Varian SLAPP - FINAL JUDGMENT (finally) filed:
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. The jury's verdict, signed by the foreperson and dated December 13, 2001, is attached hereto as
Exhibit A.
Following the rendering of the verdict, a second phase of the trial was held related to punitive damages. 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 on punitive damages, subsequently returned to court, and being called, duly rendered their verdict in writing, in words and figures. The jury's verdict on punitive damages, signed by the foreperson and dated December 17, 2001, is attached hereto as
Exhibit B.
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 defendant Michelangelo Delfino the sum of $75,000.00 in compensatory damages and $100,000.00 in punitive damages;
2. plaintiff Susan B. Felch have and recover from defendant Mary E. Day the sum of $75,000.00 in compensatory damages and $100,000.00 in punitive damages;
3. plaintiff George Zdasiuk have and recover from defendant Michelangelo Delfino the sum of $75,000.00 in compensatory damages and $100,000.00 in punitive damages;
4. plaintiff George Zdasiuk have and recover from defendant Mary E. Day the sum of $50,000.00 in compensatory damages and $50,000.00 in punitive damages;
5. plaintiff Varian Medical Systems, Inc. have and recover from defendant Michelangelo Delfino the sum of $50,000.00 in compensatory damages;
6. plaintiff Varian Medical Systems, Inc. have and recover from defendant Mary E. Day the sum of $25,000.00 in compensatory damages;
7. plaintiff Varian Semiconductor Equipment Associates, Inc. have and recover from defendants Michelangelo Delfino the sum of $50,000.00 in compensatory damages;
8. plaintiff Varian Semiconductor Equipment Associates, Inc. have and recover from defendant Mary E. Day the sum of $25,000.00 in compensatory damages;
9. plaintiffs 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 their costs of suit;
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 permanent injunction is hereby granted pursuant to Civil Code section 3422, based upon all of 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 agreement between Yahoo! Inc. and defendants Michelangelo Delfino and Mary E. Day entitled "Terms of Service," of which plaintiffs are third party beneficiaries; and Business & Professions Code sections 17200 et seq;
2. a permanent 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 plaintiffs' reputations and emotional distress suffered by plaintiffs Susan B. Felch and George Zdasiuk;;
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 plaintiffs' reputations and emotional distress suffered by plaintiffs Susan B. Felch and George Zdasiuk; and
5. the permanent injunction 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, post, or otherwise disseminate, directly or indirectly on the Internet or elsewhere, any written statement that is untrue, expressly or by implication, with regard to any person identified in subparagraphs (a)-(w) below in any of the ways specified therein, which the Court finds are untrue, except that this paragraph 1 does not prohibit Michelangelo Delfino or Mary E. Day from making statements about matters that may occur after the date of the trial:
a. that Susan Felch or George Zdasiuk is or was a liar or chronic liar;
b. that Susan Felch, George Zdasiuk, Richard Aurelio, Richard Levy, or any of their spouses has engaged in adultery or extramarital affairs or is or was sexually promiscuous;
c. that Susan Felch, George Zdasiuk, or James Fair is or was 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 children or 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" or "performing bodily functions");
e. that James Fair is or was homosexual;
f. that Susan Felch or George Zdasiuk is or was 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 other clothing or had sex with a supervisor;
i. that Megan Gray said that Susan Felch had a semen stain on her dress or other clothing 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 or was homophobic;
l. that George Zdasiuk discriminates on the basis of gender or pregnancy;
m. that George Zdasiuk has stared at or regularly stares at female employee's breasts or chests in the course of his employment;
n. that Varian Associates, Inc., Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., or any of their present or former officers or supervisors produced pornography in the workplace or downloaded from the Internet, or that they allowed others to produce pornography in the workplace or download pornography from the Internet;
o. that any present or former Varian officer, director, or employee of Varian Associates, Inc., Varian Semiconductor Equipment Associates, Inc., or Varian Medical Systems, Inc. sent pornography to or forced pornography on any of those companies' present or former employees, including but not limited to Michelangelo Delfino;
p. that Richard Levy or Richard Aurelio has lied under oath or has committed perjury or is being or has been investigated for perjury;
q. that Megan Gray is or was a liar;
r. that Varian Associates, Inc., Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., managers, past or present, violated company policies, except that certain written performance reviews were not timely prepared by some managers;
s. that Varian Associates, Inc., Varian medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., or any their present or former officers, directors, employees, agents, or representatives destroyed evidence in this case or wrongfully reused the tapes used in connection with the camera that was placed in Susan Felch's office in 1998;
t. that George Zdasiuk is or was an alcoholic or a drunk, or that he habitually drinks or is intoxicated, or that he was drunk or intoxicated at work or during any deposition or other court proceeding;
u. that George Zdasiuk was not upset by the death of his sister, or by the death of his father, or by the World Trade center disaster on September 11, 2001;
v. that Varian Associates, Inc., Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., or any their present of former officers, directors, or employees, created, fostered, supported, or permitted the existence of a hostile work environment, or that a hostile work environment existed at that Varian Associates, Inc., Varian medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc.; or
w. that Susan Felch or George Zdasiuk harassed Michelangleo Delfino, Mary E. Day, or any other person, either in the workplace or elsewhere.
This paragraph 1 shall not be construed as a general prohibition on defamatory statements. Only written statements that defame any person identified in subparagraphs (a)-(w), above in any of the ways specified therein, all of which were shown to be be false and defamatory, are prohibited by this paragraph 1. In addition, this paragraph 1 shall not be construed to prohibit Michelangelo Delfino and Mary E. Day from publishing fair and true reports of the proceedings in this action or other statements that are privileged under California Civil Code section 47.
2. 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.
3. Michelangelo Delfino and Mary Day may not publish any statement prohibited by paragraph 1 or paragraph 2 in any part of an Internet message, including but not limited to the body, the title, and the alias. For example, the alias varian_videotapes_bathrooms is prohibited.
4. Michelangelo Delfino and Mary E. Day may not use the names of Susan Felch, George Zdasiuk, or any other present or former officer, director, or employee of Varian Associates, Inc., Varian Medical Systems, Inc., or Varian Semiconductor Equipment Associates, Inc. (including but not limited to, Richard Levy, Richard Aurelio, James Fair, Ron Powell, James Hennessy, Jane Crisler, Jeffrey Wright, Craig Moro, Kathy Hibbs, Carl Herrera, Juanita Sonico, Joseph Phair, Gary Loser, and Steve Henderson), 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 (including, but not limited to, Kevin Felch and Julie Fouquet), 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, in an alias or part of an alias in such a way that it appears to be a posting by any such person or otherwise a misappropriation or unauthorized use of such name, on the Internet or elsewhere, without the person's prior written permission, nor shall Michelangelo Delfino or Mary E. Day use any such person's name in the title of an Internet message if the message contains any statement that defames any person identified in paragraph 1(a)-(w) in any of the ways specified in that paragraph. Michelangelo Delfino and Mary E. Day may not impersonate the persons identified in this paragraph in any other way without their express prior written permission, including but not limited to impersonation by attributing to such persons, expressly or by implication, statements which they did not make.
5. Michelangelo Delfino and Mary Day may not use the names "Varian," "Varian Associates, Inc.," "Varian Medical Systems, Inc." or "VMS," or all or part of an alias, on the Internet or elsewhere, without prior written permission from an officer of Varian Medical Systems, Inc. Michelangelo Delfino and Mary Day may not use the names, or any play on the names, "Varian," "Varian Associates, Inc.," "Varian Semiconductor Equipment Associates, Inc.," or "VSEA" as all or part of an alias, on the Internet or elsewhere, without prior written permission from an officer of Varian Semiconductor Equipment Associates, Inc. Michelangelo Delfino and Mary E. Day may not use any such name in the title of an Internet message if the message contains any statement that defames any person identified in paragraph 1(a)-(w) in any of the ways specified in that paragraph.
6. Michelangelo Delfino and Mary Day may not post statement about the financial condition or any financial transactions 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 have posted or will post 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 line 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.
Michelangelo Delfino and Mary Day may not post any statement listed in subparagraphs (a)-(d) above in the same place or on the same web site or message board where they have posted or will post any statement about the financial condition or any financial transactions of any present or former officer, director, or employee of Varian Associates, Inc., Varian Medical Systems, Inc., or Varian Semiconductor Equipment Associates, Inc.
7. Michelangelo Delfino and Mary Day shall 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 are untrue with regard to any person identified in paragraph 1(a)-(w) in any of the ways specified in that paragraph. This paragraph 7 shall not reqire the removal of statements that the Court has not found to be untrue,with the exception of the statements addressed above by paragraph 6. In addition, this paragraph 7 does not require the removal of fair and true reports of the proceedings in this action within the meaning of California Civil Code section 47(d).
8. Michelangelo Delfino and Mary Day shall take all steps needed to cause the removal of all messages containing one or more statements that defame any person identified in paragraph 1(a)-(w) in any of the ways specified in that paragraph from all Internet message boards, including but not limited to those operated by Yahoo, Raging Bull, Stock-Talk, Silicon Investor, and Motley Fool, whether such statements appear in the body of the message(s), the title of the message(s), or the alias(es).1 For purposes of this paragraph 8, an Internet message is "removed" when it is no longer publicly accessible. Michelangelo Delfino and Mary E. Day shall provide their current counsel (as defined below in paragraph 15) with a copy of all written correspondence between themselves or their representatives and the Internet message board operators related to their efforts to comply with this paragraph 8 within (10) days after sending or receiving the correspondence, and current counsel shall serve a copy thereof upon Lynne Hermle, Esq. and Matthew Poppe, Esq. via U.S. mail and/or facsimile within ten (10) days after sending or receiving it. If Michelangelo Delfino and Mary E. Day have no current counsel (as defined below in paragraph 15), they shall send a copy of all such correspondence directly to Ms. Hermle and Mr. Poppe via U.S. mail and/or facsimile within ten (10) days after sending or receiving the correspondence.
1. The Court finds that Michelangelo Delfino and Mary E. Day are the account holders of the aliases listed in Exhibit D hereto.
9. In complying with paragraphs 7 and 8 hereof, Michelangelo Delfino and Mary Day shall act with all deliberate speed.
10. Before Plaintiffs file a motion for contempt or seek other assistance from the Court in connection with defendants' compliance or non-compliance with paragraphs 7 and 8 hereof, Plaintiffs' counsel shall meet and confer with current counsel (as such term is defined below in paragraph 15) for Michelangelo Delfino and Mary Day in an effort to resolve the dispute. Al counsel shall meet and confer in good faith. If Michelangelo Delfino and Mary E. Day has no current counsel at the time of the dispute, Plaintiffs may comply with their meet-and-confer obligations under this paragraph 10 with respect to such defendant by sending a writtern demand for compliance directly to such defendant's last-known address and allowing him or oher ten (10) days to respond to the demand.
11. Michelangelo Delfino and Mary E. Day shall maintain a written list of all aliases that them uses after the date of entry 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, along with all corresponding passwords (if any) and the dates during which they used or reserved the use of each such alias. Michelangelo Delfino and Mary Day shall update the list immediately upon using a new alias and/or password. Michelangelo delfino and Mary E. Day shall within (10) days after creating or updating any such list, provide a copy of the most current version of the list of aliases (but not passwords) to their current counsel (as defined below in paragraph 15) or, if they have no current cousnel, to Ms. Hermle and Mr. Poppe via U.S. mail and/or facsimile. Cuurrent consel shall maintain each list for at least five years after receipt, except as provided below, and shall produce the lists to the Court and/or to Plaintiffs' counsel upon order of the Court. If current counsel's representation in connection with this case is terminated prior to the expiration of the five-year period, current counsel shall provide each list in his or her possession to new counsel (as defined below in paragraph 15), or, in the absence of new counsel, to Ms. Hermle and Mr. Poppe via U.S. mail and/or facsimile, and having done so shall have no further obligation to retain the lists. Any list provided to Ms. Hermle and Mr. Poppe under this paragraph 11 shall be deemed confidential and for attorneys' eyes only. If Plaintiffs wish to use the information in any such list in connection with any proceeding in this Court, Plaintiffs shall lodge the lost with the Court under seal in accordance with the applicable rules of court.
12. Michelangelo Delfino and Mary E. Day may not engage in any of the following conduct toward Susan Felch, Kevin Felch, George Zdasiuk, Julie Fouquet, Richard Levy, Richard Aurelio, James Fair, Ron Powell, James hennessy, Jane Crisler, Jeffry Wright, Craig Moro, Kathy Hibbs, Carl Herrera, Juanita Sonico, Steve Henderson, Stephen Melvin, Ph.D., Joseph Phair, Gary Loser, or any such person's family member, without such person's prior permission:
a. contacting, molesting, harassing, threatening, following, stalking, or attacking any such person;
b. knowingly going to within 100 yards of any such person's place of residence, employment, or schooling, except that Michelangelo Delfiono and Mary E. Day may go to and be at Mary Day's children's schools, but must comply with the other provisions of this paragraph 12;
c. communication or attempting to communicate with any such person in any manner, including, but not limited to, via mail, email, facsimile, or telephone; or
d. dialing the telephone number of any such person.
In addition, Michelangelo Delfino and Mary E. Day shall stay at least thirty (30) yards away from each such person at all times, except for peaceful contacts related to court proceedings.
13. Michelangelo Delfino and Mary Day may not:
a. approach within 500 yards of any Varian Medical Systems, Inc. or Varian Semiconductor Equipment Associates, Inc. facility without prior permission from an officer of the pertinent corporation; or
b. dial any Varian Medical Systems, Inc. or Varian Semiconductor Equipment Associates, Inc. telephone number without prior permission from an officer of the pertinent corporation or the person whose number is dialed, except that Michelangelo Delfino and Mary E. Day may telephone each corporation's designated investor relations number, if any, with legitimate investor concersn or questions if they own stock in the corporation in question at the time of the telephone call.
14. Michelangelo Delfino and Mary Day may not do indirectly what they are prohibited in paragraphs 1,2,3,4,5,6,12, and 13 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 E. Day may not communicate 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.
15. For purposes of paragraphs 8, 10, and 11 hereof, "current counsel" initially shall mean Glynn Falcon, Esq. and Randall Widmann, Esq. If Mr. Falcon and/or Mr. Widmann ceases to represent Michelangelo Delfino and Mary E. day in connection with this case, "current counsel" shall mean the attorney(s) who most recently have agree to represent Michelangelo Delfino and/or Mary E. Day in connection with this action, provided that said attorneys have agreed to execute and have executed a Substitution of Counsel form in the form attached hereto as Exhibit C and have provided a copy of the executed Substitution of Counsel form to their predecessors, to Plaintiffs' counsel, and to the Court. Each such attorney shall be deemed "new counsel" with respect to his or her immediate predecessor, if any.
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-complaint 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-complaint.
WHEREEFORE, by virtue of the law, and by reason of the premises aforesaid, IT IS ORDERED, ADJUDGED, AND DECREED that judgment is entered in favor of cross-defendants Varian Medical Systems, Inc. and Varian Semiconductor Equipment Associates, Inc.; 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-complaint for breach of contract; and that cross-defendants Varian Medical Systems, Inc. and Varian Semiconductor Equipment Associates, Inc. have and recover from cross-complainant Michelangelo Delfino their costs of suit.
Dated: 2-13-2002
Judge of the Superior Court
JACK KOMAR"
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