Thread by @questauthority, Good evening #Threadnought - It's time for Hellfiling II Episode 3: Revenge [...]

Good evening #Threadnought -

It's time for Hellfiling II Episode 3: Revenge of the ____.

(Otherwise known as the "Appellant's Sur-Reply Brief to Appellee Marchi's Brief")

Before we start, I'd like to make clear just how dumb the "sur-reply" thing really is.

There are three standard filings in an appeal: the opening brief, the response, and the reply. Those are the documents that you get to file routinely.

They're also the standard filings that the court expects to read. And you expect them in that order.

Brief, response, reply. Brief, response, reply. Brief, response, reply. Like a great double-play combination - Tinker to Evers to Chance.

You expect that exact sequence to follow the same way you expect 1 to be followed by 2 and then by 3.

This is 1, 2, 4.38.

The first reaction on seeing "sur-reply" is often literally, "wait, who ordered this"??

Literally.

Because you need the court's permission, generally, to file a sur-reply.

And of course Ty didn't as for permission to file sur-replies, which was appropriate because they're not sur-replies.

But that means no permission in the file. And then there's the question of "wait, what is this a sur-reply TO"??

So this is the kind of thing that's likely to throw someone who is used to reading normal appeals. Which you don't want to do.

Jazz gets used as a metaphor writing fairly often - you can break the rules, but you have to break them the right way and you have to know what you're doing.

These briefs break a lot of rules.

But not like Thelonious Monk. More like Tone-Deaf Tommy and His All Kazoo Orchestra.

It's hard to understate how dumb it was to make this mistake. A sur-reply is the reply to a reply. If there is not yet a reply, there can be no sur-reply.

The table of contents is also somewhat strange, for reasons I'll get into in a bit.

But which go beyond all the entries where they accidentally forgot to put the page numbers in the Table of Contents.

But I would like to make something clear:

IF YOU FORGET THE PAGE NUMBERS IT'S NOT REALLY A TABLE OF CONTENTS NOW IS IT???

OK. Now to the more substantive issues in the table of contents, because of course they screwed things up beyond merely forgetting the page numbers for half the table of contents entries.

To start with - and tables of contents DO get read because they're SUPPOSED TO BE concise roadmaps to the filing - these entries are what you'd expect to see in an appeal of a summary judgment motion.

Which this very much wasn't.

Also, why does this section only cover 3 elements of defamation and leave out "fault"?

Which is occasionally viewed as an important element.

Also, I can't wait to see where/how Marchi made these admissions.

But enough dunking on the TOC, let's move on.

IT IS NOT AN INDEX OF ANYTHING IF IT HAS NO BLOODY PAGE NUMBERS.

NONE. ZERO. NO PAGE NUMBERS.

For. The. Entire. Index. Of. Authorities.

And, no. I don't recall [SPACE INTENTIONALLY LEFT BLANK] being a common feature in appellate briefs.

The issues presented do at least seem to roughly approximate the original set, though, which is a genuinely unexpected bonus.

OK. And this isn't how "offensive touching" works - it literally doesn't matter if Vic believed he was being offensive.

But I love the "Vic ran touched her hair with his hand." They must have decided that "touched" sounds better than "ran fingers through."

The "ran touched" is, unfortunately, quite noticeable. And does call attention to the difficulties Vic's counsel were having in coming up with a non-creepy-sounding description of the event.

The summary is interesting, but doesn't really quite match what I'm expecting from the TOC.

The public figure argument is at least somewhat duplicative of the one in the Toye/Rial sur-reply (sic).

I'm sure this will be greatly appreciated by the clerks confronted with the overlength pile of filings.

Ty. This brief will almost certainly be read VERY SHORTLY after the response. Every time you use a word like "mischaracterize" or "falsify" you are calling attention to the notary fraud issues.

Also, every time you use language that strong and do not back it up and back it up well, you lose credibility. Lots of it.

And, Ty, you're running a considerable deficit in that account already.

Needless to say, there's no explanation of how this is "an outright falsehood" let alone how "been in over 356 productions" doesn't support "one of the most ubiquitous voice actors."

That doesn't impress.

And this part is where they get all mad because *checks notes*

*checks*

Getting a beer, be right back.

OK. So apparently it somehow "grossly mischaracterizes the evidence" to say that Vic "can hardly walk int to an anime convention without immediately being recognized" on the basis of Vic's deposition testimony that he gets recognized at anime conventions.

Don't ask me how that's a gross mischaracterization, because they don't freaking say.

You'd think they would, because judges like explanations, but I guess they wanted to save some of their -5000 remaining words.

Where the hell did "gross negligence" come from? That's not a thing in defamation law, as far as I know.

The rest of the section on public figure is largely a repeat of the one from the other brief, again wasting everyone's time and space they didn't have to burn.

In fact, some of it is a direct lift, which is probably how the formatting got messed up in the footnotes.

A quick note on the Hoskins thing. It's a cute argument, but I doubt it saves them on waiver. In that case, because of the admissions, the court below never determined if the plaintiff was a public figure.

Here, the issue was argued, findings were made, and they forgot to challenge those findings. So now they're claiming that waiver doesn't apply and making arguments for the first time, depriving the defense of a chance to respond (unless they ask for a sur-reply.)

That comes off as a scummy move.

I wouldn't be surprised if the court was willing to entertain a very short (~3-4 page) sur-reply on that issue.

That's particularly true because the reply brief was supposed to be restricted to replying to things in the response. Making new arguments, no matter the excuse, is a no-no.

But there are a lot of arguments that aren't really replies in these briefs.

Pro-tip:
Don't screw up the pincites. It makes people cranky.

Oh, never mind. They didn't screw up the pincite. They totally balled up their comprehension of the case they were citing because they are illiterate tadpoles.

OK. I think I can explain what I just read. Maybe.

I'm on this bit - "Vic met his burden of raising the existence of fact issue(s)."

This was confusing because THAT ISN'T THE BURDEN AT TCPA. So why did they think it was?

The fact-issues thing is confusing because that's a summary judgment thing. So how did it get here? Because the brain trust at BH**+- misread the text below, which describes the same term ("clear and specific evidence") that's used at TCPA, as setting a standard for TCPA.

But those cases weren't TCPA cases; they were fraud cases resolved at summary judgment. Where you have to show a fact issue.

You don't need to show a fact issue at TCPA. You just need clear and specific evidence for each element.

I say "just" because the actual burden is LOWER than "fact issue" - it's just "show me something."

So not only are they screwing up by misreading a not-hard case, they're also doing so in a way that, if anything, makes things harder for themselves.

I--

They think they win because you can reasonably infer fact disputes from the table of contents of the briefs.

I-----

That is not, needless to say, how anything works.

NOTHING WORKS THAT WAY. AT. ALL.

The "above referenced rule from the D. Magazine Partners case" is cited to 529 SW 3d 429, 440 fn 9, which appears upon examination to be a citation to Wikipedia's general disclaimer page.

Sadly, I'm not kidding:

Sorry for the lag - I was trying to hunt this down because it seemed weird that fault wasn't included.

Turns out that it's not included in the list on 590-91. But is identified as a key element on page 593 of that very same case.

#oof.

Sorry - trying to run something ELSE down - and this time they screwed up the pincite AND other stuff.

This should go without saying. Apparently it doesn't.

DO NOT accuse opposing counsel of being "untruthful to this Court" by using a manipulated quotation to misrepresent what opposing counsel actually said.

DO NOT - I cannot emphasize this enough - DO THAT.

EVER!!!

As soon as I saw "untruthful to this Court," I went hunting for the original quote. I suspect many, if not most, law clerks or judges would do the same.

It was hard to find. In fact, it was VERY hard to find.

Partly, that's because using the search feature failed to readily turn it up because the blundering bloviator who wrote this forgot that there's an IMPORTANT difference between "reference Vic or what he did" and "reference [Vic] or what he did."

Since the original used "reference Appellant," not "reference Vic," a search on "reference Vic" SHOCKINGLY does not work - who he hell knew??

The search feature not working, I then tried to find it using the pincite. That didn't work either because they pincited to Page 13 and THAT QUOTE ISN'T THERE.

It's not, in fact, on either Page 13 as numbered OR on Page 13 of the pdf.

I finally found it - kind of - on Page 15 as numbered/Page 21 of the pdf.

Well, I say "found it." I mean "kind of found it."

Because the ellipsis in the quote in the "sur-reply" spans ONE-FREAKING-HUNDRED-AND-FORTY-TWO words.

Here's the side-by-side.

It's clear that, in context, Sam did NOT say that the Feb 8 tweet doesn't reference Vic. Sam says that the "message" that the tweet "ends with" didn't reference Vic.

Oh, and Marchi did not admit that the ENTIRE Feb 8th Tweet was a statement of fact; just that the part that describes the hair-pulling incident was a statement of fact. So they end the paragraph that lies about opposing counsel lying with something that's quite close to a lie.

This should go without saying, but I don't think a reader who went through the exercise of finding that original quote to try and verify the serious allegation of misconduct Ty made against Sam will be impressed by Ty's honesty.

I need a five-minute break to walk that off.

I'm hella pissed. You don't do things like that. E V E R.

OK. I'm back. And this is some of the dumbest stuff put in a brief in this case yet.

Apparently "Vic is a bad person" is somehow a fact statement not opinion. And other things.

Honestly this is just such a bad paragraph it's almost a thread in itself.

"Vic merely must show the existence of a fact issue within the evidence that was before the court for its consideration."

What does that even mean?

I mean, even in the summary judgment context that's not exactly right, and it's less right here.

But I'm just going to press on.

OK. If the "full context" was really presented, Sam might have slightly blundered, albeit not in a critical way. But I also can't find it, and I suspect that this accusation of dishonesty is based on the buffoons not understanding what "full context" means.

We're now onto another accusation of "intentionally misleading." This one is apparently based on the audacity of Sam claiming that *checks notes* Vic admitting that the tweet doesn't reference Vic based on Vic testifying that there is no direct reference to Vic in the tweet.

You know, when you are throwing around all kinds of accusations of dishonesty, you probably want to be really honest yourself. Which might, I dunno, involve things like confronting the whole sham affidavit and notary fraud thing around the denial, or the depo testimony.

Also, if you're going to claim that the denial was enough, maybe talk about case law a tiny bit there? Just a little?

Also - Word has these things called styles. They're useful.

Use. Them.

Ask Clippy if you need help.

That way you won't keep messing up heading formatting.

Moving on, there's no attempt to address the fact that the one factual allegation - the hair grab - is, in addition to being true, not an accusation of sexual assault.

Also, "defamation proves negligence" isn't how anything works at all.

Y'all - Has anyone seen Footnote 81? Would someone give the milk carton people a call, please?

But, no worries, that's only the spot where the absolutely critical citation to Van der Linden v Khan was supposed to go.

Seriously, probably the clerks will figure out what the cite was supposed to be. The real issue here is the failure to confront basically all of the bad facts that were discussed in the TCPA motions and the response brief.

I'm breaking again trying to find things. These footnotes are SO JACKED UP. (That's a term of art.)

OK. Here's this debacle.

They say that Marchi's statements "alleged that Vic sexually assaulted her ." (sic) This is cited to Footnote 86. Footnote 86 is "supra at footnote 9" which makes no sense.

Does that mean Footnote 9 of *this brief* - it should, I think, so off we go.

Footnote 9 is to CR Vol 6 p 3227. But from the text that goes with Footnote 9, we see that Footnote 9 is a citation to the trial court's order. Not to anything in Marchi's filings.

Maybe they just didn't refresh crossrefs? So let's look around that neighborhood.

Nope. Nothing looks likely.

But maybe instead of "supra" they meant "Id" - maybe it's meant to be a reference to Fn 85?

So let's go back.

Here's Fn 85:

That's an easy mistake to make - I use filler footnotes all the time. (Mine is CITECITE because it's easier to spot.)

But it's also an even easier mistake to avoid. Because you search for "CITE" when you are finalizing the document.

So anyway several minutes poorer I'm none the wiser as to the evidence that Marchi claimed that Vic sexually assaulted her.

Clerks and judges love this stuff.

Oh, my. It gets worse. By which I mean more infuriating.

Because this paragraph discusses the same material that was at issue earlier when they made the "misleading the court" claim - and it shows that they knew their 142-word omission changed the meaning.

Moving on, we've got the same issues with the claim that "sexual predator" and "sexual assault" are unequivocal terms that we did with the Rial/Toye brief.

They didn't actually discuss this at length previously.

If you were wondering.

Gee, what glaring omission do we find in this paragraph?

@crumbedup - you're on.

OMG FOOTNOTE 102 IS ABSOLUTELY ART!!!!!

I'm laughing so hard I'm crying

Ok. Sorry. Let's look at this.

The statement that, prior to the defendants' accusations, Vic "lived his life without controversy" is cited to Footnote 102.

Which is here:

That's the most accurate citation ever.

Also -
Pro Tip:
After you take the placeholder out of the footnote, you need to put something in.

Still not how it works, y'all.

And, just like that, and without dealing with all the elements, they're done with defamation.

OK. So here's the source for their assertion that "Marchi admits that the trial court could draw rational inferences from Vic's evidence"

It's not exactly the admission they're trying to paint it as.

Gee, isn't it funny how only 2 of the 4 elements have those funny little numbers near them? I wonder what that means.

Also, what happened to subsection b?

If this is all some spectacular comedy routine, this would be a GREAT time for the reveal.

They've really stopped trying by this point. This is pathetic. And what the hell is with the weird spacing and justification on the second paragraph? Also what the hell does defamation per se hav--

screw it, I don't care. This is garbage. It's an insult to the readers.

The readers not just being us, but the court that he's arguing before.

What. A. Disgrace.

Two extensions for this level of workmanship.

Moving on, Ty's going to try to explain how the little oopsie in the opening brief, where they did objections to Funi's evidence and Ron and Monica's evidence but not Marchi's evidence, didn't waive that as an issue on appeal.

(It totally waived the issue.)

Wow this is terrible.

I think they filed their rough notes as part of their reply brief.

And they never actually address the waiver issue with the evidence Marchi offered.

Disgraceful.

This section isn't terrible. But it is worthless. I'm giving it little attention for the same reason that the court will give it little attention - nobody is going to care.

It's so clear that the case fails for lack of clear and specific evidence, the defenses aren't needed.

The section on qualified immunity for Marchi will read something like this, I expect:

"Having concluded that dismissal was appropriate under the TCPA, there is no need to reach the questions involving the affirmative defenses, and we decline to do so."

And they are going WAY out on a limb calling the hair thing "an outright lie" because there's a picture and a deposition transcript to the contrary.

And with that, we'd be done, except that, having messed up the preliminary materials and the substantive text, Ty decided to complete the trifecta by messing up the Certificate of Compliance.

There is no bottom.

Anyway, I don't think there's much need for wrap-up analysis on this dumpster fire.

That will do it for tonight.

I'll get to the Funi reply sometime tomorrow, after I give my sanity a reasonable recovery interval.

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