Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co.

• Decision Date: 28 February 2019
• Docket Number: S233526
• Court: California Supreme Court
• Parties: SWEETWATER UNION HIGH SCHOOL DISTRICT, Plaintiff and Respondent, v. GILBANE BUILDING COMPANY et al., Defendants and Appellants.

6 Cal.5th 931

434 P.3d 1152

243 Cal.Rptr.3d 880

SWEETWATER UNION HIGH SCHOOL DISTRICT, Plaintiff and Respondent,

v.GILBANE BUILDING COMPANY et al., Defendants and Appellants.

S233526

Supreme Court of California.

February 28, 2019

Dentons US, Charles A. Bird, Christian D. Humphreys and Gary K. Brucker, Jr., San Diego, for Defendants and Appellants.

Schwartz Semerdjian Cauley & Moot, John S. Moot, Sarah Brite Evans, Alison K. Adelman, San Diego; Baker Manock & Jensen and James A. Ardaiz, Fresno, for Plaintiff and Respondent.

Opinion of the Court by Corrigan, J.

The narrow question here is what kind of evidence a court may consider in ruling on a pretrial anti-SLAPP motion in determining a plaintiff’s probability of success. The inquiry has two aspects. One addresses the form in which the evidence is produced in connection with the motion. The other evaluates whether that evidence will be admissible at an eventual trial. We conclude the evidence produced by plaintiff Sweetwater Union High School District (the District) was properly considered and affirm the Court of Appeal’s judgment.

I. BACKGROUND

In November 2006, voters approved Proposition O, a bond measure to fund capital improvements in the District. The District solicited bids to manage various construction projects funded by the measure. It received seven proposals, including a joint submission from defendants Gilbane Building Company (Gilbane), The Seville Group, Inc. (SGI), and Gilbane/SGI, a joint venture (the Joint Venture). A screening committee selected three finalists. The final review committee, consisting of School Superintendent Jesus Gandara and three others, selected defendants' proposal as the winning bid. Gandara was authorized to negotiate a contract. The District board ultimately approved several contracts with defendants to manage projects arising from Proposition O and a previous measure.

A criminal bribery investigation into the awarding of the contracts resulted in an indictment. A number of guilty or no contest pleas followed, including those of Superintendent Gandara, board of trustees members Pearl Quinones, Arlie Ricasa, and Gregory Sandoval, as well as Gilbane program director Henry Amigable and SGI chief executive officer Rene Flores.

The District sued to void the contracts and secure disgorgement of funds already paid. It alleged that Amigable, Flores, and others gave meals, vacations, and event tickets to Gandara, board members and their families and friends. (See Gov. Code, §§ 1090, 1092, subd. (a).¹ ) It also alleged contributions were made to various campaigns, charities, and events on the officials' behalf.² The conduct allegedly occurred both before the passage of Proposition O and during the bidding and approval process.

Gilbane and the Joint Venture³ brought a special motion to strike under Code of Civil Procedure⁴ section 425.16 (the SLAPP⁵ Act). Defendants urged the complaint stemmed from constitutionally protected political expression. The District’s response relied on evidence of the various guilty and no contest pleas. Each plea form incorporated a written factual narrative attested to under penalty of perjury. Amigable’s narrative stated: "I provided gifts, meals and tickets to entertainment events directly to [Superintendent Gandara and board members Sandoval, Ricasa, and Quinones]. I provided the meals, tickets and gifts upon my initiative as sanctioned and encouraged by my employers. I also provided meals, tickets and gifts at the request of the elected board members and the Superintend[e]nt. The meals, tickets and gifts were made on behalf of my employers with the intent to influence the board’s decisions in granting construction contracts from the Sweetwater Union High School District to the firms for which I was working. My expenses were generated with the endorsement of my employers and they were reimbursed to me by my employers. At no time did the elected board members or Superintend[e]nt reimburse me or my employers for the meals, tickets or gifts I gave them on behalf of my employers." Flores’s narrative included a similar statement. Ricasa’s statement read in part: "In 2009, I was an elected School Board Member for the Sweetwater Union High School District. I accepted gifts from Rene Flores (SGI) in 2009 with a value of $2,099 and I did not report them.... Rene Flores provided these gifts with the intent to influence my vote on business awarded to Seville Group, Inc." Quinones’s statement said that she "accepted gifts from Henry Amigable in 2007 with a total value in excess of $500.00 and I did not report them" and that "Henry Amigable provided these gifts with the intent to influence my vote on business awarded to Gilbane, his employer." Both Sandoval’s and Gandara’s statements indicated that they received gifts from Amigable and Flores "with a total value of more than" $2,770 (Sandoval) and $4,500 (Gandara) and failed to report them. They acknowledged these gifts were provided "to influence my vote on business awarded to" defendants.

The District also relied on excerpts from the grand jury testimony of several witnesses, including Amigable and Flores, who described their conduct in providing meals and tickets to plaintiff’s officers.⁶

The court overruled defendants' evidentiary objections and denied their special motion to strike. The Court of Appeal affirmed.⁷

II. DISCUSSION

A. The Anti-SLAPP Statute

" Code of Civil Procedure section 425.16 sets out a procedure for striking complaints in harassing lawsuits that are commonly known as SLAPP suits ... which are brought to challenge the exercise of constitutionally protected free speech rights." ( Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196, 46 Cal.Rptr.3d 41, 138 P.3d 193.) A cause of action arising from a person’s act in furtherance of the "right of petition or free speech under the [federal or state] Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability" that the claim will prevail. ( § 425.16, subd. (b)(1).) "The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ " ( Baral, supra, 1 Cal.5th at pp. 384-385, 205 Cal.Rptr.3d 475, 376 P.3d 604, fn. omitted.) "We review de novo the grant or denial of an anti-SLAPP motion." ( Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067, 217 Cal.Rptr.3d 130, 393 P.3d 905.) As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim "may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence." ( San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 95, 218 Cal.Rptr.3d 160 ; see Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480, 183 Cal.Rptr.3d 867 ; City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376, 154 Cal.Rptr.3d 698 ; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017, 85 Cal.Rptr.3d 838.)

B. Affidavits and Their Equivalents

The anti-SLAPP statute describes what evidence a court may consider at the second step. It provides that "[i]n making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ( § 425.16, subd. (b)(2), italics added.) "The pleadings are the formal allegations by the parties of their respective claims and defenses ...." (§ 420.) A complaint must include a "statement of the facts constituting the cause of action, in ordinary and concise language." (§ 425.10, subd. (a)(1).) The Code of Civil Procedure provides three ways in which testimony is taken: by affidavit, deposition, or oral examination. (§ 2002.) "An affidavit is a written declaration under oath, made without notice to the adverse party." (§ 2003.) An affidavit "may be taken before any officer authorized to administer oaths." (§ 2012; see also §§ 2013, 2014.)

Although not mentioned in the SLAPP Act, the Code of Civil Procedure also allows a court to consider, in lieu of an affidavit, certain written declarations. To qualify as an alternative to an affidavit, a declaration must be signed and recite that the person making it certifies it to be true under penalty of perjury. The document must reflect the date and place of execution, if signed in California, or recite that it is executed "under the laws of the State of California." (§ 2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610, 15 Cal.Rptr.3d 793, 93 P.3d 386 ( Kulshrestha ).)

The purpose of the statutory references to affidavits and declarations is to enhance reliability. "As with live testimony, the oath-taking procedures for affidavits help prevent perjury. [Citation.] [¶] In 1957, the Legislature enacted section...