The opinion
IN THE SUPREME COURT OF
CALIFORNIA
SWEETWATER UNION HIGH SCHOOL DISTRICT,
Plaintiff and Respondent,
v.
GILBANE BUILDING COMPANY et al.,
Defendants and Appellants.
S233526
Fourth Appellate District, Division One
D067383
San Diego County Superior Court
37-2014-00025070-CU-MC-CTL
February 28, 2019
Justice Corrigan authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Manella* concurred.
__________________________________________________________
*
Presiding Justice of the Court of Appeal, Second
Appellate District, Division Four, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
SWEETWATER UNION HIGH SCHOOL DISTRICT v.
GILBANE BUILDING COMPANY
S233526
Opinion of the Court by Corrigan, J.
The narrow question here is what kind of evidence a
court may consider in ruling on a pretrial anti-SLAPP motion
in determining a plaintiff’s probability of success. The inquiry
has two aspects. One addresses the form in which the evidence
is produced in connection with the motion. The other
evaluates whether that evidence will be admissible at an
eventual trial. We conclude the evidence produced by plaintiff
Sweetwater Union High School District (the District) was
properly considered and affirm the Court of Appeal’s judgment.
I. BACKGROUND
In November 2006, voters approved Proposition O, a
bond measure to fund capital improvements in the District.
The District solicited bids to manage various construction
projects funded by the measure. It received seven proposals,
including a joint submission from defendants Gilbane Building
Company (Gilbane), The Seville Group, Inc. (SGI), and
Gilbane/SGI, a joint venture (the Joint Venture). A screening
committee selected three finalists. The final review committee,
consisting of School Superintendent Jesus Gandara and three
others, selected defendants’ proposal as the winning bid.
Gandara was authorized to negotiate a contract. The District
board ultimately approved several contracts with defendants to
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Opinion of the Court by Corrigan, J.
manage projects arising from Proposition O and a previous
measure.
A criminal bribery investigation into the awarding of the
contracts resulted in an indictment. A number of guilty or no
contest pleas followed, including those of Superintendent
Gandara, board of trustees members Pearl Quinones, Arlie
Ricasa, and Gregory Sandoval, as well as Gilbane program
director Henry Amigable and SGI chief executive officer Rene
Flores.
The District sued to void the contracts and secure
disgorgement of funds already paid. It alleged that Amigable,
Flores, and others gave meals, vacations, and event tickets to
Gandara, board members and their families and friends. (See
Gov. Code, §§ 1090, 1092, subd. (a).1) It also alleged
contributions were made to various campaigns, charities, and
events on the officials’ behalf.2 The conduct allegedly occurred
1
Government Code section 1090, subdivision (a) prohibits
listed officers and employees from being “financially interested
in any contract made by them in their official capacity, or by
any body or board of which they are members.” Section 1090,
subdivision (b) proscribes aiding and abetting a violation of
subdivision (a). “Every contract made in violation of any of the
provisions of Section 1090 may be avoided at the instance of
any party except the officer interested therein.” (Gov. Code,
§ 1092, subd. (a).)
2
The Court of Appeal elaborated that “ ‘financial
inducements’ ” included: “(1) ‘Numerous dinners at expensive
restaurants,’ (2) ‘Tickets to the theater and sporting events,
including Charger games and . . . The Jersey Boys,’ (3) ‘Hotel
accommodations, food, and tickets to the Rose Bowl in
Pasadena,’ (4) ‘Airfare, hotel accommodations, wine tasting,
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Opinion of the Court by Corrigan, J.
both before the passage of Proposition O and during the
bidding and approval process.
Gilbane and the Joint Venture3 brought a special motion
to strike under Code of Civil Procedure4 section 425.16 (the
SLAPP5 Act). Defendants urged the complaint stemmed from
constitutionally protected political expression. The District’s
response relied on evidence of the various guilty and no contest
pleas. Each plea form incorporated a written factual narrative
attested to under penalty of perjury. Amigable’s narrative
stated: “I provided gifts, meals and tickets to entertainment
events directly to [Superintendent Gandara and board
members Sandoval, Ricasa, and Quinones]. I provided the
meals, tickets and gifts upon my initiative as sanctioned and
encouraged by my employers. I also provided meals, tickets
and gifts at the request of the elected board members and the
Superintend[e]nt. The meals, tickets and gifts were made on
behalf of my employers with the intent to influence the board’s
decisions in granting construction contracts from the
Sweetwater Union High School District to the firms for which I
and a hot air balloon ride in Napa Valley,’ and (5) ‘Monetary
contributions to beauty pageants, charities, and campaigns on
behalf of District officials.’ ”
3
SGI did not join in the motion.
4
Subsequent statutory references are to the Code of Civil
Procedure unless otherwise noted.
5
“ ‘SLAPP’ is an acronym for ‘strategic lawsuit against
public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376,
381, fn. 1 (Baral); Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57 (Equilon Enterprises).)
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Opinion of the Court by Corrigan, J.
was working. My expenses were generated with the
endorsement of my employers and they were reimbursed to me
by my employers. At no time did the elected board members or
Superintend[e]nt reimburse me or my employers for the meals,
tickets or gifts I gave them on behalf of my employers.”
Flores’s narrative included a similar statement. Ricasa’s
statement read in part: “In 2009, I was an elected School
Board Member for the Sweetwater Union High School District.
I accepted gifts from Rene Flores (SGI) in 2009 with a value of
$2,099 and I did not report them. . . . Rene Flores provided
these gifts with the intent to influence my vote on business
awarded to Seville Group, Inc.” Quinones’s statement said
that she “accepted gifts from Henry Amigable in 2007 with a
total value in excess of $500.00 and I did not report them” and
that “Henry Amigable provided these gifts with the intent to
influence my vote on business awarded to Gilbane, his
employer.” Both Sandoval’s and Gandara’s statements
indicated that they received gifts from Amigable and Flores
“with a total value of more than” $2,770 (Sandoval) and $4,500
(Gandara) and failed to report them. They acknowledged these
gifts were provided “to influence my vote on business awarded
to” defendants.
The District also relied on excerpts from the grand jury
testimony of several witnesses, including Amigable and Flores,
who described their conduct in providing meals and tickets to
plaintiff’s officers.6 The court overruled defendants’
6
These excerpts were lodged as exhibits to plaintiff’s
summary judgment motion against SGI.
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Opinion of the Court by Corrigan, J.
evidentiary objections and denied their special motion to
strike. The Court of Appeal affirmed.7
II. DISCUSSION
A. The Anti-SLAPP Statute
“Code of Civil Procedure section 425.16 sets out a
procedure for striking complaints in harassing lawsuits that
are commonly known as SLAPP suits . . . which are brought to
challenge the exercise of constitutionally protected free speech
rights.” (Kibler v. Northern Inyo County Local Hospital Dist.
(2006) 39 Cal.4th 192, 196.) A cause of action arising from a
person’s act in furtherance of the “right of petition or free
speech under the [federal or state] Constitution in connection
with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has
established that there is a probability” that the claim will
prevail. (§ 425.16, subd. (b)(1).) “The anti-SLAPP statute does
not insulate defendants from any liability for claims arising
from the protected rights of petition or speech. It only provides
a procedure for weeding out, at an early stage, meritless claims
arising from protected activity. Resolution of an anti-SLAPP
motion involves two steps. First, the defendant must establish
that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
7
After our grant of review, the parties have indicated that
they have settled the case. We exercise our discretion to retain
the case to resolve a conflict in the Courts of Appeal that
precipitated our grant of review. (See State of Cal. ex rel. State
Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 60-62.)
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required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a
probability of success. We have described this second step as a
‘summary-judgment-like procedure.’ [Citation.] The court
does not weigh evidence or resolve conflicting factual claims.
Its inquiry is limited to whether the plaintiff has stated a
legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment. It accepts the
plaintiff’s evidence as true, and evaluates the defendant’s
showing only to determine if it defeats the plaintiff’s claim as a
matter of law. [Citation.] ‘[C]laims with the requisite minimal
merit may proceed.’ ” (Baral, supra, 1 Cal.5th at pp. 384-385,
fn. omitted.) “We review de novo the grant or denial of an anti-
SLAPP motion.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067.) As to the second step
inquiry, a plaintiff seeking to demonstrate the merit of the
claim “may not rely solely on its complaint, even if verified;
instead, its proof must be made upon competent admissible
evidence.” (San Diegans for Open Government v. San Diego
State University Research Foundation (2017) 13 Cal.App.5th
76, 95; see Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480;
City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214
Cal.App.4th 358, 376; Paiva v. Nichols (2008) 168 Cal.App.4th
1007, 1017.)
B. Affidavits and Their Equivalents
The anti-SLAPP statute describes what evidence a court
may consider at the second step. It provides that “[i]n making
its determination, the court shall consider the pleadings, and
supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b)(2),
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Opinion of the Court by Corrigan, J.
italics added.) “The pleadings are the formal allegations by the
parties of their respective claims and defenses . . . .” (§ 420.) A
complaint must include a “statement of the facts constituting
the cause of action, in ordinary and concise language.”
(§ 425.10, subd. (a)(1).) The Code of Civil Procedure provides
three ways in which testimony is taken: by affidavit,
deposition, or oral examination. (§ 2002.) “An affidavit is a
written declaration under oath, made without notice to the
adverse party.” (§ 2003.) An affidavit “may be taken before
any officer authorized to administer oaths.” (§ 2012; see also
§§ 2013, 2014.)
Although not mentioned in the SLAPP Act, the Code of
Civil Procedure also allows a court to consider, in lieu of an
affidavit, certain written declarations. To qualify as an
alternative to an affidavit, a declaration must be signed and
recite that the person making it certifies it to be true under
penalty of perjury. The document must reflect the date and
place of execution, if signed in California, or recite that it is
executed “under the laws of the State of California.” (§ 2015.5;
see Kulshrestha v. First Union Commercial Corp. (2004) 33
Cal.4th 601, 610 (Kulshrestha).)
The purpose of the statutory references to affidavits and
declarations is to enhance reliability. “As with live testimony,
the oath-taking procedures for affidavits help prevent perjury.
[Citation.] [¶] In 1957, the Legislature enacted section 2015.5,
authorizing declarations under penalty of perjury. [Citation.]
Lawmakers expressed concern that the oath-and-affidavit
procedure was both cumbersome and widely ignored.
[Citation.] Declarations serve as a more streamlined means of
ensuring that the witness understands ‘the grave
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Opinion of the Court by Corrigan, J.
responsibility he has assumed with respect to the truth[].’ ”
(Kulshrestha, supra, 33 Cal.4th at p. 609.) Kulshrestha
concluded that the out-of-state declaration at issue there failed
to comply with section 2015.5 because it did not reflect it was
made under penalty of California’s perjury laws. (Kulshrestha,
at pp. 610-618.)
Defendants argue that the factual narratives attached to
the plea forms and the excerpts of the grand jury testimony are
hearsay because they were made out of court and were being
offered for their truth. (Evid. Code, § 1200.) They urge the
court could only consider them if they fell within the former
testimony hearsay exception. (Evid. Code, § 1292.) Initially,
we agree that the hearsay rule applies. The Evidence Code
states that, “[e]xcept as otherwise provided by statute, this
code applies in every action before” the California courts.
(Evid. Code, § 300.)
However, statutes allowing consideration of some
statements in resolving pretrial motions provide an exception
to the hearsay rule for purposes of the motion. (See Elkins v.
Superior Court (2007) 41 Cal.4th 1337, 1355; § 2009.) Elkins
emphasized that “[a]lthough affidavits or declarations are
authorized in certain motion matters under Code of Civil
Procedure section 2009, this statute does not authorize their
admission at a contested trial leading to judgment.” (Elkins, at
p. 1355.) Although affidavits and declarations constitute
hearsay when offered for the truth of their content, section
425.16, subdivision (b)(2) permits their consideration in ruling
on a pretrial anti-SLAPP motion. In connection with the form
of the declaration, then, defendants’ hearsay objection fails.
These declarations may be considered, not because they satisfy
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Opinion of the Court by Corrigan, J.
some other hearsay exception, but because they qualify as
declarations or their equivalent under section 2015.5, and can
be considered under section 425.16.
The change of plea forms may constitute declarations
under section 2015.5 if signed under penalty of perjury. (See
Kulshrestha, supra, 33 Cal.4th at p. 606.) “[C]ourts have made
clear that a declaration is defective under section 2015.5
absent an express facial link to California or its perjury laws.”
(Id. at p. 612; see People v. Bryant (2011) 191 Cal.App.4th
1457, 1470.) The Court of Appeal below concluded that “[e]ach
plea form submitted by Sweetwater with respect to the anti-
SLAPP motion meets the requirements set forth in section
2015.5 of the Code of Civil Procedure. Specifically, each
individual who signed and dated a plea form attested to the
truth of the contents . . . under penalty of perjury under the
laws of California.” Accordingly, the change of plea forms and
the incorporated factual narratives qualify as declarations the
court may consider in determining plaintiffs’ likelihood of
success.
The excerpts of the grand jury testimony, however,
require a different analysis. Although testimony before the
grand jury is given under oath, a transcript of that testimony is
not a “written declaration under oath.” (§ 2003.) Rather, a
transcript is a written memorialization of an oral examination
under oath. (See § 2005 [defining “oral examination”].)
Likewise, a transcript of testimony is not a declaration under
section 2015.5 because it is not “subscribed by” the testifying
witness.
Nevertheless, the Court of Appeal concluded the grand
jury testimony could still be considered because “the
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Opinion of the Court by Corrigan, J.
transcripts are of the same nature as a declaration in that the
testimony is given under penalty of perjury.” The court relied
on Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d
142 (Williams). Williams involved a summary judgment
motion and held the trial court could consider the transcript of
testimony from a related criminal case. Williams
acknowledged that the transcript did not qualify as former
testimony under Evidence Code section 1292 because there
was no showing that the witness was unavailable. It reasoned,
however, that “inasmuch as the recorded testimony was offered
in support of the opposition to a summary judgment motion
and serves effectively as a declaration by [the witness], we
treat it here as such.” (Williams, at p. 149, fn. 3.)
This analysis is sound. The statutory scheme already
permits consideration of affidavit equivalents. (§ 2015.5.) As
Kulshrestha noted, the important aspect of such evidence is
that it be made under penalty of California’s perjury laws.
(See Kulshrestha, supra, 33 Cal.4th at pp. 610-618.) Sworn
testimony made before a grand jury obviously is made under
penalty of perjury. (Cf. People v. Snyder (1958) 50 Cal.2d 190,
192.) As Williams and the Court of Appeal reasoned, a
transcript of this testimony is the equivalent of a testifying
witness’s declaration under penalty of perjury, assuming the
authenticity of the transcript can be established. Defendants
here do not contest authenticity.
The text of the anti-SLAPP statute does not speak
directly to the issue, but permitting courts to consider recorded
testimony is consistent with the purposes of the Act. The law’s
central aim is “screening out meritless claims that arise from
protected activity, before the defendant is required to undergo
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GILBANE BUILDING COMPANY
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the expense and intrusion of discovery.” (Baral, supra, 1
Cal.5th at p. 392.) The Legislature “has provided, and
California courts have recognized, substantive and procedural
limitations that protect plaintiffs against overbroad application
of the anti-SLAPP mechanism. . . . ‘This court and the Courts
of Appeal, noting the potential deprivation of jury trial that
might result were [section 425.16 and similar] statutes
construed to require the plaintiff first to prove the specified
claim to the trial court, have instead read the statutes as
requiring the court to determine only if the plaintiff has stated
and substantiated a legally sufficient claim.’ ” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-
1123.)
It would not serve the purposes of the SLAPP Act to
preclude consideration of testimony made under oath. This
sworn testimony is at least as reliable as an affidavit or
declaration. An anti-SLAPP motion is filed early in the case,
usually within 60 days of service of the complaint. (§ 425.16,
subd. (f).) Discovery is stayed once the motion is filed.
(§ 425.16, subd. (g).) Under these circumstances, it may not be
practicable for a plaintiff to obtain declarations from various
witnesses, particularly those associated with the defense.
Further, under the present circumstances, even if declarations
were obtained, they would have added little to the evidence
already in plaintiff’s possession. It seems doubtful that the
Legislature contemplated dismissal of a potentially meritorious
suit for want of declarations largely duplicating available
evidence.
Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th
688 (Gatton) reached a different conclusion. In the summary
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Opinion of the Court by Corrigan, J.
judgment context, Gatton concluded the trial court could not
consider excerpts from two depositions in another case because
the plaintiffs failed to satisfy the requirements of the former
testimony hearsay exception. (Evid. Code, § 1292.) Gatton
criticized “Williams’s casual view of trial testimony from
another trial and declarations on summary judgment as being
‘the same . . . .’ [Citation.] Our Legislature has given this
careful consideration and decided otherwise, mandating both
unavailability, to ensure necessity, and a similar interest and
motive in the prior proceeding, to ensure fairness.” (Gatton, at
p. 694.) Gatton reasoned that a “deposition from another case
differs greatly from a declaration from the same witness saying
that, if called to trial in the current case, the witness would
testify in a particular manner on specified subjects.” (Id. at p.
695; see L&B Real Estate v. Superior Court (1998) 67
Cal.App.4th 1342, 1346-1348 [following Gatton].)
Relying on Gatton, defendants argue that a witness
testifying in a different case may not have been cross-examined
with the same motive as the parties here. Their reliance is
misplaced. The former testimony exception is not the correct
lens through which to examine this question. When satisfied,
the former testimony exception permits admissibility at trial
because the earlier opportunity for cross-examination ensures
sufficient reliability. (See People v. Gonzales (2012) 54 Cal.4th
1234, 1262.) In the anti-SLAPP motion context, however,
reliability stems from the oath-taking procedures required for
affidavits, or the execution under penalty of California perjury
laws required by declarations. (Cf. Kulshrestha, supra, 33
Cal.4th 601, 606.) Indeed, even affidavits or declarations
produced specifically for this case would not be subject to cross-
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examination. Yet, the statutory scheme clearly contemplates
that courts may consider them.8
Defendants further suggest that use of statements from a
different case should not be allowed because “[n]o showing
need be made that the declarant is available or unavailable,
alive or dead, competent or demented.” Defendants
misunderstand the role of these statements in a second step
anti-SLAPP procedure. As we explain in detail below (see post,
at pp. 15-21), the affidavit or declaration is offered to
demonstrate that admissible evidence exists to prove plaintiff’s
claims. The statements must reflect that they were made by
competent witnesses with personal knowledge of the facts they
swear to be true. A transcript of a witness’s testimony under
oath before a grand jury would serve to establish personal
knowledge and competence in the same manner that an
affidavit or declaration could.
In a somewhat related context, the statute governing
summary judgment motions reflects a similar understanding of
the role played by affidavits and declarations. That statute
requires that “[s]upporting and opposing affidavits or
declarations shall be made by a person on personal knowledge,
shall set forth admissible evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated in the affidavits or declarations.”
8
We disapprove Gatton v. A.P. Green Services, Inc., supra,
64 Cal.App.4th 688, and L&B Real Estate v. Superior Court,
supra, 67 Cal.App.4th 1342, to the extent they are inconsistent
with our opinion.
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(§ 437c, subd. (d).)9 As noted, we have described the anti-
SLAPP motion as a “summary-judgment-like procedure at an
early stage of the litigation” designed to weed out meritless
suits “ ‘ “without great cost to the SLAPP target.” ’ ” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; see
Newport Harbor Ventures, LLC v. Morris Cerullo World
Evangelism (2018) 4 Cal.5th 637, 642 (Newport Harbor
Ventures).) Similarly, “it has always been ‘[t]he purpose of the
law of summary judgment . . . to provide courts with a
mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.’ [Citations.] And section
437c has always required the evidence relied on in supporting
or opposing papers to be admissible.” (Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.5th 536, 542 (Perry).)
There are important differences between the two
schemes. Chief among them is that an anti-SLAPP motion is
filed much earlier and before discovery. However, to the extent
both schemes are designed to determine whether a suit should
be allowed to move forward, both schemes should require a
showing based on evidence potentially admissible at trial
presented in the proper form. The grand jury transcripts at
issue here satisfy this requirement.
9
We do not here create a different requirement for anti-
SLAPP litigation. As in the summary judgment context, an
affidavit or declaration will generally be sufficient as to form if
it satisfies section 437c, subdivision (d).
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Thus, in determining a plaintiff’s probability of success,
the court may consider statements that are the equivalent of
affidavits and declarations because they were made under oath
or penalty of perjury in California. Here, the change of plea
forms, factual narratives, and the excerpts from the grand jury
testimony satisfy this requirement. That conclusion does not
end the inquiry.
C. The Materials Must Describe Admissible Evidence
In addition to submission in the proper form, courts have
long required that the evidence relied on by the plaintiff be
admissible at trial. Wilcox v. Superior Court (1994) 27
Cal.App.4th 809 (Wilcox) (overruled on another ground in
Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5) explained
that unless “the evidence referred to was admissible, or at least
not objected to, . . . there would be nothing for the trier of fact
to credit.” (Wilcox, at p. 830.) Similarly, Evans v. Unkow
(1995) 38 Cal.App.4th 1490 (Evans), observed that “[a]n
assessment of the probability of prevailing on the claim looks
to trial, and the evidence that will be presented at that time.
[Citation.] Such evidence must be admissible.” (Id. at p. 1497;
see also Tuchscher Development Enterprises, Inc. v. San Diego
Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1235-1238
(Tuchscher Development Enterprises); Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, 656 (Church of
Scientology), overruled on another ground in Equilon
Enterprises, at p. 68, fn. 5.)
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
811 held a malicious prosecution claim was precluded because
the earlier denial of an anti-SLAPP motion established
probable cause for a suit. Wilson observed that “[a] claim that
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is legally sufficient and can be substantiated by competent
evidence is . . . one that a ‘reasonable attorney would have
thought . . . tenable.’ ” (Id. at p. 821, italics added.) As one
court observed, Wilson “contemplates a SLAPP plaintiff’s
presentation of competent, i.e., admissible, evidence in support
of its prima facie case in opposition to the motion.” (Tuchscher
Development Enterprises, supra, 106 Cal.App.4th at p. 1237.)
Baral explained, “The court, without resolving evidentiary
conflicts, must determine whether the plaintiff’s showing, if
accepted by the trier of fact, would be sufficient to sustain a
favorable judgment.” (Baral, supra, 1 Cal.5th at p. 396, italics
added.)
Defendants return to their reliance on the former
testimony hearsay exception. (Evid. Code, § 1292.) That
exception requires the declarant be unavailable as a witness,
and “[t]he issue is such that the party to the action or
proceeding in which the former testimony was given had the
right and opportunity to cross–examine the declarant with an
interest and motive similar to that which the party against
whom the testimony is offered has at the hearing.” (Evid.
Code, § 1292, subd. (a)(3).) Defendants contend, unless this
showing is definitively made at the hearing, a court may not
consider the statements in determining the probability of
success.10 The argument runs ahead of itself and accordingly
10
Defendants do not differentiate between the grand jury
transcript and the plea forms, arguing both must satisfy the
requirements for former testimony in order to be admitted. It
is doubtful that statements in the plea forms constitute
“former testimony.” (Evid. Code, § 1290.) The more
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fails. As explained below, evidence may be considered at the
anti-SLAPP motion stage if it is reasonably possible the
evidence set out in supporting affidavits, declarations or their
equivalent will be admissible at trial.
In Fashion 21 v. Coalition for Humane Immigrant Rights
of Los Angeles (2004) 117 Cal.App.4th 1138 (Fashion 21), a
clothing retailer sued, alleging the defendants handed out
defamatory flyers at demonstrations outside the plaintiffs’
stores. In response to the defendants’ anti-SLAPP motion, the
plaintiffs presented an edited videotape purporting to show one
of the demonstrations. (Id. at p. 1145.) The defendants
objected that the edited videotape was not properly
authenticated. The court acknowledged that “[h]ad this
videotape been offered at trial, [the defendants’] objection
would have been well taken” (id. at p. 1146), noting that, under
Evidence Code section 1402, authentication required a showing
that “the alteration did not change the meaning . . . of the
instrument” (Evid. Code, § 1402). (See Fashion 21, at p. 1146,
fn. 9.)11 However, the court concluded the videotape could be
appropriate hearsay exception would be a declaration against
interest. (Evid. Code, § 1230.) That exception also requires
unavailability, but not a previous opportunity to cross-
examine. (See Evid. Code, § 1292, subd. (a)(3).) Detailed
explanations of one’s own criminal misconduct in a formal legal
proceeding would surely seem to satisfy the exception. “[A]
guilty plea falls within the hearsay rule exception for
declarations against penal interest.” (People v. Cummings
(1993) 4 Cal.4th 1233, 1321.)
11
The videotape was not accompanied by an affidavit or
declaration. (Fashion 21, supra, 117 Cal.App.4th at p. 1145.)
17
SWEETWATER UNION HIGH SCHOOL DISTRICT v.
GILBANE BUILDING COMPANY
Opinion of the Court by Corrigan, J.
considered: “[T]he proper view of ‘admissible evidence’ for
purposes of the SLAPP statute is evidence which, by its
nature, is capable of being admitted at trial, i.e., evidence
which is competent, relevant and not barred by a substantive
rule. Courts have thus excluded evidence which would be
barred at trial by the hearsay rule, or because it is speculative,
not based on personal knowledge or consists of impermissible
opinion testimony. This type of evidence cannot be used by the
plaintiff to establish a probability of success on the merits
because it could never be introduced at trial. . . . [¶] Evidence
such as the videotape in this case, which is only excludable on
the ground it lacks proper authentication, stands on a different
footing in terms of its ability to support the plaintiffs’ cause of
action. . . . [E]vidence that is made inadmissible only because
the plaintiff failed to satisfy a precondition to its admissibility
[at trial] could support a judgment for the plaintiff assuming
the precondition could be satisfied.” (Id. at pp. 1147-1148,
italics added, fns. omitted.) Fashion 21 concluded: “Given the
high probability Fashion 21 would succeed in offering the
videotape into evidence at trial and the ‘minimal’ showing
necessary to overcome a SLAPP motion, we hold the trial court
did not commit reversible error in considering the videotape in
Apparently, the defendants did not argue the tape could not be
considered because it was not so supported. The Fashion 21
court confined its discussion to whether the edited tape could
be admissible at trial. (See id. at pp. 1145-1146.) Ordinarily,
we would expect a party seeking consideration of other kinds of
evidence demonstrate its admissibility by a supporting
affidavit or declaration.
18
SWEETWATER UNION HIGH SCHOOL DISTRICT v.
GILBANE BUILDING COMPANY
Opinion of the Court by Corrigan, J.
determining Fashion 21’s likelihood of prevailing . . . .” (Id. at
p. 1148, fn. omitted.)
Other cases support the distinction between evidence
that may be admissible at trial and evidence that could never
be admitted. For example, Healthsmart Pacific, Inc. v.
Kabateck (2016) 7 Cal.App.5th 416, affirmed the grant of an
anti-SLAPP motion because the defamation suit there was
based on privileged statements. (Id. at pp. 430-437.) Wilcox
reached a similar conclusion in another defamation case,
concluding that the petitioner could not overcome a privilege.
(Wilcox, supra, 27 Cal.App.4th at pp. 825-827.) The privileged
statements in both cases could not be admitted by substantive
rule. Likewise, Evans concluded a statement made only on
information and belief was incompetent for lack of personal
knowledge. (Evans, supra, 38 Cal.App.4th at p. 1498.) In
other words, such evidence suffers from “the sort of evidentiary
problem a plaintiff will be incapable of curing by the time of
trial.” (Gallagher v. Connell (2004) 123 Cal.App.4th 1260,
1269.)
Although not involving an anti-SLAPP motion, Perry v.
Bakewell Hawthorne, LLC, supra, 2 Cal.5th 536, 538, is
instructive: “[W]hen the court determines an expert opinion is
inadmissible because disclosure requirements were not met,
the opinion must be excluded from consideration at summary
judgment if an objection is raised.” Perry noted that the
summary judgment statute required that supporting affidavits
and declarations “set forth admissible evidence.” (§ 437c,
subd. (d); see Perry, at p. 541.) “The condition that an expert’s
declaration must set out admissible evidence, however, has
determinative importance. . . . [T]he summary judgment
19
SWEETWATER UNION HIGH SCHOOL DISTRICT v.
GILBANE BUILDING COMPANY
Opinion of the Court by Corrigan, J.
statute still requires the evidence provided in declarations to
be admissible at trial. [Citations.] Declarations themselves
are not ordinarily admissible because they are hearsay. But
the Kennedy court [Kennedy v. Modesto City Hosp. (1990) 221
Cal.App.3d 575] erred when it suggested that the evidence
contained in summary judgment declarations need not be
admissible at trial.” (Perry, at p. 541.) Perry reasoned that,
because the failure to comply with the disclosure statute
rendered the evidence incurably inadmissible at trial, it could
not properly be considered in ruling on a summary judgment
motion. (Id. at pp. 541-543.)12
This case, like Fashion 21, describes evidence that is
potentially admissible at trial. Here, unlike the facts in Perry,
there is no categorical bar to statements contained in the
grand jury transcript and plea forms. Indeed, the statements
themselves appear to be statements against interest. (Evid.
Code, § 1230.) Further, there are no undisputed factual
circumstances suggesting the evidence would be inadmissible
at trial. In Fashion 21, the videotape at issue could be
admitted at trial if properly authenticated. In the videotaped
demonstration, “employees and representatives of Fashion
21 . . . along with” others were present (Fashion 21, supra, 117
Cal.App.4th at p. 1145), suggesting there were identifiable
witnesses who had personal knowledge of the events. The
12
To clarify the distinction, the written statements
themselves need not be admissible at trial, but it must be
reasonably possible that the facts asserted in those statements
can be established by admissible evidence at trial.
20
SWEETWATER UNION HIGH SCHOOL DISTRICT v.
GILBANE BUILDING COMPANY
Opinion of the Court by Corrigan, J.
signers of those documents or other competent witnesses could
testify at trial to support the District’s claims. That live
testimony would supplant any improper reliance on hearsay.
Finally, plaintiff would have the opportunity to satisfy the
requirements of any other applicable hearsay exceptions before
admission at trial.
Our observation in the previous section regarding the
timing of an anti-SLAPP motion and the stay of discovery
applies equally here. It may not be possible at the hearing to
lay a foundation for trial admission, even if such a showing
could be made after full discovery. While it may prove difficult
at this early stage to obtain declarations from those who have
pled guilty in the bribery case, it is not unreasonable to expect
that those witnesses may be deposed and/or produced for trial.
To strike a complaint for failure to meet evidentiary obstacles
that may be overcome at trial would not serve the SLAPP Act’s
protective purposes. Ultimately, the SLAPP Act was “intended
to end meritless SLAPP suits early without great cost to the
target” (Newport Harbor Ventures, supra, 4 Cal.5th at p. 644),
not to abort potentially meritorious claims due to a lack of
discovery. Notwithstanding the discovery stay, the court has
discretion to order, upon good cause, specified discovery if
required to overcome the hurdle of potential inadmissibility.
(§ 425.16, subd. (g).)
In sum, at the second stage of an anti-SLAPP hearing,
the court may consider affidavits, declarations, and their
equivalents if it is reasonably possible the proffered evidence
set out in those statements will be admissible at trial.
Conversely, if the evidence relied upon cannot be admitted at
trial, because it is categorically barred or undisputed factual
21
SWEETWATER UNION HIGH SCHOOL DISTRICT v.
GILBANE BUILDING COMPANY
Opinion of the Court by Corrigan, J.
circumstances show inadmissibility, the court may not consider
it in the face of an objection. If an evidentiary objection is
made, the plaintiff may attempt to cure the asserted defect or
demonstrate the defect is curable.
III. DISPOSITION
The Court of Appeal’s judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
MANELLA, J.*
*
Presiding Justice of the Court of Appeal, Second
Appellate District, Division Four, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Sweetwater Union High School District v. Gilbane Building Company
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 245 Cal.App.4th 19
Rehearing Granted
__________________________________________________________________________________
Opinion No. S233526
Date Filed: February 28, 2019
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Eddie C. Sturgeon
__________________________________________________________________________________
Counsel:
Dentons US, Charles A. Bird, Christian D. Humphreys and Gary K. Brucker, Jr., for Defendants and
Appellants.
Schwartz Semerdjian Cauley & Moot, John S. Moot, Sarah Brite Evans, Alison K. Adelman; Baker
Manock & Jensen and James A. Ardaiz for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Charles A. Bird
Dentons US
4655 Executive Drive, Suite 700
San Diego, CA 92121-3106
(619) 236-1414
John S. Moot
Schwartz Semerdjian Cauley & Moot
101 West Broadway, Suite 810
San Diego, CA 92101
(619) 236-8821