Bel Air Internet, Inc. v. Morales, No. B270268 (D2d2 Feb. 26, 2018)
So Code of Civil Procedure § 425.16(b)(2) says that an anti-SLAPP motion should be decided based on the “pleadings” and the “supporting and opposing affidavits stating the facts upon which the liability or defense is based.” But a moving Defendant's burden isn't really evidentiary. It just needs to show the claim “arises from protected activity” which ordinarily is done by reference to the complaint. So while the Defendant could submit evidence to meet that burden, it is not required to. (For instance, if a complaint is based on statements, but omitted that they were made in court, Defendant could put that in a declaration to sustain its burden.) A Defendant is not, in any event, required to prove the truth of any facts pleaded by the plaintiff.
Also, the Court comes down pretty clear you don’t need a reporter’s transcript in the record on an anti-SLAPP appeal. The appeal is de novo based on the filed evidence and pleadings, so the only thing in the oral record would be legal arguments before the trial court. While that stuff might provide some useful context, it is not necessary for the Court of Appeal’s task.
Reversed.
Showing posts with label morales. Show all posts
Showing posts with label morales. Show all posts
Tuesday, February 27, 2018
Friday, August 19, 2016
Speak Up, Or Lose Your Appeal
Morales v. 22d Dist. Agric. Assoc., No. D067247 (D4d1 Jul. 13, 2016)
This is an FLSA opt-in collective action largely beyond the scope of this blog. There are, however, two interesting procedural questions on appeal.
The first concerns the verdict form. But to preserve objections Plaintiffs needed to actually raise their objections in the trial court. Just submitting a form that gets rejected isn’t enough. They needed to make particular objections on the record to the form that gets used. Here, when the court proposed its own form, Plaintiffs said they had no objection. Nor, even after an adverse verdict, did they re-raise the issue in a new trial motion. Under the circumstances, they forfeited their right to dispute the jury form on appeal.
There’s also an issue of witness exclusion under Evidence Code § 777. Question is: Does § 777 apply to absent class members? But the court doesn’t reach that issue either, because it finds that Plaintiffs’ counsel failed to make any record why it was inappropriate to exclude any particular witness. Moreover, there was no evidence that the exclusion had any detrimental impact on Plaintiff’s case. Since it is Plaintiff who is appealing here, not some witness with a claim of being denied public access, the absence of prejudice dooms the appeal.
Affirmed in relevant part.
This is an FLSA opt-in collective action largely beyond the scope of this blog. There are, however, two interesting procedural questions on appeal.
The first concerns the verdict form. But to preserve objections Plaintiffs needed to actually raise their objections in the trial court. Just submitting a form that gets rejected isn’t enough. They needed to make particular objections on the record to the form that gets used. Here, when the court proposed its own form, Plaintiffs said they had no objection. Nor, even after an adverse verdict, did they re-raise the issue in a new trial motion. Under the circumstances, they forfeited their right to dispute the jury form on appeal.
There’s also an issue of witness exclusion under Evidence Code § 777. Question is: Does § 777 apply to absent class members? But the court doesn’t reach that issue either, because it finds that Plaintiffs’ counsel failed to make any record why it was inappropriate to exclude any particular witness. Moreover, there was no evidence that the exclusion had any detrimental impact on Plaintiff’s case. Since it is Plaintiff who is appealing here, not some witness with a claim of being denied public access, the absence of prejudice dooms the appeal.
Affirmed in relevant part.
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