UPEPA Decision Path Phase II Prima Facie Validity
UPEPA07 Prima_Facie_Validity SectionDecisionPathPrimaFacieValidity
PRIMA FACIE VIABILITY
Section 7(a). In ruling on a motion under Section 3, the court shall [dismiss] [strike] with prejudice a [cause of action], or part of a [cause of action], if: . . .
DISCUSSION
The analysis of prima facie validity constitutes Phase Two of the Uniform Public Expression Protection Act (UPEPA) special motion procedure. This stage is only reached if the court first determines that the Act applies to the challenged cause of action under Phase One. At this juncture, the burden shifts entirely to the respondent—the party who brought the original lawsuit—to demonstrate that their case possesses a minimum degree of factual merit.
The Standard of Factual Sufficiency
To satisfy the prima facie requirement, the respondent must establish a "prima facie case" for each essential element of the cause of action. In this context, "prima facie" is defined as the minimum quantum of evidence necessary to support a rational inference (read: sufficient to support a jury finding) that the allegation of fact is true. This standard is designed to be a "weeding out" mechanism to identify meritless claims early in the litigation process. If the respondent fails to establish factual support for even a single essential element, the special motion must be granted, and the cause of action is dismissed with prejudice.
Evidentiary Requirements and Court Review
Because the special motion functions similarly to an early summary judgment motion, the court considers the pleadings and any admissible evidence that would be relevant under a state’s summary judgment rules, such as affidavits and declarations. However, a critical "non-weighing" principle applies: the court does not determine the credibility of witnesses or weigh competing evidence. Instead, the court must take the respondent’s evidence as true and determine if, when credited, it would be sufficient to sustain a favorable judgment at trial.
Contextual Considerations and Leeway
A recurring technical issue in Phase Two is that the respondent is often forced to prove their case at the very outset of litigation, before traditional discovery has been conducted. In recognition of this difficulty, legal commentary suggest that courts should grant some degree of leeway to the respondent. While the respondent must still "get their ducks in a row" before filing, the court may lean slightly in their favor compared to a traditional summary judgment motion filed after the close of discovery.
The Role of the Movant in Phase Two
While the primary burden in Phase Two rests on the respondent, the movant remains a participant in the analysis. The movant may weigh in by attempting to rebut the respondent’s prima facie showing. For example, if a respondent presents an affidavit stating they were defamed by a false statement, the movant can provide unrebutted evidence proving the statement was actually true. If the movant can prove that the respondent cannot possibly make out a legally viable case despite their pleadings, the respondent has failed their Phase Two burden.
EXEMPLARY OPINIONS
The following cases demonstrate the technical application of the prima facie validity (Phase Two) analysis in recent appellate rulings.
Cook v. Trimble (Minnesota)
In the first Minnesota opinion to consider the UPEPA, the Court of Appeals applied Phase Two to differentiate between viable and meritless claims. The plaintiff, Cook, brought defamation and invasion of privacy claims. For the defamation claims, the court found that Cook failed his Phase Two burden because he could not produce clear and convincing evidence of malice—an essential element of his claim. Because he failed to establish this "minimum quantum of evidence," those claims were dismissed. However, the court held that Cook did successfully establish a prima facie case for his invasion of privacy claim, allowing that specific cause of action to survive the special motion and proceed to further litigation.
Andes Roofing, LLC v. Rusnak (Kentucky)
This 2025 Kentucky ruling highlights how courts distinguish between actionable facts and protected opinions during Phase Two. The defendant, Rusnak, made several statements that the trial court initially dismissed as mere opinion. On appeal, the court utilized the Phase Two analysis to determine if the plaintiff, Andes Roofing, could provide minimal evidence for each element of defamation. The court found that while most of Rusnak's statements were indeed protected opinions, one specific statement—that Andes Roofing deleted negative reviews—was a verifiable statement of fact. Consequently, the court found that the plaintiff had met its prima facie burden for that single claim, remanding it for further discovery.
Jha v. Khan (Washington)
The first state appellate court to interpret the UPEPA, Jha v. Khan, illustrates the high evidentiary bar for respondents during Phase Two. Jha brought an invasion of privacy claim against Khan based on her statements regarding pending litigation against him. To satisfy Phase Two, Jha was required to prove every element of his claim, which necessitated a showing of falsity. The court found that Jha’s burden was impossible to meet because Khan’s statements were strictly true—Jha was, in fact, involved in the referenced litigation. Because Jha could not establish a prima facie case based on true statements, his entire complaint was dismissed with prejudice.
Mackey v. Krause (Utah)
In Mackey v. Krause, the Utah Supreme Court emphasized that the Phase Two standard is identical to a motion for summary judgment, where the plaintiff must show "at least minimal evidence supporting each element". A technical dispute arose regarding who bore the burden of proving an affirmative defense (privilege). The court ruled that within the UPEPA framework, the burden remained on the plaintiff to prove the absence of any privilege to satisfy the "each essential element" requirement of Phase Two. The case was remanded to determine if the plaintiff could meet this specific factual burden.
PRIMA FACIE VALIDITY OPINIONS