In Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, the California Supreme Court examined evidence burdens in the context of the anti-SLAPP statute. Despite resolving anti-SLAPP issues, the opinion has serious implications for summary judgment motions that may not be obvious.

In resolving anti-SLAPP issues, Sweetwater analogized to summary judgment motions. In the anti-SLAPP context, once protected activity has been demonstrated, courts are to accept the opposing party’s evidence as true, and see whether the moving party has nonetheless defeated the opposing party’s showing “as a matter of law.” It doesn’t just sound like summary judgment, the Sweetwater Court expressly described the minimal merit prong of an anti-SLAPP motion as a “summary-judgment-like procedure.”

Sweetwater’s discussion of admissibility is where the case really implicates summary judgment motions. In Sweetwater, the defendants argued that if proper hearsay objections are raised, the plaintiffs’ evidence must be excluded unless the plaintiffs demonstrate viable hearsay exceptions. But the Court rejected that contention, observing that the focus is on whether “evidence exists,” not demonstrating trial admissibility during anti-SLAPP motions.

Sweetwater’s reliance on summary judgment was even more explicit: 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).  “[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 … .” The Court explained that “evidence may be considered at the anti-SLAPP motion stage if it is reasonably possible the evidence … will be admissible at trial.” 

There is tension in the Court’s comparisons to summary judgment because anti-SLAPP motions must be filed at the outset and discovery is stayed. In contrast, summary judgment motions are generally brought after substantial discovery has taken place. And Code of Civil Procedure section 437c, subdivision (d) requires affidavits and declarations to “set forth admissible evidence.” But after Sweetwater, when it comes to summary judgment, is it strict admissibility or is it the “reasonable possibility” of admission?

Since summary judgment tests for trial-necessity, shouldn’t it require a more rigorous admissibility standard than the one applicable to the merit-screening purpose of the anti-SLAPP statute? It seems the answer should be “yes.” If a court confronted with admissibility problems can conceive of solutions that may resolve the evidentiary problem later at trial, can that court grant summary judgment anyway? The Sweetwater Court, it seems, thinks the answer should be “no.”

(Appellate Associate Rosanna W. Gan assisted with this post.)

Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.