I. BACKGROUND
In November 2006, voters approved Proposition O, a bond measure to fund capital improvements in the District. The District solicited bids to manage
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 Superintendent Gandara, board of trustees members Pearl Quinones, Arlie Ricasa, and Gregory Sandoval, as well as Gilbane program director Henry Amigable and SGI chief executive officer Rene Flores.
The District sued to void the contracts and secure disgorgement of funds already paid. It alleged that Amigable, Flores, and others gave meals, vacations, and event tickets to Gandara, board members and their families and friends. (See Gov. Code, §§ 1090, 1092, subd. (a).
Gilbane and the Joint Venture
The District also relied on excerpts from the grand jury testimony of several witnesses, including Amigable and Flores, who described their conduct in providing meals and tickets to plaintiff's officers.
A. The Anti-SLAPP Statute
" Code of Civil Procedure section 425.16 sets out a procedure for striking complaints in harassing lawsuits that are commonly known as SLAPP suits ... which are brought to challenge the exercise of constitutionally protected free speech rights." ( Kibler v. Northern Inyo County Local Hospital Dist. (2006)
The anti-SLAPP statute describes what evidence a court may consider at the second step. It provides that "[i]n making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ( § 425.16, subd. (b)(2), italics added.) "The pleadings
Although not mentioned in the SLAPP Act, the Code of Civil Procedure also allows a court to consider, in lieu of an affidavit, certain written declarations. To qualify as an alternative to an affidavit, a declaration must be signed and recite that the person making it certifies it to be true under penalty of perjury. The document must reflect the date and place of execution, if signed in California, or recite that it is executed "under the laws of the State of California." (§ 2015.5; see Kulshrestha v. First Union Commercial Corp. (2004)
Defendants argue that the factual narratives attached to the plea forms and the excerpts of the grand jury testimony are hearsay because they were made out of court and were being offered for their truth. ( Evid. Code, § 1200.) They urge the court could only consider them if they fell within the former testimony hearsay exception. ( Evid. Code, § 1292.) Initially, we agree
However, statutes allowing consideration of some statements in resolving pretrial motions provide an exception to the hearsay rule for purposes of the motion. (See Elkins v. Superior Court (2007)
The excerpts of the grand jury testimony, however, require a different analysis. Although testimony before the grand jury is given under oath, a transcript of that testimony is not a "written declaration under oath." (§ 2003.) Rather, a transcript is a written memorialization of an oral examination under oath. (See § 2005 [defining "oral examination"].) Likewise, a transcript of testimony is not a declaration under section 2015.5 because it is not "subscribed by" the testifying witness.
Nevertheless, the Court of Appeal concluded the grand jury testimony could still be considered because "the transcripts are of the same nature as a declaration in that the testimony is given under penalty of perjury." The court
This analysis is sound. The statutory scheme already permits consideration of affidavit equivalents. ( § 2015.5.) As Kulshrestha noted, the important aspect of such evidence is that it be made under penalty of California's perjury laws. (See Kulshrestha, supra, 33 Cal.4th at pp. 610-618,
The text of the anti-SLAPP statute does not speak directly to the issue, but permitting courts to consider recorded testimony is consistent with the purposes of the Act. The law's central aim is "screening out meritless claims that arise from protected activity, before the defendant is required to undergo the expense and intrusion of discovery." ( Baral, supra,
It would not serve the purposes of the SLAPP Act to preclude consideration of testimony made under oath. This sworn testimony is at least as reliable as an affidavit or declaration. An anti-SLAPP motion is filed early in the case, usually within 60 days of service of the complaint. ( § 425.16, subd. (f).) Discovery is stayed once the motion is filed. ( § 425.16, subd. (g).) Under these circumstances, it may not be practicable for a plaintiff to obtain declarations from various witnesses, particularly those associated with the
Gatton v. A.P. Green Services, Inc. (1998)
In a somewhat related context, the statute governing summary judgment motions reflects a similar understanding of the role played by affidavits and declarations. That statute requires that "[s]upporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations." (§ 437c, subd. (d).)
There are important differences between the two schemes. Chief among them is that an anti-SLAPP motion is filed much earlier and before discovery. However, to the extent both schemes are designed to determine whether a suit should be allowed to move forward, both schemes should require a showing based on evidence potentially admissible at trial presented in the proper form. The grand jury transcripts at issue here satisfy this requirement.
Thus, in determining a plaintiff's probability of success, the court may consider statements that are the equivalent of affidavits and declarations because they were made
In addition to submission in the proper form, courts have long required that the evidence relied on by the plaintiff be admissible at trial. Wilcox v. Superior Court (1994)
Wilson v. Parker, Covert & Chidester (2002)
Defendants return to their reliance on the former testimony hearsay exception. ( Evid. Code, § 1292.) That exception requires the declarant be unavailable as a witness, and "[t]he issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing." ( Evid. Code, § 1292, subd. (a)(3).) Defendants contend, unless this showing is definitively made at the hearing , a court may not consider the statements in determining the probability of success.
In Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004)
Other cases support the distinction between evidence that may be admissible at trial and evidence that could never be admitted. For example, Healthsmart Pacific, Inc. v. Kabateck (2016)
Although not involving an anti-SLAPP motion, Perry v. Bakewell Hawthorne, LLC, supra,
Our observation in the previous section regarding the timing of an anti-SLAPP motion and the stay of discovery applies equally here. It may not be possible at the hearing to lay a foundation for trial admission, even if such a showing could be made after full discovery. While it may prove
In sum, 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.
The Court of Appeal's judgment is affirmed.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
MANELLA, J.
Notes
Presiding Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Government Code section 1090, subdivision (a) prohibits listed officers and employees from being "financially interested in any contract made by them in their official capacity, or by any body or board of which they are members." Section 1090, subdivision (b) proscribes aiding and abetting a violation of subdivision (a). "Every contract made in violation of any of the provisions of Section 1090 may be avoided at the instance of any party except the officer interested therein." (Gov. Code, § 1092, subd. (a).)
The Court of Appeal elaborated that " 'financial inducements' " included: "(1) 'Numerous dinners at expensive restaurants,' (2) 'Tickets to the theater and sporting events, including Charger games and ... The Jersey Boys,' (3) 'Hotel accommodations, food, and tickets to the Rose Bowl in Pasadena,' (4) 'Airfare, hotel accommodations, wine tasting, and a hot air balloon ride in Napa Valley,' and (5) 'Monetary contributions to beauty pageants, charities, and campaigns on behalf of District officials.' "
SGI did not join in the motion.
Subsequent statutory references are to the Code of Civil Procedure unless otherwise noted.
" 'SLAPP' is an acronym for 'strategic lawsuit against public participation.' " (Baral v. Schnitt (2016)
These excerpts were lodged as exhibits to plaintiff's summary judgment motion against SGI.
After our grant of review, the parties have indicated that they have settled the case. We exercise our discretion to retain the case to resolve a conflict in the Courts of Appeal that precipitated our grant of review. (See State of Cal. ex rel. State Lands Com. v. Superior Court (1995)
We disapprove Gatton v. A.P. Green Services, Inc., supra,
We do not here create a different requirement for anti-SLAPP litigation. As in the summary judgment context, an affidavit or declaration will generally be sufficient as to form if it satisfies section 437c, subdivision (d).
Defendants do not differentiate between the grand jury transcript and the plea forms, arguing both must satisfy the requirements for former testimony in order to be admitted. It is doubtful that statements in the plea forms constitute "former testimony." (Evid. Code, § 1290.) The more appropriate hearsay exception would be a declaration against interest. (Evid. Code, § 1230.) That exception also requires unavailability, but not a previous opportunity to cross-examine. (See Evid. Code, § 1292, subd. (a)(3).) Detailed explanations of one's own criminal misconduct in a formal legal proceeding would surely seem to satisfy the exception. "[A] guilty plea falls within the hearsay rule exception for declarations against penal interest." (People v. Cummings (1993)
The videotape was not accompanied by an affidavit or declaration. (Fashion 21, supra,
To clarify the distinction, 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.