"SUPPLEMENTAL PTS. & AUTH'S IN OPPOSITION TO DEMURRERS TO DELFINO'S 1st AMENDED CROSS-COMPLAINT
INTRODUCTION
Due to the fact that Plaintiffs failed to serve defendants with their points and authorities in support of their demurrers, it was agreed that Delfino could file supplemental opposition papers before the hearing on the re-set motion on April 3, 2001. It now appears obvious why plaintiffs did not serve their P&Aís, as they are merely a re-hash of their previous, mis-directed, distorted, and [frankly] misrepresented points and authorities. They know they are wrong, and Delfino submits that this court should sanction plaintiffs for re-filing the same defeated demurrers without seeking leave, and for misrepresenting the facts and the law.
FEDERAL COURT
The federal court did not have subject matter jurisdiction. Jurisdiction cannot be conferred when there is no subject matter jurisdiction. While federal court had jurisdiction to determine if it had subject matter jurisdiction, it did that. The federal court found that Plaintiffsí federal claims were totally without merit, dismissed them, and remanded the case back to state court. While plaintiffs had the right to appeal the dismissal [but not the remand] of their federal claims to the Ninth Circuit, they chose not to do so. That is it. Period. Enough said. Move on. Stop wasting our time with this specious argument. There is no case law to support their argument, federal or state.
If plaintiffs had any real belief it their argument (and they donít) they would not have raised [and lost] those same arguments before the Ninth Circuit when Delfino and Day appealed the federal courtís issuance of a preliminary injunction. Plaintiffs argued there that the prelim injunction survived the remand. It didnít. The Ninth Circuit clearly held that once the federal claims were dismissed and the case remanded, the federal rulings ceased to exist. It has to be that way, because there would never be any way to appeal interim rulings when a case then gets remanded (the one final judgment rule of appeals). The exception, as pointed out misleadingly by plaintiffs, is where the dismissed party plaintiff (who canít directly appeal the remand) does have a right to appeal the dismissal of their federal claims. But that is the plaintiffsí only safety valve, and does not change the merely interlocutory, and now void, rulings impacting defendants. And here, plaintiffs chose not to appeal the dismissal of their federal claims. So, they lose. The collateral estoppel and issue preclusion impact on those fully adjudicated ìfederal claimsî are now final, binding and Varian is stuck with the result. No claims of defendant ever reached that level of finality; but under the law cited by plaintiffs, their federal claims dismissed by the federal court did, and that ruling was appealable and now final and conclusive against plaintiffs. None of defendantís claims were based on federal questions or federal law. No rulings as to defendantís claims were a ìfinal determination.î Avitts does apply directly. As stated in that case, plaintiffs federal claims, as here, were bogus. Varian had no federal claims, but in order to dress up and disguise the SLAPP nature of their lawsuit, they went to the form books and threw everything they could find into their complaint. They got caught, and their bogus federal claims got dismissed. They are the sole blame for the excursion into federal court, which after the truth was revealed, dismissed plaintiffs non-existent federal claims and got rid of the case by sending it, rightfully, back to state court where the same should happen - - - sooner rather later.
FEDERAL INTERLOCUTORY ORDER
Letís put this specious argument by plaintiffs to rest, once and for all. The law of this case, as stated by no less an authority than the Ninth Circuit Court of Appeals, is that the interlocutory orders of the federal district court are void because the court did not have subject matter jurisdiction when it rendered them. The only non-interlocutory, final and conclusive, and hence directly appealable, order made by the district court was to kick Plaintiffës federal claims out of court. Plaintiffs could have appealed that order, they didnít, and they are bound by that final determination and the collateral estoppel effect which it will have upon the rest of their specious case. The Ninth Circuit decision was not appealed further by plaintiffs. It, too, is now final and binding on plaintiffs.
Then plaintiffs just really try to pull wool over the eyes of this court with their ìinterpretationî of the Laguna case. We know plaintiffs are smart guys and gals, but is it smart to mislead the court? Here is what Witkin had to say about the meaning of the holding in that case, and it is nowhere close to what Plaintiffs would have this court believe.
ìIn Laguna Village v. Laborers' Int. Union (1983) 35 C.3d 174, 197 C.R. 99, 672 P.2d 882, plaintiff developer operated mainly with nonunion help, and barred union representatives from its jobsite. Defendant union's representative, in defiance of the restrictions, entered the area to check on safety violations and recruit members. Plaintiff filed a complaint seeking injunctive relief and damages in the Orange County superior court, and defendant had it removed to the federal district court on the ground that the allegations stated a claim cognizable under federal law (Labor Management Relations Act, Torts, ß399). Then defendant filed a motion to dismiss under Federal Rule 12(b)(1) and (6) on the ground that the complaint failed to state a claim on which relief could be granted. Plaintiff opposed the motion and moved to remand the case to the state court on the ground that no federal issues were involved. The federal district court granted the motion to remand, and, for that reason, declined to consider the motion to dismiss. After some delays involving the inability of counsel to agree on time for defendant to file a response to the complaint, plaintiff had a default entered; and subsequently, after a hearing, judgment was entered on the default. Defendant's motion for relief under C.C.P. 473 was denied, and defendant appealed. Held, reversed; defendant's motion to dismiss was a responsive pleading which precluded entry of default.î
ì(1) The effect of pleadings filed in a federal court in a case subsequently remanded to the state court is a new question for California, and other state decisions are conflicting. Older cases declined to give such pleadings any effect, on the theory that a defendant acts at his peril in seeking removal to a federal court and neglecting to preserve his right under state statute and rules of practice. (35 C.3d 179, 180.) But since 1948 the federal removal statute has expressly prohibited any proceeding in the state court after removal and prior to remand; i.e., the state court's jurisdiction is suspended from the moment of removal until the case is remanded. Hence, recent cases have given effect to pleadings filed in the federal court before remand. (35 C.3d 180.)î
ì(2) Although the cases rarely articulate the policy considerations involved, three grounds can be gleaned from the decisions: (a) Judicial economy: Adoption of the federal pleadings would avoid needless waste of time, effort and expense in duplicating such pleadings in the state court. (b) No unfairness to plaintiff: He suffers no real prejudice because he is usually apprised of the proceedings in the federal court. (c) Avoidance of forfeiture: Giving effect to federal motions or pleadings makes it possible to decide the litigation on the merits. (35 C.3d 181.)î
ì(3) Application of these policy considerations to the present case calls for reversal of the order. (a) The first factor, judicial economy, is not involved, for the single pleading--the motion to dismiss--could have been refiled in the California court as a demurrer with little effort. (b) The second factor supports defendant's position, for plaintiff was served with the motion to dismiss, opposed it, and was fully aware of defendant's contention. (c) The third factor likewise supports defendant's position: Many California cases stress the importance of liberal application of C.C.P. 473 to permit determination of actions on their merits. (35 C.3d 181, 182.)î
The court added the following by way of advice and explanation:
"We neither sanction nor recommend the course taken by trial counsel for defendant in failure to timely file a demurrer or other pleading in state court. Nevertheless, the policy considerations discussed above overcome any weight we might otherwise give to plaintiff's technical assertion that because demurrers and motions to dismiss are different in form, the trial court was justified in refusing to give effect to the motion. The two are closely related in substance. . . . We also observe that defendant did not ask the trial court to adopt the federal motion, but only that it be given effect as a 'responsive pleading' so as to prevent entry of default." (35 C.3d 182.) Hence, "our policy favoring resolution of disputes on their merits suggests flexibility rather than mechanical adherence to motion and pleading labels, even at the expense of sacrificing a degree of procedural rigidity." (35 C.3d 182.)î
Here, Varian misrepresents the case by claiming it means that the state court should give effect to the federal courtís ìrulings.î It doesnít say that, it doesnít mean that, and the scholars who have reported on that case have never interpreted it the way that plaintiffsí misrepresent it.
The demurrer should be overruled and the plaintiffs held to answer.
RELEASE OF CLAIMS
As we have repeatedly stated the law on this issue, the video taping of Delfino in the bathroom claim was, as a matter of law, not part of any General Release of Claims. The uncontroverted evidence we have submitted to this issue contained in this, and the previous opposition papers, clearly reveals that Varian was the only one who knew of the secret videotaping of Delfino, that Varian knew that Delfino did not know of it (hence, the term ìsecretî), that Varian knew that Delfino would never have any way of knowing unless they disclosed the fact to him, and that Varian did not disclose the fact to him at any time before execution of the release. We call this suppression, concealment and fraud. Varian calls this ìjolly good play.î The case law we have previously submitted on this clearly shows that a release of claims does not reach such suppressed and concealed claims. Varian has failed to submit any contrary authority that states that the released partyís fraud, suppression, and deceit is absolved by such a release in these circumstances. This court would be the first to go Varianís way if it buys into Varianís position. Good luck if the law dissolves as low as Varian would have it sink.
The demurrer should be overruled and the plaintiffs held to answer.
STATUTE OF LIMITATION
We, just like Varian, have nothing new to offer to the court here. Our papers filed in opposition to the first set of demurrers addresses this argument, and the court ruled against Varian on this same demurrer. Varianís argument is just simply wrong, and the law is clear that Varian is wrong. They even cite the law (but for the wrong proposition, i.e., Laguna) which shows how state court actions relate back to federal filings for purposes of determining timeliness. Delfinoís timely filed his counter-claim in federal court, and that Plaintiffs had timely notice of the claims brought against him. They involve the same facts that plaintiffs allege in their complaint, including allegations that Delfino made facial gestures to Felch while entering and leaving the bathroom (hence the bathroom video tapes and evidence).
The demurrer should be overruled and the plaintiffs held to answer.
CLASS ACTION
Class action has been properly alleged and it the appropriate vehicle to handle the matter. Delfino (as will Mary Day who was also captured using the bathroom) has a strong interest in fully litigating these claims. If the facility was unionized, a class action by the Union would also be appropriate. But it is not unionized, and unless some one with a strong interest in pursuing these claims does so (like Delfino), Varianís tortious conduct will get off scott-free and without repercussions. Delfino did not file a class action in federal court, and there has been no determination in any court that the class action is not the best way to handle the multitude of claims that were created when Varian hide a video camera to peer into the bathrooms at their lab. When punitive damages are assessed, it would be more appropriate to spread those out among the class of persons that were exposed to the videotaping, than to have it act as a windfall to Delfino. And that is likely to be the nature of any award, as emotional distress injury claims are unlikely because no one knew that they were captured on video tape. It is one thing to hear about it later, as opposed to reacting to having seen the video tape play on ì60 Minutesî or some other public broadcast.
Furthermore, Delfino is the best class representative because Varian admits that it was trying to get Delfino when it videotaped. He was their subject, it just that they really screwed up by also capturing everyone else on their ill-advised surveillance attempt.
Varian then claims Delfino lacks the moral character to represent the class!. Who is calling the kettle black. Unclear of the concept? Varian : IT WAS YOU THAT VIDEOTAPED THE BATHROOMS!!! That has all the moral character of peeping tom, but on a corporate level basis! Judge Whyte? He found plaintiffs guilty of embellishing all of their motions and pleadings in order to gain from impact and effect, as opposed to truth. Delfino, he has taken not only the high, hard road, but the road that protects First Amendment rights on the Internet and pits the small and impoverished against massive corporations and some of the worldís largest and most powerful law firms. We pay homage to those who, at great personal expense and sacrifice, defend the right to free speech, even when that speech may not coincide with our own religious, social, philosophical, economic, or politically correct ideas. Give me a "Delfino" any time, every time, as that what separates this country from all the rest, and what is truly "noble" about our Constitution.
The demurrer should be overruled and the plaintiffs held to answer.
ASCERTAINABLE CLASS
Varian argues the class can not be determined. FALSE! We just asked them in Interrogatories to give us that information. They simply refuse to do so. That doesnít make it unascertainable, it just means that Varian is protecting its ass. It first tried to do so by destroying the videotape (which Varian now claims make the class unascertainable!). Now it is refusing to tell us who entered the building during the five weeks of 24/7 videotaping. It has logs, rosters, vendor lists, guest lists, and employee lists. Letís start from there. Those are easily ascertainable persons, once Varian releases this known and maintained information. The simple next question to those people would be: ìDid you use the upstairs bathrooms an any time during those five weeks?î Answer ìyes,î and you can be part of the class. ìNo,î and youíre out. This concept to ascertain the class is too simple for words.
The demurrer should be overruled and the plaintiffs held to answer.
WRONGFUL TERMINATION
As we have previously discussed, Delfino rescinded Varianís Separation Agreement. If the rescission is not granted, then it goes against the verified facts of the complaint. And, as previously discussed in our earlier papers, the Separation Agreement is void as unlawful (i.e., Varianís illegal promise to not oppose Delfinoís EDD claim 1) and by the fact that Varian knew when it had Delfino sign the agreement that it would not honor its promise (i.e., fraud ab initio). These are valid reasons for rescission. He is not barred by Statute of limitations, waiver, release, or any void federal ruling (Which is what a ruling without subject matter is, void, according to the Ninth Circuit that heard the appeal in this case). Any deficiencies in the pleading were addressed and corrected in the amended cross-complaint, and were previously address in our earlier filed opposition papers.
Additionally, as noted by Judge Whyte, Varian continued failure to withdraw its opposition constituted a further breach of the agreement. That failure continued right through to the CUIAB hearing in February 1999. So no matter how Varian would chop up their purported promise not to oppose the application for benefits, Varian did oppose it, they knew they would do so, and they continued to do so months after the agreement was executed. Varian couldnít slip these facts past Judge Whyte, surely they donít expect to do so before Judge Rushing?
The demurrer should be overruled and the plaintiffs held to answer.
RESCISSION
Rescission has been properly pled. Varian wants this court to rule on its factual defenses, but even those are incorrect. Delfino announced rescission well within the statute (3 year statute, but he did so within 6 months of learning the grounds for rescission). Except as perhaps to the Oubre case exceptions (age discrimination claims), Delfino has and continues to tender the return of any consideration he received. As to damages, Dr. Delfino will testify and hereby makes his offer of proof that as a result of the wrongful termination, he has not been able to obtain any comparable employment since October 1998. Damages? You betcha. The demurrer should be overruled and the plaintiffs held to answer.
FELCH & ZDASIUK
Felch and Zdasiuk invading Delfinoís privacy by resorting to videotaping him using the bathroom. Susan Felch, knowingly had the video camera and recording apparatus placed in her own office to capture Delfino. She conducted a pattern of harassment against Delfino that has preciously been documented. She even claimed that Delfino, instead of her or her staff, sabotaged her lab. They acted as individuals in doing so, for their own private motives, and not for the company. They needed to get rid of Delfino to ensure their own careers with Varian. Some of those motives were alleged in the amended cross-complaint:
ìVarian, Susan Felch and George Zdasiuk had further bad faith motivation to terminate Delfinoís employment to further their own career pursuits with the inside knowledge that the company would be severing into three new companies, and Susan Felch and George Zdasiuk needed to assure that there job would continue on, or even be enhanced, when the new companies were formed. To that end, Susan Felch and George Zdasiuk conspired, schemed and planned to tarnish any technology that Delfino was working on, and to tarnish and demean Delfino himself, and to cause their own weaker and less satisfactory competing projects to be pursued by Varian and its successor. Susan Felch and George Zdasiuk were aware that their technology project was inferior to that developed by Delfino, and devised a plan to have Varian try to acquire and / or Delfinoís superior patented or patentable technology into their own patent application, even though Felch and Zdasiuk did no work and had no contribution to the Delfino patent or patent application. When Delfino objected to that scheme as unlawful and violative of existing patent rules, regulations and statues, Zdasiuk and Felch caused Varian to terminated Delfino from employment on the basis of Felchís false and fraudulent allegations of harassment by Delfino. As managers and directors, the acts of Felch and Zdasiuk were the same and treated as those of Varian.î
The demurrer should be overruled and the plaintiffs held to answer.
CONCLUSION
It is respectfully submitted that the cross-defendantsí demurrers be overruled and their motions to strike each be denied. If any demurrers should be sustained, Delfino requests leave to amend his first amended cross-complaint.
March 23, 2001
Glynn P. Falcon, Jr.
Attorney for Cross-complainant, Michelangelo Delfino"
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