Who went to George Zdasiuk's wedding?
OPPOSITION TO RESPONDENTS' MOTION TO QUASH DESIGNATION OF EXHIBIT FOR TRANSMISSION TO COURT OF APPEAL
"INTRODUCTION
Varian's motion to quash the routine designation of an exhibit for transmission to the Court of Appeal under rule 18 of the California Rules of Court - a motion that is probably unique in the annals of appellate practice - is another attempted "end run," this time around the rules for sealing the record as prescribed by rule 12.5 of the California Rules of Court.
The disputed exhibit is a video tape of the wedding of respondent George Zdasiuk and Julie Fouquet. Varian put the video into evidence as part of an effort to impeach testimony by appellant Mary E. Day that she did not know who Julie Fouquet was. (See 20 RT 5882.) The video evidently shows Day at the wedding. (20 RT 5884.) The video was not necessary to the desired impeachment, since the evidence also included Day's written response to an invitation to the wedding, stating she would attend (20 RT 5887), and included Day's testimony that she did in fact attend the wedding (20 RT 5884). For reasons known only to Varian and its counsel, they put the video into evidence anyway. But they did not submit the video under seal. (See 20 RT 5883.) Thus, it has become part of a public record in the superior court.
The video is currently in the possession of Varian's attorneys at Orrick, Herrington & Sutcliffe LLP, who have refused to allow counsel for Delfino and Day to make a copy of it or to allow Delfino and Day even to see it. We have therefore designated the video, along with numerous exhibits in the possession of the superior court, for transmission to the Court of Appeal pursuant to rule 18. If the video is not transmitted to the Court of Appeal, it will in effect be sealed from public view as long as it remains in the possession of Varian's attorneys.
Under rule 12.5, however, the video cannot be sealed. Rule 12.5(d) states: "A record filed or lodged publicly in the trial court and not ordered sealed by that court must not be filed under seal in the reviewing court." Because Varian never sought a superior court order sealing the video, this court cannot entertain a motion for a sealing order on appeal.
Varian is well aware of rule 12.5. We brought the rule to Varian's attention last year in opposition to Varian's motion to file portions of the reporter's transcript under seal - whereupon Varian abandoned that motion. Plainly, Varian knows that the video cannot be transmitted under seal. Varian is attempting to evade rule 12.5 by asking this court to order that the video not be transmitted at all.
Varian's justification for this attempted end run is that "the only reason [the video] has been designated is so that Appellants can obtain a copy, post some or all of it on the Internet, and use it as a new tool to harass and embarrass Zdasiuk and his wife." (Respondents' Motion To Quash, p. 1.) That is untrue, and Varian's attorneys know it. Our primary reason for wanting a copy of the video, of which we have twice informed Varian's appellate counsel, is to help determine the identity of persons who have perpetrated Internet message board and email death threats and other harassment against Delfino and Day. Our secondary reason, of which we have also informed Varian's appellate counsel, is to enable appellants and their counsel to review the entire record.
ARGUMENT
I.
THE VIDEO IS PERTINENT TO AN INVESTIGATION TO DETERMINE THE IDENTITY OF PERSONS WHO HAVE PERPETRATED DEATH THREATS AGAINST APPELLANTS AND THEIR COUNSEL.
A. Delfino and Day and their counsel have been subjected to numerous death threats and other harassment by Internet postings, email, and recorded telephone messages.
Since April of 2002, Delfino and Day and their counsel have received numerous threats of death or great bodily injury and other harassment by pseudonymous Internet message board postings, email, and recorded telephone messages.
For example, email sent to Delfino on July 30, 2002 from "x yz" stated in part: "It's coming, motherfucker, and you won't see it . . . you're going to get your ass stomped by me and some friends. . . . [¶] You can look forward to all of your fingers getting broken, several kicks to the ribs and mouth, break some teeth, and a cracked head. . . . Maybe set your place on fire . . . . If your cunt is there, she'll take a little ride to the parts of San Jose where they don't speak english, and she can walk home from there - naked. . . . [¶] your lawyer won't be around to save you from this." (7 Appellants' Appendix 1434 (AA).) A message board posting by "crack_smoking_jesus" on April 22, 2002 said that "Mikey is going to DIE real soon." (7 AA 1411.) A message board posting by "fifthhorseman_2002" on June 4, 2002 said that Delfino's "associates had best watch out - collateral damage can be a bitch. And I believe some's headed their way." (7 AA 1420.) Most recently, on January 14, 2003, someone left a message on Delfino's and Day's telephone answering machine which consisted of 95 seconds of sounds resembling gunfire. (Declaration of Michelangelo Delfino ¶ 2.)
The threats have been the subject of an ongoing investigation by the FBI and the United States Attorney in San Jose, who have identified at least two perpetrators. Threats made in interstate commerce are a crime under federal law (18 U.S.C.A. § 875(c)), and cyberstalking is a crime under California law (Pen. Code, § 422). However, the FBI and the United States Attorney are precluded by rules of grand jury secrecy (Fed. Rules Crim. Proc., rule 6) from revealing the identities of the perpetrators unless and until they are prosecuted. The United States Attorney has not yet decided whether to prosecute. (Declaration of Jon B. Eisenberg ¶ 2 (Eisenberg Decl.).)
B. Delfino and Day and their counsel have been attempting to identify the perpetrators of the death threats and an Internet message board poster called "jazzun."
On July 23, 2002, Delfino's and Day's appellate counsel Jon B. Eisenberg telephoned respondents' counsel Matthew H. Poppe and asked for assistance in determining the identity of the death threat perpetrators. Mr. Poppe replied that he would do no more than "approach" the subject of the threats with the corporate Varian plaintiffs "indirectly" by saying to them "if you know anything, let me know." (Eisenberg Decl. ¶ 3.) "Mr. Poppe also said his "theory" is that the person who posted threats under the pseudonym "crack_smoking_jesus" is a former Varian employee." (Ibid.)
On August 23, 2002, because of Mr. Poppe's refusal to assist, Delfino and Day filed a motion in superior court for discovery pending appeal in an effort to identify the perpetrators. (7 AA 1386-1396.) On September 17, 2002, the superior court denied the motion. (Eisenberg Decl. ¶ 2.) Shortly thereafter, on the recommendation of Assistant United States Attorney Jeff Nedrow, and in lieu of challenging the superior court's ruling by extraordinary writ, we hired a private investigator to attempt to identify the perpetrators. (Ibid.) The investigator has "identified Cameron A. Moore, who is currently an employee of Agilent Technologies in Colorado, as the source of threats made under the pseudonyms 'crack_smoking_jesus,' . . . 'x yz,'" and others. (Declaration of Patricia de Larios Peyton ¶ 2 (De Larios Decl.).) In an Internet posting dated June 8, 2001, under the pseudonym "tap_dancing_jesus," Moore stated "I know/worked with/went to school with/ quite a few of the people mentioned" in the litigation. (Eisenberg Decl., exh. 3.) The investigator has determined that Moore and Julie Fouquet both worked at Hewlett Packard in Santa Clara County during 1999-2000, with both of them leaving Hewlett Packard to become employees of Agilent Technologies on June 1, 2000. (De Larios Decl. ¶ 2.)
The investigator has not yet identified the perpetrator of threats made under the pseudonym "fifthhorseman_2002," but has been attempting to determine whether either of the perpetrators is the same person who harassed Delfino via Internet message board postings between September of 1999 and August of 2000 under the pseudonym "jazzun." (De Larios Decl. ¶ 3.) Those postings by "jazzun" described Delfino as, among other things, a "demented little pervert," "a liar," a "wacko," a "nut," and keeping "pictures of naked little boys" in his wallet." (Eisenberg Decl., exh. 6.)
The investigator has identified "jazzun" as Dave Duncan, who was employed as a drafter by Varian in Walnut Creek from September 29, 1997 to June 7, 2001. (De Larios Decl. ¶ 4.) Evidently, that is who Mr. Poppe had in mind when he said his theory was that one of the perpetrators is a former Varian employee.
The investigator "discovered that on July 7, 1999, 'jazzun' posted a message from a Varian computer - specifically, from the Varian IP address 132.90.235.73 - on a message board called 'ba.motts.' This posting was traced to the chromotography division of Varian, Inc. in Walnut Creek," where Duncan was employed. (De Larios Decl. ¶ 4.) During the period October 19, 1998 to November 9, 1998, postings from that same Varian IP address were made on a Yahoo! Inc. message board for Varian under the pseudonym "bite_me_now1313." Yahoo's records indicate that the email address for "bite_me_now1313" was "dave.duncan@csb.varian.com." (Eisenberg Decl., exh. 5.) Prior to that, during the period April 15, 1998 to June 30, 1998, Duncan posted messages on the Varian message board under his true name as "dduncan2000." (Eisenberg Decl., exh. 4.)
C. Delfino and Day and their counsel want a copy of the video as part of the investigation to determine the identities of the death threat perpetrators and "jazzun."
The results of the above-described investigation strongly suggest that one or both of the death threat perpetrators are personally known to Zdasiuk and/or Fouquet. The primary reason we want a copy of the wedding video is so that our investigator can review it and show it to others in order to determine whether Moore or Duncan attended the wedding. The secondary reason is to enable Delfino and Day and their appellate counsel to review the entire record. (Eisenberg Decl. ¶ 10.)
Varian's attorneys are well aware that we want a copy of the video for an investigatory purpose as well as to enable review of the entire record. In a telephone conversation with Varian's appellate counsel Gerald Z. Marer on September 13, 2002, Eisenberg told Mr. Marer that we would be designating the video for transmission to the Court of Appeal pursuant to rule 18 in order to obtain a copy as part of the effort to discover the source of the death threats, as well as so that appellate counsel could fulfill their responsibility to review the entire record. (Eisenberg Decl. ¶ 5.) In another telephone conversation with Mr. Marer on December 3, 2002, Eisenberg asked Mr. Marer to arrange a viewing of the video in advance of its transmission to this court because Eisenberg was looking for a particular individual's presence at the wedding. (Eisenberg Decl. ¶ 6.)
D. The potential connection between "jazzun" and respondent Zdasiuk is pertinent to an issue that will arise if the cause is remanded for retrial.
The potential connection between "jazzun," i.e., Duncan, and Zdasiuk, who is a plaintiff and a senior officer of one of the Varian corporate plaintiffs, is especially pertinent to this litigation, for it will become a significant issue if this court reverses and remands for retrial.
Varian never disclaimed the offensive postings by "jazzun." To the contrary, Varian provided cover for "jazzun" in 2001 when Varian's attorneys successfully moved to quash subpoenas issued by Delfino and Day in their effort to discover "jazzun's" identity. (See 3 AA 586-596.) The law is well-settled that an employer is liable for an originally unauthorized tort of an employee if the employer ratifies the tort. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852.) "[L]iability may be imposed on the principal/employer if it is found to have ratified the otherwise unauthorized misconduct of the agent/employee." (Allied Mutual Ins. Co. v. Webb (2001) 91 Cal.App.4th 1190, 1194.) "The failure to discharge an agent or employee may be evidence of ratification." (Murillo, supra, 65 Cal.App.4th at p. 852.) "If the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages.'" (Ibid., quoting McChristian v. Popkin (1946) 75 Cal.App.2d 249, 256; accord, Coats v. Construction & Gen. Laborers Local No. 185 (1971) 15 Cal.App.3d 908, 914.)
Varian not only failed to discharge its employee Duncan after learning of his postings as "jazzun," but shared its attorneys with him in a successful effort to conceal his identity. That is compelling evidence of ratification.
If Delfino and Day are held liable for statements claimed by Varian to be defamatory, then Varian likewise must be held responsible for similar statements made by Duncan and ratified by Varian. The substantive impact on the present litigation is that if the defamation judgment is reversed and the cause is remanded for a new trial, instead of with directions to render judgment NOV for Delfino and Day, then Delfino and Day will assert the ratification on retrial by an affirmative defense of unclean hands and an amended cross-complaint for defamation. That makes the ratification issue pertinent in the event of retrial - a point that will be revisited in Appellants' Reply Brief.
Also, Varian is wrong to assert that "[t]he video is completely irrelevant to any of the issues raised on appeal." (Respondents' Motion To Quash, p. 1.) The video is relevant to the issue whether, absent reversal with directions to enter judgment NOV, the cause should be remanded for retrial because the pendency of the anti-SLAPP appeal divested the superior court of jurisdiction to conduct the trial. (See AOB 58-59.) On this issue, Varian contends in its Respondent's Brief that there should be no retrial because "[t]he parties would merely repeat [the] prior proceedings, in the same court, for no reasonable purpose." (RB 55.) But if the video helps to establish the connection between "jazzun" and Varian, it will play a role in our endeavor to rebut this contention by Varian and demonstrate in the forthcoming Appellants Reply Brief that a retrial would not be a repeat but would feature a new affirmative defense and an amended cross-complaint based on that connection.
II.
VARIAN'S ATTORNEYS HAVE IMPEDED APPELLANTS' ABILITY TO REVIEW THE ENTIRE RECORD BY REFUSING TO ALLOW THEM TO VIEW THE VIDEO OR TO ALLOW THEIR COUNSEL TO OBTAIN A COPY.
One might conclude from reading Varian's motion to quash that Varian and its counsel have been ever-so-cooperative in assisting Delfino and Day and their counsel to view the video. Nothing could be further from the truth. Varian's attorneys have erected obstacles every step of the way.
In mid-2002, Mr. Poppe assured us that he would provide us with a copy of the video. He subsequently reneged, saying in a series of email exchanges with Eisenberg on September 9, 2002 that he would only allow Eisenberg - and not Delfino and Day - to view the video by traveling from Oakland to the Orrick office in Menlo Park. When counsel reached an impasse, Eisenberg indicated the video would be designated for transmission to the Court of Appeal. (Eisenberg Decl. ¶ 4 & exh. 1.)
In December of 2002, after the investigator identified Moore as one of the death threat perpetrators, Eisenberg decided it would be prudent to obtain and view the video in advance of its transmission to this court and attempted once again to get a copy, this time from Mr. Marer. Despite Eisenberg's repeated assurances that any copy of the video delivered to him would be for his "eyes only," Mr. Marer told Eisenberg he would only be allowed to view the video at the Orrick office in Menlo Park. (Eisenberg Decl. ¶ 6.) Left with no choice, Eisenberg agreed to view the video in Menlo Park on December 30, the same day he planned to meet with Assistant United States Attorney Jeff Nedrow and FBI Special Agent Sean Wells concerning the death threats. Eisenberg's desire, expressly conveyed to Mr. Marer, was to avoid the cost and inconvenience of a four-hour round trip to the South Bay solely to view the video. (Eisenberg Decl. ¶ 7.)
Mr. Nedrow had to cancel the December 30 meeting because Special Agent Wells's wife had just given birth. (Eisenberg Decl. & 7.) The meeting was rescheduled for January 14, 2003. Mr. Marer and Eisenberg rescheduled the video viewing for that same day. However, on the afternoon of January 13, Mr. Poppe left voice mail for Eisenberg, canceling the viewing and offering to reschedule it. (Eisenberg Decl. ¶ 8.)
By email to Mr. Poppe on January 14, Eisenberg advised him that because the time had come for transmission of exhibits pursuant to rule 18, "it seems easiest for me to gain access to the exhibit after we have designated it (and others) for transmission to the Court of Appeal, which we will be doing shortly." Mr. Poppe did not respond until January 21, when he offered for the first time to schedule a viewing of the video in the Orrick firm's San Francisco office. By then, however, we had already filed the designation of exhibits for transmission. (Eisenberg Decl. ¶ 9.)
The obstacles placed in our path to the video are consistent with the way Varian's attorneys have handled this case throughout its history - maximum litigation, minimum cooperation, even when Delfino and Day and their counsel were threatened with physical violence. Delfino's denial of access to the video independently justifies its transmission to the Court of Appeal, so that he can view it there. He has never seen it. (Declaration of Michelangelo Delfino ¶ 3.) It is inconceivable that a party to a civil action in California should be deprived of access to an unsealed part of the record in the action. That deprivation - and, indeed, any deprivation of public access to the exhibits in this case - is inconsistent with the high value the law places on maintaining the public nature of records in civil trials. (See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1219.)
CONCLUSION
For the foregoing reasons, this court should deny the motion to quash the designation of the video exhibit for transmission to this court.
Dated: January 31, 2003
Respectfully submitted,
HORVITZ & LEVY LLP
By signed Jon B. Eisenberg
Attorneys for Defendants and Appellants MICHELANGELO DELFINO and MARY E. DAY"
emphasis added
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