The California Supreme Court unanimously decided last week that in ruling on an anti-SLAPP motion, California courts should accept the opponent’s documentary evidence even if it would not be admissible at trial in the form offered – there, transcripts and similar documents from related criminal proceedings – so long as it is “reasonably possible that the evidence set out in those statements will be admissible at trial.” Sweetwater Union School Dist. v. Gilbane Building Co., S233526 (Cal. Feb. 28, 2019). The Court also noted that if the proffered evidence relied upon cannot be admitted at trial, it may be excluded if an objection is asserted and the asserted defect in the evidence cannot be cured.

Background After the passage of a bond measure to fund capital improvements in the Sweetwater Union School District (“District”) the district solicited bids to manage construction projects funded by the measure. Ultimately, the District awarded all contracts for these improvements to Gilbane Building Company, The Seville Group, Inc., and Gilbane/SGI, a joint venture (collectively, “Defendants”). A criminal bribery investigation later uncovered that the city officials responsible for awarding these public contracts accepted bribes from Defendants.

The District brought an action against Defendants to void the contracts and secure disgorgement of profits. In response, Defendants filed an anti-SLAPP motion, arguing that the complaint stemmed from constitutionally-protected political expression. The District’s opposition relied on evidence obtained in the related criminal bribery investigation – specifically, grand jury testimony and the plea forms of the various guilty and no contest pleas of the city officials and company executives involved. Each plea form included a written factual narrative attested to under penalty of perjury. The plea forms and grand jury statements detailed the bribery scheme. The trial court overruled Defendants’ objections and denied their anti-SLAPP motion. The court of appeal affirmed.

The California Supreme Court unanimously affirmed the lower courts’ decisions, ruling that the plea forms and grand jury testimony transcripts offered by the District could be considered by a court in ruling on an anti-SLAPP motion because the evidence was produced in the proper form and it was reasonably possible that the underlying evidence – the proof of guilt – would be admissible at an eventual trial.

Affidavits and Their Equivalents Are Proper Evidence in Defending Against Anti-SLAPP Motions The court noted that the anti-SLAPP statute describes what evidence a court may consider in determining whether a plaintiff has sufficiently demonstrated a probability of success on the merits of the claim. Specifically, section 425.16, subdivision (b)(2) provides that “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

The court determined that the plea forms and grand jury testimony transcripts were equivalent to affidavits for purposes of ruling on an anti-SLAPP motion and as such were produced in the proper form. The court rejected Defendants’ argument that these statements constituted hearsay, noting that section 425.16, subdivision (b)(2) permits consideration of affidavits and declarations in ruling on a pretrial anti-SLAPP motion.

Plaintiff’s Evidence Must be Reasonably Possible to be Admissible at Trial The court held that evidence relied on by the plaintiff in opposition to an anti-SLAPP motion may be considered if “it is reasonably possible the evidence set out in supporting affidavits, declarations or their equivalent will be admissible at trial.”

In its decision, the court underscored “the distinction between evidence that may be admissible at trial and evidence that could never be admitted.” (Emphasis in original). The court observed that there was no definitive bar to statements contained in the plea forms and grand jury testimony; rather the statements appeared to be admissible non-hearsay statements against interest absent any factual circumstances suggesting otherwise. Embracing the holding in Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, the court concluded 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. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual 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.” (Emphasis in original).