Susan B. Felch faces contempt for trampling the Constitution:
MOTION FOR ADJUDICATION OF CONTEMPT; AFFIDAVIT OF MARY E. DAY OF FACTS CONSTITUTING CONTEMPT
"INTRODUCTION
This motion seeks an adjudication of contempt for an attempted "end run" around an order by this court granting a writ of supersedeas.
Respondents and their counsel have, by threats of litigation, coerced a bookseller and several newspapers to cease distributing and running advertisements for a book written and published by appellants. The threats are premised on misrepresentations that such distribution and advertising will violate the trial court's judgment in this case, without disclosing that the judgment has been stayed by this court's supersedeas order. These acts amount to contempt on three discrete theories: falsely pretending to act under authority of the stayed judgment, abuse of process by misusing the stayed judgment to achieve the silencing of appellants that the supersedeas order prevents, and disregard of the supersedeas order itself.
This motion is filed to ensure that past misrepresentations of the stayed judgment's effect are rectified and that future misrepresentations are precluded.
BACKGROUND
Michelangelo Delfino and Mary E. Day have appealed a defamation judgment in favor of Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan B. Felch, and George Zdasiuk (Varian) which includes an award of damages and an injunction prohibiting certain speech by Delfino and Day "on the Internet or elsewhere." (4 Appellants' Appendix (AA) p. 889; see Affidavit of Mary E. Day of Facts Constituting Contempt ¶ 2 (Day affidavit).) Delfino and Day filed their opening brief on September 26, 2002. The opening brief asserts, among other things, that the defamation case was wrongly tried on a theory of libel rather than slander, that the Internet statements by Delfino and Day were not defamatory, and that the injunction is an unlawful prior restraint on speech. Varian's brief is due for filing under rule 17(a)(2) of the California Rules of Court on January 14, 2003. (Day affidavit ¶ 4.)
On June 25, 2002, this court issued a supersedeas order which stays the judgment in its entirety, including its injunctive portion. The supersedeas order provides for issuance of a writ "staying, pending this appeal, enforcement of the trial court judgment, including all contempt proceedings and related discovery enforcing the injunctive portion of the trial court judgment as well as all proceedings to enforce the damages portion of the trial court judgment." (Day affidavit ¶ 3.)
After the supersedeas order issued, Delfino and Day authored and self-published a book about this case entitled Be Careful Who You SLAPP. Delfino and Day made prepublication announcements on their website and took steps to advertise the book in local newspapers and offer it for sale through their website and through Barnes&Noble.com. Beginning in November 2002, Barnes&Noble.com offered Be Careful Who You SLAPP for sale through its website, with a scheduled release date of January 28, 2003. (Day affidavit ¶ 5.)
On November 11, 2002, unbeknownst to Delfino and Day, Varian's counsel sent a letter to Barnes&Noble.com which threatens a lawsuit for defamation if Barnes&Noble.com continues to make Be Careful Who You SLAPP available for sale. The letter was not copied to Delfino and Day or their counsel. (Day affidavit ¶¶ 6-7.)
The letter, signed by Lynne C. Hermle of Orrick, Herrington & Sutcliffe LLP, opens by stating that "[a]lthough we have not yet had the opportunity to review this book, our experience with the author(s) demonstrates that it is likely to contain material that defames and harasses our clients . . . ." (Day affidavit, exh. 2.) Next, the letter references the trial court's judgment and describes it as awarding damages "plus a permanent injunction" and prescribing statements found to be defamatory. (Ibid.) There is an enclosed copy of the judgment, but evidently not an enclosed copy of this court's supersedeas order staying the judgment in its entirety, including the permanent injunction. Indeed, the letter says nothing about the supersedeas order, mentioning only a stay of contempt proceedings against Delfino and Day. (Ibid.) The heart of the letter states "[w]e think it likely that Be Careful Who You SLAPP repeats some or all of the defamatory statements prohibited by the permanent injunction" and seeks "your cooperation in preventing the distribution of defamatory material that will violate a court order . . . ." (Ibid, italics added.) The letter concludes by asking "that Barnes & Noble and Barnes&Noble.com refrain from selling this book to avoid potential liability." (Ibid.) Delfino and Day first learned of this letter on January 2, 2003, when they received a copy of it from counsel for Barnes&Noble.com. (Day affidavit, exh. 1.)
Barnes&Noble.com is not currently offering Be Careful Who You SLAPP for sale on the Barnes&Noble.com website. (Day affidavit ¶ 8.)
Meanwhile, in December 2002, Delfino and Day sought to advertise Be Careful Who You SLAPP in local newspapers, including, among others, the Palo Alto Daily News, the San Mateo Daily News, the Burlingame Daily News, the Redwood City Daily News, and the Los Gatos Daily News. Those newspapers canceled multi-day paid advertisements in midstream after Varian and counsel brandished a copy of the stayed trial court judgment - again, without telling Delfino and Day. (Day affidavit ¶ 9.) A local legal newspaper, The Recorder, likewise canceled multi-day advertisements in midstream. (Day affidavit ¶ 10.)
On January 6, 2003, Thomas V. Loran III of Pillsbury Winthrop LLP contacted advertising manager Michael Howard of the Palo Alto Weekly and urged the trial court=s judgment as a basis for demanding that the newspaper cancel an advertisement for Be Careful Who You SLAPP which had run twice during the previous week. (Day affidavit, exh. 3.) In a signed fax cover sheet accompanying a conformed copy of the judgment, Loran stated: "I would appreciate hearing from you as soon as possible to learn whether your newspaper intends to pull the ad voluntarily in light of is defamatory content as found in the attached judgment." (Ibid.) Loran evidently did not inform Howard that the judgment has been stayed by supersedeas. The Palo Alto Weekly has now ceased running the advertisement. (Day affidavit ¶ 9.)
Thus, for a two-month period when Delfino and Day were preparing - and spending a considerable sum of money - to advertise and disseminate Be Careful Who You SLAPP, Varian and counsel were secretly undermining those efforts. By the threat of litigation, Varian and counsel have achieved what they have been unable to achieve by actual legal process - the silencing of Delfino and Day during the pendency of the present appeal, through enforcement of the stayed injunction prohibiting speech "on the Internet and elsewhere." (4 AA p. 889.) The problem with this strategy, and what makes it contempt of court, is that its premise - the assertion to third parties that distribution of and advertising for Be Careful Who You SLAPP will violate a court order - is false.
LEGAL DISCUSSION
The conduct of Varian and its counsel constitutes contempt of court on three discrete statutory theories, any one of which supports an adjudication of contempt: "falsely pretending to act under authority of an order or process of the court" (Code Civ. Proc., § 1209, subd. (a)(4)); "[a]buse of the process or proceedings of the court" (Code Civ. Proc., § 1209, subd. (a)(4)); and "[d]isobedience of any lawful judgment, order, or process of the court" (Code Civ. Proc., § 1209, subd. (a)(5)).
On the first theory, Varian and counsel have falsely pretended to act under authority of the trial court's injunction against speech on the Internet and elsewhere by urging the injunction as a basis for threatening to sue Barnes&Noble.com and others because distribution of and advertising for Be Careful Who You SLAPP purportedly will violate the injunction. It is not true that the book's distribution or advertising will violate the injunction, because enforcement of the entire judgment, including the injunction, has been stayed by this court=s supersedeas order. Varian and counsel failed to inform Barnes&Noble.com and others that the entire judgment has been stayed. Noncompliance with an injunction that has been stayed on appeal is not a violation of the injunction. (In re Donovan (1949) 94 Cal.App.2d 399, 401-402.)
On the second theory, Varian and counsel have committed an abuse of process by misusing the stayed judgment to accomplish an ulterior purpose other than that which it was designed to accomplish. (See Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 488-489.) The wrongful goal, which Varian and counsel have achieved by threatening litigation against persons who distribute or publish advertising for Be Careful Who You SLAPP, is precisely what this court's supersedeas order says they cannot do while this appeal is pending - silence Delfino and Day on the Internet and elsewhere.
On the third theory, Varian and counsel have disobeyed this court=s supersedeas order, which stays enforcement of the trial court judgment, by misusing the stayed judgment to effectively enforce it against third parties beyond the Internet. What this court has prohibited - such enforcement of the judgment - Varian and counsel have achieved by deception, using the stayed judgment as a tool of coercion without disclosing the supersedeas order.
The situation here is similar to Ex parte Acock (1890) 84 Cal. 50, which upheld a judgment of contempt where the plaintiff had falsely pretended to act under legal authority by misrepresenting the status of pending litigation. The plaintiff in Acock had sued to recover property. The sheriff took temporary possession of the property, but the defendants posted an undertaking that would have allowed them to recover the property for the duration of the lawsuit. The plaintiff then obtained possession of the property by falsely representing to its custodian that he could recover the property because the case had been settled. The California Supreme Court upheld the judgment of contempt on the grounds of both deceit and abuse of process.1 Varian and counsel, like the plaintiff in Acock, have falsely pretended to act under legal authority by misrepresenting the status of pending litigation, asserting a trial court judgment in order to achieve its enforcement against third parties beyond the Internet without disclosing that such enforcement has been stayed by supersedeas.
This court, and only this court, has jurisdiction to render an adjudication of contempt under these circumstances. (See Smith v. Smith (1953) 120 Cal.App.2d 474, 478-479.) The court should do so in order to ensure that past misrepresentations of the stayed judgment's effect are rectified and future misrepresentations are precluded.
The surreptitious effort by Varian and counsel to silence Delfino and Day through threats of litigation against third parties is, in effect, an "end run" around this court's supersedeas order, which maintains the status quo - Delfino's and Day's freedom to speak on the Internet and elsewhere - while this appeal is pending. Varian and counsel have largely squelched Delfino's and Day's freedom to speak by suppressing their book, thus subverting this court's jurisdiction by effectively enforcing the judgment in spite of the supersedeas order. That is an affront to the integrity of supersedeas.
1. In 1890, when In re Acock was decided, Code of Civil Procedure section 1209, subdivision (4), prescribed "[de]ceit or abuse of the process or proceedings of the Court" as a form of contempt. The statute was amended in 1907 to replace "deceit" with the current "falsely pretending to act under authority of an order or process of the court." (See Historical Note, 19 West's Ann. Code Civ. Proc. (1982 ed.) foll. § 1209, p. 256
CONCLUSION
For the foregoing reasons, Delfino and Day respectfully request this court to do the following:
Render an adjudication of contempt.
Order Varian and its counsel to cease and desist from making any further representations, to any third parties, that distribution of or advertising for Be Careful Who You SLAPP will violate the injunction stayed by this court's supersedeas order.
Order Varian and its counsel to give immediate written notice correcting misinformation provided to all third parties regarding distribution of or advertising for Be Careful Who You SLAPP, advising those third parties that distribution of or advertising for Be Careful Who You SLAPP will not violate the injunction, and require Varian and its counsel to provide Delfino and Day with copies of such written notice and all past correspondence with such third parties.
Order payment to Delfino and Day of the reasonable attorney's fees and costs incurred by them in connection with this contempt proceeding (Code Civ. Proc., § 1218, subd. (a)), in an amount to be determined after completion of the proceeding.
Impose any monetary sanctions under Code of Civil Procedure section 177.5 and/or fines under Code of Civil Procedure section 1218, subdivision (a), as this court may deem to be just and appropriate.
Dated: January 7, 2003
Respectfully submitted,
HORVITZ & LEVY LLP
signed
By Jon B. Eisenberg
Attorneys for Defendants and Appellants
MICHELANGELO DELFINO and MARY E. DAY
CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 14(c)(1).)
The text of this brief consists of 2053 words as counted by the Corel WordPerfect version 9 word-processing program used to generate the brief.
DATED: January 7, 2003
signed
Jon B. Eisenberg"
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