TCPA Hearing 9/6/19 - Marchi ran from the Law, TI crumbles, conspiracy still on the table, and collective autism from all sides.

[Sheryl Nome]

Because the second statement includes the scenario where Monica was distressed but he didn't notice it. It's possible that Monica was distressed, thought he noticed it, but he didn't notice it.

Judge is going to have to do some heavy lifting to interpret this all in a way that clearly establishes the defendants lied.

But Monica claims he noticed it.

How do you keep missing that.

One of the two has to be lying. Either Stan is lying or Monica is lying.

 

[Zero Day Defense]

Because the second statement includes the scenario where Monica was distressed but he didn't notice it. It's possible that Monica was distressed, thought he noticed it, but he didn't notice it.

Judge is going to have to do some heavy lifting to interpret this all in a way that clearly establishes the defendants lied.

He's not going to have to do any such heavy lifting if

1. Stan says that Monica never told him any such thing occurred, and

2. Monica name-dropped the guy but couldn't bother to contact him at any time, and he gave an affidavit without subpoena.

Even if you have your doubts about him remembering the incident holding up, he can testify as fact that Monica never told him that any such incident occurred at any point in time. The very fact that he has to say that he was never informed means that he wasn't there.

And even if Monica wants to say that he was there and that "he doesn't remember" is strictly "he doesn't remember", the question of why they at no point contacted Dahlin is still there. It's not that he was a hostile witness. It's not that he was subpoenaed.

He just wasn't contacted, and instead provided an affidavit for Plaintiff.

This is to say nothing of the fact that Monica has three different accounts for the same event.

 

[AnOminous]

Explain how "If Monica was distressed after leaving Victor Mignogna's room, I am certain that I would remember it." is functionally different from "If I had noticed Monica Rial being distressed leaving Victor Mignogna's room, I am certain that I would remember it."

It still directly contradicts Monica.

And Monica did specifically indicate that he had noticed, which means there was some facial or physical manifestation of having noticed, and that he responded appropriately. I'm not sure why she felt compelled to throw in this fake detail, but compulsive liars like her often do trip themselves up by adding unnecessary details even though they make their stories even more falsifiable.

 

[Allanon]

Ah, I see. Ty really should have caught that, because saying "I have no memory of the events described in bullet point 4 of the Response" is pretty close to exactly the wrong thing to say in your affidavit. Rather, it should say something like "I remember the events, and they did not happen like that", or possibly "I remember that day, and no such events happened." If you have no memory of the events, then you can't possibly say anything about it.

"If I had noticed Monica Rial being distressed leaving Victor Mignogna's room, I am certain that I would remember it" is slightly better for Vic's case. Still two really big glaring problems. One is, that if he didn't notice it, he wouldn't remember it. That is entirely consistent with it happening but him not noticing it. Better would be, "If Monica was distressed after leaving Victor Mignogna's room, I am certain that I would remember it." The second thing that would be helpful is establishing why he would specifically remember not noticing something. For example, if I ask you, "Do you remember Jacob being angry ten years ago when you walked by him at work?", you will need to put up a really good case for why you would specifically remember Jacob not being angry, or why you would have remembered it if Jacob was angry (establishing why you have a habit of remembering something, to show that your lack of memory of it happening is in fact evidence that it doesn't).

Side note: this ties in indirectly to the rules for character evidence. You can't put in evidence towards somebody's generic character, but you can put in evidence towards a habit.

Monica claimed he noticed and asked her about it. Stan says he did not notice, as had he noticed he would have behaved differently. Therefore her claim that he noticed and reacted accordingly is wrong. The affidavit disproves 'oh he forgot', because his behavior doesn't align with him ever noticing. Which controverts Monica's statement that he did. Directly.

 

[DinkyCowSow]

There is a good chance we may have found the first claim that has a reasonable chance of making it past TCPA.

 

[Zero Day Defense]

There is a good chance we may have found the first claim that has a reasonable chance of making it past TCPA.

• Ron heavily implying that Vic was under criminal investigation and outright saying that he'd be arrested before KC
• Anytime Ron talks about the 2/5/200/6,000,000 women Vic molested
• Anytime Monica mentions the 2/5/27/6,000,000 women willing to speak up against Vic in court
• Anytime Ron says that Vic is a criminal

Ron can't attest to any of the women that Vic allegedly molested, and will probably have to insist that he was being hyperbolic. Ditto for Monica, but she'd have a harder time since she came up with a grounded number. Vic is demonstrably not a criminal on the record, nor did he undergo criminal investigation, and no charges were filed against him.

This encapsulates all of the tweets that Ron and Monica have been making about Vic that have been flagged as defamatory by BHBH.

Stop acting like there hasn't been significant amounts of legal analysis by multiple lawyers until you burst onto the scene less than a week ago.

 

[DinkyCowSow]

Those are some really neat accusations that might be worth suing over.

Show me in the response to the TCPA where Ty establishes clear and specific evidence that at the time Ron and Monica made each of those statements that they believed they were false. Even if Vic had a case at one point, Ty has pretty much screwed him over.

Even more fun: let's make our bets on how many claims survive the TPCA from Chupp and see who comes closer, just for shits and giggles. My guess is zero.

(I'd say there's a 65% chance of nothing surviving Chupp's ruling on the TCPA, 30% chance of one claim surviving the TCPA, and 5% chance of anymore more than that.)

 

[TheClappening]

I think everyone's forgetting that Stan's affidavit declaration is treated as the truth, just like Vic's "I never did that" statement, for the purposes of TCPA.

Then again, Chupp happens, so...

 

[AnOminous]

Because the second statement includes the scenario where Monica was distressed but he didn't notice it. It's possible that Monica was distressed, thought he noticed it, but he didn't notice it.

Judge is going to have to do some heavy lifting to interpret this all in a way that clearly establishes the defendants lied.

It's not up to the judge to determine facts. That's for the jury. Nobody has to do any "heavy lifting," just believe that the plaintiff is telling the truth and the defendant is lying.

 

[VicMontana]

It's not up to the judge to determine facts. That's for the jury. Nobody has to do any "heavy lifting," just believe that the plaintiff is telling the truth and the defendant is lying.

I have a question @AnOminous , the Part where the Judge stated he already had the defenses binder and when he just stated Vic being a LPPF without any argument, was that bad for the defense on the appeal side of things?

 

[RodgerDodger]

It's not up to the judge to determine facts. That's for the jury. Nobody has to do any "heavy lifting," just believe that the plaintiff is telling the truth and the defendant is lying.

But nobody seems to have told said judge that.

 

[TenMilesWide]

But nobody seems to have told said judge that.

Somebody will, sooner or later.

 

[AnOminous]

But nobody seems to have told said judge that.

Optimistically, an appeals court will have to do that.

 

[TheClappening]

Optimistically, an appeals court will have to do that.

Before appeals there's still a motion to reconsider, right?

 

[AnOminous]

Before appeals there's still a motion to reconsider, right?

An appeal from a TCPA anything has to be within 20 days. That doesn't leave much time for motion practice beforehand.

 

[Garm]

I have a question @AnOminous , the Part where the Judge stated he already had the defenses binder and when he just stated Vic being a LPPF without any argument, was that bad for the defense on the appeal side of things?

I'm guessing the judge will attempt to explain all of that in his written opinion. We wait to see that.

 

[DinkyCowSow]

Monica claimed he noticed and asked her about it. Stan says he did not notice, as had he noticed he would have behaved differently. Therefore her claim that he noticed and reacted accordingly is wrong. The affidavit disproves 'oh he forgot', because his behavior doesn't align with him ever noticing. Which controverts Monica's statement that he did. Directly.

Also want to point out that none of this part matters at the TCPA stage, because Stan is not the one suing. Vic has to prove a clear and specific prima facie case for each element of defamation against himself. The only false statement of fact that we may have determined, or at least agreed there is a difference of fact on, is whether or not Stan noticed Monica being upset.

 

[Soviras]

Also want to point out that none of this part matters at the TCPA stage, because Stan is not the one suing. Vic has to prove a clear and specific prima facie case for each element of defamation against himself. The only false statement of fact that we may have determined, or at least agreed there is a difference of fact on, is whether or not Stan noticed Monica being upset.

Vics statement of it being false, taken in the light most favorable to him, should suffice for that for a prima facie showing of the facts. The TCPA doesn't require absolute evidence of the falsity, even the lawsuit itself as a whole doesn't. One side just needs to be shown to be more likely to be telling the truth, which comes down to credibility and supporting evidence or lack thereof.

 

[DinkyCowSow]

Vics statement of it being false, taken in the light most favorable to him, should suffice for that for a prima facie showing of the facts. The TCPA doesn't require absolute evidence of the falsity, even the lawsuit itself as a whole doesn't. One side just needs to be shown to be more likely to be telling the truth, which comes down to credibility and supporting evidence or lack thereof.

Agreed. That's why I think there's a decent chance of a single claim making it past the TCPA, because if Vic and Monica were the only two people there, Vic's claim of falsity is (exactly as you say) enough to survive the TCPA.

I still think the most probable outcome is everything gets dismissed for various other reasons, but it would not be shocking to me at all if that defamation survived this state.

 

[AnOminous]

Also want to point out that none of this part matters at the TCPA stage, because Stan is not the one suing. Vic has to prove a clear and specific prima facie case for each element of defamation against himself. The only false statement of fact that we may have determined, or at least agreed there is a difference of fact on, is whether or not Stan noticed Monica being upset.

Nonsense. Vic himself was there and was a witness, and disputes the material facts stated by Monica, and disputes of fact are resolved in favor of the nonmoving party.