Judge Komar delays Final Judgment in Varian SLAPP!
[proposed] JUDGMENT
"This cause came on regularly for trial on October 22, 2001, in Department 22 of the above-entitled court, the Honorable Jack Komar, Judge, presiding. Plaintiffs Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan B. Felch, and George Zdasiuk appeared by their attorneys Lynne Hermle, Esq. and Matthew Poppe, Esq; defendant Michelangelo Delfino appeared by his attorney Glynn Falcon; and defendant Mary E. Day appeared by her attorney Randall Widmann, Esq.
A jury of twelve persons was regularly impaneled and sworn to try the action. Witnesses were sworn and examined. After hearing the evidence, the arguments of counsel, and instructions of court, the jury retired to consider their verdict, subsequently returned to court, and being called, duly rendered their verdict in writing, in words and figures, as follows:
VERDICT
Following the rendering of the above verdict, a second phase of the trial was held. Witnesses were sworn and examined. After hearing the evidence, the arguments of counsel, and instructions of the court, the jury retired to consider their verdict, subsequently returned to court, and being called, duly rendered their verdict in writing, in words and figures, as follows:
VERDICT
WHEREFORE, by virtue of the law, and by reason of the premises aforesaid, IT IS ORDERED, ADJUDGED, and DECREED that:
1. plaintiff Susan B. Felch have and recover from defendants Michelangelo Delfino and Mary E. Day, jointly and severally, the sum of $350,000.00;
2. plaintiff George Zdasiuk have and recover from defendants Michelangelo Delfino and Mary E. Day, jointly and severally, the sum of $275,000.00;
3. plaintiff Varian Medical Systems, Inc. have and recover from defendants Michelangelo Delfino and Mary E. Day, jointly and severally, the sum of $75,000.00;
4. plaintiff Varian Semiconductor Equipment Associates, Inc. have and recover from defendants Michelangelo Delfino and Mary E. Day, jointly and severally, the sum of $75,000.00;
5. plaintiff Susan B. Felch, George Zdasiuk, Varian Medical Systems, Inc., and Varian Semiconductor Equipment Associates, Inc. have and recover from defendants Michelangelo Delfino and Mary E. Day, jointly and severally, costs and disbursements in the sum of $________;
each said amount with interest theron at a rate of ten percent (10%) per annum from the date of the entry of this judgment until paid.
In addition to the above, a final injunction is hereby granted pursuant to Civil Code section 3422, on the basis of the court's findings, in light of all the evidence presented at trial that:
1. defendants Michelangelo Delfino and Mary E. Day have breached obligations existing in favor of plaintiffs Varian Medical Systems, Inc., and Varian Semiconductor Equipment Associates, Inc., Susan B. Felch, and George Zdasiuk under the common law of libel, the common law of invasion of privacy (appropriation of name), the Yahoo! Inc. Terms of Service, and Business & Professions Code sections 17200 et seq;
2. a final injunction is needed to prevent defendants Michelangelo Delfino and Mary E. Day from continuing to breach said obligations;
3. pecuniary compensation would not afford adequate relief, due in part to the fact that the harm caused by defendants' breaches consists in large part of harm to reputation and emotional distress;
4. it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief, due in part to the fact that the harm caused by the defendants' breaches consists in large part of harm to reputation and emotional distress; and
5. the restraint is necessary to prevent a multiplicity of judicial proceedings.
WHEREFORE, by virtue of the law, and by reason of the premises aforesaid, IT IS FURTHER ORDERED, ADJUDGED, and DECREED as follows:
1. Michelangelo Delfino and Mary Day may not publish written statements, on the Internet or otherwise, that state, imply, or suggest any of the following:
a. that Susan Felch or George Zdasiuk is a liar or chronic liar;
b. that Susan Felch or George Zdasiuk has engaged in adultery or extramarital affairs or is sexually promiscuous;
c. that Susan Felch, George Zdasiuk, or James Fair is a danger to children or others;
d. that Susan Felch, George Zdasiuk, Varian Associates, Inc., Varian Medical Systems, Inc., or Varian Semiconductor Equipment Associates, Inc., or any of their officers, directors, employees, agents, or representatives videotaped any bathroom, restroom, lavatory, or similar place, or videotaped any person inside any such place, or videotaped any activity inside any such place, including but not limited to statements that any person was videotaped "going to the bathroom" or using the bathroom";
e. that James Fair is homosexual;
f. that Susan Felch or George Zdasiuk is mentally unstable or mentally ill or suffers from hallucinations;
g. that Susan Felch sabotaged a PLAD experiment or process or any other experiment or process at her employment;
h. that Susan Felch had a semen stain on her dress or had sex with a supervisor;
i. that Megan Gray said that Susan Felch had a semen stain on her dress or had sex with a supervisor;
j. that Susan Felch or George Zdasiuk stalks other persons, including but not limited to Michelangelo Delfino and Mary Day;
k. that George Zdasiuk is homophobic;
l. that George Zdasiuk discriminates on the basis of gender or pregnancy;
m. that George Zdasiuk has stared at a female employee's breasts or chest;
n. that Varian Associates, Inc., Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., or any present or former Varian officer or supervisor allowed pornography to be produced, created, generated, viewed, posted, or downloaded in the workplace;
o. that any present or former Varian officer, director, or employee, including but not limited to Ron Powell, sent pornography to or forced pornography on any present or former Varian employee, including but not limited to Michelangelo Delfino;
p. that Richard Levy or Richard Aurelio has committed perjury or is being investigated for perjury;
q. that Megan Gray is a liar;
r. that Varian managers violate company policy,1 or
s. that Varian Associates, Inc., Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., or any Varian officer, director or employee, agent or representative destroyed evidence in this case or wrongfully reused the tapes in connection with the camera that was placed in Susan Felch's office in 1998.
This paragraph 1 shall not be construed as a general prohibition on defamatory statements. Only statements that convey the facts listed above in subparagraphs (a)-(s), all of which were shown at trial to be false and defamatory, are prohibited by this paragraph 1. Nor shall this paragraph 1 be construed as a prohibition on statements about future events or conduct, provided that any such statements that relate to the matters listed above in subparagraphs (a)-(s) are supported by actual facts and not mere suspicion or conjecture.
1 At trial, the evidence showed that only one policy--the policy requiring that employees receive written performance reviews on an annual basis--may have been violated. As a result, it is false to make a generalized statement that company managers violate company policies.
2. With respect to Internet messages, Michelangelo Delfino and Mary Day may not publish any statement that states, implies, or suggests any of the false facts listed above in paragraph 1(a)-(s) in any part of a message, including but not limited to the body, the title, and the alias. For example, the alias "varian_videotapes_bathrooms" is prohibited.
3. Michelangelo Delfino and Mary Day may not publish any written statement that uses any play on James Fair's name (including, but not limited to "Fairy") to suggest that he is homosexual.
4. Michelangelo Delfino and Mary Day may not use the name of Susan Felch, George Zdasiuk, or any other Varian employee or former employee (including, but not limited to, Richard Levy, Richard Aurelio, James Fair, Ron Powell, James Hennessy, Jane Crisler, Jeffrey Wright, Craig Moro, and Kathy Hibbs), or any other person who testified as a deposition or trial witness in this case or was identified as a potential deponent or trial witness in this case, or any attorney who participated in the trial of this case or was referred to in connection with this case (including, but not limited to, Lynne Hermle, Matthew Poppe, Peter McMahon, Joseph Liburt, and Megan Gray), or any family member of any such person, as an alias on the Internet or otherwise without the person's express written permission, nor shall Michelangelo Delfino or Mary Day use any such person's name in the title of an Internet message in conjunction with any of the false statements listed above in paragraph 1(a)-(s).
5. Michelangelo Delfino and Mary Day may not use the names "Varian," "Varian Medical Systems, Inc." "Varian Semiconductor Equipment Associates," "VSEA," or "VMS," or any play on any of these names, as an alias on the Internet or otherwise, nor may Michelangelo Delfino or Mary Day use any such name in the title of an Internet message in conjunction with any of the false statements listed above in paragraph 1(a)-(s).
6. Michelangelo Delfino and Mary Day may not post statements about the wealth of any present or former officer, director, or employee of Varian Associates, Inc., Varian Medical Systems, Inc., or Varian Semiconductor Equipment Associates, Inc. in the same place or on the same web site or message board where they post or have posted any of the following:
a. a statement about the location of the person's residence;
b. a statement about where the persons' residence address can be found (such as the page and the location in the phone book);
c. a statement about the name of the person's spouse or child; or
d. a statement about where the person's spouse or child can be located.
7. Michelangelo Delfino and Mary Day must remove all statements existing on any web site under their control (including but not limited to any web site whose address begins "http://www.geocities.com/mobeta_inc/slapp ...") that convey any of the false facts listed above in paragraph 1(a)-(s).
8. Michelangelo Delfino and Mary Day must submit a written request to each person or company (including but not limited to Yahoo, Raging Bull, Stock-Talk, Silicon Investor, and Motley Fool) that controls an Internet message board on which Delfino and/or Day has posted any message containing one or more statements that convey any of the false facts listed above in paragraphs 1(a)-(s), whether such statements appear in the body of the message(s), the title of the message(s), or the alias(es). Each such request must specifically identify each such message and must ask the person or company to whom the request is addressed to delete each message such that each message is no longer publicly accessible. Michelangelo Delfino and Mary Day shall provide a copy of each such request to Glynn Falcon, Esq. and Randall Widmann, Esq., who shall then serve a copy of the same upon Lynne Hermle, Esq. and Matthew Poppe, Esq. via U.S. mail and or facsimile.
9. In complying with paragraphs 7 and 8 hereof, Michelangelo Delfino and Mary Day must act with all deliberate speed.
10. Michelangelo Delfino and Mary Day must maintain a written list of all aliases that they use after the date of this judgment to post Internet messages that make direct or indirect reference (whether in the body or title of the message or in the alias) to any person or company identified in paragraphs 4 and 5 of this order. Michelangelo Delfino and Mary Day must update the list immediately upon using a new alias and, by no later than the end of the following business day, must provide a copy of the updated list to Glynn Falcon, Esq. and Randall Widmann, Esq. Messrs. Falcon and Widmann shall maintain each list for at least five years after receipt.
11. Michelangelo Delfino and Mary Day may not contact any of the persons identified in paragraphs 4 and 5 of this order, including but not limited to contact by any of the following means:
a. approaching within 100 feet of any such person or any such person's place of residence, employment, or schooling;
b. sending mail or email to any such person; or
c. telephoning or dialing the telephone number of any such person.
This order shall not be construed to prohibit Delfino and Day from contacting their friends.
Michelangelo Delfino and Mary Day are prohibited from going to or upon the premises of Varian Semiconductor Equipment Associates, Inc. and/or Varian Medical Systems, Inc., without the express written approval from an officer, or director of either of those entities issued in advance of the visit. This is not intended to prohibit either Day or Delfino from attending a shareholder meeting open to all shareholders of either company, assuming that Day and Delfino are existing shareholders with the privilege to attend such a meeting.
12. Michelangelo Delfino and Mary Day may not do indirectly what they are prohibited in paragraphs 1,2,3,4,5,6, and 11 from doing directly. Michelangelo Delfino and Mary Day may not encourage, aid, abet, or conspire with any other person to engage in any such conduct. In particular, Michelangelo Delfino and Mary Day may not forward any message that would violate this order to another person for the purpose of having the other person post it on the Internet or with the expectation that the other person will do so.
In addition, the Court granted the motion for directed verdict brought by cross-defendants Varian Medical Systems, Inc. and Varian Semiconductor Equipment Associates, Inc. with respect to cross-claimant Michelangelo Delfino's cross-claim for breach of contract. In accordance with that ruling, a verdict was entered in favor of cross-defendants Varian Medical Systems, Inc. and Varian Semiconductor Equipment Associates, Inc. against cross-claimant Michelangelo Delfino on the cross-claim.
WHEREEFORE, by virtue of the law, and by reason of the premises aforesaid, IT IS ORDERED, ADJUDGED, AND DECREED that cross-complainant Michelangelo Delfino have and recover nothing against cross-defendants Varian Medical Systems, Inc. and Varian Semiconductor Equipment Associates, Inc. on his cross-claim for breach of contract.
Dated:
Judge of the Superior Court"
On Jan 16, 2001 Judge Jack Komar refused to sign this Order and instead scheduled a new hearing for February 6, 2002.
Be careful who you SLAPP! |
