California SLAPP Law

An anti-SLAPP motion can be viewed as a somewhat one-sided mini-trial, where the plaintiff is required to show sufficient evidence to establish a likelihood of succeeding on their claims. It’s one-sided because the plaintiff’s evidence is “accepted as true,” and the defendant’s evidence is considered only to determine if it establishes an affirmative defense as a matter of law.

But therein lies the rub. The plaintiff must produce sufficient evidence to establish a probability of success, while at the same time being prevented from gathering that evidence due to the discovery stay the motion imposes. Perhaps more frustrating, the plaintiff may have the evidence, but the evidence is inadmissible due to issues that could be easily addressed with a little discovery. For example, a plaintiff was provided with a company email from and anonymous source that clearly defames him, but that email is inadmissible hearsay unless and until he conducts discovery to authenticate it. Should such a case be dismissed pursuant to an anti-SLAPP motion even though the supporting evidence exists, but is not yet admissible?

In the decision of Sweetwater Union High School District v. Gilbane Building Co., the California Supreme Court came up with a brilliant way to address this conundrum. Sweetwater clarifies that the inquiry is not whether the proffered materials are themselves admissible in their present form, but whether the facts asserted are reasonably capable of being admitted at trial.

The Factual Background: Bond Contracts and Bribery

In Sweetwater, the Sweetwater Union High School District sought to void construction management contracts awarded after voters approved Proposition O, a bond measure funding capital improvements. According to the District, representatives of the contractor entities provided gifts, meals, travel, entertainment tickets, and other financial inducements to school officials — including the superintendent and board members — in violation of Government Code section 1090.

A criminal investigation followed. Several district officials and contractor representatives entered guilty or no-contest pleas. Their change-of-plea forms included factual narratives attesting under penalty of perjury that gifts were provided with the intent to influence the awarding of contracts.

But when the District filed a civil action seeking disgorgement and contract avoidance, the defendants responded with an anti-SLAPP motion. The trial court denied the motion, due in part to the lack of admissible evidence, and the Court of Appeal affirmed. The Supreme Court granted review to resolve conflicting appellate authority on what evidence may be considered at the second prong of the anti-SLAPP analysis, where the plaintiff is required to present their evidence.

The Legal Framework: The Second Prong

As the Court reiterated, anti-SLAPP analysis proceeds in two steps. If the defendant meets the first prong—showing the claim arises from protected activity—the burden shifts. At the second prong, the plaintiff must demonstrate a probability of success.

The inquiry is “summary-judgment-like,” but it is not summary judgment. The court does not weigh evidence or resolve conflicts; it determines whether the plaintiff has made a prima facie showing sufficient to sustain a favorable judgment if the evidence is credited.

Critically, the statute directs the court to consider “the pleadings, and supporting and opposing affidavits stating the facts.” The recurring problem had been whether courts may consider materials that are hearsay in form—such as plea forms or grand jury transcripts—when evaluating that showing.

Form vs. Admissibility: Two Distinct Questions

The Supreme Court separated the issue into two components:

Form: Does the proffered material qualify as an affidavit, declaration, or equivalent?

Substantive admissibility: Are the facts asserted reasonably capable of admission at trial?

On the first question, the Court held that change-of-plea forms signed under penalty of perjury satisfy Code of Civil Procedure section 2015.5 and may be treated as declarations.

Even more significantly, the Court held that grand jury transcripts—though not “subscribed” by the witness—may be considered as the functional equivalent of declarations because they are sworn testimony under penalty of perjury. In doing so, the Court disapproved contrary appellate authority that had applied the former-testimony hearsay exception too rigidly in the anti-SLAPP context.

Although a seemingly obvious point, the Court emphasized that affidavits and declarations are themselves hearsay. They are permitted at the anti-SLAPP stage not because they satisfy a hearsay exception, but because the statute authorizes their use for purposes of the motion.

The Critical Holding: “Reasonably Possible” Admissibility

The most important portion of Sweetwater addresses the second issue: whether the facts asserted must already be admissible in their present form.

The Court reaffirmed that plaintiffs must rely on evidence that would be admissible at trial. However, it rejected the argument that the plaintiff must establish, at the anti-SLAPP hearing, that every evidentiary foundation has already been laid. Instead, the governing standard is whether it is reasonably possible that the evidence described in affidavits, declarations, or their equivalents will be admissible at trial.

The Court drew a distinction between:

Evidence categorically barred by a substantive rule (e.g., absolute privilege, incurable hearsay, statements made only on information and belief); and

Evidence that is presently deficient for lack of authentication, foundation, or other curable preconditions.

The Court concluded that if the defect is incurable, the court must disregard the evidence. But if the defect is curable—if the witness could testify at trial, if foundation could be laid, if authentication could be supplied—the evidence may be considered.

The Court analogized to cases allowing consideration of materials at summary judgment where the only obstacle was a missing foundational showing that could be supplied later. In Sweetwater, there was no categorical bar. The plea statements appeared admissible as declarations against penal interest under Evidence Code section 1230. Moreover, the signers themselves—or other competent witnesses—could testify at trial.

Why This Matters: Anti-SLAPP Is Not a Trial on Admissibility

The Court’s reasoning reflects a practical reality: anti-SLAPP motions are filed early, discovery is stayed, and plaintiffs often lack access to live testimony. Requiring plaintiffs to overcome every evidentiary hurdle at this stage would convert the second prong into a premature evidentiary trial. That is not the statute’s purpose. The anti-SLAPP law is designed to eliminate meritless suits—not to abort potentially meritorious ones due to temporary evidentiary limitations.

In short, Sweetwater prevents defendants from weaponizing technical admissibility objections to defeat claims that have substantive evidentiary support.

Practical Implications for Plaintiffs

For plaintiffs opposing an anti-SLAPP motion, Sweetwater provides several strategic guideposts:

Use sworn materials wherever possible. Plea forms, deposition excerpts, transcripts of sworn proceedings, and declarations satisfy the statute’s reliability concerns.

Address admissibility affirmatively. Even though the material itself may be hearsay, explain how the facts asserted will be introduced at trial (e.g., live testimony, hearsay exception, business records foundation).

Distinguish between curable and incurable defects. If an objection concerns authentication, foundation, or unavailability, argue that the defect is curable and thus insufficient at this stage.

Invoke the discovery stay rationale. Emphasize that early timing and stayed discovery make complete evidentiary development impracticable.

Request limited discovery if necessary. Section 425.16(g) allows targeted discovery upon good cause—particularly useful if the defendant’s objection concerns foundational gaps.

The Bottom Line

Sweetwater restored balance to the second prong analysis. Plaintiffs must present competent evidence, but they need not prove full trial admissibility at an embryonic stage of the case. The operative question is whether the facts asserted are capable of being proved by admissible evidence at trial.

For lawyers litigating anti-SLAPP motions, Sweetwater is indispensable authority. It confirms that the second prong is a threshold screening device, not an evidentiary gauntlet.

The Supreme Court made clear that the statute’s purpose is to weed out meritless suits—not to provide defendants with a procedural trapdoor when plaintiffs possess sworn, substantive evidence of wrongdoing.