ILENA ROSENTHAL, Plaintiff in Pro Per

1380 Garnet #444

San Diego, California 92109

(858) 270-0680

Plaintiff in pro per Ilena Rosenthal ("MS. ROSENTHAL") submits the following Points and Authorities in Opposition to Defendant Patrick J. O’LEARY’s ("O’LEARY") Motion for Attorney’s Fees and Costs Pursuant to Code of Civil Procedure section 396(b) and Code of Civil Procedure section 426.16.

1. INTRODUCTION AND SUMMARY OF ARGUMENTS

O’LEARY’s First Amendment right to "freedom of speech" has not been chilled as a result of MS. ROSENTHAL’s complaint. Since November 24, 1999, when this lawsuit was filed, defendant O’LEARY has posted over 500 messages on various internet bulletin boards, as well as represented the silicone industry at the March, 2000 FDA Saline Breast Implant Hearings. (See declaration of Ilena Rosenthal, ¶ 11) MS. ROSENTHAL’s complaint is not a SLAPP suit because O’LEARY’s actions are not constitutionally protected. False and defamatory statements about MS. ROSENTHAL’s finances, her spiritual beliefs, her professional associates, her personal life and her mental health were repeatedly posted by DEFENDANTS. Such statements are plainly not constitutionally protected. O’LEARY’s motion should be denied by the court because the anti-SLAPP statute does not apply under these circumstances.

The defendants, those named and the unnamed "does" ("DEFENDANTS") are not being sued for their statements made about the public debate of breast implants. Over a period of nearly 5 years and continuing to this day, collectively they have conducted a deliberate campaign to smear the good reputation of MS. ROSENTHAL, spread false rumors about her, and make unfounded malicious personal attacks which have only the remotest connection with the breast implant controversy.

Finally, MS. ROSENTHAL agrees with defendant O’LEARY that according to the Code of Civil Procedure section 396(b), the penalty for unreasonable refusal to stipulate to a transfer of venue should be borne by the party’s attorney, and not the party. Accordingly, O’LEARY’s motion that Plaintiff should pay the sanctions, is without merit.

2. DEFENDANT IS ATTEMPTING TO TURN THE ANTI-SLAPP STATUTE ON ITS HEAD — THE STATUTE DOES NOT APPLY HERE

O’LEARY’s claims in this novel application of the statute are sheer hubris. Far from having had his voice in the silicone debate "chilled," since this lawsuit was filed, O'LEARY has made over 500 public postings on breast implant forums and has presented evidence on behalf of the silicone manufacturers at the recent FDA Hearings in Washington DC. (See declaration of Ilena Rosenthal, ¶ 11) MS. ROSENTHAL’s complaint is not a SLAPP suit. "SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff." (Comment, Strategic Lawsuits Against Public Participation: An Analysis Of The Solutions (1991) 27 Cal. W. L.Rev. 399, 402; Barker, supra, 26 Loyola L.A. L.Rev. at p. 406.)

"The practice was to intimidate activists into silence by filing meritless lawsuits against them and hundreds of "doe" defendants for such torts as slander or intentional interference with business advantage. It became a corporate technique of suing activists into silence and submission, attempting to mute their opposition by tying up their limited resources in defending themselves. Thus, while SLAPP suits "masquerade as ordinary lawsuits" the conceptual features that reveal them as SLAPP’s are that they are generally 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 ).

O’Leary’s arguments defy common sense and completely ignore the fact that MS. ROSENTHAL has neither the means nor the finances to "oppress" DEFENDANTS. (See declaration of Ilena Rosenthal, ¶ 22 and 40) To the contrary, filing an anti-SLAPP motion against an activist without financial backing, is far more oppressive.

Rather than protecting the "little guy" against the "big guy" as the statute intended, O'LEARY, is trying to use the anti-SLAPP statute as a hammer to further the interests of the DEFENDANTS. In bringing this motion, O’LEARY is attempting to protect the interest of a large corporation, and to deter a common citizen such as MS. ROSENTHAL, from speaking out against them. Morever, defendants Inamed and McGhan actively continue their marketing, sales and public relations efforts, and O’LEARY and other DEFENDANTS continue their defamation campaign and well as expressing their breast implant related views.

MS. ROSENTHAL’s complaint is one for defamation, which is not constitutionally protected. It is well recognized that there are limits to free speech for public and private figures alike, and the laws prohibiting defamation remain on the books today. MS. ROSENTHAL’s complaint arises out of repeated personal attacks on her character by DEFENDANTS -- not in regards to their differences of opinions on the breast implant controversy. Thousands of harassing postings and emails with lies, rumors and innuendoes about her sex life, her relationship with God, her family, her business associates, and the small Foundation she heads have repeatedly been made, and they continue to the present. DEFENDANTS have circulated tales that MS. ROSENTHAL was tortured as a child. (See declaration of Ilena Rosenthal, ¶ 14) Her supporters too, became subject to ridicule and disparaged and DEFENDANTS made up email names like "Ilenatoo" and "IlenPlant" and "IlenaSaid" in order to confuse the readers and further harass MS. ROSENTHAL, and in violaton of AOL’s policies to not: "Pretend to be anyone whom you are not. You may not impersonate another member (including celebrities), an AOL employee, or a Community Leader." (See declaration of Ilena Rosenthal, ¶ 31) O'LEARY has the burden to show that this lawsuit arises out of his constitutionally protected actions. The burden shifts to plaintiff, if and only if, defendant first meets his burden. O’LEARY has not met his burden and on this basis alone, his motion should be denied.

U.S. District Court, MDL 926, The Honorable Samuel C. Pointer's Court Order #8 prohibited silicone manufacturers and their employees from contacting plaintiffs in the on-going breast implant litigation and "influencing their cases." (See declaration of Ilena Rosenthal, ¶ 6) O’LEARY’s directly violated this order by participating in several breast implant groups, created solely to support those harmed by breast implants. He claims he did nothing to disparage the cases, but he would bully conversations away from the manufacturers blame among many other distracting techniques.

Far from being the lone wolf acting on his own behalf as O’LEARY claims in his declaration, he was a spokesman and representative of co-defendant Inamed/McGhan and the silicone industry (See declaration of Ilena Rosenthal, ¶ 7) O'LEARY furthered their message by posting on public bulletin boards such as the New York Times and AOL breast implant boards, as well as those specifically for the benefit of those harmed by breast implants, many of whom were plaintiffs against Inamed/McGhan. (See declaration of Ilena Rosenthal). His postings did exactly what Judge Pointer's Order #8 attempted to prohibit. He would disparage the science and the scientists, often resorting to personal attacks against them, minimizing their work claiming "bias," and often falsely claimed those scientists with differing opinions were motivated only by money. O’LEARY made these public attacks while still disguised as "mplnt" and without revealing his own biases and employer. (See declaration of Ilena Rosenthal, ¶ 9) Disparaging the science was equivalent to disparaging the on-going cases. O'LEARY himself, for over 3 years while Vice President of McGhan Medical, and later as President of McGhan, Ireland, repeatedly, blatantly and directly violated a court order designed to protect the 450,000 breast implant plaintiffs.

Because of O’LEARY’s unclean hands and repeatedly violating Judge Pointer’s order, the court should not countenance such conduct. This court should summarily deny his motion on this ground alone.

O'LEARY has the burden to show that all of the actions engaged in by the DEFENDANTS are constitutionally protected. If and only if O’LEARY meets this threshold burden does the burden shift to MS. ROSENTHAL. O'Leary has not met his burden.

O'LEARY merely discusses some of the allegations in the complaint but not the actual defamatory conduct upon which the complaint is based. He fails to address all of the actual evidence, including his relationship to the other DEFENDANTS. For example, O’LEARY selectively omits the fact that he had an agreement with co-defendant, Susan Schaezler ("SCHAEZLER"), an implanted support group leader, that she was never to reveal his true identity to the support group. SCHAEZLER worked hand-in-hand with O’LEARY posting defamatory statements about MS. ROSENTHAL and were described as seeming "to be joined at the hip." (See declarations of Ms. Schorer and Ms. Jeffcoat)

Over a period of nearly five years, DEFENDANTS worked in concert to paint a false and negative picture of MS. ROSENTHAL. Hundreds of defamatory email messages were sent and messages posted on various public bulletin boards. A relationship between the DEFENDANTS was forged where one would start a rumor, and the rest would swear by it. False and defamatory statements about MS. ROSENTHAL’s finances, her spiritual beliefs, her professional associates, her personal life and her mental health were parroted by DEFENDANTS. Even after MS. ROSENTHAL corrected these false statements, DEFENDANTS would continue to repeat them, with indicates "malicious intent." Although O’LEARY makes the innocuous admission that he merely had questions about MS. ROSENTHAL’s finances, O’LEARY claimed, in effect, that MS. ROSENTHAL was "mooching" and profiting from donations and that she was working on behalf on some unnamed "handlers" (See declaration of Ilena Rosenthal, ¶ 39) O’LEARY continued to do this, even after she corrected his wrong assertions.

As one court has noted, "in order to establish liability based on conspiracy, the plaintiff must show the defendant and at least one other concurred in the tortious scheme with knowledge of its unlawful purpose."(Ahrens v. Superior Court (1988) 197 Cal.App.3d 1134, 1150 ) The requisite concurrence and knowledge may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators as well as other circumstances. (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316). SCHAEZLER, as a "support group leader" was the way in for O'LEARY, the silicone manufacturer, to the breast implant support community. It has been said that she "let the wolf into the hen house." While concealing his identity from the implant support group members, SCHAEZLER brought him into private discussions, and worked in tandem with her to defame MS. ROSENTHAL and infiltrate and influence the support group. (See declarations of Ms. Schorer and Ms. Jeffcoat)

Mrs. Rogene Schorer, a member of SCHAEZLER’s support group is quoted discussing O’LEARY (See Declaration of Ms. Schorer,):

Ms Jeffcoat, in her declaration states (See Declaration of Ms. Jeffcoat):

It is clear that O'LEARY as a silicone manufacturer, and SCHAEZLER conspired to conceal his identity from the support network, and together defamed the good name of MS. ROSENTHAL.

O’Leary argues he is the "prevailing party" (as required under the statute) by essentially disputing some of the allegations in the complaint and then pointing to the fact that the complaint was dismissed. This argument conveniently overlooks the crucial fact, known to O’LEARY, that the dismissal was made by MS. ROSENTHAL’s former attorney against her express wishes. (See declaration of Ilena Rosenthal, ¶ 2) O’Leary cites three cases (Liu, Kyle and Coltrain) and claims that because the complaint was dismissed, he is presumptively the "prevailing party" under the statute and thus entitled to attorney’s fees. This is not the holding in these cases. These cases simply held that a dismissal does not preclude the court from hearing an anti-SLAPP motion.

Where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney's fees under Code of Civil Procedure section 425.16, subdivision (c). In making that determination, the critical issue is which party realized its objectives in the litigation.

Even if, as O’LEARY seems to argue, MS. ROSENTHAL filed her complaint to silence O’LEARY’s right to free speech, this has clearly not happened. O’LEARY has continued to freely express his viewpoints on the breast implant debate as well as never ceasing his defamation campaign against MS. ROSENTHAL. The DEFENDANTS have not been intimidated into silence.

Further, unlike the authorized dismissals in Kyle and Liu, the unauthorized dismissal here was without prejudice. In Kyle, the court simply held that the trial court’s order dismissing the complaint was void because of the earlier dismissal (and the parties did not dispute the plaintiff’s right to dismiss the complaint with prejudice).

Very different from MS. ROSENTHAL, whose former attorney dismissed her case without prejudice, there is no question that the plaintiffs in the cases cited by O’Leary wanted to and intended not to pursue their cases any further as evidenced by their dismissals with prejudice.

O'Leary has failed to meet his burden and on this basis alone his motion should be denied.

The laws prohibiting defamation remain on the books today. Defamation is defined as "spoken or written words that falsely and negatively reflect on a living person's reputation." The additional burden of being a "public figure" requires that the DEFENDANTS knew that the statements were false and made them with "actual malice." In 1964, the Supreme Court, ruling on defamation in New York Times v. Sullivan, fashioned a new standard which requires that for a public official to succeed in such a suit, he must establish that the defendant made the false statement with actual malice (i.e. with knowledge of its falsity or with reckless disregard of its falsity).

The facts here leave no doubt that there is a very good probability that MS. ROSENTHAL will prevail on her complaint. DEFENDANTS worked in tandem to defame MS. ROSENTHAL. The facts are amply set forth in MS. ROSENTHAL’s declaration and the other evidence submitted in support of this opposition. It is very clear that that the kinds of statements made by DEFENDANTS were false and negatively reflected on MS. ROSENTHAL’s good reputation. For example, O’LEARY would claim, "helping women is just a facade to her own self serving interests," " . . . quit ripping off the American public with your tax exempt give it all to me free schemes . . .," as well as making sexual innuendoes such as "I am sorry coleah, but you remind me of a women(term used loosely) that hasn't gotten off in a long long time. Maybe Ilena could help" (See declaration of Ilena Rosenthal, ¶ 25)

As noted earlier, the actual malice that DEFENDANTS is shown by the fact that despite being corrected as to their false assertions, they repeated them.

As noted above, MS. ROSENTHAL’s former attorney, Steven B. Morris ("MORRIS") dismissed this case without her consent, without prejudice. At this point, there has been no judicial determination that the action is in fact a SLAPP suit.

Where a plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney's fees under Code of Civil Procedure section 425.16, subdivision (c). In making that determination, the critical issue is which party realized its objectives in the litigation. O’LEARY's freedom of speech has been far from chilled, evidenced by his posting over 500 public messages on breast implant bulletin boards and speaking for the industry at the FDA hearings since being served in this action. (See declaration of Ilena Rosenthal, ¶ 36)

Although MS. ROSENTHAL believes she is submitting sufficient evidence with this brief as outlined in her Declaration which justifies denying O'Leary's motion, if the court is at all inclined to grant defendant's motion, she requests that the court first allow her the opportunity to conduct necessary discovery to satisfy the court that her complaint is not frivolous. In such a case, MS. ROSENTHAL prays for and deserves a fair and reasonable opportunity to gather the evidence she needs to fully present to the court a more complete evidentiary record. Although MORRIS had apparently served some limited discovery on DEFENDANTS, MS. ROSENTHAL did not know until the case had been dismissed that they had simply refused to comply with discovery because of the statutory stay created by O’LEARY filing his anti-SLAPP motion. MS. ROSENTHAL had no intention of dismissing her case, in fact she remains determined to find the method to bring all DEFENDANTS to the same jurisdiction. (See declaration of Ilena Rosenthal, ¶ 2)

MS. ROSENTHAL agrees with OLEARY that according to the Code of Civil Procedure section 396(b), the penalty for unreasonable refusal to stipulate to a transfer of venue is borne by the party’s attorney, and not the party. "As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party." Where a motion to transfer is granted in circumstances such as this case, the code specifically requires that such fees and costs shall not be chargeable to the party but are to be the personal liability of the attorney.

The decision to file in this jurisdiction was made unilaterally by plaintiff's former counsel, MORRIS. MS. ROSENTHAL was not made aware of, nor had any input into any conversations or correspondence between MORRIS and O’LEARY’s counsel on this matter until after the case was dismissed by MORRIS. The Court should clarify whether its earlier order regarding if the awarded $600 in sanctions rests with former MORRIS, and not the Plaintiff.

7. CONCLUSIONS

O’LEARY’s right to free speech has not been chilled, and his voice in the breast implant debate continues to be heard.

The case filed against DEFENDANTS was not a SLAPP suit, the anti-SLAPP statute does not apply, there is no prevailing party, and merely having such a case dismissed, is not a reason to presume it has no merit.

Merely having the complaint dismissed does not mean that O’LEARY is the prevailing party.

Merely having the complaint dismissed against the expressed wishes of MS. ROSENTHAL is not a reason to presume it has no merit.

The Court should clarify whether its earlier order regarding the awarded $600 in sanctions rests with MORRIS, and not the Plaintiff.

MS. ROSENTHAL respectfully requests that the court deny O'LEARY's motion for the reasons set forth above.

DATED: August 1, 2000.

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Plaintiff in pro per, Ilena Rosenthal