Sweetwater Union High School Dist. v. Gilbane Bldg. Co. ( 2019 )


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  •          IN THE SUPREME COURT OF
    CALIFORNIA
    SWEETWATER UNION HIGH SCHOOL DISTRICT,
    Plaintiff and Respondent,
    v.
    GILBANE BUILDING COMPANY et al.,
    Defendants and Appellants.
    S233526
    Fourth Appellate District, Division One
    D067383
    San Diego County Superior Court
    37-2014-00025070-CU-MC-CTL
    February 28, 2019
    Justice Corrigan authored the opinion of the court, in which
    Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
    Kruger, and Manella* concurred.
    __________________________________________________________
    *
    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.
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    S233526
    Opinion of the Court by Corrigan, J.
    The narrow question here is what kind of evidence a
    court may consider in ruling on a pretrial anti-SLAPP motion
    in determining a plaintiff’s probability of success. The inquiry
    has two aspects. One addresses the form in which the evidence
    is produced in connection with the motion.            The other
    evaluates whether that evidence will be admissible at an
    eventual trial. We conclude the evidence produced by plaintiff
    Sweetwater Union High School District (the District) was
    properly considered and affirm the Court of Appeal’s judgment.
    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 various construction
    projects funded by the measure. It received seven proposals,
    including a joint submission from defendants Gilbane Building
    Company (Gilbane), The Seville Group, Inc. (SGI), and
    Gilbane/SGI, a joint venture (the Joint Venture). A screening
    committee selected three finalists. The final review committee,
    consisting of School Superintendent Jesus Gandara and three
    others, selected defendants’ proposal as the winning bid.
    Gandara was authorized to negotiate a contract. The District
    board ultimately approved several contracts with defendants to
    1
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    manage projects arising from Proposition O and a previous
    measure.
    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).1)          It also alleged
    contributions were made to various campaigns, charities, and
    events on the officials’ behalf.2 The conduct allegedly occurred
    1
    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).)
    2
    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,
    2
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    both before the passage of Proposition O and during the
    bidding and approval process.
    Gilbane and the Joint Venture3 brought a special motion
    to strike under Code of Civil Procedure4 section 425.16 (the
    SLAPP5 Act). Defendants urged the complaint stemmed from
    constitutionally protected political expression. The District’s
    response relied on evidence of the various guilty and no contest
    pleas. Each plea form incorporated a written factual narrative
    attested to under penalty of perjury. Amigable’s narrative
    stated: “I provided gifts, meals and tickets to entertainment
    events directly to [Superintendent Gandara and board
    members Sandoval, Ricasa, and Quinones]. I provided the
    meals, tickets and gifts upon my initiative as sanctioned and
    encouraged by my employers. I also provided meals, tickets
    and gifts at the request of the elected board members and the
    Superintend[e]nt. The meals, tickets and gifts were made on
    behalf of my employers with the intent to influence the board’s
    decisions in granting construction contracts from the
    Sweetwater Union High School District to the firms for which I
    and a hot air balloon ride in Napa Valley,’ and (5) ‘Monetary
    contributions to beauty pageants, charities, and campaigns on
    behalf of District officials.’ ”
    3
    SGI did not join in the motion.
    4
    Subsequent statutory references are to the Code of Civil
    Procedure unless otherwise noted.
    5
    “ ‘SLAPP’ is an acronym for ‘strategic lawsuit against
    public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376,
    381, fn. 1 (Baral); Equilon Enterprises v. Consumer Cause, Inc.
    (2002) 
    29 Cal. 4th 53
    , 57 (Equilon Enterprises).)
    3
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    was working.        My expenses were generated with the
    endorsement of my employers and they were reimbursed to me
    by my employers. At no time did the elected board members or
    Superintend[e]nt reimburse me or my employers for the meals,
    tickets or gifts I gave them on behalf of my employers.”
    Flores’s narrative included a similar statement. Ricasa’s
    statement read in part: “In 2009, I was an elected School
    Board Member for the Sweetwater Union High School District.
    I accepted gifts from Rene Flores (SGI) in 2009 with a value of
    $2,099 and I did not report them. . . . Rene Flores provided
    these gifts with the intent to influence my vote on business
    awarded to Seville Group, Inc.” Quinones’s statement said
    that she “accepted gifts from Henry Amigable in 2007 with a
    total value in excess of $500.00 and I did not report them” and
    that “Henry Amigable provided these gifts with the intent to
    influence my vote on business awarded to Gilbane, his
    employer.”     Both Sandoval’s and Gandara’s statements
    indicated that they received gifts from Amigable and Flores
    “with a total value of more than” $2,770 (Sandoval) and $4,500
    (Gandara) and failed to report them. They acknowledged these
    gifts were provided “to influence my vote on business awarded
    to” defendants.
    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.6    The court overruled defendants’
    6
    These excerpts were lodged as exhibits to plaintiff’s
    summary judgment motion against SGI.
    4
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    evidentiary objections and denied their special motion to
    strike. The Court of Appeal affirmed.7
    II. DISCUSSION
    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) 
    39 Cal. 4th 192
    , 196.) A cause of action arising from a
    person’s act in furtherance of the “right of petition or free
    speech under the [federal or state] Constitution in connection
    with a public issue shall be subject to a special motion to
    strike, unless the court determines that the plaintiff has
    established that there is a probability” that the claim will
    prevail. (§ 425.16, subd. (b)(1).) “The anti-SLAPP statute does
    not insulate defendants from any liability for claims arising
    from the protected rights of petition or speech. It only provides
    a procedure for weeding out, at an early stage, meritless claims
    arising from protected activity. Resolution of an anti-SLAPP
    motion involves two steps. First, the defendant must establish
    that the challenged claim arises from activity protected
    by section 425.16. [Citation.] If the defendant makes the
    7
    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) 
    11 Cal. 4th 50
    , 60-62.)
    5
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    required showing, the burden shifts to the plaintiff to
    demonstrate the merit of the claim by establishing a
    probability of success. We have described this second step as a
    ‘summary-judgment-like procedure.’ [Citation.] The court
    does not weigh evidence or resolve conflicting factual claims.
    Its inquiry is limited to whether the plaintiff has stated a
    legally sufficient claim and made a prima facie factual showing
    sufficient to sustain a favorable judgment. It accepts the
    plaintiff’s evidence as true, and evaluates the defendant’s
    showing only to determine if it defeats the plaintiff’s claim as a
    matter of law. [Citation.] ‘[C]laims with the requisite minimal
    merit may proceed.’ ” 
    (Baral, supra
    , 1 Cal.5th at pp. 384-385,
    fn. omitted.) “We review de novo the grant or denial of an anti-
    SLAPP motion.” (Park v. Board of Trustees of California State
    University (2017) 2 Cal.5th 1057, 1067.) As to the second step
    inquiry, a plaintiff seeking to demonstrate the merit of the
    claim “may not rely solely on its complaint, even if verified;
    instead, its proof must be made upon competent admissible
    evidence.” (San Diegans for Open Government v. San Diego
    State University Research Foundation (2017) 13 Cal.App.5th
    76, 95; see Grenier v. Taylor (2015) 
    234 Cal. App. 4th 471
    , 480;
    City of Costa Mesa v. D’Alessio Investments, LLC (2013) 
    214 Cal. App. 4th 358
    , 376; Paiva v. Nichols (2008) 
    168 Cal. App. 4th 1007
    , 1017.)
    B. Affidavits and Their Equivalents
    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),
    6
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    italics added.) “The pleadings are the formal allegations by the
    parties of their respective claims and defenses . . . .” (§ 420.) A
    complaint must include a “statement of the facts constituting
    the cause of action, in ordinary and concise language.”
    (§ 425.10, subd. (a)(1).) The Code of Civil Procedure provides
    three ways in which testimony is taken:              by affidavit,
    deposition, or oral examination. (§ 2002.) “An affidavit is a
    written declaration under oath, made without notice to the
    adverse party.” (§ 2003.) An affidavit “may be taken before
    any officer authorized to administer oaths.” (§ 2012; see also
    §§ 2013, 2014.)
    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) 
    33 Cal. 4th 601
    , 610 (Kulshrestha).)
    The purpose of the statutory references to affidavits and
    declarations is to enhance reliability. “As with live testimony,
    the oath-taking procedures for affidavits help prevent perjury.
    [Citation.] [¶] In 1957, the Legislature enacted section 2015.5,
    authorizing declarations under penalty of perjury. [Citation.]
    Lawmakers expressed concern that the oath-and-affidavit
    procedure was both cumbersome and widely ignored.
    [Citation.] Declarations serve as a more streamlined means of
    ensuring that the witness understands ‘the grave
    7
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    responsibility he has assumed with respect to the truth[].’ ”
    
    (Kulshrestha, supra
    , 33 Cal.4th at p. 609.) Kulshrestha
    concluded that the out-of-state declaration at issue there failed
    to comply with section 2015.5 because it did not reflect it was
    made under penalty of California’s perjury laws. (Kulshrestha,
    at pp. 610-618.)
    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 that the hearsay rule applies. The Evidence Code
    states that, “[e]xcept as otherwise provided by statute, this
    code applies in every action before” the California courts.
    (Evid. Code, § 300.)
    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) 
    41 Cal. 4th 1337
    , 1355; § 2009.) Elkins
    emphasized that “[a]lthough affidavits or declarations are
    authorized in certain motion matters under Code of Civil
    Procedure section 2009, this statute does not authorize their
    admission at a contested trial leading to judgment.” (Elkins, at
    p. 1355.) Although affidavits and declarations constitute
    hearsay when offered for the truth of their content, section
    425.16, subdivision (b)(2) permits their consideration in ruling
    on a pretrial anti-SLAPP motion. In connection with the form
    of the declaration, then, defendants’ hearsay objection fails.
    These declarations may be considered, not because they satisfy
    8
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    some other hearsay exception, but because they qualify as
    declarations or their equivalent under section 2015.5, and can
    be considered under section 425.16.
    The change of plea forms may constitute declarations
    under section 2015.5 if signed under penalty of perjury. (See
    
    Kulshrestha, supra
    , 33 Cal.4th at p. 606.) “[C]ourts have made
    clear that a declaration is defective under section 2015.5
    absent an express facial link to California or its perjury laws.”
    (Id. at p. 612; see People v. Bryant (2011) 
    191 Cal. App. 4th 1457
    , 1470.) The Court of Appeal below concluded that “[e]ach
    plea form submitted by Sweetwater with respect to the anti-
    SLAPP motion meets the requirements set forth in section
    2015.5 of the Code of Civil Procedure. Specifically, each
    individual who signed and dated a plea form attested to the
    truth of the contents . . . under penalty of perjury under the
    laws of California.” Accordingly, the change of plea forms and
    the incorporated factual narratives qualify as declarations the
    court may consider in determining plaintiffs’ likelihood of
    success.
    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
    9
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    transcripts are of the same nature as a declaration in that the
    testimony is given under penalty of perjury.” The court relied
    on Williams v. Saga Enterprises, Inc. (1990) 
    225 Cal. App. 3d 142
    (Williams). Williams involved a summary judgment
    motion and held the trial court could consider the transcript of
    testimony from a related criminal case.               Williams
    acknowledged that the transcript did not qualify as former
    testimony under Evidence Code section 1292 because there
    was no showing that the witness was unavailable. It reasoned,
    however, that “inasmuch as the recorded testimony was offered
    in support of the opposition to a summary judgment motion
    and serves effectively as a declaration by [the witness], we
    treat it here as such.” (Williams, at p. 149, fn. 3.)
    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.) Sworn
    testimony made before a grand jury obviously is made under
    penalty of perjury. (Cf. People v. Snyder (1958) 
    50 Cal. 2d 190
    ,
    192.) As Williams and the Court of Appeal reasoned, a
    transcript of this testimony is the equivalent of a testifying
    witness’s declaration under penalty of perjury, assuming the
    authenticity of the transcript can be established. Defendants
    here do not contest authenticity.
    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
    10
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    the expense and intrusion of discovery.” 
    (Baral, supra
    , 1
    Cal.5th at p. 392.) The Legislature “has provided, and
    California courts have recognized, substantive and procedural
    limitations that protect plaintiffs against overbroad application
    of the anti-SLAPP mechanism. . . . ‘This court and the Courts
    of Appeal, noting the potential deprivation of jury trial that
    might result were [section 425.16 and similar] statutes
    construed to require the plaintiff first to prove the specified
    claim to the trial court, have instead read the statutes as
    requiring the court to determine only if the plaintiff has stated
    and substantiated a legally sufficient claim.’ ” (Briggs v. Eden
    Council for Hope & Opportunity (1999) 
    19 Cal. 4th 1106
    , 1122-
    1123.)
    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 defense.
    Further, under the present circumstances, even if declarations
    were obtained, they would have added little to the evidence
    already in plaintiff’s possession. It seems doubtful that the
    Legislature contemplated dismissal of a potentially meritorious
    suit for want of declarations largely duplicating available
    evidence.
    Gatton v. A.P. Green Services, Inc. (1998) 
    64 Cal. App. 4th 688
    (Gatton) reached a different conclusion. In the summary
    11
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    judgment context, Gatton concluded the trial court could not
    consider excerpts from two depositions in another case because
    the plaintiffs failed to satisfy the requirements of the former
    testimony hearsay exception. (Evid. Code, § 1292.) Gatton
    criticized “Williams’s casual view of trial testimony from
    another trial and declarations on summary judgment as being
    ‘the same . . . .’ [Citation.] Our Legislature has given this
    careful consideration and decided otherwise, mandating both
    unavailability, to ensure necessity, and a similar interest and
    motive in the prior proceeding, to ensure fairness.” (Gatton, at
    p. 694.) Gatton reasoned that a “deposition from another case
    differs greatly from a declaration from the same witness saying
    that, if called to trial in the current case, the witness would
    testify in a particular manner on specified subjects.” (Id. at p.
    695; see L&B Real Estate v. Superior Court (1998) 
    67 Cal. App. 4th 1342
    , 1346-1348 [following Gatton].)
    Relying on Gatton, defendants argue that a witness
    testifying in a different case may not have been cross-examined
    with the same motive as the parties here. Their reliance is
    misplaced. The former testimony exception is not the correct
    lens through which to examine this question. When satisfied,
    the former testimony exception permits admissibility at trial
    because the earlier opportunity for cross-examination ensures
    sufficient reliability. (See People v. Gonzales (2012) 
    54 Cal. 4th 1234
    , 1262.) In the anti-SLAPP motion context, however,
    reliability stems from the oath-taking procedures required for
    affidavits, or the execution under penalty of California perjury
    laws required by declarations. (Cf. 
    Kulshrestha, supra
    , 
    33 Cal. 4th 601
    , 606.) Indeed, even affidavits or declarations
    produced specifically for this case would not be subject to cross-
    12
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    examination. Yet, the statutory scheme clearly contemplates
    that courts may consider them.8
    Defendants further suggest that use of statements from a
    different case should not be allowed because “[n]o showing
    need be made that the declarant is available or unavailable,
    alive or dead, competent or demented.”             Defendants
    misunderstand the role of these statements in a second step
    anti-SLAPP procedure. As we explain in detail below (see post,
    at pp. 15-21), the affidavit or declaration is offered to
    demonstrate that admissible evidence exists to prove plaintiff’s
    claims. The statements must reflect that they were made by
    competent witnesses with personal knowledge of the facts they
    swear to be true. A transcript of a witness’s testimony under
    oath before a grand jury would serve to establish personal
    knowledge and competence in the same manner that an
    affidavit or declaration could.
    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.”
    8
    We disapprove Gatton v. A.P. Green Services, 
    Inc., supra
    ,
    
    64 Cal. App. 4th 688
    , and L&B Real Estate v. Superior 
    Court, supra
    , 
    67 Cal. App. 4th 1342
    , to the extent they are inconsistent
    with our opinion.
    13
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    (§ 437c, subd. (d).)9 As noted, we have described the anti-
    SLAPP motion as a “summary-judgment-like procedure at an
    early stage of the litigation” designed to weed out meritless
    suits “ ‘ “without great cost to the SLAPP target.” ’ ” (Varian
    Medical Systems, Inc. v. Delfino (2005) 
    35 Cal. 4th 180
    , 192; see
    Newport Harbor Ventures, LLC v. Morris Cerullo World
    Evangelism (2018) 4 Cal.5th 637, 642 (Newport Harbor
    Ventures).) Similarly, “it has always been ‘[t]he purpose of the
    law of summary judgment . . . to provide courts with a
    mechanism to cut through the parties’ pleadings in order to
    determine whether, despite their allegations, trial is in fact
    necessary to resolve their dispute.’ [Citations.] And section
    437c has always required the evidence relied on in supporting
    or opposing papers to be admissible.” (Perry v. Bakewell
    Hawthorne, LLC (2017) 2 Cal.5th 536, 542 (Perry).)
    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.
    9
    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).
    14
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    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 under oath
    or penalty of perjury in California. Here, the change of plea
    forms, factual narratives, and the excerpts from the grand jury
    testimony satisfy this requirement. That conclusion does not
    end the inquiry.
    C. The Materials Must Describe Admissible Evidence
    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
    (Wilcox) (overruled on another ground in
    Equilon 
    Enterprises, supra
    , 29 Cal.4th at p. 68, fn. 5) 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
    (Evans), 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
    (Tuchscher Development Enterprises); Church of Scientology v.
    Wollersheim (1996) 
    42 Cal. App. 4th 628
    , 656 (Church of
    Scientology), overruled on another ground in Equilon
    Enterprises, at p. 68, fn. 5.)
    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
    15
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    is legally sufficient and can be substantiated by competent
    evidence is . . . one that a ‘reasonable attorney would have
    thought . . . tenable.’ ” (Id. at p. 821, italics added.) 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, italics
    added.)
    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.10 The argument runs ahead of itself and accordingly
    10
    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
    16
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    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
    (Fashion 21), 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. (Id. at p. 1145.) 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.)11 However, the court concluded the videotape could be
    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) 
    4 Cal. 4th 1233
    , 1321.)
    11
    The videotape was not accompanied by an affidavit or
    declaration. (Fashion 
    21, supra
    , 117 Cal.App.4th at p. 1145.)
    17
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    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,
    italics added, fns. omitted.) 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
    Apparently, the defendants did not argue the tape could not be
    considered because it was not so supported. The Fashion 21
    court confined its discussion to whether the edited tape could
    be admissible at trial. (See 
    id. at pp.
    1145-1146.) Ordinarily,
    we would expect a party seeking consideration of other kinds of
    evidence demonstrate its admissibility by a supporting
    affidavit or declaration.
    18
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    determining Fashion 21’s likelihood of prevailing . . . .” (Id. at
    p. 1148, fn. omitted.)
    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
    19
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    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.)12
    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
    12
    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.
    20
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    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.
    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
    21
    SWEETWATER UNION HIGH SCHOOL DISTRICT v.
    GILBANE BUILDING COMPANY
    Opinion of the Court by Corrigan, J.
    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.
    III. DISPOSITION
    The Court of Appeal’s judgment is affirmed.
    CORRIGAN, J.
    We Concur:
    CANTIL-SAKAUYE, C. J.
    CHIN, J.
    LIU, J.
    CUÉLLAR, J.
    KRUGER, J.
    MANELLA, J.*
    *
    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.
    22
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion Sweetwater Union High School District v. Gilbane Building Company
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal
    Original Proceeding
    Review Granted XXX 
    245 Cal. App. 4th 19
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S233526
    Date Filed: February 28, 2019
    __________________________________________________________________________________
    Court: Superior
    County: San Diego
    Judge: Eddie C. Sturgeon
    __________________________________________________________________________________
    Counsel:
    Dentons US, Charles A. Bird, Christian D. Humphreys and Gary K. Brucker, Jr., for Defendants and
    Appellants.
    Schwartz Semerdjian Cauley & Moot, John S. Moot, Sarah Brite Evans, Alison K. Adelman; Baker
    Manock & Jensen and James A. Ardaiz for Plaintiff and Respondent.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Charles A. Bird
    Dentons US
    4655 Executive Drive, Suite 700
    San Diego, CA 92121-3106
    (619) 236-1414
    John S. Moot
    Schwartz Semerdjian Cauley & Moot
    101 West Broadway, Suite 810
    San Diego, CA 92101
    (619) 236-8821