manner," or content of his defamatory statements. ... Plaintiffs have identified most of his defamatory postings by repeating them verbatim or physically attaching them to the complaint. Additional information regarding the postings, such as the time and date when they were posted, is contained in the exhibits to the complaint. Delfino does not need more to be able to respond to the complaint, particularly given that he and Day have already admitted posting many of these messages ...
Plaintiffs already demonstrated that their damages allegations are sufficient to withstand a general demurrer. See supra p.7. Delfino and Day also filed special demurrers with respect to special damages. As noted above, the demurrers should be overruled because Delfino and Day have already waived the objection. ... Plantiffs have pled their special damages with requisite specificity, identifying increased security costs, lowered employee productivity, and other damages. ... If these allegations, which have never before been challenged, are deemed insufficient, Plaintiffs should be given the opportunity to amend them. ...
As a final objection, the defendants allege that Plaintiffs' breach of contract claim is uncertain because it supposedly is not "ascertainable from the complaint whether the contract was written or oral." ... However, it is quite clear that the agreement was written. The complaint alleges that Delfino and Day "read the service agreement and agreed to its terms...." ... Obviously, an agreement cannot be read unless it is written. The complaint also sets forth the relevant provisions of the contract verbatim. See id. Thus, Plaintiffs have adequately pled their breach of contract claim.
2. Where, as here, a statement is addressed to the public at large, it can be assumed that some people understood it in its defamatory sense even if it has an innocent interpretation. Selleck, 166 Cal. app. 3d at 1130-31; MacLeod v. Tribune Pub. Co., 52 Cal. 2d 536, 549-50 (1959).
C. Day's Motion to Strike Should Be Denied.
Day moves to strike several allegations from the complaint pursuant to Cal. Code of Civil Proc. ß 436. Plaintiffs oppose the motion, but are unable to discuss the issues further because Day does not explain the grounds on which her motion is based other than repeating boilerplate statements regarding the legal standards that apply generally to motions to strike.3
3. One argument raised by both Delfino and Day is that the Third Amended Complaint is different from the proposed pleading attached to Plaintiffs' motion for leave to ammend the complaint. The only difference is that Plaintiffs deleted several allegations that were in the proposed pleading. Plaintiffs did not add any new allegations. Delfino and Day cite no authority saying that such deletions are improper, nor do they make any showing of prejudice.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully requests that the demurrers filed by defendants Delfino and Day be overruled and that Day's motion to strike be denied.
Dated: October 16, 2000
Lynne C. Hermle
Attorney for Plaintiffs"
In other words, "it's defaming 'cause I said so!"
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