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Right - I was about to start going through Mr. Lemoine's response to the foolishness that was filed yesterday when I noticed the Martinez notice of appearance and got distracted by the shiny new object.

Back to business.
I haven't looked at more than bits and pieces of this, so it's completely new to me. I'm going to jump ahead to the prayer to start with, since this is out into unusual territory.

Looks like Lemoine is covering his bases by requesting leave as an in the alternative request.
That seems reasonably prudent, although probably not strictly necessary. Based on how Judge Chupp reacted when Hsu tried to expansively define "instrument" at the TCPA hearing, I doubt their interpretation of "ruling" on the motion will get much traction.
Moving to the start, and the inevitable small-caps:

I'm not a huge fan of the "if you're convinced it's irrelevant, just don't show up" argument. But the reminder that there might be call for sanctions against plaintiff's lawyers isn't uncalled for under the circumstances.
Embarrassingly, I missed this point last night - the objection raised in the opposition to the motion to compel is completely different from the objections raised in Ty's motion to quash.

If they're shifting responsibility from BHBH to Martinez Hsu, it's not going smoothly.
The remainder of the first two paragraphs is concise, to the point, and well-argued.

It's also an argument that relies on nothing more than the plain language of the statute - which always helps.
It also doesn't hurt that the position the plaintiffs are taking is entirely inconsistent with the position taken in the Notice of Appeal.

There seems to be some confusion on this point, so I'll try to explain:
Ty has no right to appeal the TCPA ruling until there's a final *judgment* in the case - not merely a *ruling* on the motion, but the filing of the document that closes out the case at the trial court level. Ty has filed an appeal, so presumably Ty thinks that's happened.
Yet Ty is now arguing that even the *ruling* on the motion to dismiss isn't done yet - but if he's right about that, his appeal is nonsense. Ty's position in this motion and Ty's position in the notice of appeal are mutually incompatible.
Lemoine's position, on the other hand, is consistent (and correct). The motion to dismiss has been ruled upon, so the discovery stay has lifted, but there is not yet a final judgment closing out the case because the fees order hasn't been entered.
In other words, for Lemoine to be correct, it is only necessary for the motion to dismiss and the subsequent fees motion to be two different things. For Ty to be correct, the ruling on the motion to dismiss must totally end the case even though there will be a fees order later.
Moving on, Lemoine also points out the peril of moving for sanctions - if your motion fails, the court can sanction you, so it's a bit of a risk.
Footnote 5 is well-done. The demand for oral argument, in particular, makes it clear that this is at least as much about delay and avoidance as keeping costs down. Fn 5 highlights that nicely.
Highlighting the total lack of case law in the motion was a good call, given the sanctions demand.
And the argument for why the deposition will demonstrate the frivolousness of some of the claims that were brought is very good - and covers a line of argument that I'd not even considered. It makes the relevance of the depo for sanctions crystal clear.
Further anchoring that relevance to Ty's attempt to overspin the affidavit at the hearing won't hurt, either.
Side note here - I'd hate to be whoever at Martinez Hsu is trying to untangle the file right now. There's been an incredible amount of the most gratuitously spectacular clownfuckery in this case, and they're going to have some trouble trying to find reality.
I think Lemoine was done with Ty's nonsense a long time ago - but this should dispell any lingering doubts.

"Stench of falsity" is a nice - and accurate - turn of phrase.
I don't think this is grammatically correct. But the point is still clear. And absolutely correct.
And the in the alternative argument - made, in part, through effective use of the subheading - is clearly stated.
A lot of judges hate spending time on collateral matters like sanctions. But everything that Lemoine has done, as well as everything that Vic's defense team has done, are nudging the needle in the right direction to get permission for this deposition.
Still wouldn't be surprised if Judge Chupp decides the deposition isn't necessary - but Vic's team are doing their best to persuade him that it is, with some help from Lemoine.

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