Varian initiates contempt proceedings against defendants:
ORDER GRANTING PLAINTIFFS’ APPLICATION FOR AN ORDER TO SHOW CAUSE WHY DAY AND DELFINO SHOULD NOT BE HELD IN CONTEMPT FOR VIOLATING JUDGMENT AND REQUESTING FURTHER BRIEFING RE PLAINTIFFS’ APPLICATION FOR ORDER REQUIRING THAT DAY AND DELFINO PRODUCE ALIAS LISTS
"On March 26, 2002, a hearing was held in Department 17, the Honorable Jack Komar presiding, on Plaintiffs’ Application for (1) Order to Show Cause Why Day and Delfino Should Not Be Held in Contempt for Violating Judgment; and (2) Order Requiring that Day and Delfino Produce Alias Lists.
Plaintiffs originally presented this application to the Court on March 12, 2002 at 8:30 a.n. during the Court’s ex parte hours. At that original hearing, Matthew H. Poppe, Esq. appeared on behalf of plaintiffs Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan B. Felch, and George Zdasiuk (“Plaintiffs”); Glynn P. Falcon, Jr., Esq., appeared on behalf of defendant Michelangelo Delfino; and Randall M. Widmann, Esq., appeared on behalf of defendant Mary Day. After reviewing the papers submitted by Plaintiffs and hearing the argument of counsel, the Court issued a written order requiring that the parties meet and confer in person about the contempt-related issues and then return for a further hearing on March 26, 2002 at 8:30 a.m. The parties complied with the meet-and-confer requirement. In addition, Delfino and Day submitted written briefs opposing the contempt application and the request for production of alias lists.
The March 26, 2002 hearing was conducted in open court on the record. Lynne C. Hermle, Esq. and Mr. Poppe appeared on behalf of Plaintiffs; Mr. Widmann appeared on behalf of Day; Mr. Falcon appeared on behalf of Delfino. In addition, James W. Blackman, Esq., made a general appearance on behalf of Delfino and Day.
The Court, having reviewed the papers submitted by the parties and having heard the argument of counsel, and good cause appearing therefor, hereby ORDERS as follows:
(1) Plaintiffs’ application for an order to show cause why Delfino and Day should not be held in contempt for allegedly publishing, posting, or otherwise disseminating, directly or indirectly, materials in violation of paragraphs 1 and 4 of the permanent injunction contained on pages 3-7 of the Judgment dated February 13, 2002 in this action (the “Judgment”) is GRANTED1 Defendants Michelangelo and Mary E. Day are ordered to appear on July 11, 2002 at 9:00 a.m., or as soon thereafter as the matter may be heard, in Department 17 of this Court, located at 191 North First Street, San Jose, California, then and there to show cause, if any they have, why they should not be adjudged in contempt of court and punished accordingly for willfully disobeying paragraphs 1 and/or 4. In connection with this Order, the Court finds that paragraphs 1-7, 9, 10, and 12-15, inclusive, are prohibitory, and thus enforcement thereof is not stayed pending the defendants’ appeal from the Judgment; paragraph 8 (requiring that Delfino and Day seek the removal of certain defamatory messages from Internet messages boards, operated by third parties such as Yahoo, Raging Bull, and others) is mandatory, and enforcement thereof is automatically stayed pending the defendants’ appeal from the Judgment. The Court does not express any view at this time on whether paragraph 11 (discussed further below) is prohibitory or mandatory.
(2) The Court will not rule at this time on Plaintiffs’ application for an order requiring that Delfino and Day produce alias lists pursuant to paragraph 1. The Court orders the parties to submit further briefs on the issue of the Court’s authority to order production of the alias lists as follows: Plaintiffs will serve (via hand delivery and/or facsimile) and file an opening brief on or before April 26, 2002 at 12:00 noon; Delfino and Day will serve (via hand delivery and/or facsimile) and file opposition briefs on or before May 15, 2002 at 12:00 noon; and Plaintiffs will serve (via hand delivery and/or facsimile) and file a reply brief on or before May 29, 2002 at 12:00 noon. These briefs will also address (1) whether paragraph 11 is a mandatory or prohibitory injunction, and (2) whether the Court can and should modify paragraph 11 to provide that Delfino and Day shall lodge their alias lists with the Court and under seal, to be opened only upon order of the Court, rather than submitting the lists to their counsel as paragraph 11 presently provides.
1. The Judgment was entered on February 13, 2002. Delfino and Day were present in court on December 11 and 18, 2001 when the Court announced the terms of the permanent injunction. In addition, evidence shows that copies of the Judgment were served on counsel for Delfino and Day on February 13 and 14, 2002 and directly on Delfino and Day on February 14, 2002.
All paragraphs numbers in this Order refer to the permanent injunction set forth set forth on pages 3-11 of the Judgment.
IT IS SO ORDERED
DATED: 4-2-2002
HONORABLE JACK KOMAR"
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