Metropolitan News-Enterprise


Friday, March 1, 2019


Page 1


California Supreme Court:

Bribery Admissions Properly Considered at Anti-SLAPP Hearing

Court Says Statements in Criminal Proceedings May Be Used in Defeating Special Motion to Strike In Action to Cancel Public Contracts if the Evidence Would Probably Be Admissible at Trial


By a MetNews Staff Writer


The California Supreme Court declared yesterday that admissions under oath, in criminal proceedings, by executives of companies that won public contracts through bribing school district officials were properly admitted in opposition to the companies’ anti-SLAPP motion in an action by the district to void the contracts and for a disgorgement of profits.

Evidence considered in connection with the second prong of the anti-SLAPP statute—whether the plaintiffs can show a probability of prevailing on the merits—must not only be in the proper form, the court held, but it must be “reasonably possible the evidence set out in supporting affidavits, declarations or their equivalent will be admissible at trial.”

It said that evidence adduced by San Diego County’s Sweetwater Union High School District in its action against contractors Gilbane Building Company and Gilbane/SG, met the criteria.

Justice Carol Corrigan wrote the opinion for a unanimous court. Her opinion affirms a Feb. 24, 2016 determination by Div. One of the Fourth District Court of Appeal.

Meals, Tickets, Transportation

Bribes to schools Superintendent Jesus Gandara and others included hotel accommodations and meals at expensive restaurants, transportation, tickets to Charger games and the Rose Bowl, and wine tasting and a hot air balloon ride in Napa Valley.

The bribes were admitted in change-of-plea forms (which included factual narratives) signed, under penalty of perjury, by the company executives and former school officials.

Corrigan noted that the anti-SLAPP statute, Code of Civil Procedure §425.16, provides that in determining the probability of success on the merits “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” She observed that a declaration under penalty of perjury generally suffices where a statute calls for an affidavit.

As to being in proper form, the jurist said, the change-of-plea forms suffice because they are under penalty of perjury.

Grand Jury Transcripts

The Court of Appeal found that portions of grand jury testimony was properly admitted because “the transcripts are of the same nature as a declaration in that the testimony is given under penalty of perjury.” Corrigan commented:

“This analysis is sound.”

She elaborated:

“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….Discovery is stayed once the motion is filed….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 plaintiffs possession. It seems doubtful that the Legislature contemplated dismissal of a potentially meritorious suit for want of declarations largely duplicating available evidence.”

Admissible Evidence

Both an anti-SLAPP motion and a motion for summary judgment, Corrigan said, “should require a showing based on evidence potentially admissible at trial presented in the proper form,” remarking:

“The grand jury transcripts at issue here satisfy this requirement.”

Corrigan said there “is no categorical bar to statements contained in the grand jury transcript and plea forms” and “the statements themselves appear to be statements against interest,” admissible under Evidence Code §1230.

 “In sum, at the second stage of an anti-SLAPP hearing,: she wrote, 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 circumstances show inadmissibility, the court may not consider it in the face of an objection.”

Corrigan noted that the case has been settled, but that the Supreme Court was nonetheless issuing its opinion in order to settle a conflict among the districts.

The case is Sweetwater Union High School District v. Gilbane Building Company, 2019 S.O.S. 933.

First Prong

Corrigan’s opinion does not discuss how the defendants established that the first prong of the anti-SLAPP statute—that the conduct complained of is protected under the First Amendment—was met. The defendant insisted that some of the conduct, including the making of political contributions, was protected.

In denying the anti-SLAPP motion, San Diego Superior Court Judge Eddie Sturgeon said:

“Here the anti-SLAPP statute does not apply. The conduct that Defendant’s [sic] employees are accused of is payment in the form of gifts that were made with the intent to influence the Board’s decisions in granting construction contracts from Sweetwater Union High School District to the defendant firms. This conduct, which forms the basis for the underlying civil claims by the District, is shown to be unlawful by the change of plea forms in the related criminal matters.”

The Court of Appeal opinion, by Justice Cynthia Aaron, acknowledged that the California Supreme Court held in its 2006 decision in Flatley v. Mauro that illegal conduct is not protected, but said:

“While the evidence may establish that some of the conduct may have been illegal, the evidence does not establish that all of the conduct at issue was illegal as a matter of law….

“The pleas by the Sweetwater officials to accepting gifts valued at more than the amount set by the Fair Political Practices Commission thus are not necessarily sufficient to establish that all of the conduct on which Sweetwater relies in attempting to void the contracts, which includes the making of contributions to third parties, was illegal as a matter of law.”

In an opinion decided yesterday by the Sixth District Court of Appeal, Justice Allison M. Danner observed that Flatley—which dealt with an attorney’s letter which constituted an attempt at extortion—presented “exceptional circumstances.”

It finds that a college professor, Jason Laker, has “not presented evidence that conclusively establishes any illegality as a matter of law” in connection with an internal investigation and that an order denying an anti-SLAPP motion filed by the Board of Trustees of the California State University  and administrator Mary McVey cannot be affirmed based on Flatley.

(The court finds that a cause of action for defamation did stem from protected activity while a cause of action for retaliation did not.)

That case is Laker v. Board of Trustees of the California State University, 2019 S.O.S. 958.


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