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Government and People
RICHARD A. PIPES, ESQ.
LAW OFFICES OF RICHARD A. PIPES
Orlean Pacific Plaza, Suite 201
865 South Marine Corps Drive
Tamuning, Guam 96913
Telephone No.: (671) 646-1222
Facsimile No.: (671) 646-2203
DEBORAH DEITSCH-PEREZ, ESQ.
Attorneys for Plaintiffs
CIVIL CASE NO. CV 0960-06
GUAM GREYHOUND, INC. and JOHN BALDWIN, Plaintiffs,
IN THE SUPERIOR COURT OF GUAM
PLAINTIFFS' SURREPLY TO DEFENDANT DOROTHY BRIZILL'S MOTION TO DISMISS
Plaintiffs John Baldwin (`Baldwin") and Guam Greyhound (together, "Plaintiffs") hereby file their surreply in opposition to the Motion to Dismiss (the "Motion") of Defendant Dorothy Brizill (`Brizill"), as follows
L PRELIMINARY STATEMENT
In her motion to dismiss and in her reply in support thereof (the "Reply"), Defendant argues that this case must be dismissed under Guam's Citizen Participation in Government Act (the "CPGA"). According to Defendant, the Court must both apply a summary judgment standard at this early stage of the case and require Plaintiffs to prove all aspects of their case by clear and convincing evidence. Defendant misreads the statute.
At this stage of the proceedings, Plaintiffs need only produce evidence that would allow a reasonable jury to find in their favor on this issue, not prove their entire case. To hold otherwise would be fatal to defamation plaintiffs, who would be faced with a high burden of proof before any discovery and without full summary judgment briefing. Because Plaintiffs have produced clear and convincing evidence that Defendant made defamatory statements about Baldwin, and that such statements are not covered by the CPGA, this motion should be denied.
Under the language of the CPGA, all motions to dispose of a case, including motions to dismiss, are to be treated as motions for summary judgment.1 Discovery is suspended,2 and the plaintiff has the "burden of proof, of going forward with the evidence and of persuasion on the motion."3 The court is required to "grant the motion and dismiss the judicial claim, unless the responding party has produced clear and convincing evidence" that the CPGA does not immunize the questioned speech.4
Defendant would have this Court read the statute to require Plaintiffs to prove their entire case by clear and convincing evidence at this early stage. This assertion is a clear misreading of the statutory language. On a motion to dismiss under the CPGA, as in any motion for summary judgment, the Plaintiffs need only produce clear and convincing evidence to carry the burden of persuasion.5 Plaintiffs are not required to prove their case or dispute contrary evidence offered by Defendant at this stage.6 Moreover, Defendant's reading of the statute would be manifestly unfair.
Under her interpretation, defamation defendants could move to dismiss under the CPGA but include no evidence in their initial papers. Then, after plaintiff responded with supporting evidence, defendants could offer contrary evidence and win the motion to dismiss despite the fact that plaintiffs never had the chance to challenge or respond to the newly-submitted evidence.7 This hypothetical result is not contemplated by the statute. Instead, on this motion, as in any motion for summary judgment, the judge is not to resolve any factual disputes or weigh the evidence presented by both sides, but merely to determine whether a reasonable jury could find for the non-moving party.8 In Salas v. Hanil Dev. Co.,9 the Court explained:
Accordingly, if Plaintiffs' evidence is sufficient to allow a reasonable jury to find that the CPGA does not apply by the clear and convincing evidence standard, the Defendant's motion should be denied.11 The court should be especially hesitant to grant summary judgment when, as here, the non-moving party has not been allowed to conduct any discovery.12
Finally, defendant argues that in order to be "clear and convincing," evidence must be "so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue."13 This test, cited in Shorehaven Corp. v. Taitano,14 was used to describe the type of evidence that would suffice to overcome the presumption of veracity that attaches to notarized documents, and is a higher standard than is required here.15 In the defamation context, as in most contexts, "clear and convincing" is typically defined as "evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof.16 The facts presented by Plaintiffs in this case are sufficient to meet their burden of production under the clear and convincing standard.
For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendant's Motion to Dismiss and grant such other and further relief to which Plaintiffs may be justly entitled. DATED this 19th day of February, 2007.
LAW OFFICES OF RICHARD A. PIPES
201. More Likely True-Clear and Convincing Proof
In this case, there are some specific facts that must be proved by the higher standard of clear and convincing evidence. This means that the party must persuade you that it is highly probable that the fact is true.
I will tell you specifically which of the facts must be proved by clear and convincing evidence. All the other facts will be proved if they are more likely to be true than not true.
Directions for Use
Evidence Code section 502 requires the court to instruct the jury regarding which party bears the burden of proof on each issue and the requisite degree of proof.
This instruction should be read immediately after Instruction 200, Obligation to Prove-More Likely True Than Not True, if the jury will have to decide an issue by means of the clear-and-convincing evidence standard.
Discussing the requirements of Title 11 GCA § 106601(b), the court in Bank of Guam v. Guam Banking Bd., 2003 Guam 9,140, stated:
Regarding the evidence required to set aside a judgment for fraud under Rule 60(b)(3) of the Guam Rules of Civil Procedure, the court in Town House Dept. Stores, Inc. v. Ahn, 2003 Guam 6, 159, stated:
Discussing the evidence required to overcome the presumption of authenticity of documents duly acknowledged by a notary public, the court in Shorehaven Corp. v. Taitano, 2001 Guam 16, ¶ 19, stated:
"Clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Shorehaven Corp. v. Taitano, 2001 Guam 16, 119 (Guam 2001) (in the context of evidence necessary to overcome the presumption of veracity or of documents duly acknowledged by a notary, quoting In re Chiovero, 570 A.2d 57, 60 (Pa.1990)).
Regarding the termination of parental rights, "[c]lear and convincing evidence is defined as `that measure of degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" 19 GCA § 13101(h) (1994). Coffey v. Government of Guam, 1997 Guam 14, ¶3; 1997 WL 1051626 (Sup, Ct. Guam 1997).
Judicial Council of California Civil Jury Instructions, Inst. 201.
1. 7 G.C.A. § 17106(a).
2. 7 G.C.A. § 17106(b).
3. 7 G.C.A. § 17106(c).
4. 7 G.C.A. § 17106(e) (emphasis in original).
5. 7 G.C.A. § 17106(e).
6. See Manvil Corp. v. E. C. Gozum & Co., 1998 Guam 20, ¶ 6 (explaining that summary judgment is not appropriate "if there is sufficient evidence which establishes a factual dispute requiring resolution by a fact finder . . .. The court must view the evidence and draw inferences in the light most favorable to the non-moving party.") See also Zoppo v. Foster, No. Civ. A. 96-2448, 1997 WL 197025 at *3 (Mass. Super. April 22, 1997) (holding that anti-SLAPP statute shifting burden of production to plaintiff on motion to dismiss "does not mean to require a trial by affidavit at this stage").
7. For example, in this case, defendant submitted affidavits with her reply rather than in her initial motion.
8. See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986) ("at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial"); Mann v. Quality Old Time Service, Inc., 120 Cal. App. 4th 90, 105 (Cal. App. 2004) (holding, on motion for summary judgment in anti-SLAPP case, that the court "may not weigh the credibility or comparative probative strength of competing evidence").
9. Nos. CIV 92-0030A, CV0454-91, 1993 WL 128224 (D. Guam App. Div. April 8, 1993).
10. Id at *2. See also Wilbanks v. Wolk, 121 Cal. App. 4th 883, 905 (Cal. App. 1st Dist. 2004) (holding that allowing court to weigh evidence on motion to strike under California's anti-SLAPP statute "would be subject to constitutional attack as allowing the court to weigh and adjudicate factual disputes in violation of the right to a trial by jury); Colt v. Freedom Comm., 190 Cal. App. 4th 1551, 1557 (Cal. App. 4th Dist. 2003 (applying summary judgment standard on SLAPP motion and explaining, "the Court may not weigh the evidence or make credibility determinations; doing either would violate plaintiffs right to a jury trial.").
11. See lizuka Corp. v. Kawasho Int'l (Guam) Inc., 1997 Guam 10, ¶ 8 ("The court's ultimate inquiry is to determine whether the `specific fact' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.") (internal quotation omitted).
12. See Kim v. Hong, 1997 Guam 11, ¶ 8 (holding that summary judgment is appropriate if non-moving party cannot produce evidence sufficient to show issue of material fact "after adequate time for discovery"); see also Rule 56(f) (providing that court may deny summary judgment when discovery is needed).
13. Defendant's Reply at 29.
14. 2001 Guam 16, 119. See also Proposed Guam Civil Jury Instructions, Jury Instr. 201, filed with the Supreme Court on January 25, 2007, a true copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference (noting that Shorehaven definition was used in context of notarized documents).
15. In fact, this test is closer to the standard of proof "beyond a reasonable doubt" than it is of "clear and convincing" evidence. See Black's Law Dictionary (6th Ed. 1990) (defining "beyond a reasonable doubt" as "fully satisfied, entirely convinced, satisfied to a moral certainty; and phrase is the equivalent of the words clear, precise and indubitable").
16. See Cal. Jury Instr. 2.62 (2006); Proposed Guam Civil Jury Instr. 201 (clear and convincing proof "means that the party must persuade you that it is highly probable that the fact is true"). See also Black's Law Dictionary 251 (6'h Ed. 1990) (defining "clear and convincing proof' as "[t]hat proof which results in the reasonable certainty of the truth of the ultimate fact in controversy" or evidence showing that "the truth of the facts asserted is highly probable").
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