Proper submission of pre-trial evidence: The twin hurdles

The term "admissibility" typically refers to evidence introduced at trial. A concept that is perhaps more nuanced, but typically garners far less attention, is the proper introduction of evidence in connection with a pre-trial motion. The California Supreme Court recently took up this issue in Sweetwater Union High School District. v. Gilbane Building Co., 2019 DJDAR 1631 (Feb. 28, 2019). Resolving objections to evidence submitted in opposition to a special motion to strike under Code of Civil Procedure Section 425.16 (commonly referred to as an "anti-SLAPP" motion), the Supreme Court's opinion explains there are two aspects to introduction of evidence pre-trial: (i) the form in which the evidence is offered; and (ii) the evidence's ultimate admissibility at trial. The opinion provides useful guidance for litigators to keep in mind when offering evidence in connection with a pre-trial motion.

The Sweetwater Decision

Sweetwater involved a lawsuit the Sweetwater Union High School District had filed to void various construction contracts allegedly obtained through bribery. The defendants responded by filing an anti-SLAPP motion -- a procedural mechanism that enables a defendant to quickly dispose of a frivolous action arising from constitutionally protected free speech or petitioning activity. The anti-SLAPP inquiry is a two-step process. First, the defendant must show that the plaintiff's claims arise from protected activity. If this showing is made, the burden then shifts to the plaintiff to demonstrate -- with evidence -- that the claims have merit in what is often described as a "summary-judgment-like" procedure.

In Sweetwater, because the defendants had demonstrated that the complaint arose from protected activity (or more accurately, because the school district did not contest the point), the dispute was over whether the school district had provided sufficient evidence of its claims' prospective merit. In opposing the anti-SLAPP motion, the school district submitted various plea forms, factual narratives attached to those plea forms, and excerpts of grand jury testimony from the related criminal cases to substantiate its claims. The defendants had objected to the school district's evidence, arguing it was inadmissible hearsay that should not have been considered in resolving the anti-SLAPP motion.

In addressing what evidence a court may consider in ruling on an anti-SLAPP motion, the Supreme Court detailed the two-part inquiry based on the evidence's form and its ultimate admissibility at an eventual trial.

Form: Affidavits and Their Equivalents

With respect to the form of the evidence, the Supreme Court began its analysis by examining the text of the anti-SLAPP statute. In evaluating an anti-SLAPP motion, the statute permits a court to consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Civ. Proc. Code Section 425.16(b)(2).

The Code of Civil Procedure defines an "affidavit" to be a specific thing: A sworn statement made under oath taken before any officer authorized to administer oaths. Civ. Proc. Code Sections 2003, 2012. Although the anti-SLAPP statute refers only to "affidavits" whereas other statutes governing pre-trial motions (like the summary judgment statute) expressly refers to both affidavits and declarations, e.g., Code of Civil Procedure Section 437c(b)(1), the Supreme Court concluded that the permissible form of evidence was not so rigidly limited.

To begin, the Supreme Court explained that the Code of Civil Procedure allows courts to consider declarations as less formulistic alternatives to affidavits. It detailed how in 1957 the Legislature enacted Code of Civil Procedure Section 2015.5, authorizing the use of declarations in lieu of affidavits because the oath-and-affidavit procedure was viewed as unnecessarily cumbersome and frequently ignored. Under Section 2015.5, a declaration can be used in lieu of an affidavit provided it is signed and recites that that its contents are true under penalty of perjury. Because the change of plea forms the school district had submitted had been signed under penalty of perjury, the Supreme Court held that the forms and attached factual narratives qualified as declarations the trial court could validly consider.

The trickier issue, according the Supreme Court, was the transcript of the grand jury testimony. Although it was given under oath, the transcript neither qualified as an affidavit nor a declaration because it was merely a transcription of sworn testimony. Nevertheless the Supreme Court held that substance prevailed over form. Citing with approval the Court of Appeal's decision in Williams v. Saga Enterprises, Inc., 225 Cal. App. 3d 142 (1990), which allowed the use of a transcript of testimony from a criminal case in the context of a summary judgment motion, the Supreme Court concluded that what matters is that the statements be ones made under penalty of perjury. Because the grand jury testimony had been given under penalty of perjury, the Supreme Court concluded that, like a declaration, the transcript was the functional equivalent of an affidavit and thus took a proper form.

Admissibility: Materials Must Describe Admissible Evidence

With respect to the evidence's ultimate admissibility at trial, the Supreme Court began by acknowledging the requirement that the evidence submitted in opposition to an anti-SLAPP motion must, at the very least, describe evidence that will be admissible at trial. The purpose of an anti-SLAPP motion, after all, is to weed out frivolous claims predicated on protected activity, and, absent evidence that will be admissible at trial, there can be no probability the plaintiff will prevail on such a claim.

Yet, at the same time, the Supreme Court concluded the evidence need not necessarily be presented in a finally admissible form to be considered. In that regard, the Supreme Court distinguished between evidence that may be admissible at trial and evidence that could never be admissible. To illustrate this distinction, the Supreme Court cited with approval Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, 117 Cal. App. 4th 1138 (2004). In Fashion 21 (which also involved an anti-SLAPP motion), the defendants objected to the submission of a videotape on the grounds that it was not properly authenticated. While acknowledging that defendants' objection would have been sustained had it been made at trial, the Court of Appeal approved the trial court's reliance on said evidence in evaluating whether the plaintiff had established sufficient probability of success on the claims asserted because of the "high probability [plaintiff] would succeed in offering the videotape into evidence at trial."

Applying this same rationale, the Supreme Court rejected defendants' argument the school district's evidence was inadmissible hearsay because, like the videotape in Fashion 21, the plea forms and grand jury testimony described evidence that was potentially admissible at trial. The court noted that the signers of those documents (or other competent witnesses) could testify at trial to support the school district's claims, thereby eliminating any admissibility issues based on hearsay.

Takeaways

While Sweetwater was decided in the context of an anti-SLAPP motion, there is reason to suggest the two-part framework it laid out would be equally applicable to other pre-trial motions like motions for summary judgment.

The requirement that evidence take the proper form when introduced in connection with a pre-trial motion is not unique to anti-SLAPP motions. Indeed, much of the discussion in Sweetwater regarding the proper form of evidence came from the summary judgment context. Not only did the Supreme Court discuss the summary judgment statutes and cite with approval Williams (a summary judgment case) in conducting its analysis, it also disapproved Gatton v. A.P. Green Services, Inc., 64 Cal. App. 4th 1342 (1998) (a different summary judgment case that endorsed the exclusion of deposition testimony as inadmissible hearsay), in its opinion. Thus not only is the proper form of evidence something practitioners must keep in mind when submitting evidence in support or opposition to a pre-trial motion, but this tends to suggest what the Supreme Court had to say about the proper form of evidence submitted in connection with an anti-SLAPP motion would apply in the summary judgment context as well.

The same is generally true of the admissibility requirement. Under Code of Civil Procedure Section 437c(d), affidavits and declarations submitted in connection with a summary judgment motion are required to "set forth admissible evidence." A potential wrinkle, however, is that in so far as the Sweetwater decision suggests there is some play in the joints as far as ultimate admissibility is concerned when the evidence is introduced at the anti-SLAPP stage, it is not clear that same flexibility would exist in the summary judgment context. Although the second step of the anti-SLAPP inquiry is often described as a "summary-judgment-like" procedure, the summary judgment statute's express incorporation of a requirement that affidavits and declarations "set forth admissible evidence" may impose an additional requirement not present at the anti-SLAPP stage. Further, another, and perhaps more important, distinction is that an anti-SLAPP motion occurs much earlier in the litigation before discovery is conducted. As such, it is possible that some of the flexibility the Supreme Court endorsed in Sweetwater in terms of the required showing of admissibility would be removed from the equation at the summary judgment stage given the parties will presumably have had an opportunity to take discovery. Nevertheless, ultimate admissibility is clearly something practitioners need to keep in mind when submitting evidence in connection with a pre-trial motion.