Intellectual Property Law

New Matter SUMMER 2019, Volume 44, Number 2

Case Comments

Lowell Anderson
Stetina Brunda Garred & Brucker


In evaluating the probability of success of an Anti-SLAPP motion the court may consider "affidavits stating the facts upon which the liability or defense is based." Cal. Code Civ. P. § 425.16(b)(2). "An affidavit is a written declaration under oath, made without notice to the adverse party," (Cal. CCP § 2002) and "may be taken before any officer authorized to administer oaths." Cal. CCP § 2012. California’s CCP also allows written declarations that are signed by a person certifying it to be true under penalty of perjury, and reflects the date and place of execution. Cal. CCP § 2015.5. Here, plea forms stated facts in a bribery case and qualified as declarations or their equivalent under CCP § 2015.5 and could be considered under CCP § 425.16. A transcript of grand jury testimony on the bribery was a written declaration under oath but was a written memorialization of an oral examination under oath and was the equivalent of an affidavit or declaration for purposes of § 425.16. But the above evidence must also be capable of being admitted at trial, which excludes evidence that is hearsay, speculative, not based on personal knowledge, or impermissible opinion. "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." If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable. A decision relying on the plea forms and grand jury testimony to overrule an anti-SLAPP motion was affirmed. Sweetwater Union High School Dist. v. Gilbane Bldg. Co., 6 Cal.5th 931, 243 Cal.Rptr.3d 880 (2019).


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