What a court can consider when ruling on anti-SLAPP

By now, most of California litigators are familiar with special motions to strike under Code of Civil Procedure Section 425.16 (the anti-SLAPP statute), which allows a defendant to move to dismiss a lawsuit that challenges the exercise of constitutionally protected free speech.

To prevail on an anti-SLAPP Motion, the defendant must first establish that the action arises from protected activity; if the defendant is successful, the burden then shifts to the plaintiff to demonstrate the merits of the claim by establishing a probability of success. To establish the probability of success on a claim, the plaintiff cannot rely on the allegations of the complaint, but must present proof through competent admissible evidence, specifically affidavits.

Although not permitted by the letter of the law, courts have allowed declarations under the penalty of perjury and other "affidavit equivalents" to be submitted in opposition to anti-SLAPP motions. However the application of the common law has varied widely from courtroom to courtroom. On Feb 28, in Sweetwater Union School District v. Gilbane Building Compan, 2019 DJDAR 1631, the California Supreme Court set forth clear rules for what a court can consider when ruling on an anti-SLAPP.

While the court pointed out that the underlying case was settled before the opinion was issued, making the specific facts of little relevance, the justices chose to issue their opinion to clarify certain evidentiary issues that may arise in anti-SLAPP motion practice.

Sweetwater arose from a suit to void a building contract between the plaintiff school district and the defendant contractors after criminal bribery convictions of both school district and construction firm officials. After the school district filed suit, the contractors filed an anti-SLAPP motion, arguing that the donations, dinners, sports tickets and trips given to the district officials were constitutionally protected political expressions. When the school district submitted declarations, prior grand jury testimony and plea forms setting for the facts of the various crimes, the contractors objected that the evidence would not be considered because they were not affidavits and would not be admissible at trial under the Evidence Code.

After explaining the policy considerations underlying the requirement that evidence be presented by a plaintiff opposing an anti-SLAPP motion, the court concluded: "In determining a plaintiff's probability of success, the [trial] court may consider statements that are the equivalent of affidavits and declarations because they were made under oath or penalty of perjury in California .... changes of plea forms, factual narratives, and excepts from testimony satisfy this requirement."

Sweetwater also clarified the meaning of admissible with regards to the evidence required by the anti-SLAPP statute: "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." However, the trial court may not consider an affidavit or the equivalent if the evidence set forth therein "cannot be admitted at trial because it is categorically barred or undisputed factual circumstances show inadmissibility" such as statements lacking a basis in personal knowledge, or impermissible opinion testimony.

Ultimately Sweetwater is a useful case for litigants and trial judges in that it clarifies what evidence can be put in front of the court in opposition to an anti-SLAPP motion and how that evidence can be considered. The Supreme Court's opinion should help bring consistency to outcomes between courtrooms and also allow parties to focus on the merits and substance of the evidence instead of the strict form and presentation thereof.