80 Cal.App.5th 750
Cal. Ct. App.2022Background
- Sanchez sued Jeffrey P. Bezos and Gavin de Becker for defamation and intentional infliction of emotional distress, alleging they told reporters Sanchez supplied explicit nude photos of Bezos to the National Enquirer and was part of a conspiracy to harm Bezos.
- Sanchez opposed defendants’ anti-SLAPP motion with a declaration recounting reporters told him defendants made the statements; he did not submit declarations or sworn statements from those reporters.
- Defendants moved to strike under Code Civ. Proc. § 425.16; the trial court found Sanchez’s recounting of reporters’ comments was inadmissible hearsay, denied discovery to depose reporters, granted the anti‑SLAPP motion, dismissed the complaint with prejudice, and awarded defendants fees and costs.
- On appeal Sanchez argued (1) the reporters’ statements were nonhearsay because offered only to prove publication (that the statements were uttered), and (2) under Sweetwater a court may consider curable hearsay at the anti‑SLAPP stage because it could be cured at trial.
- The Court of Appeal held the reporters’ statements in Sanchez’s declaration were hearsay (offered for their truth to link the alleged publication to defendants) and that Sweetwater does not allow admission of unsworn, uncured hearsay; affirmed judgment and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility: whether Sanchez’s declaration recounting reporters’ statements is hearsay | Sanchez: statements offered only to show the statements were made (publication), so nonhearsay | Defendants: plaintiff’s recounting of reporters’ out‑of‑court statements is offered for their truth (to prove defendants made the statements) and is hearsay | Held: Hearsay — reporters’ statements were offered for their truth and thus inadmissible at anti‑SLAPP stage |
| Sweetwater cure: whether unsworn hearsay may be considered because it could be cured by later testimony | Sanchez: under Sweetwater it is reasonably possible the hearsay could be cured (reporters could testify), so the court should consider it | Defendants: Sweetwater only permits consideration of affidavits/declarations or equivalent sworn testimony; unsworn second‑hand reports are not curable at the anti‑SLAPP stage | Held: Sweetwater does not authorize consideration of unsworn out‑of‑court statements; only sworn declarations/transcripts or evidence reasonably likely to be admissible at trial qualify |
| Discovery/anti‑SLAPP procedure: whether plaintiff was entitled to discovery to obtain reporters’ statements | Sanchez: reporters could be deposed/testify; discovery necessary to cure hearsay | Defendants: plaintiff offered no admissible evidence of publication, so no basis for discovery on actual malice | Held: Court noted trial court has discretion to allow limited discovery for good cause; Sanchez did not seek targeted discovery of reporters and failed to show a reasonable prospect of curing the hearsay defect |
Key Cases Cited
- Sweetwater Union High School Dist. v. Gilbane Building Co., 6 Cal.5th 931 (Cal. 2019) (anti‑SLAPP: courts may consider affidavits/declarations and their equivalents made under oath or penalty of perjury; evidence may be considered if it is reasonably possible facts can be proved by admissible trial evidence)
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (Cal. 2019) (overview of anti‑SLAPP two‑step framework)
- Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, 117 Cal.App.4th 1138 (Cal. Ct. App. 2004) (evidence inadmissible only for lack of pretrial foundation may still be considered if likely authenticable at trial)
- Cornell v. Berkeley Tennis Club, 18 Cal.App.5th 908 (Cal. Ct. App. 2017) (recounting what third parties told plaintiff is inadmissible hearsay to prove publication/source)
- Russell v. Geis, 251 Cal.App.2d 560 (Cal. Ct. App. 1967) (distinguished: prior case allowing testimony of effect of defamatory statements, not testimony repeating third‑party statements identifying the speaker)
- Garment Workers Center v. Superior Court, 117 Cal.App.4th 1156 (Cal. Ct. App. 2004) (trial court may permit discovery on motive/good cause; plaintiff should establish prima facie publication/falsity from available evidence before broad discovery)
- Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir. 1978) (federal case allowing hearsay for proof of words spoken; court here declined to follow)
- Walker v. Wanner Engineering, Inc., 867 F.Supp.2d 1050 (D. Minn. 2012) (federal district court allowed second‑hand testimony to show statement was made; Court of Appeal declined to follow)