Summary Judgment: Elusive After Sweetwater?

In Sweetwater Union High School Dist. v. Gilbane Building Co., the California Supreme Court examined evidence burdens in the context of the anti-SLAPP statute.[1] Despite resolving anti-SLAPP issues, the opinion contains some serious implications for summary judgment.

Sweetwater & The Evidentiary Burdens

The anti-SLAPP statute features two prongs. Under Prong One, the moving party must show that liability—as asserted in the complaint—is based on protected activity.[2] If that showing is made, then under Prong Two the burden shifts to the opposing party to demonstrate that the case has minimal merit. The Supreme Court has described Prong Two as “a summary-judgment-like procedure.”[3] Courts are to accept the opposition party’s evidence as true, and see whether the moving party has nonetheless defeated the opposing party’s showing “as a matter of law.”[4]  

In Sweetwater, a school district filed suit to void public works contracts. The district claimed that the defendants bribed various district officials during a campaign to pass a bond measure. The defendants filed an anti-SLAPP motion, arguing their conduct was protected by the First Amendment as petitioning activity and political expression.[5]

The superior court denied the motion, concluding that all the alleged conduct was illegal.[6] The Court of Appeal disagreed, but it affirmed anyway because the district showed minimal merit to the claims. The Prong Two burden was satisfied because the district submitted evidence from a recent investigation of defendants’ for criminal conduct, including grand jury testimony and plea forms. The Supreme Court granted review to resolve issues over the form and admissibility of evidence on Prong Two.

Sweetwater and the Form of Evidence

On review, the defendants argued that the plea forms are not “affidavits,” include hearsay, and thus, cannot be considered on Prong Two. The Sweetwater Court rejected those arguments because plea forms contain attestations of truthfulness under penalty of perjury—just like affidavits. Therefore, while the anti-SLAPP statute lists only “affidavits,” documents forming the “equivalents” of affidavits can satisfy Prong Two.

The Court also found that the excerpts of grand jury testimony contained similar indicia of reliability because the witness is under oath, leaving only authenticity to be established—typically not a very high hurdle. The Court explained that such a broad reading is “consistent with the purposes of the [anti-SLAPP] Act” given the discovery stay which occurs when an anti-SLAPP motion is filed and yet the party opposing the motion has to “substantiate[] a legally sufficient claim.”[7]

Sweetwater and the Admissibility of Evidence

The defendants also asserted that unless hearsay exceptions are established, evidence should be excluded from the Prong Two showing. But the Court rejected that too because “In the anti-SLAPP motion context … reliability stems from the oath-taking procedures” built into affidavits, declarations, and their equivalents which are used to establish whether “evidence exists,” not to demonstrate trial admissibility during anti-SLAPP motions.[8]

To demonstrate, the Court analogized to summary judgment under Code of Civil Procedure section 437c. The Court pointed out that the two schemes share a similar purpose of “weed[ing] out meritless suits” (anti-SLAPP) and determining if “trial is in fact necessary” (summary judgment).[9] “[T]o 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 … .”[10]

But in making that explanation, the Court relied on anti-SLAPP opinions characterizing Prong Two as requiring actually admissible evidence at the Prong Two stage. Put another way, the Court’s examples focused on actual admissibility. Nonetheless, Sweetwater’s ultimate conclusion rested on potential admissibility. The Court elucidated that “evidence may be considered at the anti-SLAPP motion stage if it is reasonably possible the evidence … will be admissible at trial.”[11]

“Reasonable Possibility” On Summary Judgment

Sweetwater’s “reasonable possibility” of admissibility at trial makes sense because when an anti-SLAPP motion is filed, discovery is stayed.[12] In contrast, summary judgment motions are generally brought later, after significant discovery, and often involve evidence obtained through discovery. In addition, for summary judgment, section 437c, subdivision (d) requires affidavits and declarations to “set forth admissible evidence.”  Emphasis added. But after Sweetwater, can trial courts require strict admissibility instead of a lower bar—the “reasonable possibility” of admission?

Does it matter that summary judgment tests for trial-necessity, thereby justifying a more rigorous admissibility standard than applicable to the merit-screening purpose of the anti-SLAPP statute? It seems the answer should be “yes.” However, “the purpose of the summary judgment procedure is … to discover … whether the parties possess evidence which demands the analysis of trial.”[13] If a court confronted with admissibility problems can conceive of solutions at trial, can that court grant summary judgment after Sweetwater? The answer, it seems, should be “no.”

[1] Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931.

[2] Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.

[3] Taus v. Loftus (2007) 40 Cal.4th 683, 714.

[4] Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.

[5] Sweetwater Union School Dist. v. Gilbane Building Co. (2016) 199 Cal.Rptr.3d 659, 666 (superseded by Sweetwater, supra, 6 Cal.5th 931).

[6] See, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299, 317 [anti-SLAPP motion not cognizable where conduct at issue is wholly illegal].

[7] Sweetwater, supra, 6 Cal.5th at p. 943.

[8] Id. at pp. 944-945.

[9] Id. at p. 945.

[10] Ibid., emphasis added.

[11] Id. at p. 947, emphasis added.

[12] See Code Civ. Proc. § 425.16, subd. (g).

[13] Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1275, emphasis added.