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SJC-13460: Bristol Asphalt Company, Inc.
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v. Rochester Bituminous Products, Inc.
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All set.
Good morning, your Honors,
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Michael Rabieh on behalf of the appellants,
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the defendants in the case below,
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Paul and Alberto Todesca
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and the Rochester Bituminous Products Corporation.
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I wanna distinguish briefly between my three clients.
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The Todesca brothers-
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Could you rely, do we really need that?
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'Cause you've done that well in your brief.
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Okay. Thank you.
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I'll move on.
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So, as the court knows,
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my clients were involved with other parties
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in challenging certain approvals for an asphalt plant
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that's proposed to be sited in Rochester.
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Their co-plaintiffs included Michael and Carol D'Acci,
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who own a property right next to the proposed site.
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Those challenges to date have all failed.
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I note, as does the Appellees brief at,
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I think it's page 17,
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that there is still a pending challenge to that.
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So to the extent this court retains the second path
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or the second stage-
Yeah.
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Can we start with the first path of the second stage?
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'Cause you've got three very sort of insightful,
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detailed opinions by the appeals court,
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but I'm still not sure what the law is and what it should
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be on that second path.
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So can you walk, excuse me, the first part of the second.
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Right, so once, as it's done,
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there's no dispute that this is only
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about petitioning activity.
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There's no dispute about that.
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The question is:
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Did the plaintiffs below show
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that my client's petition activity was sham or devoid
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of any reasonable basis in fact or arguable basis in law?
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And that, I think, is the question.
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It's the statutory question.
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And we do that count by count, right?
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We don't look at the case as a whole, right?
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We look at each legal count
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and decide whether it's devoid of, I mean,
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everyone agrees that everything is based
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on petitioning activity.
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So prong one here is satisfied.
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Prong two, we're dealing with the fact,
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but we analyze prong two count by count, right?
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I think that's not entirely clear to me, at least,
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your Honor, because-
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And that may be one
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of the things we need to clarify, right?
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Right, if we were simply focusing on whether
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or not the complaint is based on petition activity alone,
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there we go count by count.
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There's not a doubt about-
But,
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shouldn't we go count by count on the second part
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of this as well?
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That becomes difficult because I guess this is one
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of the questions that the court solicited amicus briefs on:
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How much sham petitioning activity suffices?
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Does the non-movant have to show that all
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of the petitioning activity was sham?
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I mean, that is one of the questions.
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But, like in this case,
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this case is very good because we've got multiple counts,
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but at least the dissent in this case says, "Okay,
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one of the counts
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has one basis for support."
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I read the dissent as also saying
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that the other counts should be dismissed,
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I mean, should not have been dismissed.
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It's just that one count that's saved.
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I don't know whether the, I think, I understand the-
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And if I'm not clear, this stuff is incomprehensible,
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so say so.
No.
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I understand the brunt of the question,
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but I'm not sure that the complaint filed by my clients,
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or at least Todesca Realty Trust,
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not Rochester Bituminous Products,
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whether the complaint from the land court tracked everything
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on the count by count basis.
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I believe there's a co-mingling of things.
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So I, I guess-
Well,
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isn't the test whether the petitioning activity had
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a reasonable factual basis in law or fact?
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Isn't that the test?
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So don't we necessarily have to focus
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on the petitioning activity regardless
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of how the plaintiff decided to allege it
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in their count by count analysis?
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Yes, I think that's a better approach.
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Is the petition activity...
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And here, there are three phases of petition activity.
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I mean, one of the questions,
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the statute very clearly says that the non-movant,
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in order to defeat a special motion has to show
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that the petition activity is devoid
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of reasonable factual basis or arguable basis in law
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and that's any.
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It's very clear. There's not like a weight.
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There's not a weight.
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And I recognize that that might lead,
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you could have a case where a small portion
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of petition activity is not sham-
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But this is an exceptional remedy.
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To give someone, to grant this motion to dismiss,
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you get attorney's fees.
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You do this in a expedited way.
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Don't we, I mean, I understand if we do it count by count,
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but if we're just sort of looking,
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is there anything left there?
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Then you dismiss the whole thing?
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I mean, I-
Well,
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I'm gonna try
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to start without considering the relatively
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low hanging fruit.
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I think if we distinguish between the three phases,
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so we have the phase where my clients challenged
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the site plan approval,
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then there was the phase where they challenged the extension
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of the order of conditions issued
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by the Conservation Commission, and then MEPA review.
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I think those can be clearly distinguished.
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You could conclude
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that one phase was not sham petition activity,
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the other phases were.
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That's a perfectly viable option.
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But I wanna focus on the site plan approval phase
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because that was the phase that Justice Englander focused
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in on as involving legitimate petition activity,
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at least with respect to traffic impacts.
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I would argue that the three main issues that were resolved
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by the trial court, which involved noise, traffic impacts,
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and proper production values,
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I don't think any of that was sham.
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So far the courts below have not agreed with me.
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It's only Justice Englander with respect
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to the traffic impacts has argued that that was legitimate.
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And I think he's absolutely right about that
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and I don't need to belabor that argument.
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I make it very clearly in my brief,
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and I think Justice England does a very good job
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of showing how the trial court really weighed competing
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expert's testimony and looked at the applicable bylaw
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in order to conclude that the plaintiffs were wrong
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on that count.
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But that's doesn't mean it was sham petition activity,
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just that they were mistaken.
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On the noise impact issue, I would argue that we, again,
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that was decided on summary judgment.
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I understand that and so there was no trial evidence issued,
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I'm sorry, no trial evidence entered on that count.
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But, on the noise impact,
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my client had an expert showing that it was going
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to exceed the permissible threshold and the reason
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that that count was deemed,
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the reason they lost in summary judgment was
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because the-
Your expert made
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an assumption based on facts
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that the other side said were not reasonable.
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No, I think, in this case, on the noise issue, it-
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Oh, I'm sorry.
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I thought you were talking about the traffic,
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the six trucks lined up-
Right, right.
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I was focused on the noise issue.
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There-
But, on the noise issue,
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that was deemed unreasonable
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because that was a condition precedent to the issuance
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of the approval.
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So if I tell you you can't go over X amount
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and you haven't demonstrated they've gone over X amount,
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but in order to get the approval,
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the applicant has agreed with that, I mean?
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Right, well, okay, I'm gonna,
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I'm gonna talk to the particular bylaw provision at issue,
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and I believe this is at page 370.
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I'm sorry, bear with me just one second.
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But can I add to Justice Georges's point, which is:
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Isn't there a DEP requirement on that?
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They're gonna have to get sign off from the DEP
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on that noise, right?
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Or am I confusing that with a different part of this?
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No, no, you are correct, but-
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That's what the Land Court says.
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The Land Court says, "Look,
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you gotta get the DEP to sign off on this
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and they're not gonna sign off on it if it violates that."
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That provides a basis
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for entering summary judgment against my clients.
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But the fundamental question here is:
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Was the complaint, insofar as it was based on noise impacts,
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was it sham petitioning?
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And I would turn to-
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But, it's not.
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The word sham we've added again, but the word is:
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"Is devoid of any reasonable factual support
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or arguable basis in law."
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Isn't that devoid of any arguable basis in law?
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I would disagree, your Honor.
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The particular bylaw provision is at page 459
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of the record appendix and it says
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that a project must conform with state
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and local sound regulations as amended from time to time.
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The regulations as issued by the DEP require
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that there be no,
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that sound can only increase 10 decibels
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above ambient noise.
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So if you're looking at this,
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you have a bylaw provision that doesn't say,
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it just says it has to comply
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and there was no dispute it has to conform
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with the state regulations.
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There's no dispute that, before the Land Court,
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the project proponent had not demonstrated compliance.
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I concede, I agree entirely,
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that there was a condition imposed,
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but I don't think that, if you look at the bylaw provision,
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I think it's arguable that there could
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be a reasonable interpretation, an arguable basis in law,
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to say, "No,
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it's not just enough to rely on a condition in the approval.
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They actually have to go further
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than that and demonstrate that."
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At least I think that's an arguable basis in law
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as to why I think the noise impact claims were
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not sham petitioning.
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But you don't even...
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In your view,
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you don't need
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that to have your special motion allowed, right,
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as long as you had any argument?
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And, again, I'm not sure that's what the dissent is saying
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'cause it seems like the dissent was pruning what
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was gonna happen.
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But, if your view is right,
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that if you have any, if anything,
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if that traffic thing was enough,
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the motion to dismiss should have been allowed, right?
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Yes. That is my argument.
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But I don't wanna rely only on the traffic impacts.
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I also wanna argue that the noise impact argument
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and the property value reduction argument,
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those were also legitimate arguments.
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There were other arguments that-
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But, counsel, that implicates one other thing
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that Justice England are brought up in his dissent.
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Could you touch upon what you think the standard
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of review ought to be?
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Well, de novo,
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certainly de novo standard of review
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for the reasons articulated by Justice Englander
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because the question-
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Have we said that? Have we said that?
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I don't believe this court has-
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In fact, we've said
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it's abuse of discretion/clear error of law.
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Right, and I think as the the amicus brief-
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By the way, can I just frame that?
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'Cause, from what I understand, Judge Englander is saying,
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"We only said abuse of discretion/clear error of law
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in the context of the new second part."
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Is that, or have we said
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00:11:25.440 --> 00:11:27.480
abuse of discretion/clear error of law
267
00:11:27.480 --> 00:11:30.660
for the old first part of the second part?
268
00:11:30.660 --> 00:11:32.850
I think the amicus brief submitted
269
00:11:32.850 --> 00:11:35.610
by the New England First Amendment Coalition says
270
00:11:35.610 --> 00:11:37.661
that the court has been unclear
271
00:11:37.661 --> 00:11:39.840
in articulating that standard.
272
00:11:39.840 --> 00:11:42.193
But isn't it have to be de novo?
273
00:11:42.193 --> 00:11:44.640
I mean, doesn't it have to be de novo?
274
00:11:44.640 --> 00:11:46.470
'Cause we're looking at,
275
00:11:46.470 --> 00:11:51.470
all we've got are affidavits and legal argument
276
00:11:52.080 --> 00:11:53.670
at this stage of the process.
277
00:11:53.670 --> 00:11:56.520
So doesn't it have to be in a de novo review?
278
00:11:56.520 --> 00:11:58.170
I agree entirely, your Honor. Yes.
279
00:11:58.170 --> 00:12:00.693
I think it has to be de novo review. Yes.
280
00:12:00.693 --> 00:12:03.690
But, I just don't understand how you could do it
281
00:12:03.690 --> 00:12:06.840
and I also don't understand how it could be preponderance.
282
00:12:06.840 --> 00:12:08.940
Is that also confusing?
283
00:12:08.940 --> 00:12:13.230
Because how do you do a preponderance standard based
284
00:12:13.230 --> 00:12:16.800
on affidavits and legal issues?
285
00:12:16.800 --> 00:12:18.960
Is that also something we have to clean up?
286
00:12:18.960 --> 00:12:20.850
'Cause it doesn't make any sense.
287
00:12:20.850 --> 00:12:23.250
Well, it's what this court articulated
288
00:12:23.250 --> 00:12:25.350
in the Baker decision
289
00:12:25.350 --> 00:12:29.400
and the New England First Amendment Coalition argues
290
00:12:29.400 --> 00:12:31.200
for the retention of that standard.
291
00:12:31.200 --> 00:12:32.130
How do you do it though?
292
00:12:32.130 --> 00:12:32.963
So how do you do...
293
00:12:32.963 --> 00:12:36.060
Maybe I just miss, maybe I don't understand the subtlety.
294
00:12:36.060 --> 00:12:41.060
How do you do a preponderance review based on affidavits
295
00:12:41.580 --> 00:12:44.580
and at this preliminary stage?
296
00:12:44.580 --> 00:12:45.930
'Cause preponderance to me seems
297
00:12:45.930 --> 00:12:50.433
to be more something you do after a trial.
298
00:12:51.600 --> 00:12:54.570
Well, my case may not present that question
299
00:12:54.570 --> 00:12:57.750
in the cleanest form because my case involves,
300
00:12:57.750 --> 00:13:00.120
trial has actually happened, trial happened,
301
00:13:00.120 --> 00:13:01.380
and decisions have been issued.
302
00:13:01.380 --> 00:13:02.910
So this is all retroactive.
303
00:13:02.910 --> 00:13:04.020
And, in a sense,
304
00:13:04.020 --> 00:13:07.050
I think you can apply preponderance of the evidence standard
305
00:13:07.050 --> 00:13:08.250
to my particular case.
306
00:13:08.250 --> 00:13:09.120
Going back earlier,
307
00:13:09.120 --> 00:13:13.710
if it's a typical case where the case is suspended pending
308
00:13:13.710 --> 00:13:16.329
the resolution of the anti-SLAPP motion,
309
00:13:16.329 --> 00:13:21.243
I'm not sure how one would address that.
310
00:13:23.040 --> 00:13:27.093
But if you're arguing for a de novo review of the,
311
00:13:28.020 --> 00:13:29.070
and I can't say this,
312
00:13:29.070 --> 00:13:32.100
so I'll just say of the reasonable factual basis
313
00:13:32.100 --> 00:13:35.670
and arguable basis in law prong, right?
314
00:13:35.670 --> 00:13:37.725
That's a de novo review?
315
00:13:37.725 --> 00:13:39.060
Yes, your Honor. Of course, yes.
316
00:13:39.060 --> 00:13:44.060
How could the court on appeal apply a preponderance
317
00:13:44.790 --> 00:13:47.820
of the evidence standard on that?
318
00:13:47.820 --> 00:13:52.320
If it's a matter of law, it's either right or wrong.
319
00:13:52.320 --> 00:13:56.043
It's not more likely right or more likely wrong.
320
00:13:58.770 --> 00:14:00.967
Yes, that issue, I mean,
321
00:14:00.967 --> 00:14:04.080
I was focused more on getting away from an abuse
322
00:14:04.080 --> 00:14:06.360
of discretion standard and just deferring
323
00:14:06.360 --> 00:14:07.467
to the trial court decision.
324
00:14:07.467 --> 00:14:10.593
So, assuming that we're with you there, it's de novo.
325
00:14:11.940 --> 00:14:13.770
Then doesn't necess,
326
00:14:13.770 --> 00:14:16.260
it's de novo because it's an issue of law, right?
327
00:14:16.260 --> 00:14:17.093
Yes.
Yeah.
328
00:14:17.093 --> 00:14:20.700
And so a preponderance
329
00:14:20.700 --> 00:14:24.480
of the evidence standard doesn't necessarily make sense if
330
00:14:24.480 --> 00:14:27.270
we're determining things as a matter of law.
331
00:14:27.270 --> 00:14:29.220
Well, some of the testimony will be affidavit.
332
00:14:29.220 --> 00:14:31.740
I mean, the evidence will include affidavits.
333
00:14:31.740 --> 00:14:32.573
But that's the,
334
00:14:32.573 --> 00:14:36.870
what we're gonna get is we're gonna have affidavits
335
00:14:36.870 --> 00:14:39.900
for facts not credibility findings 'cause there're gonna
336
00:14:39.900 --> 00:14:44.040
be no findings at that point and so we're gonna have to look
337
00:14:44.040 --> 00:14:46.860
at what the submissions are.
338
00:14:46.860 --> 00:14:49.560
Is it more like a summary judgment standard?
339
00:14:49.560 --> 00:14:53.913
Because, I mean, you've got affidavits,
340
00:14:55.235 --> 00:14:57.000
on the traffic, for example.
341
00:14:57.000 --> 00:15:00.120
Had they not submitted a traffic expert,
342
00:15:00.120 --> 00:15:04.470
then this is clearly without a reasonable factual basis.
343
00:15:04.470 --> 00:15:08.220
But they do. You do submit a traffic expert.
344
00:15:08.220 --> 00:15:10.980
So you've submitted something.
345
00:15:10.980 --> 00:15:14.790
I just don't know what the standard we look at.
346
00:15:14.790 --> 00:15:18.750
I mean, if it's preponderance based on affidavits,
347
00:15:18.750 --> 00:15:20.757
and it's a de novo review, I mean,
348
00:15:20.757 --> 00:15:22.380
and this is our fault, not yours.
349
00:15:22.380 --> 00:15:25.410
But I'm just trying to understand what we're saying.
350
00:15:25.410 --> 00:15:28.980
Well, I think Justice Englander's discussion
351
00:15:28.980 --> 00:15:30.877
of the traffic analysis
352
00:15:30.877 --> 00:15:34.800
that the Land Court undertook provides a reasonable example.
353
00:15:34.800 --> 00:15:38.640
We have competing experts and I guess the key thing is
354
00:15:38.640 --> 00:15:40.380
to remember on whom the burden lies.
355
00:15:40.380 --> 00:15:42.330
The burden lies on the non-movant to show
356
00:15:42.330 --> 00:15:43.860
by a preponderance of the evidence.
357
00:15:43.860 --> 00:15:47.310
So it has to offer more evidence
358
00:15:47.310 --> 00:15:49.890
than the moving party has offered in order
359
00:15:49.890 --> 00:15:51.630
to carry its burden.
360
00:15:51.630 --> 00:15:54.810
So I don't think that particularly helps you in wrestling
361
00:15:54.810 --> 00:15:56.370
with this issue but I do think
362
00:15:56.370 --> 00:15:59.280
that Justice Englander's analysis provides-
363
00:15:59.280 --> 00:16:03.390
Although Justice, the Court's analysis looks at this
364
00:16:03.390 --> 00:16:06.510
as a whole and says, "Okay,
365
00:16:06.510 --> 00:16:08.310
I find the traffic stuff very weak,
366
00:16:08.310 --> 00:16:09.840
but the other stuff is really,
367
00:16:09.840 --> 00:16:14.040
really weak and therefore I can determine
368
00:16:14.040 --> 00:16:18.960
that the petitioning activity is without reasonable basis
369
00:16:19.830 --> 00:16:21.428
in fact or law."
370
00:16:21.428 --> 00:16:24.213
I mean, and it's also carefully done.
371
00:16:25.530 --> 00:16:28.837
And she's basically, Justice Hand is basically saying,
372
00:16:28.837 --> 00:16:32.670
"This just doesn't rise to the level
373
00:16:32.670 --> 00:16:34.800
of legitimate petitioning activity."
374
00:16:34.800 --> 00:16:37.920
Again, the sham thing is terminology we've added
375
00:16:37.920 --> 00:16:40.383
and it makes sense in this part two,
376
00:16:41.760 --> 00:16:43.080
the second part of part two,
377
00:16:43.080 --> 00:16:47.430
but I'm not sure it's relevant to part one directly.
378
00:16:47.430 --> 00:16:48.570
You don't need to prove a sham,
379
00:16:48.570 --> 00:16:51.780
you need to prove that it's without a reasonable basis
380
00:16:51.780 --> 00:16:53.640
in fact or law, right?
381
00:16:53.640 --> 00:16:54.780
And now that,
382
00:16:54.780 --> 00:16:59.043
as I'm thinking through this now with with your help,
383
00:17:00.060 --> 00:17:01.410
the arguable basis in law,
384
00:17:01.410 --> 00:17:04.290
I'm not sure how an evidence standard at all applies there.
385
00:17:04.290 --> 00:17:06.120
I mean, if it's an arable basis and law, I'm not sure-
386
00:17:06.120 --> 00:17:08.170
Well, you've gotta allege facts that...
387
00:17:09.080 --> 00:17:10.473
I mean, claims have elements, right?
388
00:17:10.473 --> 00:17:12.120
Yes.
If you don't put
389
00:17:12.120 --> 00:17:17.120
in affidavits to support an element of the offense,
390
00:17:17.190 --> 00:17:18.750
you lose, right?
391
00:17:18.750 --> 00:17:20.250
You haven't-
That is correct, yes.
392
00:17:20.250 --> 00:17:22.020
You need, that's why I'm wondering if it's more like
393
00:17:22.020 --> 00:17:23.673
a summary judgment standard.
394
00:17:25.835 --> 00:17:26.850
It depends on what one means
395
00:17:26.850 --> 00:17:27.870
by a summary judgment standard.
396
00:17:27.870 --> 00:17:30.060
If it's the case that,
397
00:17:30.060 --> 00:17:32.550
as long as one side raises a dispute of fact,
398
00:17:32.550 --> 00:17:34.620
therefore summary judgment can't enter,
399
00:17:34.620 --> 00:17:39.210
I think that harms the movant,
400
00:17:39.210 --> 00:17:41.610
the originally petitioning party, too much.
401
00:17:41.610 --> 00:17:45.210
I think the Baker decision tried
402
00:17:45.210 --> 00:17:46.980
to strike a balance recognizing
403
00:17:46.980 --> 00:17:49.890
that someone's petitioning activity is going
404
00:17:49.890 --> 00:17:52.743
to be short circuited, so to speak.
405
00:17:53.880 --> 00:17:57.750
And I do not have an alternative to suggest to preponderance
406
00:17:57.750 --> 00:17:59.970
of the evidence, although I recognize that it is-
407
00:17:59.970 --> 00:18:03.030
What about a prima fascia showing of some sort?
408
00:18:03.030 --> 00:18:05.070
'Cause the word is show, right?
409
00:18:05.070 --> 00:18:07.740
Again, I'm trying to get back to the statute.
410
00:18:07.740 --> 00:18:09.690
'Cause at least the statute,
411
00:18:09.690 --> 00:18:12.270
this thing should be moored in the statute.
412
00:18:12.270 --> 00:18:13.860
So the moving party's exercise, right,
413
00:18:13.860 --> 00:18:17.040
was devoid of, oh, maybe it doesn't have showing,
414
00:18:17.040 --> 00:18:18.660
the moving party's exercise of its right
415
00:18:18.660 --> 00:18:21.244
to petition was devoid of any reasonable factual support
416
00:18:21.244 --> 00:18:24.630
or any arguable basis in law.
417
00:18:24.630 --> 00:18:27.600
Right, and the non-movant does have to show that.
418
00:18:27.600 --> 00:18:30.510
That's what yeah, that that language is clearly in there.
419
00:18:30.510 --> 00:18:32.370
So I think the...
420
00:18:32.370 --> 00:18:34.500
But how is that helped by the preponderance
421
00:18:34.500 --> 00:18:35.728
of the evidence standard?
422
00:18:35.728 --> 00:18:40.728
That's my struggle. So, just take the traffic issue.
423
00:18:41.670 --> 00:18:45.480
So you give evidence
424
00:18:45.480 --> 00:18:48.330
of what you think the queue's gonna look like if these
425
00:18:48.330 --> 00:18:51.060
trucks come in and, if it's more than six,
426
00:18:51.060 --> 00:18:52.920
they'll spill out onto the road.
427
00:18:52.920 --> 00:18:57.840
And then, there is competing evidence that's presented
428
00:18:57.840 --> 00:18:59.670
to the judge that, "Hey,
429
00:18:59.670 --> 00:19:02.640
a lotta these trucks are our trucks and we have the ability
430
00:19:02.640 --> 00:19:07.640
to kind of fix that problem by coordinating who comes when."
431
00:19:08.790 --> 00:19:13.790
Now, if the standard is reasonable factual basis, right,
432
00:19:15.060 --> 00:19:16.620
the factual basis part,
433
00:19:16.620 --> 00:19:20.670
and that's informed by the quantum of proof of preponderance
434
00:19:20.670 --> 00:19:24.045
of the evidence, more likely than not, right?
435
00:19:24.045 --> 00:19:27.360
So, if the judge in this case found
436
00:19:27.360 --> 00:19:32.280
that the non-movant sustained their burden
437
00:19:32.280 --> 00:19:35.400
and say it was 51/49%,
438
00:19:35.400 --> 00:19:39.393
does that mean that there's no reasonable factual basis?
439
00:19:40.230 --> 00:19:41.460
And when you say the judge,
440
00:19:41.460 --> 00:19:42.630
you're referring to the judge
441
00:19:42.630 --> 00:19:43.740
that denied the special motion-
442
00:19:43.740 --> 00:19:44.940
Right.
Or the Land Court judge?
443
00:19:44.940 --> 00:19:45.773
Okay.
444
00:19:48.150 --> 00:19:49.830
Under the preponderance of the evidence standard,
445
00:19:49.830 --> 00:19:54.830
I think that would follow if the judge decided 51 to 49%.
446
00:19:55.080 --> 00:19:57.060
I mean, that follows from the language.
447
00:19:57.060 --> 00:19:58.710
Right.
I think that,
448
00:19:58.710 --> 00:20:01.650
and I recognize that that's a...
449
00:20:01.650 --> 00:20:03.600
How do you do that based on affidavits?
450
00:20:03.600 --> 00:20:04.433
Yeah.
451
00:20:06.767 --> 00:20:08.190
I just don't understand how,
452
00:20:08.190 --> 00:20:10.890
I mean, you're not making credibility findings.
453
00:20:10.890 --> 00:20:13.020
I can see you can make a determination
454
00:20:13.020 --> 00:20:15.960
that you haven't alleged facts that satisfy an element
455
00:20:15.960 --> 00:20:20.190
of the offense, of the claim.
456
00:20:20.190 --> 00:20:22.860
But I don't know how you can do weighing
457
00:20:22.860 --> 00:20:25.590
of evidence like 51/49.
458
00:20:25.590 --> 00:20:28.713
I just don't know how you do that in this context.
459
00:20:29.670 --> 00:20:31.230
Is there anything?
460
00:20:31.230 --> 00:20:33.990
It seems like we're doing something more like
461
00:20:33.990 --> 00:20:36.600
frivolous litigation upfront.
462
00:20:36.600 --> 00:20:38.160
We're trying to make a determination
463
00:20:38.160 --> 00:20:42.150
of whether some litigation or the claim is frivolous,
464
00:20:42.150 --> 00:20:47.150
but we're doing it at a preliminary stage of the process.
465
00:20:47.220 --> 00:20:48.180
The only thing that comes
466
00:20:48.180 --> 00:20:51.060
to mind is the housing bond thing we did last year,
467
00:20:51.060 --> 00:20:52.650
which has an element
468
00:20:52.650 --> 00:20:56.370
of that where you're imposing a bond based on the fact
469
00:20:56.370 --> 00:21:00.360
that the thing clearly has no merit before you've done all
470
00:21:00.360 --> 00:21:01.800
the fact finding.
471
00:21:01.800 --> 00:21:04.170
The Liz Pendant statute too.
Right.
472
00:21:04.170 --> 00:21:05.003
Right,
473
00:21:07.598 --> 00:21:10.542
I wish to God I had some helpful words
474
00:21:10.542 --> 00:21:13.560
and some approach to resolve this dilemma.
475
00:21:13.560 --> 00:21:18.560
But I don't except to fall back on what actually has
476
00:21:18.810 --> 00:21:19.710
to be shown.
477
00:21:19.710 --> 00:21:21.840
It has to be shown by preponderance of the evidence
478
00:21:21.840 --> 00:21:26.400
that it's devoid of reasonable, factual,
479
00:21:26.400 --> 00:21:27.960
supported arguable basis in law.
480
00:21:27.960 --> 00:21:30.003
And I think, in our case,
481
00:21:31.290 --> 00:21:36.290
I just do not think that the plaintiffs, the non-movants,
482
00:21:36.302 --> 00:21:37.773
met that burden.
483
00:21:39.360 --> 00:21:42.210
Thank you.
We're gonna ask
484
00:21:42.210 --> 00:21:44.202
Attorney Hurley to give it a whirl.
485
00:21:44.202 --> 00:21:46.785
(judges laugh)
486
00:21:49.470 --> 00:21:50.520
When I came here this morning,
487
00:21:50.520 --> 00:21:52.260
I though I had this pretty well in hand,
488
00:21:52.260 --> 00:21:54.573
but obviously I do not understand.
489
00:21:57.253 --> 00:22:01.050
I understand the conundrum of what the burdens are,
490
00:22:01.050 --> 00:22:03.153
but just to give a little background-
491
00:22:04.170 --> 00:22:05.730
So, before you give the background,
492
00:22:05.730 --> 00:22:07.740
can I just dive right into Anti-SLAPP.
493
00:22:07.740 --> 00:22:09.570
I'm sorry, we're all anxious to do it
494
00:22:09.570 --> 00:22:11.730
'cause we asked the questions of the public
495
00:22:11.730 --> 00:22:14.002
and we've got all these amic, so let's just get going.
496
00:22:14.002 --> 00:22:15.450
I understand.
We understand the facts
497
00:22:15.450 --> 00:22:19.050
in this particular case, but on anti-SLAPP itself,
498
00:22:19.050 --> 00:22:22.830
isn't the determination whether something has a reasonable
499
00:22:22.830 --> 00:22:25.890
factual support or arguable basis in law,
500
00:22:25.890 --> 00:22:27.600
a de novo determination?
501
00:22:27.600 --> 00:22:28.860
That's a matter of law.
502
00:22:28.860 --> 00:22:32.970
What is the argument even that it's not?
503
00:22:32.970 --> 00:22:34.260
I don't think there is a good argument.
504
00:22:34.260 --> 00:22:36.000
Okay, so we all agree with Judge Englander,
505
00:22:36.000 --> 00:22:36.833
that it's de novo, right?
506
00:22:36.833 --> 00:22:38.760
I think that's the better approach.
507
00:22:38.760 --> 00:22:41.880
Okay, so if it is a matter of law, how,
508
00:22:41.880 --> 00:22:45.810
how can you possibly determine that on a preponderance
509
00:22:45.810 --> 00:22:46.893
of the evidence?
510
00:22:49.110 --> 00:22:50.340
I'm not sure I understand the question.
511
00:22:50.340 --> 00:22:51.173
Well, I mean,
512
00:22:51.173 --> 00:22:53.520
I think we said in Baker that that determination
513
00:22:53.520 --> 00:22:56.580
of whether something has, the petitioning activity,
514
00:22:56.580 --> 00:23:00.240
had reasonable factual support or arguable basis in law,
515
00:23:00.240 --> 00:23:02.340
which you agree with me, is a legal question.
516
00:23:02.340 --> 00:23:03.990
It is a legal question.
517
00:23:03.990 --> 00:23:08.520
How can that be determined based on this overlay
518
00:23:08.520 --> 00:23:12.480
of a preponderance of the evidence analysis?
519
00:23:12.480 --> 00:23:14.760
I'm not sure-
There is legally
520
00:23:14.760 --> 00:23:15.840
correct or not.
521
00:23:15.840 --> 00:23:18.240
Isn't it a mixed question of fact and law though?
522
00:23:18.240 --> 00:23:19.073
Because-
I think it's-
523
00:23:19.073 --> 00:23:23.820
You gotta look at all the affidavits.
524
00:23:23.820 --> 00:23:27.990
Say the law is obvious, the permitting,
525
00:23:27.990 --> 00:23:30.150
there's a clear requirement,
526
00:23:30.150 --> 00:23:32.820
but you haven't put in any facts.
527
00:23:32.820 --> 00:23:36.090
Then we can, you haven't put in a fact on an element,
528
00:23:36.090 --> 00:23:38.100
I'm thinking more in the criminal context,
529
00:23:38.100 --> 00:23:39.990
but it works here too.
530
00:23:39.990 --> 00:23:42.810
You haven't submitted any factual affidavits
531
00:23:42.810 --> 00:23:46.653
on a necessary element of proof, you lose, right?
532
00:23:48.300 --> 00:23:49.740
That's not preponderance of the evidence,
533
00:23:49.740 --> 00:23:52.057
but it's a mixed question of fact and law, right?
534
00:23:52.057 --> 00:23:54.701
Well, ordinarily that would be the case. Yes.
535
00:23:54.701 --> 00:23:56.820
So let's look at this case.
536
00:23:56.820 --> 00:24:00.300
So we had three different kinds of petitioning activity
537
00:24:00.300 --> 00:24:03.150
and I'm not sure how it applies to each.
538
00:24:03.150 --> 00:24:04.090
Maybe it's different to each so-
539
00:24:04.090 --> 00:24:06.920
Well, let's take the traffic situation, okay?
540
00:24:06.920 --> 00:24:09.930
In that case, we had the benefit of a trial.
541
00:24:09.930 --> 00:24:12.180
You had the benefit of trial? It had to go to trial.
542
00:24:12.180 --> 00:24:15.510
Why isn't there enough reasonable basis
543
00:24:15.510 --> 00:24:17.580
that the traffic situation might be,
544
00:24:17.580 --> 00:24:19.683
as their expert said, it was.
545
00:24:20.550 --> 00:24:21.502
We went to-
They lost.
546
00:24:21.502 --> 00:24:23.280
I mean, they lost, but-
We went to trial, I think,
547
00:24:23.280 --> 00:24:25.560
frankly, because we thought it was faster to go that way.
548
00:24:25.560 --> 00:24:29.940
It wasn't any great intellectual decision to do it
549
00:24:29.940 --> 00:24:30.773
as opposed to summary judgment.
550
00:24:30.773 --> 00:24:32.610
Well, I mean, you know-
I mean I was the-
551
00:24:32.610 --> 00:24:34.770
Regardless, there was an expert
552
00:24:34.770 --> 00:24:36.930
that they presented who said that there was gonna
553
00:24:36.930 --> 00:24:38.310
be a traffic problem.
554
00:24:38.310 --> 00:24:42.450
Why isn't that enough to show that this has some legs?
555
00:24:42.450 --> 00:24:43.470
Part of the problem with that is,
556
00:24:43.470 --> 00:24:45.690
if you read the whole transcript from that trial,
557
00:24:45.690 --> 00:24:48.930
later on in his testimony, when I cross-examined him,
558
00:24:48.930 --> 00:24:52.590
he admitted that that really wasn't clear.
559
00:24:52.590 --> 00:24:53.640
And so his-
What wasn't clear?
560
00:24:53.640 --> 00:24:54.473
What specifically?
That it was gonna
561
00:24:54.473 --> 00:24:57.470
create a problem and so I think the judge s-
562
00:24:57.470 --> 00:24:59.580
So because you, on cross-examination,
563
00:24:59.580 --> 00:25:01.580
were able to get the expert to?
564
00:25:01.580 --> 00:25:02.554
To back off.
Back off
565
00:25:02.554 --> 00:25:04.650
of his original opinion,
566
00:25:04.650 --> 00:25:07.260
it denies the petitioning activity
567
00:25:07.260 --> 00:25:09.180
of these particular defendants?
568
00:25:09.180 --> 00:25:10.473
Well, it makes it sham.
569
00:25:11.460 --> 00:25:12.477
Why?
Because they didn't have-
570
00:25:12.477 --> 00:25:16.890
Did you get the expert to say that they told me
571
00:25:16.890 --> 00:25:20.355
to tell you this, that they paid me for my opinion?
572
00:25:20.355 --> 00:25:23.280
I don't think we need to do that to prove a sham. Do we?
573
00:25:23.280 --> 00:25:24.690
I mean, if you bring on an expert
574
00:25:24.690 --> 00:25:26.370
and he gives a bogus opinion
575
00:25:26.370 --> 00:25:29.220
and that gets demonstrated on cross-examination,
576
00:25:29.220 --> 00:25:30.660
I think you still can fall-
577
00:25:30.660 --> 00:25:33.060
So anytime you get on cross-examination
578
00:25:33.060 --> 00:25:36.660
and you get an expert to flip, it's a sham?
579
00:25:36.660 --> 00:25:39.450
It's the time of the petitioning activity.
580
00:25:39.450 --> 00:25:41.022
It's the time of the petitioning activity.
581
00:25:41.022 --> 00:25:43.497
Right and the petition-
That has to be analyzed.
582
00:25:43.497 --> 00:25:45.390
The time of the-
Not the cross-examination
583
00:25:45.390 --> 00:25:46.760
at trial.
Well,
584
00:25:46.760 --> 00:25:49.560
at the time of the petitioning activity,
585
00:25:49.560 --> 00:25:52.028
there was no good faith basis for them to bring a petition.
586
00:25:52.028 --> 00:25:54.660
Well, didn't they have the opinion of the expert.
587
00:25:54.660 --> 00:25:56.430
At that time, I don't know, Judge.
588
00:25:56.430 --> 00:25:57.469
That probably came later if I had to-
589
00:25:57.469 --> 00:25:59.910
Wouldn't you show that they didn't?
590
00:25:59.910 --> 00:26:01.105
I'm sorry?
Wouldn't you have to show
591
00:26:01.105 --> 00:26:02.993
that they didn't at that time in order
592
00:26:02.993 --> 00:26:05.613
for the petitioning activity to be a sham?
593
00:26:07.980 --> 00:26:11.400
That would put an awfully big burden on the moving party
594
00:26:11.400 --> 00:26:12.763
to do that, wouldn't it?
595
00:26:12.763 --> 00:26:15.180
I mean, how can we possibly do that?
596
00:26:15.180 --> 00:26:18.090
So you have somebody comes along and they bring a lawsuit,
597
00:26:18.090 --> 00:26:21.000
they challenge the issuance of a special permit,
598
00:26:21.000 --> 00:26:23.190
they have no expert.
599
00:26:23.190 --> 00:26:26.070
So maybe it's a good tactic for them to never have an expert
600
00:26:26.070 --> 00:26:27.660
at the beginning because we can't move to dismiss.
601
00:26:27.660 --> 00:26:30.138
Well then they'd have no reasonable basis
602
00:26:30.138 --> 00:26:30.971
in fact or law.
603
00:26:30.971 --> 00:26:31.804
If they have no expert, it's easy.
604
00:26:31.804 --> 00:26:32.637
Then they'd be in a worse position.
605
00:26:32.637 --> 00:26:33.470
Right, I suppose it would be.
606
00:26:33.470 --> 00:26:36.390
If they have no expert then you should win the special
607
00:26:36.390 --> 00:26:37.890
motion to dismiss.
608
00:26:37.890 --> 00:26:41.920
But if they do have an expert that has some traction
609
00:26:43.770 --> 00:26:46.410
that meets the require, you know, he's, I mean,
610
00:26:46.410 --> 00:26:49.230
I don't know if six trucks meets the definition.
611
00:26:49.230 --> 00:26:53.227
And that seems to be what the appeals court said that,
612
00:26:53.227 --> 00:26:57.660
"Okay, it's sort of like minimal analysis."
613
00:26:57.660 --> 00:26:58.950
But then the appeals court looked
614
00:26:58.950 --> 00:27:00.315
in the whole context, right?
615
00:27:00.315 --> 00:27:02.450
It looked at...
616
00:27:03.630 --> 00:27:04.920
Okay, so they brought,
617
00:27:04.920 --> 00:27:06.750
and that's what I think Judge Englander was doing
618
00:27:06.750 --> 00:27:07.950
at the end is saying, "Okay,
619
00:27:07.950 --> 00:27:10.620
some of this I agree is just nonsense,
620
00:27:10.620 --> 00:27:14.460
but there's something here and therefore the entire motion
621
00:27:14.460 --> 00:27:16.170
to dismiss should have been allowed."
622
00:27:16.170 --> 00:27:19.683
I'm not sure I follow that, right?
623
00:27:21.570 --> 00:27:23.400
If you prove that two
624
00:27:23.400 --> 00:27:27.000
of the petitioning things were nonsense,
625
00:27:27.000 --> 00:27:31.389
but one had some merit, do you still think the special,
626
00:27:31.389 --> 00:27:33.750
what's the answer then?
627
00:27:33.750 --> 00:27:37.013
I have a hard time with that myself, that conclusion.
628
00:27:37.013 --> 00:27:39.900
I mean, I think he was wrong.
629
00:27:39.900 --> 00:27:41.850
Obviously, there's some disagreement about that.
630
00:27:41.850 --> 00:27:44.580
But I think he was wrong on the traffic issue
631
00:27:44.580 --> 00:27:46.770
because I think if you read the record completely,
632
00:27:46.770 --> 00:27:48.902
you would see that it was a sham based on-
633
00:27:48.902 --> 00:27:50.406
But, if he was-
That's not the question.
634
00:27:50.406 --> 00:27:51.867
The question is, if he was...
635
00:27:51.867 --> 00:27:55.710
The hard question is: If he was right on the traffic issue,
636
00:27:55.710 --> 00:27:59.241
but the noise was just a bunch of baloney-
637
00:27:59.241 --> 00:28:00.463
That is the difficult question, right.
638
00:28:00.463 --> 00:28:03.450
And that's what the appeals court majority is.
639
00:28:03.450 --> 00:28:05.766
The appeals court majority says, "Okay,
640
00:28:05.766 --> 00:28:09.790
two of the petitioning activities were such garbage
641
00:28:10.740 --> 00:28:14.160
and so without merit that this sort
642
00:28:14.160 --> 00:28:19.133
of problematic one over here isn't enough to save this."
643
00:28:20.700 --> 00:28:22.470
And, again, a special motion
644
00:28:22.470 --> 00:28:24.570
to dismiss is a powerful medicine.
645
00:28:24.570 --> 00:28:26.250
When you get a special motion to dismiss,
646
00:28:26.250 --> 00:28:28.140
you get attorney's fees.
647
00:28:28.140 --> 00:28:31.824
We short circuit the trial process.
648
00:28:31.824 --> 00:28:33.780
Present execution.
Present execution.
649
00:28:33.780 --> 00:28:35.940
It's just, it's a,
650
00:28:35.940 --> 00:28:38.790
and it needs to be sort of cabined in ways
651
00:28:38.790 --> 00:28:40.800
that we can follow, right?
652
00:28:40.800 --> 00:28:42.297
But we need to clarify what the standards are.
653
00:28:42.297 --> 00:28:44.250
The one point of disagreement I have slightly-
654
00:28:44.250 --> 00:28:45.083
Go ahead, go ahead.
With you, judge,
655
00:28:45.083 --> 00:28:47.883
is I don't know that the trial court,
656
00:28:48.810 --> 00:28:53.070
that the judge who issued the decision thought
657
00:28:53.070 --> 00:28:55.890
that traffic was okay.
658
00:28:55.890 --> 00:28:57.900
I mean, I don't think that-
659
00:28:57.900 --> 00:28:59.250
But help us with the harder...
660
00:28:59.250 --> 00:29:03.060
I get that.
Wait, can I-
661
00:29:03.060 --> 00:29:04.160
Go ahead. I'm sorry.
662
00:29:05.130 --> 00:29:06.600
Can you finish that last statement?
663
00:29:06.600 --> 00:29:07.433
Sure, I mean,
664
00:29:07.433 --> 00:29:10.076
I think that Judge Kafka's question to me was really
665
00:29:10.076 --> 00:29:14.151
about the Appeals Court decision and they seemed to think
666
00:29:14.151 --> 00:29:16.413
that we had to,
667
00:29:17.341 --> 00:29:19.680
but I think the majority also thought
668
00:29:19.680 --> 00:29:21.587
that the traffic issue was bogus so you could-
669
00:29:21.587 --> 00:29:23.310
Right, so they didn't have to deal
670
00:29:23.310 --> 00:29:26.400
with Justice Kafka's scenario where part
671
00:29:26.400 --> 00:29:29.731
of the claim is bogus and part of it is not as you say?
672
00:29:29.731 --> 00:29:31.863
Right, no. They eliminated that problem to some extent.
673
00:29:31.863 --> 00:29:34.050
Right, and so the harder question,
674
00:29:34.050 --> 00:29:35.940
which I think you said you don't have an answer to,
675
00:29:35.940 --> 00:29:36.960
and I just wanna make sure
676
00:29:36.960 --> 00:29:39.480
'cause I wanna make give you an opportunity, is:
677
00:29:39.480 --> 00:29:43.650
What if part of the activity is
678
00:29:43.650 --> 00:29:46.110
sham and part of it is not?
679
00:29:46.110 --> 00:29:49.560
Is the motion to dismiss allowed in part
680
00:29:49.560 --> 00:29:51.694
or is it just denied?
681
00:29:51.694 --> 00:29:53.053
Well, I think it's gonna depend on every circumstance.
682
00:29:53.053 --> 00:29:54.855
It may be-
Well, let's say here.
683
00:29:54.855 --> 00:29:56.130
Maybe in some cases-
Let's do here then.
684
00:29:56.130 --> 00:29:57.930
Let's do in this situation.
685
00:29:57.930 --> 00:29:59.670
Justice Englander is correct
686
00:29:59.670 --> 00:30:02.400
that the traffic situation was not bogus.
687
00:30:02.400 --> 00:30:04.863
Motion to dismiss allowed in part?
688
00:30:06.060 --> 00:30:09.450
You could do it that way. You could grant the motion.
689
00:30:09.450 --> 00:30:10.283
I know I could.
690
00:30:10.283 --> 00:30:11.156
I'm just tryin' to figure out if-
691
00:30:11.156 --> 00:30:13.290
I'm just thinkin', I could-
692
00:30:13.290 --> 00:30:15.660
Well, is that what, Judge Hand writes that,
693
00:30:15.660 --> 00:30:18.660
and for the majority, doesn't she look at it in the,
694
00:30:18.660 --> 00:30:21.120
I can't remember, is the word in the entirety somewhere
695
00:30:21.120 --> 00:30:22.290
in the-
It is.
696
00:30:22.290 --> 00:30:25.590
So they do 'cause that may be important to you
697
00:30:25.590 --> 00:30:26.790
to win here, right?
698
00:30:26.790 --> 00:30:30.840
'Cause we may conclude the traffic thing has some merit,
699
00:30:30.840 --> 00:30:34.800
but agree with that the other two parts
700
00:30:34.800 --> 00:30:38.010
of this are nonsense.
701
00:30:38.010 --> 00:30:41.280
And one could argue that you then should,
702
00:30:41.280 --> 00:30:43.833
in that odd circumstance, which we may have here,
703
00:30:43.833 --> 00:30:47.460
that what you should do is look at the case as a whole,
704
00:30:47.460 --> 00:30:49.140
in its entirety.
But that's why I was asking
705
00:30:49.140 --> 00:30:51.300
in the beginning 'cause often these things come up
706
00:30:51.300 --> 00:30:52.800
in different counts
707
00:30:52.800 --> 00:30:57.420
and I understand why you would wanna dismiss a count
708
00:30:57.420 --> 00:30:59.670
when the count is clearly nonsense.
709
00:30:59.670 --> 00:31:00.503
In this case,
710
00:31:00.503 --> 00:31:03.090
those three petitioning activities appear
711
00:31:03.090 --> 00:31:04.980
in the same sort of process, right?
712
00:31:04.980 --> 00:31:07.950
Right.
So it's hard to sort of,
713
00:31:07.950 --> 00:31:10.110
but we often get cases,
714
00:31:10.110 --> 00:31:11.280
like the next one
715
00:31:11.280 --> 00:31:13.440
that you're gonna sit through if you stick around,
716
00:31:13.440 --> 00:31:17.100
where you have six different counts and some
717
00:31:17.100 --> 00:31:21.750
of them may have no basis,
718
00:31:21.750 --> 00:31:25.020
but others have some basis.
719
00:31:25.020 --> 00:31:27.390
Then do we grant the special motion to dismiss
720
00:31:27.390 --> 00:31:28.770
for the entire case?
721
00:31:28.770 --> 00:31:30.420
That's what worries me.
722
00:31:30.420 --> 00:31:32.640
That's why I'm focused on whether we do this count
723
00:31:32.640 --> 00:31:34.650
by count or not.
724
00:31:34.650 --> 00:31:36.990
I don't see as a practical matter how you can do it
725
00:31:36.990 --> 00:31:38.010
count by count.
726
00:31:38.010 --> 00:31:39.210
I mean, if I-
727
00:31:39.210 --> 00:31:41.520
In your case, but, in your case,
728
00:31:41.520 --> 00:31:46.413
but what if they brought two separate counts,
729
00:31:47.344 --> 00:31:51.480
a MEPA count and also, I don't know,
730
00:31:51.480 --> 00:31:54.540
you're an environmental warrior, you know all these things.
731
00:31:54.540 --> 00:31:55.373
You've got all kinds
732
00:31:55.373 --> 00:31:57.930
of different things they can bring, right?
733
00:31:57.930 --> 00:32:00.183
Yes, they could and they could have.
734
00:32:00.183 --> 00:32:01.530
They could have done that.
735
00:32:01.530 --> 00:32:03.120
But what does it do for me?
736
00:32:03.120 --> 00:32:04.290
I'm just tryin' to think this through.
737
00:32:04.290 --> 00:32:07.080
I'm asking a question more than giving you an answer here.
738
00:32:07.080 --> 00:32:12.080
But so what do I do if I get a decision that says you win
739
00:32:12.720 --> 00:32:16.140
on two counts of your anti-SLAPPs motion,
740
00:32:16.140 --> 00:32:17.430
but you lose on your-
741
00:32:17.430 --> 00:32:19.920
But isn't that the way normal litigation works?
742
00:32:19.920 --> 00:32:24.270
You essentially keep going and litigate the case as normal,
743
00:32:24.270 --> 00:32:28.230
which is, that's why the anti-SLAPP is so complicated.
744
00:32:28.230 --> 00:32:30.870
But if you do a count by count, you win.
745
00:32:30.870 --> 00:32:32.760
You get your attorney's fees on that one,
746
00:32:32.760 --> 00:32:36.060
but they get to pursue the one that had a basis.
747
00:32:36.060 --> 00:32:38.100
So you SLAPP the two?
Right.
748
00:32:38.100 --> 00:32:40.020
And you dismiss them?
Right.
749
00:32:40.020 --> 00:32:43.170
And then a case goes on with the one that was determined
750
00:32:43.170 --> 00:32:44.340
to be non-SLAPP?
Right.
751
00:32:44.340 --> 00:32:46.320
Isn't that the way normal litigation works?
752
00:32:46.320 --> 00:32:48.840
It is the way normal litigation works and maybe
753
00:32:48.840 --> 00:32:49.673
that's the solution.
754
00:32:49.673 --> 00:32:53.927
Is that consistent with the intent of anti-SLAPP though
755
00:32:53.927 --> 00:32:55.443
to let it go forward?
756
00:32:57.180 --> 00:32:58.013
I'm not sure
757
00:32:58.013 --> 00:33:00.750
that anyone who drafted the anti-SLAPP really had
758
00:33:00.750 --> 00:33:03.150
that in mind, that particular conundrum,
759
00:33:03.150 --> 00:33:05.553
so that we could glean any intent there.
760
00:33:07.350 --> 00:33:10.620
But, I mean, that is a possibility I suppose.
761
00:33:10.620 --> 00:33:13.560
I mean, I always thought of it in terms of the whole case
762
00:33:13.560 --> 00:33:16.354
as opposed to breaking out it out by counts because-
763
00:33:16.354 --> 00:33:18.197
Because of the intent of anti-SLAPP.
764
00:33:18.197 --> 00:33:20.760
Because, from my client's perspective,
765
00:33:20.760 --> 00:33:22.980
we want it to be over because we think
766
00:33:22.980 --> 00:33:23.833
that it was inappropriately brought.
767
00:33:23.833 --> 00:33:26.790
Because of the legislator's perspective
768
00:33:26.790 --> 00:33:28.320
that the intent was it would
769
00:33:28.320 --> 00:33:31.080
be an anti-SLAPP if it involved petitioning activity.
770
00:33:31.080 --> 00:33:33.360
I think there's a strong argument that would say that.
771
00:33:33.360 --> 00:33:37.260
But isn't there another argument that says petitioning,
772
00:33:37.260 --> 00:33:39.060
legitimate petitioning activity,
773
00:33:39.060 --> 00:33:42.480
we wanna protect and we want to expedite the process
774
00:33:42.480 --> 00:33:43.890
to get rid of claims based
775
00:33:43.890 --> 00:33:45.900
on legitimate petitioning activity.
776
00:33:45.900 --> 00:33:50.900
But no one has any interest in illegitimate sham petitioning
777
00:33:51.630 --> 00:33:54.630
and therefore we're not gonna protect that kind of behavior.
778
00:33:56.774 --> 00:34:00.217
I mean, the legislature's not parsing this.
779
00:34:02.820 --> 00:34:05.910
They're looking big picture, but they're not parsing.
780
00:34:05.910 --> 00:34:09.840
They haven't thought about these ripples and ripples
781
00:34:09.840 --> 00:34:11.760
and ripples that have come out of this.
782
00:34:11.760 --> 00:34:14.040
Can I ask you a different question?
783
00:34:14.040 --> 00:34:16.860
Sure.
So, a path,
784
00:34:16.860 --> 00:34:20.730
I guess the augmented Blanchard One path,
785
00:34:20.730 --> 00:34:24.543
second stage of the second prong, if I've said that,
786
00:34:27.090 --> 00:34:28.683
what are your thoughts on that?
787
00:34:29.760 --> 00:34:32.820
Let me start by sayin' I didn't rely on that
788
00:34:32.820 --> 00:34:35.940
in our briefing because I don't think it applied
789
00:34:35.940 --> 00:34:38.070
to our situation.
790
00:34:38.070 --> 00:34:41.383
I think that's a very difficult part of the statute.
791
00:34:41.383 --> 00:34:42.540
I'm not sure.
792
00:34:42.540 --> 00:34:43.753
A difficult part of what?
793
00:34:43.753 --> 00:34:45.360
Difficult part of the approach.
794
00:34:45.360 --> 00:34:47.340
I don't particularly care for it,
795
00:34:47.340 --> 00:34:49.680
the second prong of the second pass.
796
00:34:49.680 --> 00:34:51.720
Is there any statutory basis for it?
797
00:34:51.720 --> 00:34:53.050
I don't think there is.
798
00:34:53.050 --> 00:34:55.563
Okay. And is it required by the constitution?
799
00:34:57.030 --> 00:34:59.078
Is that path required by the constitution?
800
00:34:59.078 --> 00:34:59.911
Right, I mean,
801
00:34:59.911 --> 00:35:01.950
my understanding of the Blanchard decision was
802
00:35:01.950 --> 00:35:06.270
that the motivation behind establishing
803
00:35:06.270 --> 00:35:11.270
and making up the second stage of the second prong was
804
00:35:11.670 --> 00:35:13.620
to protect the petitioning activity
805
00:35:13.620 --> 00:35:15.677
of the plaintiff, the non-movant.
806
00:35:17.369 --> 00:35:20.107
Right, the non-moving party, yes, it was.
807
00:35:21.687 --> 00:35:26.100
But that second piece of the second path
808
00:35:26.100 --> 00:35:30.690
of the second stage just simply says
809
00:35:30.690 --> 00:35:35.040
that you can have a claim that's,
810
00:35:35.040 --> 00:35:35.880
I'm tryin' to think this through.
811
00:35:35.880 --> 00:35:40.880
But you can defeat the motion to dismiss if the intent of,
812
00:35:41.610 --> 00:35:42.660
we'll call the plaintiff here,
813
00:35:42.660 --> 00:35:45.480
the plaintiff was not to chill petitioning activity.
814
00:35:45.480 --> 00:35:46.313
Yes.
Right?
815
00:35:46.313 --> 00:35:50.250
Yes, yes, exactly. That's a difficult standard though.
816
00:35:50.250 --> 00:35:51.720
I don't know how you glean that intent,
817
00:35:51.720 --> 00:35:55.140
but that second part I think is troublesome, frankly,
818
00:35:55.140 --> 00:35:58.140
even from my perspective and I'm an advocate in favor
819
00:35:58.140 --> 00:36:01.170
of winning this anti-SLAPP motion, but I didn't-
820
00:36:01.170 --> 00:36:02.400
Why do you find it troubling?
821
00:36:02.400 --> 00:36:03.233
I didn't rely on it.
822
00:36:03.233 --> 00:36:06.210
'Cause I think it's very vague as to how it works.
823
00:36:06.210 --> 00:36:07.290
Oh, because of its vagueness?
824
00:36:07.290 --> 00:36:08.157
Yes.
Okay.
825
00:36:08.157 --> 00:36:11.070
And that has results on what?
826
00:36:11.070 --> 00:36:12.720
Why is the vagueness troubling?
827
00:36:12.720 --> 00:36:14.580
'Cause I think it would be difficult for a trial court
828
00:36:14.580 --> 00:36:16.080
to deal with.
829
00:36:16.080 --> 00:36:18.600
Yeah, it creates an upfront mini trial.
830
00:36:18.600 --> 00:36:20.130
It would. It would be a mini trial.
831
00:36:20.130 --> 00:36:22.170
I think that's exactly what the problem is.
832
00:36:22.170 --> 00:36:25.470
And we didn't rely on that second, I always get this,
833
00:36:25.470 --> 00:36:27.330
the second step of the second stage.
834
00:36:27.330 --> 00:36:29.850
We were focused on that-
Gilbert and Sullivan.
835
00:36:29.850 --> 00:36:32.310
We were focused on the first step and I thought we met
836
00:36:32.310 --> 00:36:36.360
that under the existing case law and, quite frankly,
837
00:36:36.360 --> 00:36:40.737
just to go back to what I had intended to be my argument,
838
00:36:40.737 --> 00:36:43.373
(judges laugh)
839
00:36:43.373 --> 00:36:46.083
I would say that I would say that we properly relied
840
00:36:47.310 --> 00:36:50.190
on the first step of the second stage
841
00:36:50.190 --> 00:36:55.190
and that I find Judge Englander's dissent to be fascinating,
842
00:36:56.340 --> 00:36:58.620
but I think he was wrong on that aspect of it.
843
00:36:58.620 --> 00:37:00.700
But you think you can have
844
00:37:03.180 --> 00:37:08.180
petitioning activity that has a reasonable basis in fact
845
00:37:09.540 --> 00:37:11.370
or arguable basis in law,
846
00:37:11.370 --> 00:37:16.110
so it passes prong one and prong two first step,
847
00:37:16.110 --> 00:37:20.960
and yet it can continue to go on
848
00:37:22.470 --> 00:37:27.470
because the intent of the plaintiff is not to chill activity
849
00:37:29.400 --> 00:37:31.500
or you're just completely abandoning the second?
850
00:37:31.500 --> 00:37:33.330
I'm abandoning the second.
851
00:37:33.330 --> 00:37:35.220
Okay.
Second completely.
852
00:37:35.220 --> 00:37:36.870
Thank you.
And I think I would
853
00:37:36.870 --> 00:37:38.760
if I were this court.
854
00:37:38.760 --> 00:37:41.250
Well, you're joined by all the amicus as well.
855
00:37:41.250 --> 00:37:44.130
I've read the amicuses and I came away
856
00:37:44.130 --> 00:37:45.637
from that experience thinkin' to myself,
857
00:37:45.637 --> 00:37:47.820
"Boy, these people know a lot more about this than I do."
858
00:37:47.820 --> 00:37:51.510
But I'm just a humble trial lawyer.
859
00:37:51.510 --> 00:37:53.003
I try to make my way in this world.
860
00:37:53.003 --> 00:37:53.836
(judges laugh)
861
00:37:53.836 --> 00:37:57.630
So I think the decision
862
00:37:57.630 --> 00:38:00.330
by the Superior Court judge was correct.
863
00:38:00.330 --> 00:38:04.320
I think the two judges of the appeals court got it right.
864
00:38:04.320 --> 00:38:09.320
I fully understand some of the good points of the dissent.
865
00:38:09.330 --> 00:38:13.140
But as applied to this case, under the existing law,
866
00:38:13.140 --> 00:38:16.800
before you folks decide to change it or elaborate on it
867
00:38:16.800 --> 00:38:20.220
or explain it, I think, under the existing law,
868
00:38:20.220 --> 00:38:24.420
we properly should have prevailed under our motion
869
00:38:24.420 --> 00:38:27.960
and I would ask the court to affirm the decision
870
00:38:27.960 --> 00:38:31.260
and make any changes that you have in the law prospective
871
00:38:31.260 --> 00:38:33.393
and not as applied to our case.