A recent filing by the legal team representing Dragon Ball Super: Broly voice actor Vic Mignogna in his ongoing defamation lawsuit requests that the court strike selected pieces of evidence offered in support of Funimation’s TCPA filing as the team believes these pieces are based on “hearsay”.

On July 24th, attorney Ty Beard filed a Plantiff’s Objections to and Motions to Strike Evidence Offered in Support of Defendant Funimations’ Motion to Dismiss with the Tarrant County court in Texas. In the filing, Beard requests affidavits filed by individuals involved with Funimation be struck from the evidence, either partially or in full, alleging “hearsay” within each respective affidavit.

This request includes affidavits filed by Vice President of Operations at Funimation Karen Mika, whom Beard states that she does not show “how her position with the company makes her competent to testify to the facts she declares (i.e., how she acquired personal knowledge of the facts shown),” that multiple times she “is testifying about statements (i.e., “allegations of sexual misconduct”) made by someone other than Ms. Mika,” and that “she is making legal conclusions regarding questions of law”:

“In her affidavit, Ms. Mika does not show how, as Vice President of Operations, she obtained personal knowledge of the facts alleged in paragraphs 5, 7 or 9 — for example, she does not testify that she read (or that it was an essential role of her position as Vice President of Operations to read) the tweets or posts mentioned in paragraph 5, that she oversaw (or that it was an essential role of her position as Vice President of Operations to oversee) the investigation mentioned in paragraph 7, or that she controlled (or that it was an essential role of her position as Vice President of Operations to control) the social media activity of Funimation’s employees or contractors.  In short, she failed to show personal knowledge of the facts alleged in these paragraphs.

[…]

Plaintiff objects to Ms. Mika’s testimony as hearsay. Ms. Mika is testifying about statements (i.e., “allegations of sexual misconduct”) made by someone other than Ms. Mika (i.e., by twitter user “@hanleia” and other “negative twitter posts and … other sources within the anime community”) which are offered to prove the truth of the matter asserted (i.e., that the content of these statements asserted “sexual misconduct” by Plaintiff); this is hearsay.

[…]

Plaintiff objects to Ms. Mika’s testimony as hearsay. Ms. Mika is testifying about a statement (i.e., Ms. Simon requesting that Mr. Hall conduct an investigation) made by someone else (i.e., Ms. Simon) which is offered to prove the truth of the matter asserted (i.e., that Ms. Simon requested an investigation); this is hearsay.

[…]

Plaintiff objects to Ms. Mika’s testimony as hearsay. Ms. Mika is testifying about a statement (i.e., allegations of inappropriate conduct) made by someone else (i.e., Ms. Denbow) which is offered to prove the truth of the matter asserted (i.e., that Ms. Denbow determined certain allegations were credible); this is hearsay.

[…]

Plaintiff objects to Ms. Mika’s testimony, because she is making legal conclusions regarding questions of law. Whether Defendants Rial, Marchi or Toye had actual or apparent authority to act as Funimation’s agent is a mixed question of law and fact.”

Executive Director, Employee Relations at Sony Pictures Tammy Denbow, whom Beard similarly claims “is testifying about statements (i.e., allegations; want to share information) made by someone else,” including Monica Rial, “two female fans,” and an “unnamed Funimation employee”:

“Plaintiff objects to Ms. Denbow’s testimony as hearsay and lacking a proper foundation. Ms. Denbow is testifying about statements (i.e., the allegations on social media) made by someone else (i.e., not Ms. Denbow) which are offered to prove the truth of the matter asserted (i.e., that these allegations had been made on social media); this is hearsay.

[…]

Plaintiff objects to Ms. Denbow’s testimony as hearsay. Ms. Denbow is testifying about statements (i.e., allegations; want to share information) made by someone else (i.e., two female fans and Ms. Rial) which are offered to prove the truth of the matters asserted (i.e., that two female fans made allegations of inappropriate conduct; that Ms. Rial wanted to share information about a personal experience); this is hearsay. TEX. R. EVID. 801. Indeed, Ms. Denbow’s testimony is hearsay within hearsay: she is testifying about out-of-court statements supposedly made by someone else (i.e., “I was given information by Funimation”; “I was also alerted by Funimation”) about out-of-court statements supposedly made by different persons (i.e., allegations by two female fans; Ms. Rial wanted to share information).

[…]

Plaintiff objects to Ms. Denbow’s testimony as hearsay. Ms. Denbow is testifying about statements (i.e., allegations) made by someone else (i.e., Ms. Rial, two female fans, and an unnamed former Funimation employee) which are offered to prove the truth of the matters asserted (i.e., that Ms. Rial, two female fans, an unnamed former Funimation employee alleged inappropriate conduct)”

And Head of Public Relations at Funimation Scott Barretto, with Beard again citing the hearsay nature of the provided affidavit:

“Plaintiff objects to Mr. Barretto’s testimony as hearsay. Mr. Barretto is testifying about statements (i.e., allegations, publications, tweets, social media posts, threats, support) made by persons other than Mr. Barretto (i.e., Anime News Network, Polygon.com, unnamed members of the anime community, unnamed supporters of Plaintiff, unnamed supporters of those making allegations) which are offered to prove the truth of the matter asserted (i.e., that the allegations had been made, that Anime News Network and Polygon.com published articles about the allegations, that unnamed persons threatened other unnamed persons, that unnamed persons supported other unnamed persons); this is hearsay.

[…]

Plaintiff objects to this testimony because it lacks foundation, constitutes hearsay, and is inadmissible since the actual tweets are available. Though Mr. Barretto testifies that he is “familiar with Funimation’s media and social media-related activities” and that he monitors “media and social media posts related to Funimation,” he does not testify that he wrote Funimation’s February 11, 2019 tweets.  While a witness may testify to his own intent, Fuller v. Preston State Bank, 667 S.W.2d 214, 220 (Tex. App.—Dallas 1983, writ ref’d n.r.e.), Mr. Barretto is required to show how he would know Funimation’s intent underlying its tweets. Cunningham, 352 S.W.3d at 534.  Absent this evidence, Mr. Barretto’s testimony about Funimation’s intent lacks the proper foundation for relevance and admissibility. TEX. R. EVID. 104.

[…]

Plaintiff objects to Mr. Barretto’s testimony because it lacks foundation, constitutes hearsay, and is inadmissible since the actual tweets are available. Mr. Barretto does not testify that he wrote Funimation’s February 11, 2019 tweets, that he was involved in (or that the essential functions of his job at Funimation involved him participating in) Funimation’s investigation of Plaintiff, Funimation’s decision to recast Plaintiff in Morose Mononokean 2, or its decision against engaging Plaintiff in future productions.  His testimony thus fails to affirmatively show how he acquired personal knowledge of Funimation’s investigation, its decision to recast Plaintiff, its decision against engaging Plaintiff in future productions, or the intent behind its February 11, 2019 tweets.

[…]

Plaintiff objects to the eighth paragraph of the Barretto Affidavit for its failure to show the requisite predicate for his testimony, constitutes hearsay, and fails to authenticate Exhibits D-W attached to Funimation’s Motion; also, Plaintiff objects to Exhibits D-W as unauthenticated and hearsay. In the eighth paragraph of his affidavit, Mr. Barretto testifies that Exhibits D-W attached to Funimation’s Motion are “true and correct copies.”  However, he does not proffer any evidence that he is a custodian of records or otherwise has any requisite personal knowledge to establish what each exhibit is. TEX. R. EVID. 104, 901; see Cunningham, 352 S.W.3d at 534 (corporate affiant must affirmatively show how he acquired personal knowledge of the facts averred).  If he is testifying to what others told him about the documents (or what the documents purport to say about themselves), that is hearsay — for he is testifying to out-of-court statements made by other persons offered to prove the truth of the matter asserted.”

Following the filing of the Motions to Strike, all parties were notified that the motion would be heard in court on August 8th.

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About The Author

Spencer is a contributing reporter for Bounding Into Comics. Unabashed anime fan, life-long comic book reader, avid video game player, and in need of a separate house for all of his figures. Trying to sift through the noise to bring the readers the facts.

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