Still not too late to apologize!!!!!
DEFENDANT DELFINO'S NOTICE OF MOTION AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT; POINTS AND AUTHORITIES; DECLARATION(S) OF GLYNN P. FALCON, RANDALL WIDMANN. (Judgment Non Obstante Veredicto)
TO EACH AND ALL PLAINTIFFS (Varian Medical, Varian Semiconductor, Susan Felch, George Zdasiuk), and Lynne Hermle, Esq. of the Orrick Law Firm, their attorney of record:
PLEASE TAKE NOTICE that on March tbd, 2002 at tbd, _.m., or as soon thereafter as the matter can be heard, in Department 17 of the above-entitled court, located at 191 North First Street, San Jose, CA 95113 defendant, Michelangelo Delfino, will move, pursuant to Code of Civil Procedure section 629, that the court grant defendant a judgment notwithstanding the verdict rendered in the above-entitled action on February 13, 2002,with Notice of Entry served on Valentines Day, February 14, 2002, on the ground that the verdict is not supported by any substantial evidence, as is more fully set forth in the attached memorandum of points and authorities and declarations of Glynn P. Falcon and Randall Widmann.
The motion will be based on this notice of motion, on the attached memorandum of points and authorities, on the attached declarations of Glynn P. Falcon and Randall Widmann, and on all the papers, pleadings, and records on file in this action, including the co-filed Motion for Judgment NOV and Motion for New Trial filed herein by Co-Defendant Mary E. Day, which are hereby incorporated by reference.
Dated March 1, 2002
By: Glynn P. Falcon, Attorney for Michelangelo Delfino
POINTS & AUTHORITIES
Statutory Authority
The statutory foundation for a motion for judgment NOV is CCP§629. CCP§630 permits NOV to be granted as to some, but not all, of the issues.
Issues and Arguments
1.
THE JUDGMENT IN FAVOR OF THE
CORPORATIONS IS WITHOUT
SUBSTANTIAL EVIDENTIARY SUPPORT
Varian Medical and Varian Semiconductor each received a jury verdict for $50,000 in general damages against Mr. Delfino, and $25,000 against Ms. Day. Neither Varian suffered any special damages. The jury found that defendants acted with malice towards these Varians. The jury awarded neither Varian punitive damages. Neither Varian corporation is entitled to a judgment against either defendant as there is a total lack of evidentiary facts to support such verdicts. Specifically, the corporations are public figures, subject to the privilege of fair comment, and, hence, were required to prove malice as against defendants in order to obtain damages. The trial court also found that the privilege of "common interest" applied to the internet postings. The jury found that these Varians were not entitled to punitive damages. Hence, the legal result of the ultimate jury finding of no punitive damages is that there was no malice. Likewise, without legal malice, these Varians are not entitled to the damage verdict. This is basic hornbook law. A legal claim (for instance, negligence) without damages is a nullity, or more precisely, a cause of action for negligence fails without the essential element of "damages" no matter how "bad" the negligence is. It is not actionable. There
In Rollenhagen V. City of Orange (1981) 116 Cal.App.3d 414, the appellate court upheld the grant of JNOV in a defamation case. In reaching its conclusion, the court stated (at page 428-429):
" . . . The trial court further stated, "We also find as a matter of law that there is no evidence whatsoever of malice in this case on the part of either defendant whether we use the term 'malice' in the constitutional sense applied by the United States Supreme Court in Gertz or as defined in the Civil Code 48(a)4 .... Accordingly, for the reasons hereinabove stated and particularly in the complete absence of any proof of malice in any sense, the motion for judgment NOV is granted." Plaintiff does in fact point to no factual record to substantiate a finding of lack of fair and true report or possible finding of malice. A review of the entire record by this court leads us to the same conclusion."
"We do, therefore, hold that the action of the trial court in granting the judgment NOV was correct."
While Rollenhagen involved the "fair report" privilege (which Mr. Delfino contends also exists in his case), this court previously found that the common interest privilege applied to his Internet postings. As to those postings, constitutional malice simply did not exist. Mere "ill will" is insufficient when juxtaposed by the threat of abridgment to fee speech.
Here, Varians had to prove up malice in order to obtain a general damage verdict, since they admittedly had no special damages. While the "special" verdict of December 13, 2001 indicated a finding of "malice" toward all plaintiffs, the "special" verdict on the malice claim actually contradicts that verdict as against the corporations. Questions 9, 11, 13, and 15 of the "special" verdict returned on December 17, 2001 found that neither Varian was entitled to punitive damages from either plaintiff. That "specific" verdict must be deemed to control over the more general verdict rendered on December 13th. (CCP§625; Bond v. DeWitt (1954) 126 CA2d 540, 544).
2.
NON-PARTIES ARE NOT
ENTITLED TO A JUDGMENT
The judgment incorporates as parties person and entities that were never parties to this actions, and whom never formally requested participation in the action, must less in the judgment. Those persons include certain witnesses, attorneys, and others who names appeared in evidence during the trial. They are not entitled to a judgment. Defendant has the right to due process on claims of others, and such was not provided him in connection with the judgment ultimately entered by the court. (7 Witkin, Cal Procedure 4th, "Judgment" §2, page 541). The Motion for judgment NOV as to all such non-parties.
3.
DELFINO HEREBY INCORPORATES HEREIN
AS SET FORTH AT LENGTH EACH OF
THE GROUNDS, POINTS, AND AUTHORITIES
SUBMITTED BY DEFENDANT MARY DAY
IN HER MOTION FOR JUDGMENT NOV.
Delfino hereby incorporates herein as set forth at length each of the grounds, points, and authorities submitted by defendant Mary Day in her motion for judgment NOV, including, but not limited to: issues of failure of plaintiffs to meet their burden of proof as to context of the Internet postings; deprivation of Delfino and Day's constitutional right to trial by jury (court's findings on factual controversies submitted to the jury); the failure of evidence of any business activity by defendants permitting plaintiffs (corporate and individual plaintiffs) B&PC§17200 (et seq) relief; third party [incidental] beneficiary status of any plaintiff entitling them to pursue such claims as 3rd parties under the Yahoo! TOS agreement(s). Furthermore, Delfino incorporates his arguments and points and authorities to be submitted in this action in support of his motion for a new trial, as those arguments also have weight in support of this motion for JNOV.
4.
JUDGMENT PREPARED BY PLAINTIFFS
FAILS TO CONFORM WITH THAT ORDERED BY
THE TRIAL COURT
In its rush to have a judgment entered, plaintiffs failed to include language required by the court as to defendants' absolute right to attend professional, academic, social, shareholder, and other legitimate functions that they may have reason(s) to attend, even when those events may also be attended by persons provided "stay away" relief by the trial court. Additionally, plaintiffs failed to replace "500" yards with "100" yards as order by the court (at page 11, ¶13a,line 2) in the judgment.
Conclusion
It is respectfully requested on these grounds, and those submitted by counsel for Mary Day, that both Michelangelo Delfino and Mary Day have Judgment NOV granted in their favor.
Dated: March 1, 2002
By: Glynn P. Falcon, Attorney for Michelangelo Delfino"
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