Say it ain't a SLAPP, pleeeeeze!
Lynne C. Hermle, two-time LOSER in Federal Court, Grande Dame of SLAPP & Orrick, Herrington & Sutcliffe partner writes on January 18, 2001
"Dear Messrs. Falcon and Widmann:
On behalf of the Respondents, we request that each appellant dismiss the appeal in the above matter. If the appeals are prosecuted and not dismissed, Respondents will seek monetary sanctions against you and your respective clients, Michelangelo Delfino and Mary Day.
Appellate sanctions are authorized by C.R.C. 26(e) where an appeal is frivolous or taken solely for purposes of delay." The appeals meet both these standards.
First, it is clear from Delfino's attempts to obtain a stay pending appeal that his Appeal has taken solely for purposes of delay. Delfino took his request all the way to the California Supreme Court, but his requests were summarily denied at every level. Both Appeals cannot possibly serve any purpose other than bringing about delay and unnecessary expense given that trial court proceedings will almost certainly conclude before the appeals are decided. There is no reason to proceed with the appeals.
Second, the appeals are frivolous. A SLAPP must be filed within 60 days after service of the complaint. Cal. Code of Civ. Proc. 425.16(f). However, Delfino and Day actively litigated this case for over a year before filing SLAPP motions. It is apparent that they only filed the motions as a last resort to delay the inevitable trial. Consequently, Judge Rushing denied the SLAPP motions on the ground of untimeliness. He also found that the defendants' Internet postings do not involve any public issue and that Plaintiffs are likely to prevail on their claims. The appeals ignore these obvious and unassailable conclusions of law.
We therefore demand that the appeals be dismissed.
Very truly yours.
Lynne C. Hermle"
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