I came across a case the other day which spelled out an unsexy, but no less important concept of anti-SLAPP law. Not knowing this concept may spell doom whether you’re bringing or opposing an anti-SLAPP motion.
While it is unsurprising that many in pro per parties miss the boat on this one, many attorneys also screw this one up.
What am I talking about? I’m talking about the type of evidence you need to present to the court when dealing with an anti-SLAPP motion.
Once a defendant makes a prima facie showing that plaintiff’s lawsuit arises from protected activity as defined in CCP § 425.16, the burden then shifts to plaintiff to establish a probability of prevailing on the merits.
In this regard, " . . . plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment." Premier Med. Mgmt Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476.
What kind of evidence does the plaintiff need to produce? It needs to be competent evidence which would be admissible at trial. Chavez v. Mendoza (2001) 94 Cal.App.4th 260, 291.
Therefore, "declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, or conclusory are to be disregarded." Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; (citing) Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dis. (2003) 106 Cal.App.4th 1219, 1238, 1240.
This is a big deal because a court can disregard evidence that is not competent or otherwise admissible.
I see declarations all the time which are argumentative, conclusory, lack foundation, and contain hearsay. I object all day long (only if the objection is proper, of course) to these kinds of allegations and my experience is the court is all too happy to sustain them.
Make sure you adduce competent, admissible evidence. And if you’re on the other side, make sure you make your objections.
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