Fourth Appellate District
Division 1
Ilena Rosenthal,
Plaintiff and Respondent, [4th Civil Case No. D036457]
[San Diego County Superior Court Case
v. No. GIC739307]
Patrick O’Leary,
Defendant and Appellant.
On appeal from the order dated August 16, 2000
Of the Superior Court of California, County of San Diego
The Honorable William C. Pate
Plaintiff and Respondent,
In Pro Per
Ilena Rosenthal
The record clearly supports Judge Pate’s findings denying Appellant O'Leary's motion for attorneys' fees. Respondent, Ms. Rosenthal proffered ample evidence that O’Leary’s statements were made to humiliate, discredit and destroy Plaintiff's credibility as an admitted "activist for women's rights in the area of breast implant surgery." Complaint, paras. 9& 14 and Rosenthal Declaration. Defendant's admitted characterizations of Plaintiff as a "fraud" and stating that "she is ripping off women" go beyond those which can be characterized as mere "epithets, fiery rhetoric or hyperbole." Noted too was the surreptitious nature of the statements admittedly made by O’Leary to "impute crimes or dishonesty" to Ms. Rosenthal. These were made with reckless disregard as to whether they were false or not.
The evidence clearly supports The Trial Court’s finding that Ms. Rosenthal established the "probability of prevailing on the merits of her claims and consequently, Appellant is not entitled to an awarded attorneys fees under CA CCP 425.16. The Trial Court’s judgment should be affirmed.
A. PROCEDURAL HISTORY
After being the subject of a malicious four year campaign by co-defendants, Ms. Rosenthal filed her Complaint on November 24, 1999. One month earlier, by chance, she had finally discovered the identity of her hidden attacker as the former President of McGhan Ireland. Ms. Rosenthal and others had filed hundreds of abuse reports to AOL attempting to stop the personal attacks against her via email and the newsgroup by co-defendants O’Leary and Schaezler. They chose not to enforce the rules that prohibited defendants’ behavior such as "pretend to be anyone you are not." (Apx. 211: 18.)
Ms. Rosenthal was represented by attorney Steven B. Morris in San Diego County who chose the venue of the San Diego Superior Court to file this internet libel suit. On February 28, 2000, the court ordered a change of venue to Santa Barbara upon O’Leary’s motion. Schaezler has successfully avoided eight attempts of service in Texas. Morris had filed for a …….. which was not heard when he dismissed the case.
On March 19, 2000, while Ms. Rosenthal was interviewing new representation in Santa Barbara, without her permission and against her expressed written and verbal requests, Morris unilaterally dismissed the case without prejudice. The dismissal was not voluntary by Ms. Rosenthal.
Ms. Rosenthal continued to rely on Morris’s advice that all motions were "off calendar" and she had nothing to respond to. These events are carefully detailed in Ms. Rosenthal’s ex parte application of May 30, 2000. (Apx. 119:8-24.) Concurrently, she researched the complex and still challenging jurisdictional issues of cyberlaw when co-defendents live in entirely separte jurisdictions as in this case. Defendants Schaezler and ETC reside in Texas, O’Leary and McGhan in Santa Barbara County, California, and defendant Does in other states.
O’Leary re-opened the case in San Diego in order to pursue Ms. Rosenthal for his attorneys fees and costs. He also attempted to get the court ordered sanctions for improper venue filing from Ms. Rosenthal, although the law clearly states that her attorney, not her, was responsible. He circulated false rumors on the internet that she had stalked him.
Ms. Rosenthal, in pro per, defeated O’Leary’s Motion for Attorneys Fees. (Apx. 387.) by proving her prima facie case that she had the probability of prevailing on her claims. O’Leary then filed his Notice of Appeal on September 14, 2000. (Apx. 390.)
B. STATEMENT OF FACT
O’Leary was in blatant violation
of a Federal Court Order
In October, 1995, Ms. Rosenthal began researching the breast implant controversy on the internet. The most visible entity was mplnt@aol.com who was a frequent poster on the AOL groups, the New York Times discussion group, and sci.med.immunology. He bullied every conversation on the topic, and attacked anyone who claimed they were harmed by breast implants. He repeatedly refused to identify himself.
In November, 1995 Rosenthal created a unique place on the internet to support women harmed by breast implants away from the manufacturers’ influence - a Newsgroup called "alt.support.breast-implant." Immediately, mplnt@aol.com became a hostile, aggressive, highly visible, negative and disruptive entity. He was repeatedly asked to identify himself as his presence was disharmonious and against the charter of thenewsgroup.
Ms. Rosenthal’s support group consisted of thousands of ill women, often with cognitive problems and most often with limited resources. Many were in litigation against O’Leary’s employers (co-defendants Inamed and McGhan) and other silicone manufacturers. For their protection U.S. District Judge, the Honorable Sam C. Pointer, Jr. created Orders No. 8 & 9 in 1992 directed at all manufacturers in this litigation, including McGhan. It clearly ordered, "do not attempt to … disparage or minimize the claims such persons may have against Baxter or other defendants…"
It is a common practice for corporations to surreptitiously align with "insiders" of their dissenters, infiltrate, gain access to, create dissension from within, and use smear tactics against the leaders to attempt to silence their opposing viewpoints. Evidence is clear that O’Leary was not the only McGhan employee in violation of the Federal Court Order. (Apx. 017l.)
Susan Schaezler was a "Mole" FOR O’Leary and his EMPLOYERS into the Support System
Schaezler introduced O’Leary into the support system, and hid his identity from the very people she was claiming to help. She made an oath with him to conceal his identity.(Apx. 0213.) Declarations from women in her group affirm that the two worked in concert with each other.
Ms. Jeffcoat describes her experiences with the two of them:
Susan had always boasted that she knew the true identity of "mplnt" and he was definitely not manufacturer related … Susan Schaezler and he always appeared to be joined at the hip. (Apx. 223, 224).
Mrs. Schorer declares:
He (mplnt) continually refused to identify himself despite numerous requests to do so. He claimed that he was not a manufacturer. …Throughout this time, Susan Schaezler encouraged women to share private information with her." (Apx. 0220).
The exhibit from 7/18/95 clearly shows Schaezler requesting personal information that was sent directly to mplnt@aol.com, who was O’Leary hiding his identity, on her list. (Apx. 0214.)
O’Leary’s claim "At no time did I ever either deny or admit association with a breast implant manufacturer" is blatantly false.
The evidence clearly contradicts O’Leary declaration (Apx 0257, 10, Apx. 0220, Apx. 7).
On 3/4/98, he wrote, "Susan, remember when Ilena said I was a manufacturer, then I was you, then … She couldn’t find her butt with both hands in this case." (Apx. 0156).
On 5/25/97, he wrote: "… I am myself and no one that you know. Try as hard as you can you won’t find me. You also know that Susan has an oath not to tell who I am." (Apx. 0213.)
O’Leary’s First Amendment Rights have not been "chilled."
Ms. Rosenthal had neither the intention nor the resources to silence her attackers. She was under no delusion that she could ever "chill the freedom of speech" of co-defendants Inamed Corporation, McGhan Medical Corporation, Patrick O'Leary, ETC, and Susan Schaezler. . O’Leary has asserted his freedom of speech unabated. He has posted over 500 public messages expounding his opinions on the silicone issue (Apx. 166-l69) and even represented the industry in public FDA hearings in Washington DC in March, 2000. (Apx. 161-165.)
4. O’Leary’s Claim that Schaezler and his "activities have been wholly separate and independent" is not supported by the evidence.
The
evidence is clear that O’Leary and Schaezler worked together to infiltrate
the support system and defame Ms. Rosenthal. (Apx. 214:10, 220, 224, 223).
His assertion that "Ms. Schaezler has never claimed to speak for me"
(Apx. 257:9) is false. Their relationship is best described by the comment,
"one would speak it, the other swear by it." At times it appeared
they were the same person. (Apx. 156:5-10.) Schaezler frequently spoke on
O’Leary’s behalf.
On 2/1/97, she posted,
I have been lucky to know their [O’Leary’s] identity, talked to
them, their associates, their spouse, know their dogs … (Apx. 216:13-15).
After O’Leary’s inadvertently revealed his true identity, it was
Schaezler who defended her cohort. O n 12/20/99, she published:
Mplnt has given more to the plaintiffs than many have … he did not agree
with how we were treated and has left the industry …" (Apx. 218:8-12.)
Schaezler was also in the center of all communications regarding an alias,
previously unknown to Ms. Rosenthal, who published damaging, libelous statements
about Ms. Rosenthal’s mental health. When O’Leary’s identity
was uncovered, "Linda Reiter" (shelbyrei@aol.com) began a letter
writing campaign claiming Respondent was a "borderline personality"
and "deteriorating rapidly." It was soon proven she was just a decoy.
(Apx. 135:14-28.) This was an obvious ploy by O’Leary and Schaezler to
divert attention from their relationship being exposed, and an attempt to
further humiliate and lessen the effectiveness and cohesiveness of Ms. Rosenthal’s
work. (Apx. 172:176.)
Appellant and Schaezler filled the newsgroup with false statements about many
aspects of Respondent’s personal life with reckless disregard to the
truth. (Apx. 192, Apx, 199, Apx. 201, Apx. 202, Apx. 213.) Ms. Rosenthal responded
to repeated public interrogations and posted information concerning the legality
of the Humantics Foundation for years. (Apx. 186-188). The theme that she
was "ripping off women" was repeated by named defendants and unidentified
aliases, parroting Appellant and Schaezler’s false and defamatory allegations.
Ms. Rosenthal was in fact, losing money every month and had depleted her own
funds to continue her work. (Apx. 141:17-41.) One example of their zeal to
discredit Respondent, humiliate her, and tarnish her good name, is well illustrated
in adding these words to a posting and attributing them to her, claiming they
were in "Ilena’s own words":
alright, great concept, anybody can use "god" as an excuse for violence...as
atheists we lack the mendacious shroud of righteousness provided by a "god"
but, what the fuck, let's use "god" anyway my vision is clear, where
once it was muddy, thank you, jesus, now i know that i have to kill somebody.
(Apx. 209:14-17, Apx. 10-26.)
These were not Ms. Rosenthal’s words, nor her meaning, nor her intent.
It was an obvious attempt to impersonate her and cause her humiliation.
Ironically, O’Leary submits as evidence a personal email sent by Ms.
Rosenthal to Schaezler, never posted or published by Ms. Rosenthal. She was
in near mental breakdown the morning that was written, after once again awakening
to an email box filled with harassing messages from Schaezler. In it, Rosenthal
implores Schaezler to "lose my address" and notes:
… that you use your God given intellect to destroy and hurt and be a
traitor to the breast implant cause is a travesty. (Apx. 245.)
5. O’Leary is not the "Lone Wolf" that he
declares himself to be.
O’Leary declares:
I have never been a spokesman for anyone other than myself on the ASBI bulletin
board. When posting to the newsgroup, I was acting as an individual…
(Apx. 257:16-18.)
The record is clear that O’Leary was, at all relevant times, employed
by McGhan. (Apx. 83:26-28.) He was the spokesman for the International Association
of Prosthesis Manufacturers: McGhan (Apx. 150:12, Apx. 152:13-14.). His postings
to the public internet bulletin board were often done during working hours
It should come as no surprise that O’Leary’s activities were benefiting
the interests of his employer. Both O’Leary and Inamed had a unity of
interest in attempting to attack their enemies by defaming Ms. Rosenthal.
His public postings supported the breast implant industry and mirrored the
message of his employers. (Apx. 142:18-Apx. 143:9.) Silencing a vocal critic
would unquestionably benefit Inamed.
6. Rosenthal’s financial demise was the goal of the
defendants.
Within a month of infiltrating the newsgroup Ms. Rosenthal created, O’Leary
and Schaezler began to focus their attention to Ms. Rosenthal’s personal
life. (Apx. 84:15-22.) This is factually outlined in Ms. Rosenthal’s
declaration. (Apx. 141:9-142:15.)
III. ARGUMENT
A. ROSENTHAL’S COMPLAINT IS NOT A "SLAPP" SUIT
Ms. Rosenthal’s
complaint was brought after years of intentional infliction of emotional distress
by defendants working together to humiliate, discredit, and silence her personally.
Her complaint arises out of their personal, libelous statements about her
spanning several years. Her complaint is not about protected commercial speech,
but about the right of an individual to be free of unwarranted attacks upon
her personal life, reputation, and character.
O’Leary is attempting to use the SLAPP statute in a manner that is completely
contrary to what the legislature intended when it passed CCP 425.16. Rather
than protect common citizens from an abuse of the legal system by powerful,
wealthy interests, O’Leary is turning the statute on its head. The intent
of the SLAPP statute, was to protect:
critics of commercial activities, including projects that are subject to government
regulation, [who] have found that their advocacy can expose them to strategic
legal actions by the commercial enterprises under scrutiny. These actions,
frequently styled as lawsuits alleging defamation, required the critics to
divert sometimes scarce resources to their defense instead of their public
advocacy. The term "SLAPP"--an acronym for Strategic Lawsuits against
Public Participation--was coined for these lawsuits. (Pring & Canan, Strategic
Lawsuits against Public Participation, 35 SOC. PROBLEMS 506 (1988))
Grassroots activists and health advocates such as Ms. Rosenthal are the very
individuals the SLAPP statute was created to protect. The years of harassment
against her were their attempts to stop her from exercising her voice against
their products.
O’Leary is using the anti-SLAPP statute as a hammer to further the interests
of a large corporation, and to deter a common citizen such as Ms. Rosenthal
from speaking out against them. By filing this Appeal, contrary to O’Leary’s
claim of fearing that Ms. Rosenthal will continue to "harass" O’Leary
by re-filing her complaint against him, he is using it to halt her lawful
access to the courts with her legitimate claim against him and his former
employers, Inamed / McGhan. ) (AOB 3:18-21.)
B. O’LEARY’S FIRST AMENDMENT RIGHTS HAVE NOT BEEN "CHILLED."
Ms. Rosenthal had neither the intention nor the resources to silence her defendants.
She was under no delusion that she could ever "chill the freedom of speech"
of co-defendants Inamed Corporation, McGhan Medical Corporation, Patrick O'Leary,
ETC, and Susan Schaezler. O’Leary has asserted his freedom of speech
unabated. Since this complaint was filed, he continued to post over 500 public
messages expounding his opinions on the silicone issue (Apx. 166-l69) and
even represented the industry in public FDA hearings in Washington DC in March,
2000. (Apx. 161-165.) McGhan and Inamed have continued their marketing campaigns
and advertising.
No one’s first amendment rights were repressed in any way.
C. ROSENTHAL PROFFERED AMPLE ADMISSABLE EVIDENCE TO ESTABLISH THE PROBABILITY
OF PREVAILING ON HER CLAIMS
The Trial court’s decision was based on the admissions by the Appellant
(Apx. 389:3-5) and the salient portions of Respondent's Declaration, all admissible
evidence. (E.C. §§1220, 1221.)
Clearly, defendants O’Leary and Schaezler worked closely together to
impugn Ms.Rosenthal’s good reputation, interfere with her business relationships,
and destroy her organization made up of ill women, many in litigation against
his employers. (Apx. 133:17-133:26, Apx. 190.)
If she is indeed deemed a "public figure," she has met her burden.
To prove actual malice," a plaintiff must:
demonstrate with clear and convincing evidence that the defendant realized
that his statement was false or that he subjectively entertained serious doubts
as to the truth of his statement."
In Curtis Publishing Co. v Butts, the Supreme Court held that the following
test "satisfied constitutional muster." "Actual malice"
was defined as:
encompassing the notion of ill will, spite, hatred and an intent to injure
one. Malice also denotes a wanton or reckless indifference or culpable negligence
with regard to the rights of others.
None of the cases cited by Appellant are relevant to the facts of this case.
At issue was not "fiery rhetoric" or "hyperbole" but an
organized attack that spanned years by a president of a large multi-million
dollar corporation against a common citizen to keep silence Ms. Rosenthal.
IV. CONCLUSION
Ms. Rosenthal fully agrees that vigorous public debate supports the forum
of ideas upon which democracy and an informed citizenry depend. She welcomes
all open debate and discussions on the topic of breast implants.
However, false and imaginary assertions of fact about her personal life are
not of "public concern." Even after Respondent made public corrections
to the defamatory statements of Appellant, the false allegations were repeated.
The SLAPP statute was introduced to protect against the frequent:
meritless suits brought by large private interests to deter common citizens
from exercising their political or legal rights or to punish them for doing
so." (Pring, SLAPPs
Strategic Lawsuits Against Public Participation (1989) 7 Pace Envtl. L.Rev.
3, 5-6, 9).
Should the Trial court’s decision be reversed, the policy underlying
the statute will not served.
Respondent Rosenthal respectfully requests that all relevant facts surrounding
this decision be reviewed and prays that the Trial court’s judgment be
affirmed.
DATED: January 27, 2001 ___________________________________
ILENA ROSENTHAL
RESPONDENT/PLAINTIFF
In Pro Per