Proof Evidence Public Expression Protection Anti SLAPP

 

Adkisson's

ANTI-SLAPP LAWS

and the Uniform Public Expession Protection Act (UPEPA)

Proof

Uniform Public Expression Protection Act (UPEPA)

 

SECTION 6. PROOF.

 

In ruling on a motion under Section 3, the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment under [cite to the state's statute or rule governing summary judgment].

 

Comments

§ 6 comment 1.

  • The Act establishes a procedure that shares many attributes with summary judgment.

→ See Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co., 434 P.3d 1152, 1157 (Cal. 2019) (describing the California statute as a "summary-judgment-like procedure"); Gundel v. AV Homes, Inc., 264 So. 3d 304, 312-13 (Fla. Dist. Ct. App. 2019) (equating a motion under Florida's law to one for summary judgment).

  • So, consistent with summary-judgment practice, parties should submit admissible, competent evidence—such as affidavits, deposition testimony, or tangible evidence—for the court to consider.

→ See Sweetwater Union High Sch. Dist., 434 P.3d at 1157 ("There are important differences between [anti-SLAPP motions and motions for summary judgment]. Chief among them is that an anti-SLAPP motion is filed much earlier and before discovery. However, to the extent both schemes are designed to determine whether a suit should be allowed to move forward, both schemes should require a showing based on evidence potentially admissible at trial presented in the proper form.").

  • A court should use the parties' pleadings to frame the issues in the case, but a party should not be able to rely on its own pleadings as substantive evidence.

→ See id.; Church of Scientology v. Wollersheim, 49 Cal. Rptr. 2d 620, 636, 637 (Cal. Ct. App. 1996), disapproved of on another point in Equilon Enters. v. Consumer Cause, Inc., 124 Cal. Rptr. 2d 507, 519 n.5 (Cal. Ct. App. 2002).

  • A party may rely on an opposing party's pleadings as substantive evidence, consistent with the general rule that an opposing party's pleadings constitute admissible admissions.

→ See Faiella v. Fed. Nat'l Mortg. Ass'n, 928 F.3d 141, 146 (1st Cir. 2019) ("A party ordinarily is bound by his representations to a court"); PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120, 123 (2d Cir. 1984) ("[S]tipulations and admissions in the pleadings are generally binding on the parties and the Court.").

§ 6 comment 2.

  • The question of whether the Act requires a live hearing or whether a court may consider the motion on written submission should be governed by the local customs of the jurisdiction.

 

JayNote:

 

The UPEPA drafting committee spent a substantial amount of time discussing the type of burdens that the parties would be required to bear on a special motion, but ultimately these issues were decided in accordance with the majority rule of Anti-SLAPP states, i.e., essentially treat the special motion as akin to an early motion for summary judgment or FRCP 12(b)(6) motion, and with largely the same (if not identical) burdens of proof. Indeed, within the drafting committee it was common to refer to the special motion as a "early summary judgment motion" or a "12(b)(6) motion to dismiss on steroids".

 

What the drafting committee was trying to achieve was a result whereby if the movant would win on a motion for summary judgment anyway at the end of the litigation, then UPEPA would allow that movant to win at the start of the litigation and thus avoid the costs, fees, and other consequences of litigation. Section 6 yields that result by the direct engraftment of the summary judgment procedure to the special motion. This solution also allows the courts to efficiently utilize their many decades of rulings on summary judgment motions to decide special motions.

 

There is of course a glaring difference between hearing a summary judgment at the outset of litigation as opposed to towards its end, which is that in the interim the parties have access to discovery so as to attempt to build their evidentiary cases; this is why § 4(d) permits very narrowly-tailored discovery upon a showing of reasonable necessity. Thus, there is an implicit public policy decision that is baked into § 6 (and also § 4(d)), being that if a party is going to file a cause of action in the area of protected speech and conduct, that party had better have all its evidentiary ducks in a row before that cause of action is filed and not simply "notice plead" a cause of action thinking that maybe some later fishing through discovery might turn up something akin to a viable case.

 

Let's now examine some of the particular operative clauses of § 6.

 

"the court shall consider"

 

The use of "shall" means that the court's consideration of the following things is mandatory, assuming that they have been properly and timely filed, etc., and does not permit a court to pick-and-choose what it wants to consider or not. This clause is also intended to act as a restricting boundary, in that the court's inquiry should be limited to the following things (and any oral argument of the parties at the hearing, if held in open court) to the exclusion of other things filed in the case. But even here the court must utilize its good common sense in applying these rules.

 

For example: Plaintiff files a complaint that is a quite vague, but seems to sound in defamation by way of protected speech. Defendant files an Anti-SLAPP motion based on the protected speech. In opposition, the plaintiff files a brief arguing that the complaint in no way alleges a cause of action for defamation, but some other tort. In rebuttal, the defendant submits a copy of the mandatory case filing cover sheet submitted by the plaintiff where one and only box for "case type" is checked, being "defamation". Although this is not a pleading or a motion, etc., and arguably not "evidence" in the classic summary judgment sense, the court should consider the cover sheet.

 

"the pleadings"

 

The single most important documents for the court to consider will be the pleadings that define what the plaintiff's cause of action is really all about. Many, if not most, special motions will be resolved solely and exclusively on the pleadings -- if the plaintiff has plead a cause of action that complains of protected speech or conduct, the special motion should be granted as to that cause of action without much further ado, unless of course the plaintiff can show some exception to the protection for the speech or conduct that is complained of.

 

In the vast majority of special motion cases, the special motion will be the first thing that anybody files after the plaintiff's complaint, and the plaintiff's complaint will thus be the only pleading to be considered by the court. However, there will of course be many situations where numerous pleadings have been filed prior to the special motion, such as in multi-party litigation and where the allegedly violative cause of action has been plead by cross-complaint, etc. Also, UPEPA does not prevent a movant from filing an answer to the allegedly violative cause of action first, and only thereafter filing a special motion. In such cases, the court is instructed to look at all the pleadings filed by any and all parties, to the extent they are relevant of course, in ruling on the special motion as it may be that in particular cases the court will have to piece together the pleading string to determine exactly what it is that the plaintiff complains.

 

Particular attention should be paid to Comment 1 to § 6: "A court should use the parties' pleadings to frame the issues in the case, but a party should not be able to rely on its own pleadings as substantive evidence. * * * A party may rely on an opposing party's pleadings as substantive evidence, consistent with the general rule that an opposing party's pleadings constitute admissible admissions." In other words, your own pleadings have no evidentiary value at all, but your opponent's pleadings carry very substantial evidentiary value as an admission, and vice versa; this is why the movant on a special motion should think twice before filing an answer (other than maybe a "say nothing" general denial), since no good is likely to come from such a filing but might create some opening for the respondent.

 

"the motion, any reply or response to the motion"

 

The court must also look at, somewhat obviously, the special motion, opposition to that motion, and any replies and sur-replies, etc., an including the things that normally adjunct to such motions like requests for judicial notice to get evidence in and motions in limine to keep evidence out.

 

"and any evidence that could be considered in ruling on a motion for summary judgment under [cite to the state's statute or rule governing summary judgment]"

 

This is where things get complicated. For non-lawyers, and some non-litigator lawyers, one must fundamentally understand that a motion for summary judgment is resolved as a matter of law, where the court does not weigh evidence in terms of credibility or anything else. But, and this is a big "but", the court will look at the evidence to see whether at least a minimal smattering of evidence is present such that there is a factual issue to be decided by the trier-of-fact (usually a jury), and if there is then at least as to that element summary judgment cannot be granted. Which is to say that a party seeking to avoid summary judgment must provide at least that minimal smattering of evidence as to each and every element of the challenged cause of action. Or, to look at it conversely, the court is looking to see whether there isn't any minimal smattering of evidence on any element such that the cause of action gets dismissed as a matter of law since one or more elements of the cause of action were not at least minimally proven. Suffice it to say that in every jurisdiction there is an enormous body of law that discusses how much evidence is enough for a party to get past summary judgment, and a survey of such law is far beyond our discussion here. This is exactly why the drafting committee tied the special motion to the summary judgment standard, so that such body of law could be applied to special motions instead of the courts having to start from scratch.

 

The bottom line is that the respondent has the burden of proving that the respondent has some minimally sufficient evidence for each and every element of the cause of action to make it to the finder of fact. If there is no minimally sufficient evidence for any element of the cause of action, then the cause of action fails as a matter of law. The Respondent cannot get by on mere speculation that such evidence might later turn up in discovery, nor can the Respondent rely upon evidence that is demonstrably incorrect. The Movant can also introduce evidence to demonstrate that the Respondent cannot prove one or more elements of the Respondent's cause of action.

 

For example, Tim sues Betty for defamation based on Betty's statement that Tim is a registered sex offender. Betty filed a special motion based upon the defense that truth is an absolute defense to defamation. Tim attaches to his opposition to the special motion his affidavit in which he swears under penalty of perjury that he is not a registered sex offender. However, Betty introduces a verifiable copy of a criminal judgment that names Tim as a registered sex offender. Despite Tim's affidavit, which he claims gives rise to a factual issue as to Betty's defense, Betty will win the special motion since there is no reasonable doubt that Tim is in fact a registered sex offender.

 

 

CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

OVERVIEW

 

SECTION 1 ... SHORT TITLE

 

SECTION 2 ... SCOPE

 

SECTION 3 ... SPECIAL MOTION FOR EXPEDITED RELIEF

 

SECTION 4 ... STAY

 

SECTION 5 ... HEARING

 

SECTION 6 ... PROOF

 

SECTION 7 ... [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART

 

SECTION 8 ... RULING

 

SECTION 9 ... APPEAL

 

SECTION 10 ... COSTS, ATTORNEY'S FEES, AND EXPENSES

 

SECTION 11 ... CONSTRUCTION

 

SECTION 12 ... UNIFORMITY OF APPLICATION AND CONSTRUCTION

 

SECTION 13 ... TRANSITIONAL PROVISION

 

[SECTION 14 ... SAVINGS CLAUSE]

 

[SECTION 15 ... SEVERABILITY]

 

[SECTION 16 ... REPEALS; CONFORMING AMENDMENTS]

 

SECTION 17 ... EFFECTIVE DATE

 

ARTICLES ON ANTI-SLAPP

 

ARTICLES CURRENT

 

2021.09.28 ... The Uniform Public Expression Protection Act: Construction And Uniformity

2021.09.13 ... The Uniform Public Expression Protection Act: Costs, Attorney's Fees And Litigation Expenses

2021.08.25 ... The Uniform Public Expression Protection Act: Appeal And Error

2021.08.09 ... The Uniform Public Expression Protection Act: Analysis And Dismissal

2021.06.22 ... The Uniform Public Expression Protection Act: Proof And Evidence

2021.06.19 ... The Uniform Public Expression Protection Act: The Hearing And Ruling

2021.06.09 ... The Uniform Public Expression Protection Act: The Automatic Stay

2021.05.31 ... The Uniform Public Expression Protection Act: The Special Motion

2021.05.11 ... The Uniform Public Expression Protection Act: Scope And Applicability

2021.04.30 ... Washington State Legislature Passes The Uniform Public Expression Protection Act

2021.03.15 ... The Uniform Public Expression Protection Act: The Three-Phase Analysis

2021.02.26 ... The Uniform Public Expression Protection Act: Background And Underpinnings

__________

More Articles

 

UNITED STATES ANTI-SLAPP LAWS

 

Arizona  ..... A.R.S. § 12-751, et seq.

 

Alabama ..... No Anti-SLAPP statute when last checked.

 

Alaska ..... No Anti-SLAPP statute when last checked.

 

Arkansas  ..... A.C.A. § 16-63-502, et seq.

 

California  ..... C.C.P. § 425.16, et seq.

 

Colorado ..... No Anti-SLAPP statute when last checked.

 

Connecticut ..... No Anti-SLAPP statute when last checked.

 

Delaware  ..... 10 Del.C. § 8136, et seq.

 

Florida  ..... F.S. § 768.295

 

Georgia  ..... Ga.C. § 9-11-11.1.

 

Hawaii  ..... HRS § 634F-1, et seq.

 

Idaho ..... No Anti-SLAPP statute when last checked.

 

Illinois  ..... 735 ILCS 110/1, et seq.

 

Indiana  ..... I.C. § 34-7-7-1, et seq.

 

Iowa ..... No Anti-SLAPP statute when last checked.

 

Kansas  ..... Kan.Stat. § 60-5320

 

Kentucky ..... No Anti-SLAPP statute when last checked.

 

Louisiana  ..... C.C.P. Art. 971

 

Maine  ..... 14 Me.R.S. § 556

 

Maryland  ..... MD Code, Courts & Jud. Proceedings § 5-807

 

Massachusetts  ..... M.G.L. 231 § 59H

 

Michigan ..... No Anti-SLAPP statute when last checked.

 

Minnesota  ..... Mn.Stat. § 554.01, et seq.

 

Mississippi ..... No Anti-SLAPP statute when last checked.

 

Missouri  ..... Mo.Stat. § 537.528

 

Montana ..... No Anti-SLAPP statute when last checked.

 

Nebraska  ..... Neb.Rev.Stat. § 25-21, 242, et seq.

 

Nevada  ..... N.R.S. § 41.635, et seq.

 

 

New Hampshire ..... No Anti-SLAPP statute when last checked.

 

New Jersey ..... No Anti-SLAPP statute when last checked.

 

New Mexico  ..... N.Mex.Stat. § 38-2-9.1, et seq.

 

New York  ..... N.Y.Civ.Rights.L. § 70-a.

 

North Carolina ..... No Anti-SLAPP statute when last checked.

 

North Dakota ..... No Anti-SLAPP statute when last checked.

 

Ohio ..... No Anti-SLAPP statute when last checked.

 

Oklahoma  ..... Okla.Stat. § 12-1430, et seq.

 

Oregon  ..... O.R.S. § 31.150, et seq.

 

Pennsylvania  ..... 27 Pa.C.S.A. § 7707.

 

Rhode Island  ..... R.I.Gen.Laws § 9-33-1, et seq.

 

South Carolina ..... No Anti-SLAPP statute when last checked.

 

South Dakota ..... No Anti-SLAPP statute when last checked.

 

Tennessee  ..... Tenn.Stat. § 4-21-1001, et seq.

 

Texas  ..... Tex.Civ.Prac. & Rem.Code § 27.001, et seq.

 

Utah  ..... Utah Code § 78B-6-1401, et seq.

 

Vermont  ..... 12 V.S. § 1041.

 

Virginia ..... No Anti-SLAPP statute when last checked.

 

Washington  ..... Wa.Stat. § 4.24.525.

 

West Virginia ..... No Anti-SLAPP statute when last checked.

 

Wisconsin ..... No Anti-SLAPP statute when last checked.

 

Wyoming ..... No Anti-SLAPP statute when last checked.

 

District of Columbia  ..... D.C.St. § 16-5501, et seq.

 

Guam ..... 7 G.C.A. § 17101, et seq.

 

Puerto Rico ..... No Anti-SLAPP statute when last checked.

 

U.S. Virgin Islands ..... No Anti-SLAPP statute when last checked.

 

FEDERAL LEGISLATION: Speak Free Act of 2015 (not enacted, presumed dead).

 

UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

CONTENTS OF THE UNIFORM PUBLIC EXPRESSION PROTECTION ACT

 

OVERVIEW

 

SECTION 1 ... SHORT TITLE

 

SECTION 2 ... SCOPE

 

SECTION 3 ... SPECIAL MOTION FOR EXPEDITED RELIEF

 

SECTION 4 ... STAY

 

SECTION 5 ... HEARING

 

SECTION 6 ... PROOF

 

SECTION 7 ... [DISMISSAL OF] [STRIKING] CAUSE OF ACTION IN WHOLE OR PART

 

SECTION 8 ... RULING

 

SECTION 9 ... APPEAL

 

SECTION 10 ... COSTS, ATTORNEY'S FEES, AND EXPENSES

 

SECTION 11 ... CONSTRUCTION

 

SECTION 12 ... UNIFORMITY OF APPLICATION AND CONSTRUCTION

 

SECTION 13 ... TRANSITIONAL PROVISION

 

[SECTION 14 ... SAVINGS CLAUSE]

 

[SECTION 15 ... SEVERABILITY]

 

[SECTION 16 ... REPEALS; CONFORMING AMENDMENTS]

 

SECTION 17 ... EFFECTIVE DATE

 

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Jay is a Managing Partner of Adkisson Pitet LLP.

 

© 2021 by Jay D. Adkisson. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. Questions about this website should be directed to jay [at] jayad.com or by phone to 702-953-9617 or by fax to 877-698-0678. This website is https://antislapplaws.com