Wednesday, August 28, 2013

A Few Words on Sandbagging...

Jay v. Mahaffey, G047325 (D3 Aug. 23, 2013) 

The court affirmed the denial of a SLAPP motion arising out of a malicious prosecution case because the plaintiffs came forward with sufficient prima facie evidence of each of the elements of their claims.

Although most of the opinion is dedicated to the sufficiency of the proof on the merits, the court does address an issue of anti-SLAPP procedure: When can the moving party submit evidence with its reply. Unlike a California summary judgment motion, cf. Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 850 (2001), the moving party on a SLAPP motion bears no evidentiary burden to show that the plaintiff’s claims lack merit. Nesson v. N. Inyo Cnty. Local Hosp. Dist., 204 Cal. App. 4th 65, 84 (2012). Because merits evidence submitted by a moving defendant is significant only if it would defeat plaintiff’s evidence as a matter of law, 1-800 Contacts, Inc. v. Steinberg, 107 Cal. App. 4th 568, 585 (2003), defendants filing SLAPP motions often do not submit merits evidence, relying instead on the statutory shifting of the burden to the plaintiff to show a probability of prevailing, see id.
Here, the moving defendants did just that—they submitted no evidence on the merits in support of their motion. But then, for the first time in their reply brief, they submitted several declarations purporting to show that the underlying lawsuit was justified, and thus that the malicious prosecution claim could not prevail. Plaintiffs objected to the sandbagging, and the trial court sustained the objections and struck the reply declarations.

The court of appeal sustained the ruling, holding that the “general rule of motion practice . . . that new evidence is not permitted with reply papers” applied to SLAPP motions, even considering Code of Civil Procedure § 426.16(b)(2)’s instruction that the court should consider “supporting and opposing affidavits stating the facts upon which the liability or defense is based.” The court went on to explain that, particularly when the plaintiff’s theory on the merits can be ascertained from the face of the complaint, reply declarations cannot “address . . . the substantive issues in the first instance[.]” The court recognized, however, that a trial court does have some discretion to consider reply evidence that could “fill . . . gaps in the evidence created by the [plaintiff’s] opposition.”

But here, “Defendants’ decision to wait until the reply briefs to bring forth any evidence at all, when the [plaintiffs] would have no opportunity to respond, was simply unfair.” So the trial court did not abuse its discretion in sustaining the objection. And in any event, since all the reply evidence did was controvert the plaintiffs’ submission, it had no effect on the resolution of the motion because the trial court does not weigh the evidence in establishing whether the plaintiffs have met their burden.


The practical takeaway, if you are a moving party on a SLAPP motion is that:

(1) If the complaint does not show it on its face, submit evidence that the plaintiff’s causes of action arise from protected activity.

(2) Submit merits evidence if, unrebutted, that evidence would establish that the plaintiff’s causes of action fail as a matter of law. Because the court isn’t supposed to “weigh” evidence, this evidence will usually establish something other than the absence of an element of the plaintiff’s claim, such as a declaration that shows that the claim accrued outside the statute of limitations. Do not reserve this evidence for reply.

(3) No evidence is needed, to the extent it would simply be weighed against prima facie evidence proffered by the plaintiff to meet its burden. Either the plaintiff comes forward with prima facie evidence or it doesn’t.

(4) If there are “gaps” in the plaintiff’s evidence, the court has the discretion to fill them with evidence submitted in reply. Presumably, this permits the moving party to use its reply to address evidence that is misleading or defective. The likelihood that this will be permitted seems to depend on whether the issue could be anticipated.

On point (4), the call to wait for reply can be tricky. We are often reticent to go out of our way to “pre-but” issues that the other side might not even figure out. But we also don’t want to be accused of sandbagging and precluded from rebutting these issues with available evidence. One way to handle is to submit the evidence you think you will need with the declarations accompanying your opening brief, low-key like. If opposing counsel are not clever enough to figure out the argument that concerns you, an extra couple of documents lumped into an evidentiary submission and unaddressed in an opening brief are unlikely to tip them off. But then in your reply, you can cite to evidence that the other side already had in its possession when it filed its opposition. So long as the reply discussion is germane and responsive to issues raised in the opposition, a successful charge of sandbagging is unlikely to stick.

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