DEFENDANT'S, MARY DAY'S, REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE - SLAPP SUIT
"A. INTRODUCTION
In an opposition rife with misstatements of the record, unfounded accusations, and out and out falsehoods, the Plaintiffs attempt to justify the action they have brought against Defendant, MARY DAY. As the evidence before this Court reveals, the motive behind the action brought against DAY is not to right wrongs, but, rather, to silence DAY for speaking out about the meritless claims brought against her, about publicly traded corporations and about what she perceives to be the injustices of the suit brought against her friend, co-Defendant, MICHELANGELO DELFINO. It is time to put an end to this travesty and remove Defendant, DAY, from this meritless lawsuit.
B. STATEMENT OF FACTS AND OF THE CASE
As the Plaintiffs have done throughout this litigation once they brought DAY into the suit, in their opposition they consistently refer to acts as being done by both DELFINO and DAY despite the fact that the undisputed facts reveal that there is no merit to any of the claims brought against DAY and that, put simply, DAY is not joined at the hip with Defendant, DELFINO. The undisputed facts reveal that DAY posted nothing on the Internet until August 13, 1999. The Plaintiffs have pointed to no evidence at all that DAY posted anything on the Internet prior to that date. Despite that, the Plaintiffs, in their opposition argue that it was "DELFINO and DAY" who posted numerous messages on the Internet commencing in October of 1998.
More importantly, the Plaintiffs, falsely, claim that their case has great merit as against DAY and that the Federal District Court has already determined that DAY is culpable. A review of the record belies this mischaracterization of the record. As DAY has pointed out in her moving papers, Plaintiffs sought to have DELFINO held in contempt for violation of a previously entered injunction entered solely against him. The District Court, as District Courts do, set briefing schedules which excluded DAY. Therefore, DAY filed no opposition to the motion to have DELFINO held in contempt. Thereafter, without DAY's opposition, the Court granted a preliminary injunction as part of its finding of DELFINO in contempt and did so not only against DELFINO, but DAY. This was one of the grounds upon which Defendant, DAY, appealed the preliminary injunction.
Plaintiffs completely ignore the fact, again as pointed out in DAY's moving papers, that they sought to impose a temporary restraining order against DAY and DELFINO subsequently. On that occasion, DAY was on notice and filed her opposition. The postings and arguments upon which Plaintiffs based their request for a TRO were virtually identical to those used to find DELFINO in contempt. On the second go around when DAY filed her opposition, the Federal District Court denied the motion as to DAY. In doing so, the Court held as follows: "The Court has not found sufficient evidence that Ms. DAY has engaged in the complained of conduct to warrant identifying her by name in the temporary restraining order." (See Exhibit H, fn. 4 to Decl. of R. Widmann filed with DAY's moving papers.) Thus, contrary to Plaintiffs' claims that the District Court found that the case has merit as against DAY, quite the opposite is revealed upon a review of the underlying record.
What is equally telling to the Plaintiffs' opposition is that they cannot provide any evidence that DAY acted as a co-conspirator with Defendant, DELFINO, or in concert with him. The only things they can point to are two bits of so-called evidence. First, they point to a video taken at a Kinko's location. The Plaintiffs assert that the video shows DAY "intently" staring at the computer monitor while DELFINO types in an alleged defamatory message. That is absolutely false. A review of the video shows that part of the time DAY had her back to DELFINO while the other part of the time she simply sat next to him. She never touched the monitor, never made any suggestions to DELFINO as to what to put in, and she simply observed, at best, part of what DELFINO was about. Doing so does not impose liability upon DAY for anything, let alone liability as a co- conspirator, as DAY has set forth in her moving papers.
The other bit of so-called evidence which the Plaintiffs point to purportedly showing that DAY was acting in concert with DELFINO, is the fact that she got rid of a computer she had had for a long time and had trouble with. As the undisputed evidence reveals, the computer at issue was balky, had not worked properly despite many repairs. On her birthday, and having gotten fed up with the computer, DAY gave the computer away to a Good Will store and bought a new computer. As she testified, as is set forth in the undisputed facts attached as Exhibit A to the Memorandum of Points and Authorities in Support of the instant motion, DAY had no knowledge of what DELFINO used the computer for, merely that he was using it to tie in to the Internet. She also testified that she had no knowledge of the lawsuit other than that there was some litigation and that she did not know what it was about. In short, all that the Plaintiffs' have is unfounded, unsupported pure conjecture to support their theory that the evidence showed that DAY was somehow involved in a conspiracy with DELFINO. Of course the question is begged, if she was involved in the conspiracy and they knew so back in February of 1999, why did they wait for some eight months to bring her into the action despite the fact they thereafter filed a First Amended Complaint.
Most telling about the Plaintiffs' argument in their opposition is the fact that none of the postings made by DAY are defamatory. All of the postings, as the Court can see by a review of those postings which are attached to the Declaration of MARY DAY, is that DAY was making comments on the Internet about publicly traded corporations, namely the corporate Plaintiffs in this action, and about this lawsuit. She is perfectly entitled to do so and the United States and California constitutions afford her protection under her right of free speech.
It is important to look at the e-mails and postings that the Plaintiffs have attached to the Third Amended Complaint. These postings are not, again contrary to Plaintiffs' claims, defamatory. A review of the decision in Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, reveals the lack of merit of Plaintiffs' claims. Plaintiffs have set forth in their opposition what apparently they deem to be the most serious postings. Those postings don't even come close to the statements attributed to the alleged wrongdoer in Ferlauto v. Hamsher which the court found were entitled to protection under the First Amendment.
In another case cited by Defendant in her moving papers, namely Nicosia v. DeRooy (1999, Northern Dist.) 72 F.Supp.2d 1093, the alleged wrongdoer claimed that the Plaintiff was a murderer, had embezzled money, committed fraud and other criminal acts and was guilty of perjury. For instance, the alleged wrongdoer wrote that the Plaintiff was "mentally unstable from the stress of his crusade" and that he was "deliberately lying, including perjuring himself in Court documents." (Nicosia v. DeRooy at 1104) In that case, the Court dismissed the Complaint of the Plaintiff finding that none of the statements and writings were defamatory and were, in any event, entitled to protection under the First Amendment.
A review of the postings attributed to even DELFINO do not even come close to those in the above-referenced cases. They may be inflammatory, they may be foolish, they may be based on ridicule and hyperbole, but they are not defamatory. If they are, then anyone would be liable for defamation if they criticized a publicly traded corporation or the management of that corporation or engaged in name calling. It is not the intent of the law of this country or of this state to muzzle people so they can't call someone else fat, stupid or make other derogatory remarks regarding them. It is without dispute that the corporate Plaintiffs in this action are publicly traded companies. Any statements made about them, whether derogatory or not, by either DELFINO or DAY is subject to First Amendment protection. They also come within the purview of SLAPP actions as Defendant, DAY, has pointed out in her moving papers. DAY's comments regarding the publicly traded corporations and her lack of faith in their being properly managed are protected. Clearly the intent of the lawsuit brought against DAY is to muzzle her and keep her from commenting about what she perceives to be the mismanagement of these companies.
Furthermore, the remainder of DAY's postings, which concern themselves about the litigation brought against her and Mr. DELFINO are again protected not only by the First Amendment, but also come in the purview of SLAPP actions. Surely a Defendant is allowed to speak out about the lack of merit of a lawsuit brought against her. Again, the action brought by Plaintiffs is designed to muzzle DAY and to keep her from speaking out about what she perceives to be the injustice and lack of merit of the action brought against her.
The Plaintiffs have no evidence that they can point to that DAY posted any posting or e-mail message prior to August 13, 1999, almost a month after she was made a party to this lawsuit. Indeed, one of the Plaintiffs' arguments is that they have "overwhelming evidence" that "conclusively" refutes DAY's argument that she didn't post anything until August 13, 1999. (See opposition brief, p. 10) Where is that evidence for certainly they do not present it in their opposition? Their argument attacks DELFINO and, again, references the fact that a preliminary injunction was issued against DAY. As alluded to above, that establishes nothing other than the fact that DAY did not oppose a motion which the Federal District Court did not require her to oppose. DAY prevailed in the second effort to impose a temporary restraining order based on the express finding by Judge Whyte that there was not sufficient evidence to hold DAY accountable. Just as there was not sufficient evidence to hold DAY accountable for any of the actions that Plaintiffs attributed to her then, there is even less now. In short, the Plaintiffs have produced no evidence to show that DAY has done anything other than speak out against the injustice of being sued by these Plaintiffs.
The arguments made by Plaintiffs in their opposition brief are unsupported by the record and by the facts. What the Plaintiffs have done is hang together a shotgun opposition, as they have done throughout this litigation and simply included DAY in every allegation they may have against DELFINO, an inclusion which is without any basis in fact. Furthermore, they have purportedly quoted postings which they claim are defamatory on their face when a reading of these postings reveal they are anything but defamatory. First Amendment rights protect people when they criticize other people, when they poke fun of people, when they question the management of publicly traded corporations, and when they make fair comment about on-going litigation. That is all that DAY has done. Looking at the case against DAY for what it is, it is designed to silence her, to prevent her from speaking out about the injustice of being sued and to prevent her from speaking out in defense of her friend, Defendant, DELFINO. Originally brought by Plaintiffs as a way to squeeze DELFINO, to put pressure on him via a suit against his business partner, the action evolved into one to muzzle DAY.
The Plaintiffs argument that the Motion to Strike before this Court is untimely is without merit. The very case cited by Plaintiffs, namely, Globetrotter Software, Inc. v. Elan Computer Group, Inc. (1999) 63 F.Supp.2d 1127, dealt with the very issue raised by Plaintiff, namely can a SLAPP action be brought in opposition to an amended complaint. The court found it could. Indeed, it wasn't until mid-1999 that the Federal Courts even allowed SLAPP motions to be brought in Federal Court. (See Newsham v. Lockheed Missiles and Space Co., Inc. (1999, 9th Cir.) 190 F.3d. 963)
The protection afforded by California can, namely the right to strike down actions designed to muzzle litigants and others is precisely the protection that DAY is deserving of here. The Plaintiffs can point to no evidence that DAY is culpable or engaged in any wrongdoing of any sort whatsoever. All they can do is argue, without merit and by mis-citing the underlying record and mis-characterizing evidence, that DAY has somehow acted as a co-conspirator. As is addressed in DAY's moving papers, she is anything but a co-conspirator. She is a victim of the Plaintiffs' efforts to punish Defendant, DELFINO, for alleged slights and name calling.
DAY should be afforded the full protection of California law and her motion should be granted.
C. OBJECTION TO OPPOSITION EVIDENCE
Defendant, DAY, joins in the objection to Plaintiffs' opposition evidence made by Defendant, DELFINO.
DATED: October 23, 2000.
RANDALL M. WIDMANN
Attorney for Defendant, DAY"
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