Why Delfino is appealing the denial of the Motion to Strike the SLAPP:
STATEMENT PURSUANT TO RULE 19.5 OF THE CALIFORNIA RULES OF COURT
"Michelangelo Delfino, appellant submits the following Rule 19.5 Statement:
1. NATURE OF CASE - Describe the action as presented in the trial court including the identity of each patty, the facts and theories alleged, and the relief sought.
There are currently four plaintiffs (up from three); two corporate (Varian Medical Systems, Inc., and Varian Semiconductors, Inc.) and two individuals who are employed as managers by the corporate plaintiffs (Susan Felch and George Zdasiuk). They are all represented by the same law firm, Orrick, Herrington & Sutcliffe LLP (Lynne C. Hermle, Esq.) at 1020 Marsh Road, Menlo Park, CA 94025.
Randall M. Widmann, Esq., of the Law Offices Of Randall M. Widmann, 550 Hamilton Ave., Suite 201, Palo Alto, CA 94301 represent co-defendant Mary E. Day. She is being sued as DOE 1.
Michelangelo Delfino is represented by GLYNN P. FALCON (State Bar No. 61078), 2501 Park Boulevard, Suite 205, Palo Alto, CA 94306, (650) 323-0333. Dr. Delfino was the only "original" defendant.
The current 3rd Amended Complaint which contains 39 pages of charging allegations, plus references to an additional 156 pages of unspecified and uncorrelated exhibits from Internet postings. Their third amended complaint contains seven separate causes of action set forth in 107 numbered paragraphs of charging allegations. Many of these numbered paragraphs (such as ¶¶17, 27, 28, 29, 30, 32, 33, 42, and 43)contain numerous subparagraphs which, when added to the 107 numbered paragraphs, results in another 92 additional paragraphs of factual allegations, for a total of 199 paragraphs of factual allegations in the third amended complaint. The 3rd amended complaint, on its face, alleges conduct that spans a period of over 6 years, between 1994 (¶ 14) and July 2000. Their claims involve issues of free speech, First Amendment rights, cyberlibel, unfair business competition and the wrongful use of the Internet service provider's (Yahoo!) Public forum bulletin boards.
Defendants contend that the complaint is a strategic lawsuit against public participation ("SLAPP") and they have made a special motion to strike the complaint. The third amended complaint has not been answered.
(a) Decision of the trial court - State whether the case was decided after trial or prior to trial, and describe the dispositive judgment or order and its date. Attach a copy of the judgment or order from which the appeal is taken.
This appeal is taken from the denial of defendant's special motion to strike, made pursuant to California code of Civil Procedure §425.16. The minute order from the trial court reads:
"Minute Order After Proceedings on October 26, 2000. The Demurrers to the 7th cause of action is (sic) sustained with leave to amend. The demurrers are overruled in all other respects. The motion to strike is denied. The Motions to Strike A (sic) SLAPP suit are denied." Dated November 1, 2000. [copy attached]. [italics indicate the portion of the decision that has been appealed]
(b) State the date of service of any notice of entry of judgment or order from which the appeal istaken.
The minute order appealed from is dated November 1, 2000 and it was served on the parties by the court via the mail.
(c) Identify all parties to the appeal and the attorney(s) who represent them, including State Bar numbers. Indicate which patty or parties are appealing.
As stated above in answer to number 1, Michelangelo Delfino (the defendant below) is appealing the denial of his special motion to strike the SLAPP suit. Glynn Falcon (SB #61078) represents him for the appeal.
Co-defendant Mary E. Day has not yet filed a similar appeal, although it is likely that that will occur. Randall Widmann represents Mary E. Day.
All plaintiffs are parties to the appeal, and they are all represented by the Orrick law firm, the lead attorney being Lynne C. Hermle (SB # 99779).
(d) Does the judgment or order dispose of the entire case? If not, identify the issues remaining to be decided in the trial court.
Yes, and No. If the special motion to strike is granted, the plaintiffs' case is ended. However, the trial court denied the motion and seeks to have the matter tried and the earliest possible date. A writ of supersedeas was filed with this court last week, which was denied. A petition for review of that denial is concurrently being filed with the California Supreme Court.
2. ISSUES ON APPEAL - Describe the issue or issues including the applicable standard of review which appellant/cross-appellant contemplates raising in this appeal.
The issues(s) is whether or not the complaint should be stricken under CCC§425.16.
(a) Appealability - State the authority for this appeal. (e.g., CCP Sec. 904.1(a); CCP Sec. 12949a); Prob. Code Sec. 1300(a).)
Pursuant to CCP§904(a)(13) the denial of special motion to strike the complaint made pursuant to CCP425.16 is directly appealable by CCP§425.16(j).
3. Describe any related prior appeal or petition for review.
As mentioned above, today this party is filing apetition for review with the California Supreme Court as to denial of Delfino's petition for writ of supersedeas seeking to enforce the automatic stay of proceeding in the trial court while the appeal is pending.
While this case was with the U.S. District Court for the Northern District of California, and appeal was taken by Michelangelo Delfino and by Mary Day to the the U.S. Ninth Circuit Court of Appeal seeking to dissolve the preliminary injunction entered by the federal trial court prior to its remand of the remaining state law claims back to the Superior Court. The Ninth Circuit held that the preliminary injunction was dissolved. Plaintiffs did not seek review with the U.S. Supreme Court. That matter is now final, and the federal courts no longer have any jurisdiction in the case.
Respectfully submitted:
November 26, 2000
Glynn P. Falcon
Attorney for Appellant,
Michelangelo Delfino"
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