A Key Objection You May Be Overlooking In Anti-SLAPP Motions

Some people have complained lately that I’ve been way too focused on anti-SLAPP law here. Well, there’s a reason for that. 

It’s because SLAPP law plays an important part in just about every defamation case involving matters of public interest. It would be like talking about the Lakers without talking about Lamar Odom or Pau Gasol. Sure Kobe is the star of the team, but the other players invariably play a key role in each game (can you tell that I’m a Lakers fan?).

But I digress.

What I’d like to talk about today is a type of evidence that is routinely introduced by one party in support or opposition to an anti-SLAPP motion, and yet, the receiving party RARELY objects to this type of evidence!

What am I talking about?

I’m talking about judicially noticed court documents and/or declarations.

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records." ‘

Kilroy v. State (2004) 119 Cal.App.4th 140, 145.

Therefore, while courts make take judicial notice of any "orders, findings of facts and conclusions of law," they may not consider hearsay statements in court records "for their truth unless an independent hearsay exception exists." North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777.

As my Civil Procedure professor used to say, let’s take an example and "flesh this out a bit." Suppose you are a plaintiff who is suing a defendant for defamation based on allegations that you had embezzled money from a publicly traded company. Defendant made the alleged defamatory comments on a forum dedicated to discussion about the publicly traded company.

Defendant files an anti-SLAPP motion and accompanying request for judicial notice of a shoplifting conviction on your record from over 30 years ago (during your misguided/misspent youth). There is a police report and several witness statements included in the court records.

Can the court consider the conviction for its truth? YES, according to the evidence code.

Can the court consider the statements in the police report and witness statements for their truth? NO because they are hearsay and require an independent hearsay exception in order to come in.

See the difference?

This is vitally important because whether you win or lose on an anti-SLAPP motion may depend on evidentiary rulings made by the judge.

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