JUSTIN W. WAYMENT (7011) CHRISTIAN JONES (15873) Attorneys for Respondent 51 East 400 North #1 P.O. Box 1808 Cedar City, UT 84721-1808 ‘Telephone: (435) 586-3300 Fax: (435) 586-4288 Email: jwayment@waymentandjoneslaw.com jones@waymentandjoneslaw.com IN THE FIFTH JUDICIAL DISTRICT COURT IN AND FOR Emai IRON COUNTY, STATE OF UTAH ANNA PAULINA LUNA, Petitioner, CLOSING ARGUMENT v EDWARD ALEXANDER Case No. , MAYERHOFER, Tudge , an Respondent. COMES NOW Respondent, EDWARD ALEXANDER MAYERHOFER (“Mr Mayerhofer”), by and through counsel, Christian Jones of Wayment & Jones Law, and hereby submits the following Closing Argument in defense of the claims by Petitioner, Anna Paulina Luna (“Petitioner”), against him. CONCISE STATEMENT OF THE RELIEF REQUESTED Pursuant to the United States Constitution, Amendment J; the Utah Constitution, Article 1, § Land § 15; the Utah Rules of Civil Procedure (“Rule” or “Rules”), Rule 7; and the Utah Code Ann (“UCA”) §76-5-106.5, §77-3a-101, and §78B-5-825, Respondent, Mr. Mayerhofer, Page 1 of 21respectfully requests that this Court dismiss the Temporary Civil Stalking Injunction, entered ex parte, with prejudice and enter an order requiring Petitioner to pay Respondent’s costs and attorney fees incurred in defending against the false and misleading statements set forth in Petitioner's Request for Civil Stalking Injunction. INTRODUCTION This case is about nothing more than a political candidate attempting to silence a critic. Petitioner has a very public presence and is currently running for political office. Mr. Mayerhofer has been critical of statements Petitioner has made which he believes are false or misleading. Petitioner filed her Request for Civil Stalking Injunction in an attempt to utilize the protections afforded under the civil stalking statutes to prevent Mr. Mayerhofer from continuing to comment on Petitioner's political activities and representations. Petitioner has attempted to frame this matter as one (1) in which a violent family member has maliciously stalked an innocent family member. However, Mr. Mayerhofer is not violent and the fact that he is Petitioner's biological uncle is irrelevant. Permitting Petitioner to utilize a civil stalking injunction to silence a political critic would be an impermissible restriction on Mr. Mayerhofer’s free speech, thereby violating his constitutional rights. LEGAL STANDARD Under UCA §77-32-101(6)(a), Petitioner is required to show, by a preponderance of the evidence, that Mr. Mayerhofer did in fact stalk her.“Utab’s Stalking Statute defines the crime of stalking as follows: Page 2 of 21A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person: (a) to fear for the person's own safety or the safety ofa third person; or (b) to suffer other emotional distress. Baird v. Baird, 2014 UT 08, | 23, 322 P.3d 728, 734, citing UCA §76-S—106.5(2) (emphasis added). Further, “{t]he Stalking Statute defines ‘reasonable person’ as ‘a reasonable person in the victim's circumstances.”” /d., citing UCA §76-5-106.5(1)(e). However, courts must be careful not to utilize a civil stalking injunction to abridge an individuals rights of free speech. Specifically, pursuant to the United States Constitution, Amendment I: Congress shall make no law ... abridging the freedom of speech, or of the pres Further, pursuant to the Utah Constitution, Article I, § 1 All men have the inherent and inalienable right ... to communicate freely their thoughts and opinions, being responsible for the abuse of that right. Furthermore, pursuant to the Utah Constitution, Article I, § 15: No law shall be passed to abridge or restrain the freedom of speech or of the press. Inall criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Accordingly, itis clear that any abridgment of the freedom of speech is highly disfavored. STATEMENT OF FACTS 1. Petitioner is Respondent's biological niece. 2. While Petitioner was young, her father, George Mayerhofer, was in and out of the picture and was not what she would call a full-time parent. Page 3 of 213. Onmore than one (1) occasion, Petitioner’s father went to jail for failing and/or not being able to pay child support. 4, Petitioner’s father has a history of drug use. 5. Growing up, Petitioner spent a lot of time with her paternal grandparents. 6. During this time, Petitioner also spent a lot of time with Mr. Mayerhofer, Jolanza Mayerhofer (“Mrs. Mayerhofer”), and Nicole Mayerhofer (“Nicole”). 7. Petitioner and Nicole were good friends. 8. Mr. Mayerhofer and Mrs. Mayerhofer included Petitioner in family trips, such as to Disneyland, bought Petitioner and Nicole matching clothes, and made sure Petitioner had presents on Christmas and her birthday. 9. When Petitioner was in high school she began skipping school, drinking alcohol, and doing drugs 10, Mr. Mayerhofer notified Petitioner’s father that she was skipping school, drinking alcohol, and doing drugs. 11. After Mr. Mayethofer notified Petitioner's father that she was skipping school, drinking alcohol, and doing drugs, Petitioner cut off all contact with Mr. Mayerhofer and Mrs. Mayerhofer. 12. Respondent is a Republican, 13, Respondent is a life long member of the National Rifle Association (“NRA”). 14. Respondent has followed Turning Point USA (“TPUSA”) since approximately 2015, when Donald Trump ran for president. Page 4 of 2115. Mr. Mayerhofer is not a violent person. 16. Mr. Mayerhofer does not speak in a demeaning or derogatory manner with his, family, friends, relatives, or others. 17. Mrs. Mayerhofer has never seen Mr. Mayerhofer act violently. 18. Mrs. Mayerhofer has never seen Mr. Mayerhofer attack anyone. 19. Petitioner has not seen Respondent in approximately 15 years. 20. Petitioner has not spoken or had contact with Respondent in at least 10 years. 21. Petitioner entered the political arena in 2019. 22. Petitioner is running as a Republican. 23. Petitioner has previously made appearances on Fox News. 24. Petitioner has previously worked for a very political non-profit organization, TPUSA, that does outreach. 25. Petitioner is running for political office. 26. Currently, Petitioner is solely working in the political field advocating for organizations or for her political campaign. 27. Petitioner has made numerous inflammatory and unproven charges against her political opponents. 28. Petitioner maintains a public presence on multiple social media platforms. 29. Petitioner’s social media handle across the various social media platforms is realannapaulina. 30. Petitioner’s social media handle is public. Page 5 of 2131. Petitioner's public social media handle permits people to follow what she is doing politically. 32. Petitioner has made numerous public claims in her bid for political office. ELS Several of Petitioner’s claims have come across Mr. Mayerhofer’s social media time line feed because of his affiliation with the NRA and because he has followed TPUSA since approximately 2015, 34. Mr. Mayethofer did not ever seek out Petitioner. 35. Based upon the information Mr. Mayerhofer knew and/or had seen, he took issue with several of Petitioner's claims as some of Petitioner's claims were untrue as far as Mr. Mayerhofer knew. 36. Accordingly, Mr. Mayerhofer commented on Petitioner's public claims that he took issue with. a. Mr. Mayerhofer comments contained either @realAnnaPaulina or #realannapaulina. b. Mr. Mayerhofer has no actual knowledge of whether or not Petitioner or her employer were contacted as a result of his comments, as Petitioner claims. c. However, Petitioner provided no tangible evidence that either she or her employer were contacted as a result of Mr. Mayerhofer’s comments. 37. Specifically, Mr. Mayerhofer took issue with, what he perceives as misleading statements by Petitioner in an attempt to curry favor with a minority group for votes. 38. As far as Mr. Mayerhofer knew Page 6 of 21a. Petitioner’s last name was not Luna; b. Petitioner was not 50% Latina; and c. Petitioner did not speak Spanish. 39. Moreover, Petitioner’s great grandfather, Mr. Mayerhofer’s grandfather, did not fight and die along side Pancho Villa in the Mexican Revolution. 40. Mr. Mayethofer has no idea where Petitioner got the Pancho Villa story from, but Pancho Villa died fifteen (15) years before his grandfather, Petitioner’s great grandfather, was murdered, 41. Afler Mr. Mayerhofer commented on Petitioner's claims Petitioner filed her Request for C: il Stalking Injunction, which was granted ex parte. 42. Petitioner, her husband (Andrew J. Gamberzky), her mother (Monica T. Barajas), and her father (George H. Mayerhofer) all provided swom statements which were filed with Petitioner's Request for Civil Stalking Injunction. a. Inher declaration, Petitioner claimed that Mr. Mayethofer’s statements were defamatory and slander. b. However, Petitioner has not filed a suit for defamation against Mr. Mayerhofer. 43, Additionally, in obtaining the exhibits attached to her Request for Civil Stalking Injunction, Petitioner personally and through her friends including, but not limited to, Keith Lackenberg (an intern with Judicial Watch as one of their investigative attorneys), and contacting Page 7 of 21Nicole took actions to collect and disseminate information about Mr. Mayerwould to members of his family. 44, Mr. Mayerhofer disputed the claims made in Petitioner's Request for Civil Stalking Injunction as well as in the sworn statements which were filed therewith. 45. This Court set this matter for an evidentiary hearing on February 11, 2020, at 2:00 46. Prior to the hearing, Petitioner submitted a Trial Brief which stated that “[g]iven Petitioner’s status as a running candidate for Congress, the Court may be inclined to view this case as one in which a critic is merely voicing his opinion of a candidate with whom he disagrees.” 47. During the hearing Petitioner bore the burden of proof, by a preponderance of the evidence. 48. __Petitioner’s opening statement framed this matter as looking only at the respective parties” biological connection while wholly disregarding Petitioner's position as a public figure and Mr. Mayerhofer’s free speech rights. 49. Mr. Mayethofer’s opening statement framed this matter as an issue of free speech. 50. During her testimony, Petitioner claimed that Mr. Mayerhofer: a. Was jealous of her father, George H. Mayerhofer. b. Was a violent person. ¢. Spoke to his family, friends, relatives, and others in a demeaning or derogatory manner. Page 8 of 21On one (1) occasion got in the face of his own daughter, calling her the B 51. Petitioner also testified that: d word. a b. a politically, e She entered the political arena in 2019. She has been on TV in the past as a political commentator. TPUSA is a very political organization, People can use the handle realannapaulina to follow what she was doing Currently she is solely in the political field advocating for organizations for her political campaign. f. 8. It is not easy being in the political arena. Mr. Mayerhofer’s comments: i, Are lies. ii, Attack and degrade her character. iii, _Discredit her platform. iv. Discredit her ability to work with different organizations, some of which are the most politically powerful organizations currently in the country. v. Cause her anxiety, make it difficult for her to sleep, and have been emotionally exhausting, vi. Have caused issues in her marriage. Page 9 of 21vii. Have been financially draining because she has hired an attomey, flown to Utah, and been campaigning. h. She and her husband, Andrew J. Gamberzky, had previously been divorced and got remarried. i. She did not answer whether she had legally changed her name to Luna. j She did not answer whether her mother’s maiden name was Luna. k. She is thirty (30) years old. i She joined the military on February 2, 2009. m. __ She hasn't spoken to Mr. Mayerhofer in ten (10) years. i, But that Mr. Mayerhofer contacted her when she was in the air force and threatened to send a photo of her smoking marijuana to her commander. n. She hasn't seen Mr. Mayerhofer in fifteen (15) years. i. But that she saw Mr. Mayerhofer become violent with her father, George H. Mayerhofer, when she was nineteen (19) years old. ©. She feels like Mr. Mayerhofer is attempting to derail her political career. p. She has no personal knowledge that Mr. Mayerhofer knew that tagging someone in a post would notify them. q. She has no personal knowledge that Mr. Mayerhofer contacted her employer. tn Mr. Mayerhofer has not indicated to her that he wants to get Petitioner fired, Page 10 of 21s. Mr. Mayerhofer has not indicated that he is looking for financial gain. t. She is running against a fund raiser of the democrat party. 52. The majority of Petitioner’s testimony was directly controverted by the testimony of Mr. Mayerhofer, Mrs. Mayethofer, and Nicole. 53. Petitioner's mother, Monica T. Barajas, testimony was proffered as: a. Mr, Mayethofer was: : Violent. ii. Exploited his family. fii, Was jealous of George H. Mayerhofer. 54, — Monica T. Barajas’ proffered testimony was directly controverted by the testimony of Mr. Mayerhofer, Mrs. Mayerhofer, and Nicole. 55. Petitioner's father, George H. Mayerhofer, testified that Mr. Mayerhofer pulled George H. Mayerhofer’s 44 magnum gun on him during the Christmas of 2009 at their parents house. 56. However, George H. Mayerhofer also testified that: a. Their parents had passed away in 2003 b. Mr. Mayerhofer purchased the house from the estate. c. Mr. Mayerhofer sold the house. 57. Moreover, George H. Mayerhofer testified that: a. He has a history of drug use. b. He was not legally allowed to own a gun. Page 11 of 21c. He left the gun with his father for safe keeping, d. Even though his dad had passed away in 2003, his dad was still holding on to the gun for him in 2009. 58. Further, George H. Mayerhofer testified that Mr. Mayerhofer was jealous of him. 59. George H. Mayethofer’s testimony was directly controverted by himself and/or the testimony of Mr. Mayerhofer, Mrs. Mayerhofer, and Nicole. 60. Petitioner's husband, Andrew J. Gamberzky, testimony was proffered as: a. He was aware of the marital stress that was on the marriage the last year. 61. Mr. Mayerhofer’s testimony was partially proffered as: a. He has not been in physical altereations with his family and does not have a history of violence. b. He was unaware that tagging somebody in a Facebook post would sent anything to them so for any notifications which were sent directly to the Petitioner, that was unintentional. c. He sold his parents home in 2006. d. He was recovering from surgery around Christmas of 2009 at home with his family in Utah. e. He has never pulled a gun on George H. Mayerhofer. 62. Mr. Mayerhofer testified that: Page 12 of 21a, Alllof the comments that he made were responses to stuff that came over his social media time line as a result of him following web pages like the NRA and TPUSA.because he is a Republican. b. He is a life member of the NRA. ©. At no point ever, did he seek Petitioner out. 63. Ms. Mayerhofer’s testimony was partially proffered as: a. She has been married to Mr. Mayerhofer since 1991 b. She has never seen him attack anybody. cc. Any claims that Mr. Mayerhofer is violent, she would specifically deny. 4. Mr. Mayerhofer did not use drugs. e. George H. Mayerhofer used drugs. £ George H. Mayerhofer was violent. g. She has seen George H. Mayerhofer on drugs and seen him take drugs, bh. She has seen George H. Mayerhofer become violent and assault his father. i, George H. Mayethofer has repeatedly threaten to kill her dog j. She has heard George H. Mayerhofer make statements to other people about doing harm to them. k. Petitioner spent a lot of time with her grandparents growing up. 1. Mr. Mayethofer and Ms. Mayerhofer did birthday things with Petitioner, Christmas, bought her matching clothes, took her to Disneyland and had a very good relationship, when she was younger. Page 13 of 21Petitioner stopped talking with Mr. Mayerhofer and Ms, Mayerhofer after Mr. Mayerhofer told her father that she was ditching school and taking drugs and drinking alcohol. 64. Ms. Mayerhofer testified that: a George H. Mayerhofer was jealous of Mr. Mayethofer, because Mr. Mayerhofer was married and raising a family. 65. _Nicole’s testimony was partially proffered as: Her father, Mr. Mayerhofer was not violent. b The incident Petitioner testified to, wherein she claimed that Mr. Mayerhofer got up into Nicole’s face and called her names were not true. c. Mr. Mayerhofer has not been violent or demeaning or derogatory with his family, this friends, his relatives or others. 66. Nicole testified that: a, She loved both her cousin and her dad. b. Ifyou block somebody on Facebook, you cannot view what they post. ARGUMENT Petitioner has failed to meet her burden of proof in order for a civil stalking injunction to remain in place. UCA §77-3a-101(6)(a). Petitioner is required to show by a preponderance of the evidence, that Mr. Mayethofer did in fact stalk her. Id. "[P]roof by a preponderance of the evidence means the greater weight of the evidence, or as sometimes stated, such degree of proof that the greater probability of truth lies therein." Handy v. U.S. Bank, Nat. Ass'n, 2008 UT App Page 14 of 219, 25, 177 P.3d 80, 8 (internal quotation and citation omitted). Petitioner has failed to provide even a scintilla of credible evidence which would support the claims made in her Request for Civil Stalking Injunction or the testimony she and her witnesses provided. I. __ Intentionally or Knowingly Engaging in a Course of Conduct Directed at a Specific Person. Petitioner provided no tangible evidence that she received notification of the comments Mr. Mayerhofer made. Further, even if Petitioner did receive notification of Mr. Mayerhofer’s comments, he testified that he did not intentionally or knowingly send such notification to Petitioner. Petitioner has stated that by including @ or # and realannapaulina in a post. notification of the post is automatically sent to Petitioner. However, Petitioner is not an expert nor did she provide and evidence which would substantiate her claims. Moreover, the social media handle realannapaulina is public and allows people to follow what Petitioner is doing politically. Moreover, Petitioner provided no evidence which would show that Mr. Mayerhofer contacted her employer or that any of Mr. Mayerhofer’s posts were removed. Petitioner appears to be asserting that essentially anyone affiliated with the Republican party is an associate, affiliate, or employer or hers. Commenting on political statements as a critic of said statements cannot fall under the purview of the civil stalking injunction statutes as the same would have a chilling effect on political speech. See Elks Lodges No. 719 (Ogden) & No. 2021 (Moab) v. Dep't of Alcoholic Beverage Control, 905 P.2d 1189, 1194 (Utah 1995). Accordingly, Petitioner has failed to show that Mr. Mayerhofer intentionally or knowingly engaged in a course of conduct directed at Petitioner. Page 15 of 21I Knows or Should Know that the Course of Conduct would Cause a reasonable person: (a) to fear for the person's own safety or the safety of a third person; or (b) to suffer other emotional distress. In the event that this Court were to determine that Petitioner had satisfied the first prong of the civil stalking injunction, which she did not, Petitioner failed to provide any credible evidence that Mr. Mayerhofer knew or should have known that commenting on Petitioner's political statements would notify her and that such notification would cause her to fear for her own safety or the safety of others, or that it would cause her to suffer emotional distress. Moreover, Petitioner by [her] own actions, entered a political arena in which heated discourse was to be expected and must be protected... [Se] placed [her]self in an arena where he should expect to be jostled and bumped in a way that a private person need not expect.... [T]o protect a vigorous marketplace in political ideas and contentions, we ought to accept the proposition that those who place themselves in a political arena must accept a degree of derogation that others need not. West v. Thomson Newspapers, 872 P.24 999, 1019-20 (Utah 1994). Accordingly, by entering the political arena, Petitioner “must accept a degree of derogation that others need not.” Id Petitioner testified that she had not spoken with Mr. Mayerhofer in ten (10) years, However, she later testified that she had contact with Mr. Mayerhofer when she was in the military, which she had enlisted in eleven (11) years ago. Additionally, she provided no evidence that Mr. Mayerhofer contacted her commanding officer. In fact the testimony was that the photos of her drinking and doing drugs were disclosed to her father when she was in high school. Further, Petitioner testified that she had not seen Mr. Mayerhofer in fifteen (15) years.. However, she later testified that she Mr. Mayerhofer become violent with her father, George H. Page 16 of 21Mayerhofer, when she was nineteen (19) years old, which would have been eleven (11) years ago as she is now thirty (30) years old. Petitioner also testified that she had seen Mr. Mayerhofer become violent with his daughter Nicole, However, this testimony was specifically controverted by Nicole. Accordingly, Petitioner’s testimony regarding Mr. Mayerhofer’s reputation and what ed k she witn ks any credibility The testimony of George H. Mayerhofer is especially noteworthy in this matter. Specifically, he testified that Mr. Mayerhofer pointed George H. Mayerhofer’s own gun, which hhe was not legally allowed to own, at him during Christmas of 2009 in their parents home However, Mr. Mayerhofer had purchased the home after his parents death in 2003, sold it in 2006, was at home recovering in Utah after surgery in 2009, and testified that he never pointed a gun at George H. Mayerhofer or made any threats of violence towards him at that time or any other. What is most important to keep in mind is that Petitioner and her witnesses lacked credibility. Specifically, Petitioner and her father George H. Mayerhofer made claims that Mr. Mayerhofer was violent and that they had witnesses said violence. However, both Petitioner and her father George H. Mayerhofer also claimed that these events took place at times when Petitioner had not seen Mr. Mayerhofer in several years or the home, setting, and incident George H. Mayerhofer testified to could not have been true as the home was owned by an unrelated third-party and Mr. Mayerhofer was recovering from surgery. Accordingly, Petitioner's claims of fear for her safety or the safety of others as well as emotional distress are unfounded and lack any support. Any emotional distress claimed by Petitioner could be related to any number of things, Page 17 of 21such as running for political office. Further, attempting to blame Mr. Mayerhofer for any marital strain her marriage may be experiencing, given her marital history, while running for political office is disingenuous at best. Accordingly, Petitioner is attempting to blame Mr. Mayerhofer for any issues she or her campaign are currently experiencing and is requesting that this Court “criminaliz{e] conduct that only an unreasonably sensitive or paranoid victim would find harassing" thereby requesting that this Court wrongfilly cause "a truly innocent defendant {to] fall[] within the ambit of [the] stalking statute." Baird v. Baird, 322 P.3d 728, 735 27 (2014) (internal quotation and citation omitted). TIL. Free Speech. Petitioner is a public figure as she has “thrust [herself] to the forefront of particular public controversies in order to influence the resolution of the issues involved” by running for political office and providing political commentary on social media and television. Wayment v. Clear Channel Broad. Inc., 2005 UT 25, 22, 116 P.3d 271, 280. Petitioner repeatedly testified about the impact that Mr. Mayerhofer’s comments have had on her political campaign and that she ‘wished he would just stop. Specifically, Petitioner is upset that Mr. Mayerhofer is commenting ‘on and contradicting the narrative that she is attempting to portray for herself. However, attempting to utilize the civil stalking injunction statutes to silence a critic, would be an impermissible restriction on the critic’s right to free speech Due to the unique dynamics present in this matter, even if the civil stalking statutes applied, which they do not, application of the same would be improper as such an application would wrongfully and substantially interfere with Mr. Mayerhofer’s free speech. Accordingly, Page 18 of 21