Analysis of Sweetwater on Anti-SLAPP Evidentiary Standards

Anti-SLAPP Evidentiary Standards Analysis

Updated on April 4, 2020

In the recent case of Sweetwater Union High School v. Gilbane Building Co. (2019) 6 Cal.4th 931 (“Sweetwater”), the Supreme Court of California examined what kind of evidence a court may consider when ruling on an anti-SLAPP motion to determine a plaintiff’s probability of success. Although the Supreme Court answered this question in connection with an anti-SLAPP analysis, it appears that the Supreme Court’s analysis in Sweetwater could extend to other pre-trial motion contexts, such as motions for summary judgment or adjudication.

In Sweetwater, the Sweetwater Union High School District (the “District”) solicited bids to manage various construction projects. The District 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 committee, consisting of School Superintendent Jesus Gandara and three others, selected defendants’ proposal as the winning bid. The District ultimately approved several contracts with defendants to manage those various projects.

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 Gandara, members of the board of trustees for the District, and executives of defendants.

The District sued defendants to void the contracts and secure disgorgement of funds already paid. It alleged that defendants gave meals, vacations, and event tickets to Gandara, board members and their families and friends. The District also alleged the defendants made contributions  to various campaigns, charities, and events on the officials’ behalf.

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Gilbane and Joint Venture brought a special motion to strike under Code of Civil Procedure § 425.16 (the “SLAPP Act”) on the grounds that the District’s complaint stemmed from constitutionally protected political expression. The District’s response relied on evidence of the various guilty and no contest pleas. These pleas included a written factual narrative under penalty of perjury, which stated that the declarant gave gifts with the intent to influence the bidding process. The District also relied on excerpts from grand jury testimony of several witnesses, including defendants’ executives. In that testimony, defendants’ executives described their conduct in providing meals and tickets to plaintiff’s officers.

Defendants asserted hearsay objections to the evidence contained in the pleas and in the grand jury excerpts. The trial court overruled the objections and denied the anti-SLAPP motion. The Court of Appeal affirmed. Review by the Supreme Court followed.

On review, the Supreme Court affirmed the Court of Appeal’s judgment. Specifically, the Supreme Court held that 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.

First, the Supreme Court explained that the pleas and grand jury testimony could be admissible because like admissible affidavits or declarations, they were both given under penalty of perjury. Based thereon, the Supreme Court held that the court could properly consider the pleas and the grand jury testimony when it ruled on the anti-SLAPP, even if it did not satisfy the unavailability requirements. As the Supreme Court explained, it would not serve the purposes of the SLAPP Act to preclude consideration of testimony made under oath, especially if it is at least as reliable as an affidavit or declaration.

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Second, the Supreme Court explained that the relevant inquiry on admissibility is whether the evidence could be eventually admissible at trial, and not whether it is admissible at trial as currently presented. In other words, the Supreme Court distinguished between evidence that may be admissible at trial and evidence that could never be admitted.

For example, a videotape that has not been authenticated may still be admissible because the defect could be cured prior to trial. In contrast, a statement made on information and belief that lacks personal knowledge would be properly excluded because it could never be admissible at trial. As the Supreme Court explained, given the timing of an anti-SLAPP motion and the discovery stay, it was not the intent of the legislature to bar dismissal of a meritless suit for “want of declarations largely duplicating available evidence.”

Based on its analysis, it appears that the Supreme Court’s holding in Sweetwater could extend to motions for summary judgment or adjudication, or other pre-trial motions. First, to reach its conclusion, the Court specifically disagreed with the reasoning in Gattan v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688. Gattan held that in the summary judgment context, excerpts from two depositions in another case should be excluded because they failed to satisfy the requirements of the former testimony hearsay exception. The Supreme Court appeared to expressly overrule this decision when it declined to apply this holding to the grand jury testimony excerpts in Sweetwater.

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Second, to reach its ultimate conclusion, the Supreme Court discussed the similarity between the underlying purpose for anti-SLAPP motions and motions for summary adjudication, i.e. pre-trial motions to eliminate cases that should not proceed to trial. Indeed, the Supreme Court noted that though there are differences between the two schemes, “both schemes require a showing based on evidence potentially admissible at trial presented in the proper form.” If that is the case, there would be no reason to not extend the Supreme Court’s ruling in Sweetwater to motions for summary adjudication or other pre-trial motions such a motions to expunge lis pendens.

Schorr Law has experience bringing and opposing pre-trial motions such as anti-SLAAP motions, motions for summary judgment/adjudication, and motions to expunge lis pendens. To see if you qualify for a free 30-minute consultation regarding your matter, please contact us by phone, email, or send us a message through our contact form.

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