Understanding Anti-SLAPP Evidence

police defamation

Another great victory by Morris & Stone, and an important lesson on anti-SLAPP evidence.

Our tale begins with a father who loved his daughter. We’ll call him Dad, and his daughter will be Rose.

Dad thought married life was good, and he and his wife begat their wonderful daughter Rose. But his wife (we’ll call her Mom) apparently saw greener grass, and divorced Dad to marry New Guy, meaning that Rose would now be spending time with New Guy.

Reports from Rose about her time with New Guy were disturbing. She claimed that New Guy had spanked her, and one time she returned home with a badly bruised arm she blamed on New Guy. During the ongoing custody battle, Dad reported his concerns about New Guy to the court in various court documents, stating that based on what Rose was reporting, he was being too forceful with Rose. Dad freely admitted he had no personal knowledge of any of this; he was only reporting what Rose was telling him. What else was he supposed to do?

On one occasion, when Mom came to pick up Rose, Rose was particularly agitated about having to go stay with Mom and New Guy, so after reluctantly turning Rose over for visitation, Dad called the police for a welfare check on Rose.

New Guy took umbrage with all the accusations of possible abuse, so he filed an action for defamation against Dad, based on the statements by Dad in (1) the court documents, and (2) the report to the police. Dad did some research, learned about anti-SLAPP motions, and of course called moi, the Sultan of Slapp.

But to his credit, New Guy had done his homework as well. He had found Penal Code section 11172, which allows one to sue a defendant for defamation for making a false “report” of child abuse. He claimed that the statements in the court documents were “reports” as was the report to the police.

I brought an anti-SLAPP motion.

Game Over Anti-SLAPPAs to the statements in the court documents, that was a no-brainer. A statement in a court document is not a “report” within the meaning of Section 11172, so those statements enjoyed an absolute litigation privilege. As to those, New Guy was going down. I love when a plaintiff alleges clearly protected speech of this sort, because the second prong of the anti-SLAPP analysis become superfluous. If the complaint is based on speech that falls under an absolute privilege, there is no evidence that can be presented that will satisfy the second prong. Thus, a successful anti-SLAPP motion is virtually guaranteed; the only issue being whether it will be a complete or partial victory.

But the report to the police was a different story. If Dad had indeed made a false report of child abuse to the police, that would fall squarely under section 11172. To defeat that claim, I had to do a little sleuthing.

Dad told me that he had not made any report of child abuse to the police; he had only requested a check welfare. Contrary to New Guy’s claims, a check welfare request is not a report of child abuse. New Guy argued the usual nonsense, stating that it must have been a report of child abuse, because “armed police arrived to investigate.” In these circumstances, it is always stated that the police were armed, to add to the drama. As opposed to what? Is the alternative that they would have left their guns in the car if they were only there for a welfare check? Anyway, I pulled the police report, and it clearly stated the Dad had only requested a check welfare. No claim of child abuse.

So why had New Guy alleged that Dad had reported child abuse? Well, in the declarations they filed in opposition to my anti-SLAPP motion, New Guy and Mom both stated that the police told them that they were there on a report of child abuse.

Here comes the key takeaway on anti-SLAPP evidence, so your attention please.

For a complete victory that would entirely extract my client from the case, I had to dispose of both the statements made in the court documents, and the report to the police. To that end, I objected to the declarations by Mom and New Guy as to what the police officers had said to them, because that was clearly hearsay. Indeed, it’s at least triple hearsay. When Dad called the police, someone in dispatch would have taken the call, and provided the information to the dispatcher. The dispatcher would then radio the information to the police in the field, and those officers then spoke to Mom and New Guy. You can see that they were multiple steps away from knowing what was actually said by Dad.

The trial court sustained my objection to the alleged comments by the police officers, and on that basis granted my anti-SLAPP motion in its entirety. New Guy appealed. While the appeal was proceeding, I garnished New Guy’s wages for the attorney fees incurred.

Oral Argument.

When I prepare for oral argument in front of the Court of Appeal, I read and summarize every case cited by both sides. I never want to experience that horrible moment when one of the Justices asks, “but how do you distinguish this case from the Johnson decision?” If I don’t recall the Johnson case, I just glance down at the squib I have prepared for that case to put me on track.

But in this case, the Justice asked about a case that neither side had referenced in their papers. “In terms of the excluded evidence, how do you distinguish this case from Sweetwater?”, asked one of the Justices. Thankfully, I had done a deep dive into and wrote an article about that opinion when it was published in 2019, so I was familiar with it, but the Court was placing great weight on how the Supremes had viewed evidence offered in the anti-SLAPP context. My article had not focused on that aspect of the opinion. I provided an answer that I will choose to believe was brilliant, but if I actually checked the recording, I probably came across like Ralph Kramden saying “homina homina homina.”

The holding of Sweetwater Union High School District v. Gilbane Building Co.

In Sweetwater, a School district filed action against contractors, seeking to void contracts for construction projects and to require that the contractors disgorge all sums that district paid to them under contracts, alleging that certain representatives from contractors’ companies engaged in a scheme with district officials that violated statute prohibiting public officials from being financially interested in any contract. The District alleged that the defendants gave meals, vacations, and event tickets to board members and their families and friends, and made contributions to various campaigns, charities, and events on the officials’ behalf.

Defendants brought an anti-SLAPP motion, claiming the complaint arose from constitutionally protected political expression. In opposition to the motion, the District offered the written plea deals from some of the defendants, wherein the factual narrative confirmed that gifts had been given to board members with the specific intent of influencing the award of construction contracts. The District also relied on excerpts from the grand jury testimony of several witnesses.

Defendants contended that this evidence was inadmissible hearsay. However, the trial court disagreed and denied the anti-SLAPP motion based on that evidence (finding that with the evidence, the District has shown it was likely to succeed). The Court of Appeal affirmed the denial, and the matter was taken up by the California Supreme Court.

The Supremes provided a very detailed analysis of the evidence offered, that need not be set forth here. Rather, what is important was the Court’s ruling on how to handle facially inadmissible evidence, where there is a chance the inadmissibility could be overcome at trial. I normally don’t set forth so much of the decision, but I find the Court’s analysis very interesting. Plus, you attorneys may well want to cut and paste this into future briefs. If you don’t want all the details, skip down to the “Summary” heading below.

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) 27 Cal.App.4th 809 explained that unless “the evidence referred to was admissible, or at least not objected to, … there would be nothing for the trier of fact to credit.” (Wilcox, at p. 830.) Similarly, Evans v. Unkow (1995) 38 Cal.App.4th 1490, observed that “[a]n assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. [Citation.] Such evidence must be admissible.” (Id. at p. 1497; see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1235-1238; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656.)

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 held a malicious prosecution claim was precluded because the earlier denial of an anti-SLAPP motion established probable cause for a suit. Wilson observed that “[a] claim that is legally sufficient and can be substantiated by competent evidence is … one that a ‘reasonable attorney would have thought … tenable.’ ” (Id. at p. 821.) As one court observed, Wilson “contemplates a SLAPP plaintiff’s presentation of competent, i.e., admissible, evidence in support of its prima facie case in opposition to the motion.” (Tuchscher Development Enterprises, supra, 106 Cal.App.4th at p. 1237.) Baral explained, “The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Baral, supra, 1 Cal.5th at p. 396.)

[Quick sidebar: Not so much for the case being discussed, but remember the reasoning of the prior paragraph. If a plaintiff brings an action, and defeats an anti-SLAPP motion, the action will then be safe from any malicious prosecution action. If the action was sufficient to satisfy the second prong of the anti-SLAPP analysis, then it can’t be said to have been so obviously lacking in merit as to be maliciously brought. Now back to Sweetwater.]

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(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. The argument runs ahead of itself and accordingly fails. As explained below, evidence may be considered at the anti-SLAPP motion stage if it is reasonably possible the evidence set out in supporting affidavits, declarations or their equivalent will be admissible at trial.

In Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, a clothing retailer sued, alleging the defendants handed out defamatory flyers at demonstrations outside the plaintiffs’ stores. In response to the defendants’ anti-SLAPP motion, the plaintiffs presented an edited videotape purporting to show one of the demonstrations. The defendants objected that the edited videotape was not properly authenticated. The court acknowledged that “[h]ad this videotape been offered at trial, [the defendants’] objection would have been well taken” (id. at p. 1146), noting that, under Evidence Code section 1402, authentication required a showing that “the alteration did not change the meaning … of the instrument” (Evid. Code, § 1402). (See Fashion 21, at p. 1146, fn. 9.) However, the court concluded the videotape could be considered: “[T]he proper view of ‘admissible evidence’ for purposes of the SLAPP statute is evidence which, by its nature, is capable of being admitted at trial, i.e., evidence which is competent, relevant and not barred by a substantive rule. Courts have thus excluded evidence which would be barred at trial by the hearsay rule, or because it is speculative, not based on personal knowledge or consists of impermissible opinion testimony. This type of evidence cannot be used by the plaintiff to establish a probability of success on the merits because it could never be introduced at trial…. [¶] Evidence such as the videotape in this case, which is only excludable on the ground it lacks proper authentication, stands on a different footing in terms of its ability to support the plaintiffs’ cause of action…. [E]vidence that is made inadmissible only because the plaintiff failed to satisfy a precondition to its admissibility [at trial] could support a judgment for the plaintiff assuming the precondition could be satisfied.” (Id. at pp. 1147-1148.) Fashion 21 concluded: “Given the high probability Fashion 21 would succeed in offering the videotape into evidence at trial and the ‘minimal’ showing necessary to overcome a SLAPP motion, we hold the trial court did not commit reversible error in considering the videotape in determining Fashion 21’s likelihood of prevailing ….” (Id. at p. 1148.)

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) 7 Cal.App.5th 416, affirmed the grant of an anti-SLAPP motion because the defamation suit there was based on privileged statements. (Id. at pp. 430-437.) Wilcox reached a similar conclusion in another defamation case, concluding that the petitioner could not overcome a privilege. (Wilcox, supra, 27 Cal.App.4th at pp. 825-827.) The privileged statements in both cases could not be admitted by substantive rule. Likewise, Evans concluded a statement made only on information and belief was incompetent for lack of personal knowledge. (Evans, supra, 38 Cal.App.4th at p. 1498.) In other words, such evidence suffers from “the sort of evidentiary problem a plaintiff will be incapable of curing by the time of trial.” (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1269.)

Although not involving an anti-SLAPP motion, Perry v. Bakewell Hawthorne, LLC, supra, 2 Cal.5th 536, 538, is instructive: “[W]hen the court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.” Perry noted that the summary judgment statute required that supporting affidavits and declarations “set forth admissible evidence.” (§ 437c, subd. (d); see Perry, at p. 541.) “The condition that an expert’s declaration must set out admissible evidence, however, has determinative importance…. [T]he summary judgment statute still requires the evidence provided in declarations to be admissible at trial. [Citations.] Declarations themselves are not ordinarily admissible because they are hearsay. But the Kennedy court [Kennedy v. Modesto City Hosp. (1990) 221 Cal.App.3d 575] erred when it suggested that the evidence contained in summary judgment declarations need not be admissible at trial.” (Perry, at p. 541.) Perry reasoned that, because the failure to comply with the disclosure statute rendered the evidence incurably inadmissible at trial, it could not properly be considered in ruling on a summary judgment motion. (Id. at pp. 541-543.)

This case, like Fashion 21, describes evidence that is potentially admissible at trial. Here, unlike the facts in Perry, there is no categorical bar to statements contained in the grand jury transcript and plea forms. Indeed, the statements themselves appear to be statements against interest. (Evid. Code, § 1230.) Further, there are no undisputed factual circumstances suggesting the evidence would be inadmissible at trial. In Fashion 21, the videotape at issue could be admitted at trial if properly authenticated. In the videotaped demonstration, “employees and representatives of Fashion 21 … along with” others were present (Fashion 21, supra, 117 Cal.App.4th at p. 1145), suggesting there were identifiable witnesses who had personal knowledge of the events. The signers of those documents or other competent witnesses could testify at trial to support the District’s claims. That live testimony would supplant any improper reliance on hearsay. Finally, plaintiff would have the opportunity to satisfy the requirements of any other applicable hearsay exceptions before admission at trial.

Here is the Supreme Court’s summary:

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 difficult at this early stage to obtain declarations from those who have pled guilty in the bribery case, it is not unreasonable to expect that those witnesses may be deposed and/or produced for trial. To strike a complaint for failure to meet evidentiary obstacles that may be overcome at trial would not serve the SLAPP Act’s protective purposes. Ultimately, the SLAPP Act was “intended to end meritless SLAPP suits early without great cost to the target” (Newport Harbor Ventures, supra, 4 Cal.5th at p. 644), not to abort potentially meritorious claims due to a lack of discovery. Notwithstanding the discovery stay, the court has discretion to order, upon good cause, specified discovery if required to overcome the hurdle of potential inadmissibility. (§ 425.16, subd. (g).)

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.

Now back to my victory.

Leaving oral argument, I was 97.3% percent sure we would carry the day, but I was left to worry about that other 2.7%, due to the Court’s reference to Sweetwater. Was the Court intending to overrule the trial court as to the statements by the police officers, concluding that my evidentiary objection could be overcome at trial?

Even though we prevailed, my 2.7% of worry turned out to be appropriate. Although Sweetwater was relegated to a footnote, it was a scary footnote indeed (altered to match my made-up names):

Plaintiff forfeited any argument that the police officers’ statements were admissible despite being hearsay because he could present the evidence without hearsay at trial. (See Sweetwater, supra, 6 Cal.5th at p. 949 [holding “[i]f an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable”]). For example, he could call as a witness the police officer who Dad asked for a welfare check. But New Guy did not raise that argument in the trial court and does not raise it on appeal. (See People v. Financial Casualty & Surety, Inc., supra, 64 Cal.App.5th at p. 416; W.S. v. S.T., supra, 20 Cal.App.5th at p. 149, fn. 7.) In the trial court, Dad filed his evidentiary objections, but New Guy does not appear to have filed a response. And there is no transcript. (See Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 [“Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.”].)

Clearly, the Court did not state that Plaintiff would have prevailed, but there is a strong implication that he might have prevailed had he properly raised the Sweetwater analysis (but not really, as explained below).

Some important lessons out of this one.

First, for the defendant, be sure to make formal written evidentiary objections. I often see attorneys address evidentiary issues in their reply memorandum, but the court is under no obligation to go into your brief and rule on objections contained therein. State your objections in a separate document, so the court will rule on them. As shown from my case, having a ruling on those objections (to which the Plaintiff failed to respond) was a big factor in the victory.

Second, again as the defendant, when analyzing the viability of an anti-SLAPP motion, you must consider how it will be impacted by Sweetwater. If this case had actually come down to what Dad said to a police officer, the decision to pursue an anti-SLAPP might have required speaking to that police officer.

Finally, if you are or represent the Plaintiff, figure out a way to overcome any evidentiary issues, and seek permission to conduct discovery if appropriate. Here, at a minimum, New Guy should have requested time to seek evidence of the content of the call. All incoming calls to the police are recorded, so New Guy should have subpoenaed that recording.

In the end, it would not have made any difference. Another point I made on appeal was that even if Dad had claimed child abuse in the call to the police, there was no evidence that it was directed at New Guy. It was Mom who had come to pick up Rose, and Rose did not want to go with her. In that context, it would not have made sense for Dad to report that New Guy was somehow abusing Rose at that exact moment. He would not have even known if New Guy was home.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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