-: SJC-13460: Bristol Asphalt Company, Inc.
v. Rochester Bituminous Products, Inc.
-: All set. -: Good morning, your Honors,
Michael Rabieh on behalf of the appellants,
the defendants in the case below,
Paul and Alberto Todesca
and the Rochester Bituminous Products Corporation.
I wanna distinguish briefly between my three clients.
The Todesca brothers-
-: Could you rely, do we really need that?
'Cause you've done that well in your brief.
-: Okay. Thank you.
I'll move on.
So, as the court knows,
my clients were involved with other parties
in challenging certain approvals for an asphalt plant
that's proposed to be sited in Rochester.
Their co-plaintiffs included Michael and Carol D'Acci,
who own a property right next to the proposed site.
Those challenges to date have all failed.
I note, as does the Appellees brief at,
I think it's page 17,
that there is still a pending challenge to that.
So to the extent this court retains the second path
or the second stage- -: Yeah.
Can we start with the first path of the second stage?
'Cause you've got three very sort of insightful,
detailed opinions by the appeals court,
but I'm still not sure what the law is and what it should
be on that second path.
So can you walk, excuse me, the first part of the second.
-: Right, so once, as it's done,
there's no dispute that this is only
about petitioning activity.
There's no dispute about that.
The question is:
Did the plaintiffs below show
that my client's petition activity was sham or devoid
of any reasonable basis in fact or arguable basis in law?
And that, I think, is the question.
It's the statutory question.
-: And we do that count by count, right?
We don't look at the case as a whole, right?
We look at each legal count
and decide whether it's devoid of, I mean,
everyone agrees that everything is based
on petitioning activity.
So prong one here is satisfied.
Prong two, we're dealing with the fact,
but we analyze prong two count by count, right?
-: I think that's not entirely clear to me, at least,
your Honor, because-
-: And that may be one
of the things we need to clarify, right?
-: Right, if we were simply focusing on whether
or not the complaint is based on petition activity alone,
there we go count by count.
There's not a doubt about- -: But,
shouldn't we go count by count on the second part
of this as well?
-: That becomes difficult because I guess this is one
of the questions that the court solicited amicus briefs on:
How much sham petitioning activity suffices?
Does the non-movant have to show that all
of the petitioning activity was sham?
I mean, that is one of the questions.
-: But, like in this case,
this case is very good because we've got multiple counts,
but at least the dissent in this case says, "Okay,
one of the counts
has one basis for support."
I read the dissent as also saying
that the other counts should be dismissed,
I mean, should not have been dismissed.
It's just that one count that's saved.
-: I don't know whether the, I think, I understand the-
-: And if I'm not clear, this stuff is incomprehensible,
so say so. -: No.
I understand the brunt of the question,
but I'm not sure that the complaint filed by my clients,
or at least Todesca Realty Trust,
not Rochester Bituminous Products,
whether the complaint from the land court tracked everything
on the count by count basis.
I believe there's a co-mingling of things.
So I, I guess- -: Well,
isn't the test whether the petitioning activity had
a reasonable factual basis in law or fact?
Isn't that the test?
So don't we necessarily have to focus
on the petitioning activity regardless
of how the plaintiff decided to allege it
in their count by count analysis?
-: Yes, I think that's a better approach.
Is the petition activity...
And here, there are three phases of petition activity.
I mean, one of the questions,
the statute very clearly says that the non-movant,
in order to defeat a special motion has to show
that the petition activity is devoid
of reasonable factual basis or arguable basis in law
and that's any.
It's very clear. There's not like a weight.
There's not a weight.
And I recognize that that might lead,
you could have a case where a small portion
of petition activity is not sham-
-: But this is an exceptional remedy.
To give someone, to grant this motion to dismiss,
you get attorney's fees.
You do this in a expedited way.
Don't we, I mean, I understand if we do it count by count,
but if we're just sort of looking,
is there anything left there?
Then you dismiss the whole thing?
I mean, I- -: Well,
I'm gonna try
to start without considering the relatively
low hanging fruit.
I think if we distinguish between the three phases,
so we have the phase where my clients challenged
the site plan approval,
then there was the phase where they challenged the extension
of the order of conditions issued
by the Conservation Commission, and then MEPA review.
I think those can be clearly distinguished.
You could conclude
that one phase was not sham petition activity,
the other phases were.
That's a perfectly viable option.
But I wanna focus on the site plan approval phase
because that was the phase that Justice Englander focused
in on as involving legitimate petition activity,
at least with respect to traffic impacts.
I would argue that the three main issues that were resolved
by the trial court, which involved noise, traffic impacts,
and proper production values,
I don't think any of that was sham.
So far the courts below have not agreed with me.
It's only Justice Englander with respect
to the traffic impacts has argued that that was legitimate.
And I think he's absolutely right about that
and I don't need to belabor that argument.
I make it very clearly in my brief,
and I think Justice England does a very good job
of showing how the trial court really weighed competing
expert's testimony and looked at the applicable bylaw
in order to conclude that the plaintiffs were wrong
on that count.
But that's doesn't mean it was sham petition activity,
just that they were mistaken.
On the noise impact issue, I would argue that we, again,
that was decided on summary judgment.
I understand that and so there was no trial evidence issued,
I'm sorry, no trial evidence entered on that count.
But, on the noise impact,
my client had an expert showing that it was going
to exceed the permissible threshold and the reason
that that count was deemed,
the reason they lost in summary judgment was
because the- -: Your expert made
an assumption based on facts
that the other side said were not reasonable.
-: No, I think, in this case, on the noise issue, it-
-: Oh, I'm sorry.
I thought you were talking about the traffic,
the six trucks lined up- -: Right, right.
I was focused on the noise issue.
There- -: But, on the noise issue,
that was deemed unreasonable
because that was a condition precedent to the issuance
of the approval.
So if I tell you you can't go over X amount
and you haven't demonstrated they've gone over X amount,
but in order to get the approval,
the applicant has agreed with that, I mean?
-: Right, well, okay, I'm gonna,
I'm gonna talk to the particular bylaw provision at issue,
and I believe this is at page 370.
I'm sorry, bear with me just one second.
-: But can I add to Justice Georges's point, which is:
Isn't there a DEP requirement on that?
They're gonna have to get sign off from the DEP
on that noise, right?
Or am I confusing that with a different part of this?
-: No, no, you are correct, but-
-: That's what the Land Court says.
The Land Court says, "Look,
you gotta get the DEP to sign off on this
and they're not gonna sign off on it if it violates that."
-: That provides a basis
for entering summary judgment against my clients.
But the fundamental question here is:
Was the complaint, insofar as it was based on noise impacts,
was it sham petitioning?
And I would turn to-
-: But, it's not.
The word sham we've added again, but the word is:
"Is devoid of any reasonable factual support
or arguable basis in law."
Isn't that devoid of any arguable basis in law?
-: I would disagree, your Honor.
The particular bylaw provision is at page 459
of the record appendix and it says
that a project must conform with state
and local sound regulations as amended from time to time.
The regulations as issued by the DEP require
that there be no,
that sound can only increase 10 decibels
above ambient noise.
So if you're looking at this,
you have a bylaw provision that doesn't say,
it just says it has to comply
and there was no dispute it has to conform
with the state regulations.
There's no dispute that, before the Land Court,
the project proponent had not demonstrated compliance.
I concede, I agree entirely,
that there was a condition imposed,
but I don't think that, if you look at the bylaw provision,
I think it's arguable that there could
be a reasonable interpretation, an arguable basis in law,
to say, "No,
it's not just enough to rely on a condition in the approval.
They actually have to go further
than that and demonstrate that."
At least I think that's an arguable basis in law
as to why I think the noise impact claims were
not sham petitioning.
-: But you don't even...
In your view,
you don't need
that to have your special motion allowed, right,
as long as you had any argument?
And, again, I'm not sure that's what the dissent is saying
'cause it seems like the dissent was pruning what
was gonna happen.
But, if your view is right,
that if you have any, if anything,
if that traffic thing was enough,
the motion to dismiss should have been allowed, right?
-: Yes. That is my argument.
But I don't wanna rely only on the traffic impacts.
I also wanna argue that the noise impact argument
and the property value reduction argument,
those were also legitimate arguments.
There were other arguments that-
-: But, counsel, that implicates one other thing
that Justice England are brought up in his dissent.
Could you touch upon what you think the standard
of review ought to be?
-: Well, de novo,
certainly de novo standard of review
for the reasons articulated by Justice Englander
because the question-
-: Have we said that? Have we said that?
-: I don't believe this court has-
-: In fact, we've said
it's abuse of discretion/clear error of law.
-: Right, and I think as the the amicus brief-
-: By the way, can I just frame that?
'Cause, from what I understand, Judge Englander is saying,
"We only said abuse of discretion/clear error of law
in the context of the new second part."
Is that, or have we said
abuse of discretion/clear error of law
for the old first part of the second part?
-: I think the amicus brief submitted
by the New England First Amendment Coalition says
that the court has been unclear
in articulating that standard.
-: But isn't it have to be de novo?
I mean, doesn't it have to be de novo?
'Cause we're looking at,
all we've got are affidavits and legal argument
at this stage of the process.
So doesn't it have to be in a de novo review?
-: I agree entirely, your Honor. Yes.
I think it has to be de novo review. Yes.
-: But, I just don't understand how you could do it
and I also don't understand how it could be preponderance.
Is that also confusing?
Because how do you do a preponderance standard based
on affidavits and legal issues?
Is that also something we have to clean up?
'Cause it doesn't make any sense.
-: Well, it's what this court articulated
in the Baker decision
and the New England First Amendment Coalition argues
for the retention of that standard.
-: How do you do it though?
So how do you do...
Maybe I just miss, maybe I don't understand the subtlety.
How do you do a preponderance review based on affidavits
and at this preliminary stage?
'Cause preponderance to me seems
to be more something you do after a trial.
-: Well, my case may not present that question
in the cleanest form because my case involves,
trial has actually happened, trial happened,
and decisions have been issued.
So this is all retroactive.
And, in a sense,
I think you can apply preponderance of the evidence standard
to my particular case.
Going back earlier,
if it's a typical case where the case is suspended pending
the resolution of the anti-SLAPP motion,
I'm not sure how one would address that.
-: But if you're arguing for a de novo review of the,
and I can't say this,
so I'll just say of the reasonable factual basis
and arguable basis in law prong, right?
That's a de novo review?
-: Yes, your Honor. Of course, yes.
-: How could the court on appeal apply a preponderance
of the evidence standard on that?
If it's a matter of law, it's either right or wrong.
It's not more likely right or more likely wrong.
-: Yes, that issue, I mean,
I was focused more on getting away from an abuse
of discretion standard and just deferring
to the trial court decision.
-: So, assuming that we're with you there, it's de novo.
Then doesn't necess,
it's de novo because it's an issue of law, right?
-: Yes. -: Yeah.
And so a preponderance
of the evidence standard doesn't necessarily make sense if
we're determining things as a matter of law.
-: Well, some of the testimony will be affidavit.
I mean, the evidence will include affidavits.
-: But that's the,
what we're gonna get is we're gonna have affidavits
for facts not credibility findings 'cause there're gonna
be no findings at that point and so we're gonna have to look
at what the submissions are.
Is it more like a summary judgment standard?
Because, I mean, you've got affidavits,
on the traffic, for example.
Had they not submitted a traffic expert,
then this is clearly without a reasonable factual basis.
But they do. You do submit a traffic expert.
So you've submitted something.
I just don't know what the standard we look at.
I mean, if it's preponderance based on affidavits,
and it's a de novo review, I mean,
and this is our fault, not yours.
But I'm just trying to understand what we're saying.
-: Well, I think Justice Englander's discussion
of the traffic analysis
that the Land Court undertook provides a reasonable example.
We have competing experts and I guess the key thing is
to remember on whom the burden lies.
The burden lies on the non-movant to show
by a preponderance of the evidence.
So it has to offer more evidence
than the moving party has offered in order
to carry its burden.
So I don't think that particularly helps you in wrestling
with this issue but I do think
that Justice Englander's analysis provides-
-: Although Justice, the Court's analysis looks at this
as a whole and says, "Okay,
I find the traffic stuff very weak,
but the other stuff is really,
really weak and therefore I can determine
that the petitioning activity is without reasonable basis
in fact or law."
I mean, and it's also carefully done.
And she's basically, Justice Hand is basically saying,
"This just doesn't rise to the level
of legitimate petitioning activity."
Again, the sham thing is terminology we've added
and it makes sense in this part two,
the second part of part two,
but I'm not sure it's relevant to part one directly.
You don't need to prove a sham,
you need to prove that it's without a reasonable basis
in fact or law, right?
-: And now that,
as I'm thinking through this now with with your help,
the arguable basis in law,
I'm not sure how an evidence standard at all applies there.
I mean, if it's an arable basis and law, I'm not sure-
-: Well, you've gotta allege facts that...
I mean, claims have elements, right?
-: Yes. -: If you don't put
in affidavits to support an element of the offense,
you lose, right?
You haven't- -: That is correct, yes.
-: You need, that's why I'm wondering if it's more like
a summary judgment standard.
-: It depends on what one means
by a summary judgment standard.
If it's the case that,
as long as one side raises a dispute of fact,
therefore summary judgment can't enter,
I think that harms the movant,
the originally petitioning party, too much.
I think the Baker decision tried
to strike a balance recognizing
that someone's petitioning activity is going
to be short circuited, so to speak.
And I do not have an alternative to suggest to preponderance
of the evidence, although I recognize that it is-
-: What about a prima fascia showing of some sort?
'Cause the word is show, right?
Again, I'm trying to get back to the statute.
'Cause at least the statute,
this thing should be moored in the statute.
So the moving party's exercise, right,
was devoid of, oh, maybe it doesn't have showing,
the moving party's exercise of its right
to petition was devoid of any reasonable factual support
or any arguable basis in law.
-: Right, and the non-movant does have to show that.
That's what yeah, that that language is clearly in there.
So I think the...
-: But how is that helped by the preponderance
of the evidence standard?
That's my struggle. So, just take the traffic issue.
So you give evidence
of what you think the queue's gonna look like if these
trucks come in and, if it's more than six,
they'll spill out onto the road.
And then, there is competing evidence that's presented
to the judge that, "Hey,
a lotta these trucks are our trucks and we have the ability
to kind of fix that problem by coordinating who comes when."
Now, if the standard is reasonable factual basis, right,
the factual basis part,
and that's informed by the quantum of proof of preponderance
of the evidence, more likely than not, right?
So, if the judge in this case found
that the non-movant sustained their burden
and say it was 51/49%,
does that mean that there's no reasonable factual basis?
-: And when you say the judge,
you're referring to the judge
that denied the special motion-
-: Right. -: Or the Land Court judge?
Okay.
Under the preponderance of the evidence standard,
I think that would follow if the judge decided 51 to 49%.
I mean, that follows from the language.
-: Right. -: I think that,
and I recognize that that's a...
Kafka: How do you do that based on affidavits?
-: Yeah.
-: I just don't understand how,
I mean, you're not making credibility findings.
I can see you can make a determination
that you haven't alleged facts that satisfy an element
of the offense, of the claim.
But I don't know how you can do weighing
of evidence like 51/49.
I just don't know how you do that in this context.
Is there anything?
It seems like we're doing something more like
frivolous litigation upfront.
We're trying to make a determination
of whether some litigation or the claim is frivolous,
but we're doing it at a preliminary stage of the process.
The only thing that comes
to mind is the housing bond thing we did last year,
which has an element
of that where you're imposing a bond based on the fact
that the thing clearly has no merit before you've done all
the fact finding.
-: The Liz Pendant statute too. -: Right.
Right,
I wish to God I had some helpful words
and some approach to resolve this dilemma.
But I don't except to fall back on what actually has
to be shown.
It has to be shown by preponderance of the evidence
that it's devoid of reasonable, factual,
supported arguable basis in law.
And I think, in our case,
I just do not think that the plaintiffs, the non-movants,
met that burden.
-: Thank you. -: We're gonna ask
Attorney Hurley to give it a whirl.
(judges laugh)
-: When I came here this morning,
I though I had this pretty well in hand,
but obviously I do not understand.
I understand the conundrum of what the burdens are,
but just to give a little background-
-: So, before you give the background,
can I just dive right into Anti-SLAPP.
I'm sorry, we're all anxious to do it
'cause we asked the questions of the public
and we've got all these amic, so let's just get going.
-: I understand. -: We understand the facts
in this particular case, but on anti-SLAPP itself,
isn't the determination whether something has a reasonable
factual support or arguable basis in law,
a de novo determination?
That's a matter of law.
What is the argument even that it's not?
-: I don't think there is a good argument.
-: Okay, so we all agree with Judge Englander,
that it's de novo, right?
-: I think that's the better approach.
-: Okay, so if it is a matter of law, how,
how can you possibly determine that on a preponderance
of the evidence?
-: I'm not sure I understand the question.
-: Well, I mean,
I think we said in Baker that that determination
of whether something has, the petitioning activity,
had reasonable factual support or arguable basis in law,
which you agree with me, is a legal question.
-: It is a legal question.
-: How can that be determined based on this overlay
of a preponderance of the evidence analysis?
-: I'm not sure- -: There is legally
correct or not.
-: Isn't it a mixed question of fact and law though?
Because- -: I think it's-
-: You gotta look at all the affidavits.
Say the law is obvious, the permitting,
there's a clear requirement,
but you haven't put in any facts.
Then we can, you haven't put in a fact on an element,
I'm thinking more in the criminal context,
but it works here too.
You haven't submitted any factual affidavits
on a necessary element of proof, you lose, right?
That's not preponderance of the evidence,
but it's a mixed question of fact and law, right?
-: Well, ordinarily that would be the case. Yes.
So let's look at this case.
So we had three different kinds of petitioning activity
and I'm not sure how it applies to each.
Maybe it's different to each so-
-: Well, let's take the traffic situation, okay?
-: In that case, we had the benefit of a trial.
-: You had the benefit of trial? It had to go to trial.
Why isn't there enough reasonable basis
that the traffic situation might be,
as their expert said, it was.
-: We went to- -: They lost.
I mean, they lost, but- -: We went to trial, I think,
frankly, because we thought it was faster to go that way.
It wasn't any great intellectual decision to do it
as opposed to summary judgment.
-: Well, I mean, you know- -: I mean I was the-
-: Regardless, there was an expert
that they presented who said that there was gonna
be a traffic problem.
Why isn't that enough to show that this has some legs?
-: Part of the problem with that is,
if you read the whole transcript from that trial,
later on in his testimony, when I cross-examined him,
he admitted that that really wasn't clear.
And so his- -: What wasn't clear?
What specifically? -: That it was gonna
create a problem and so I think the judge s-
-: So because you, on cross-examination,
were able to get the expert to?
-: To back off. -: Back off
of his original opinion,
it denies the petitioning activity
of these particular defendants?
-: Well, it makes it sham.
-: Why? -: Because they didn't have-
-: Did you get the expert to say that they told me
to tell you this, that they paid me for my opinion?
-: I don't think we need to do that to prove a sham. Do we?
I mean, if you bring on an expert
and he gives a bogus opinion
and that gets demonstrated on cross-examination,
I think you still can fall-
-: So anytime you get on cross-examination
and you get an expert to flip, it's a sham?
-: It's the time of the petitioning activity.
It's the time of the petitioning activity.
-: Right and the petition- -: That has to be analyzed.
-: The time of the- -: Not the cross-examination
at trial. -: Well,
at the time of the petitioning activity,
there was no good faith basis for them to bring a petition.
-: Well, didn't they have the opinion of the expert.
-: At that time, I don't know, Judge.
That probably came later if I had to-
-: Wouldn't you show that they didn't?
-: I'm sorry? -: Wouldn't you have to show
that they didn't at that time in order
for the petitioning activity to be a sham?
-: That would put an awfully big burden on the moving party
to do that, wouldn't it?
I mean, how can we possibly do that?
So you have somebody comes along and they bring a lawsuit,
they challenge the issuance of a special permit,
they have no expert.
So maybe it's a good tactic for them to never have an expert
at the beginning because we can't move to dismiss.
-: Well then they'd have no reasonable basis
in fact or law.
-: If they have no expert, it's easy.
-: Then they'd be in a worse position.
-: Right, I suppose it would be.
-: If they have no expert then you should win the special
motion to dismiss.
But if they do have an expert that has some traction
that meets the require, you know, he's, I mean,
I don't know if six trucks meets the definition.
And that seems to be what the appeals court said that,
"Okay, it's sort of like minimal analysis."
But then the appeals court looked
in the whole context, right?
It looked at...
Okay, so they brought,
and that's what I think Judge Englander was doing
at the end is saying, "Okay,
some of this I agree is just nonsense,
but there's something here and therefore the entire motion
to dismiss should have been allowed."
I'm not sure I follow that, right?
If you prove that two
of the petitioning things were nonsense,
but one had some merit, do you still think the special,
what's the answer then?
-: I have a hard time with that myself, that conclusion.
I mean, I think he was wrong.
Obviously, there's some disagreement about that.
But I think he was wrong on the traffic issue
because I think if you read the record completely,
you would see that it was a sham based on-
-: But, if he was- -: That's not the question.
The question is, if he was...
The hard question is: If he was right on the traffic issue,
but the noise was just a bunch of baloney-
-: That is the difficult question, right.
-: And that's what the appeals court majority is.
The appeals court majority says, "Okay,
two of the petitioning activities were such garbage
and so without merit that this sort
of problematic one over here isn't enough to save this."
And, again, a special motion
to dismiss is a powerful medicine.
When you get a special motion to dismiss,
you get attorney's fees.
We short circuit the trial process.
-: Present execution. -: Present execution.
It's just, it's a,
and it needs to be sort of cabined in ways
that we can follow, right?
But we need to clarify what the standards are.
-: The one point of disagreement I have slightly-
-: Go ahead, go ahead. -: With you, judge,
is I don't know that the trial court,
that the judge who issued the decision thought
that traffic was okay.
I mean, I don't think that-
-: But help us with the harder...
I get that. -: Wait, can I-
-: Go ahead. I'm sorry.
Can you finish that last statement?
-: Sure, I mean,
I think that Judge Kafka's question to me was really
about the Appeals Court decision and they seemed to think
that we had to,
but I think the majority also thought
that the traffic issue was bogus so you could-
-: Right, so they didn't have to deal
with Justice Kafka's scenario where part
of the claim is bogus and part of it is not as you say?
-: Right, no. They eliminated that problem to some extent.
-: Right, and so the harder question,
which I think you said you don't have an answer to,
and I just wanna make sure
'cause I wanna make give you an opportunity, is:
What if part of the activity is
sham and part of it is not?
Is the motion to dismiss allowed in part
or is it just denied?
-: Well, I think it's gonna depend on every circumstance.
It may be- -: Well, let's say here.
-: Maybe in some cases- -: Let's do here then.
Let's do in this situation.
Justice Englander is correct
that the traffic situation was not bogus.
Motion to dismiss allowed in part?
-: You could do it that way. You could grant the motion.
-: I know I could.
I'm just tryin' to figure out if-
-: I'm just thinkin', I could-
-: Well, is that what, Judge Hand writes that,
and for the majority, doesn't she look at it in the,
I can't remember, is the word in the entirety somewhere
in the- -: It is.
-: So they do 'cause that may be important to you
to win here, right?
'Cause we may conclude the traffic thing has some merit,
but agree with that the other two parts
of this are nonsense.
-: And one could argue that you then should,
in that odd circumstance, which we may have here,
that what you should do is look at the case as a whole,
in its entirety. -: But that's why I was asking
in the beginning 'cause often these things come up
in different counts
and I understand why you would wanna dismiss a count
when the count is clearly nonsense.
In this case,
those three petitioning activities appear
in the same sort of process, right?
-: Right. -: So it's hard to sort of,
but we often get cases,
like the next one
that you're gonna sit through if you stick around,
where you have six different counts and some
of them may have no basis,
but others have some basis.
Then do we grant the special motion to dismiss
for the entire case?
That's what worries me.
That's why I'm focused on whether we do this count
by count or not.
-: I don't see as a practical matter how you can do it
count by count.
I mean, if I-
-: In your case, but, in your case,
but what if they brought two separate counts,
a MEPA count and also, I don't know,
you're an environmental warrior, you know all these things.
You've got all kinds
of different things they can bring, right?
-: Yes, they could and they could have.
They could have done that.
But what does it do for me?
I'm just tryin' to think this through.
I'm asking a question more than giving you an answer here.
But so what do I do if I get a decision that says you win
on two counts of your anti-SLAPPs motion,
but you lose on your-
-: But isn't that the way normal litigation works?
You essentially keep going and litigate the case as normal,
which is, that's why the anti-SLAPP is so complicated.
But if you do a count by count, you win.
You get your attorney's fees on that one,
but they get to pursue the one that had a basis.
-: So you SLAPP the two? -: Right.
-: And you dismiss them? -: Right.
-: And then a case goes on with the one that was determined
to be non-SLAPP? -: Right.
Isn't that the way normal litigation works?
-: It is the way normal litigation works and maybe
that's the solution.
-: Is that consistent with the intent of anti-SLAPP though
to let it go forward?
-: I'm not sure
that anyone who drafted the anti-SLAPP really had
that in mind, that particular conundrum,
so that we could glean any intent there.
But, I mean, that is a possibility I suppose.
I mean, I always thought of it in terms of the whole case
as opposed to breaking out it out by counts because-
-: Because of the intent of anti-SLAPP.
-: Because, from my client's perspective,
we want it to be over because we think
that it was inappropriately brought.
-: Because of the legislator's perspective
that the intent was it would
be an anti-SLAPP if it involved petitioning activity.
-: I think there's a strong argument that would say that.
-: But isn't there another argument that says petitioning,
legitimate petitioning activity,
we wanna protect and we want to expedite the process
to get rid of claims based
on legitimate petitioning activity.
But no one has any interest in illegitimate sham petitioning
and therefore we're not gonna protect that kind of behavior.
I mean, the legislature's not parsing this.
They're looking big picture, but they're not parsing.
They haven't thought about these ripples and ripples
and ripples that have come out of this.
-: Can I ask you a different question?
-: Sure. -: So, a path,
I guess the augmented Blanchard One path,
second stage of the second prong, if I've said that,
what are your thoughts on that?
-: Let me start by sayin' I didn't rely on that
in our briefing because I don't think it applied
to our situation.
I think that's a very difficult part of the statute.
I'm not sure.
-: A difficult part of what?
-: Difficult part of the approach.
I don't particularly care for it,
the second prong of the second pass.
-: Is there any statutory basis for it?
-: I don't think there is.
-: Okay. And is it required by the constitution?
-: Is that path required by the constitution?
-: Right, I mean,
my understanding of the Blanchard decision was
that the motivation behind establishing
and making up the second stage of the second prong was
to protect the petitioning activity
of the plaintiff, the non-movant.
-: Right, the non-moving party, yes, it was.
But that second piece of the second path
of the second stage just simply says
that you can have a claim that's,
I'm tryin' to think this through.
-: But you can defeat the motion to dismiss if the intent of,
we'll call the plaintiff here,
the plaintiff was not to chill petitioning activity.
-: Yes. -: Right?
-: Yes, yes, exactly. That's a difficult standard though.
I don't know how you glean that intent,
but that second part I think is troublesome, frankly,
even from my perspective and I'm an advocate in favor
of winning this anti-SLAPP motion, but I didn't-
-: Why do you find it troubling?
-: I didn't rely on it.
'Cause I think it's very vague as to how it works.
-: Oh, because of its vagueness?
-: Yes. -: Okay.
And that has results on what?
Why is the vagueness troubling?
-: 'Cause I think it would be difficult for a trial court
to deal with.
-: Yeah, it creates an upfront mini trial.
-: It would. It would be a mini trial.
I think that's exactly what the problem is.
And we didn't rely on that second, I always get this,
the second step of the second stage.
We were focused on that- -: Gilbert and Sullivan.
-: We were focused on the first step and I thought we met
that under the existing case law and, quite frankly,
just to go back to what I had intended to be my argument,
(judges laugh)
I would say that I would say that we properly relied
on the first step of the second stage
and that I find Judge Englander's dissent to be fascinating,
but I think he was wrong on that aspect of it.
-: But you think you can have
petitioning activity that has a reasonable basis in fact
or arguable basis in law,
so it passes prong one and prong two first step,
and yet it can continue to go on
because the intent of the plaintiff is not to chill activity
or you're just completely abandoning the second?
-: I'm abandoning the second.
-: Okay. -: Second completely.
-: Thank you. -: And I think I would
if I were this court.
-: Well, you're joined by all the amicus as well.
-: I've read the amicuses and I came away
from that experience thinkin' to myself,
"Boy, these people know a lot more about this than I do."
But I'm just a humble trial lawyer.
I try to make my way in this world.
(judges laugh)
So I think the decision
by the Superior Court judge was correct.
I think the two judges of the appeals court got it right.
I fully understand some of the good points of the dissent.
But as applied to this case, under the existing law,
before you folks decide to change it or elaborate on it
or explain it, I think, under the existing law,
we properly should have prevailed under our motion
and I would ask the court to affirm the decision
and make any changes that you have in the law prospective
and not as applied to our case.