With the September 6th date for the hearing regarding the defendants’ Motions to Dismiss in the ongoing defamation case brought against them by Dragon Ball Super: Broly voice actor Vic Migogna drawing close, the legal team for Vic Mignogna has filed a response to the Motions to Dismiss while the defendants’ legal teams have simultaneously filed further documents in support of said Motions.
In the original Motions to Dismiss, the attorneys for both Funimation and Dragon Ball Super voice actor Monica Rial and her fiancée Ron Toye both cited the Texas Citizens Participation Act (TCPA), claiming that legal action could not be brought against them because they were merely exercising their rights to free speech and association. In the recently filed Plaintiff’s Response to Defendants’ TCPA Motions to Dismiss, Mignogna’s attorney Ty Beard “objects to Defendants’ evidence, shows they fail to meet their burdens, meets his burden, and requests that the Court strike Defendants’ evidence and deny their motions to dismiss.”
The Response opens with a background to the events of the case which differs from previous backgrounds by featuring citable evidence, such as photographs, affidavits, and deposition testimony, which serve to provide further details and context to the lawsuit. This background is then followed by Mignogna’s objections to the motions:
“Defendants’ motions to dismiss initiated a three-step process. First, each Defendant has the initial burden to show, by a preponderance of the evidence, that Vic’s claims against it/her/him are based on, related to, or in response to that Defendant’s exercise of the right of free speech, the right to petition, or the right of association. […] A “preponderance-of-the-evidence” means that the greater weight and degree of credible evidence creates a reasonable belief in the truth of the matter. […] The Court considers the live pleadings as well as supporting and opposing affidavits stating the facts on which the claims are based. […] Hence, each Defendant must show it is more likely than not—based on the pleadings and affidavits—that Vic’s claims against it/her/him are based on, related to, or in response to that Defendant’s exercise of a right protected by the TCPA. […]
Whether the TCPA applies is the threshold question. […] The Court must first ascertain that the rights a Defendant claims are constitutional rights protected by the First Amendment as defined in the TCPA and that Vic’s legal action was brought to intimidate or silence that Defendant’s expression of those rights in a matter of public concern. […] If a Defendant cannot satisfy its burden, its motion must be denied.”
In support of these objections Beard cites numerous issues he believes disqualifies the defendants’ motions, arguing that “defendants’ communications are not subject to the TCPA’s protections,” “Vic can establish a prima facie case of his claims,” and “defendants fail to establish their affirmative defenses. among other points.”
Beard also objects to the affidavits of Robin Michelle Blankenship McConnell, Kara Edwards, Lynn Hunt, Faisal Ahmed, Mary Reese, Whitney Falba, Neysha Perry, Adam Sheehan, Kelly Loftus, Michelle Specht, and John Prager, with many of these objections based upon the respective affidavits failing to meet the standards set by the Texas Rule of Evidence 401 for relevant evidence and for violations of Texas Rule of Evidence 404, which states that “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”
However, Beard’s filing is not without its issues and those seen within the response could pose trouble for Mignogna, Beard, and his team. Regarding the submitted filing, many of the footnotes feature blank or placeholder text (thus making many of the citations unverifiable within the document), the document was filed approximately 15-minutes after the midnight deadline set on the night of August 31st, and allegations have surfaced that Beard improperly notarized the included affidavits from Dragon Ball Super voice actor Chuck Huber, Kamehacon owner Chris Slatosch, and Mignogna.
Beard attempted to rectify these errors by filing a Plaintiff’s Motion for Leave to File Late Response to Defendants’ TCPA Motions to Dismiss Due to Technical Issues to ask the court to accept the late filing and a Notice that the affidavits included were to be withdrawn, though the court has yet to comment on these filings. The accusations of improper notary conduct have yet to be verified, and Beard has not publicly commented on these allegations.
These filings have not been without opposition as the defendants’ legal teams have also submitted further documents opposing Mignogna’s lawsuit to the court. Funimation offered a Response to Plaintiff’s Objections to and Motion to Strike Evidence Offered in Support of Defendant Funimation’s Motions to Dismiss in defense of the affidavits and competencies of Scott Barretto, Tammi Denbow, and Karen Mika.
In a rare filing by Jamie Marchi, Marchi filed her Reply to Plaintiff’s Response to Defendant Jamie Marchi’s Motion to Dismiss Pursuant to the Texas Citizens Participation Act in an attempt to dismiss the lawsuit by citing the TCPA.
Rial and Toye submitted their Reply in Support of Monica Rial and Ronald Toye’s Motion to Dismiss which attempts to call in to question allegations of defamation while also, curiously, arguing that “The Court Cannot Trust Plaintiff’s Citation to Evidence and Has No Obligation to Search Over a Thousand Pages to Find Evidence” and the “Plaintiff’s Failure to Provide the Complete Context of the Defamatory Publications Requires Dismissal of Almost All of the Defamation Claims.”
The aforementioned problematic filing by Beard was also seized upon by each defendant. The lawyers representing Funimation, Rial and Toye, and Marchi jointly filed a Defendants’ Omnibus Objections to Plaintiff’s TCPA Evidence. This filing argues that various evidence should be rendered inadmissible and stricken from the record due to being “deficient.” This includes Beard’s filing for the aforementioned reasons and various affidavits, such as those submitted by Stan Dahlin and Chuck Huber, for a range of violations including accusations of “speculation,” “lack of relevance,” and “[failure] to specify parties to alleged conversations.
The hearing for the Motions to Dismiss will be held on September 6th at 10:00 AM CST.