Cal. Supremes Approve Sworn Hearsay in Anti-SLAPP Step Two

Sweetwater Union Sch. Dist. v. Gilbane Bldg. Co., No. S233526 (Cal. Mar. 1, 2019)

Almost three years ago, the 4/1 held that grand jury transcripts and sworn change of plea documents could be considered during stage two of the anti-SLAPP analysis to ascertain whether plaintiff can establish a prima facie case. The Supreme Court granted review and now affirms for basically the same reason.

Evidence submitted in connection with an anti-SLAPP motion generally needs to be admissible. But—much like a summary judgement motion—an anti-SLAPP motion is meant to be decided without oral testimony. So declarations can be used in lieu of live testimony in court, under the theory that the testimony in them could be converted into an admissible form at trial. 

So here, the Court finds that the grand jury transcripts and change of plea forms are sworn testimony that is functionally equivalent to a declaration. So long as it’s reasonably likely that the testimony could be offered in an admissible form at trial, it could be considered on the motion even if it didn’t currently fall within an established hearsay exception.

Court of Appeal affirmed.