Sanchez v. Bezos

Filed 6/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MICHAEL SANCHEZ, B309364, B312143
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV04212)
v.
JEFFREY PRESTON BEZOS et al.,
Defendants and Respondents.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, John P. Doyle, Judge. Affirmed.
Warren Terzian, Thomas D. Warren and Erick Kuylman
for Plaintiff and Appellant.
Paul, Weiss, Rifkind, Wharton & Garrison, Meredith R.
Dearborn, William A. Isaacson and Julia Tarver Mason Wood for
Defendants and Respondents.
____________________________
This appeal arises from a defamation action filed by
plaintiff Michael Sanchez against defendants Jeffrey Preston
Bezos and Gavin de Becker. Plaintiff alleged that defendants
falsely told several reporters that plaintiff had provided explicit
nude photographs of Bezos to the National Enquirer (the
Enquirer) as part of a conspiracy to damage Bezos.
Defendants filed a special motion to strike the complaint
under Code of Civil Procedure1 section 425.16, the anti-SLAPP
(Strategic Lawsuit Against Public Participation) statute. To
demonstrate the merits of his case, plaintiff offered his own
declaration asserting that numerous reporters had informed him
of defendants’ accusations against him. The trial court found the
reporters’ statements recounted in plaintiff’s declaration were
inadmissible hearsay, and therefore could not be considered for
anti-SLAPP purposes. Because plaintiff offered no other evidence
that defendants made defamatory comments about him, the court
granted the anti-SLAPP motion and entered judgment in favor of
defendants.
Plaintiff raises two arguments on appeal. First, he argues
his evidence of defendants’ purported defamatory statements
was not hearsay because he did not offer the statements for the
truth of the matter asserted, but merely to establish the
statements were uttered. Second, plaintiff argues that under
Sweetwater Union High School Dist. v. Gilbane Building Co.
(2019) 6 Cal.5th 931 (Sweetwater), hearsay may be considered for
anti-SLAPP purposes if there is a reasonable possibility the
hearsay will be cured at trial. Plaintiff contends any hearsay in
1Unspecified statutory citations are to the Code of Civil
Procedure.
2
his declaration can be cured when the reporters testify under
oath in deposition or at trial.
We reject these arguments. Had plaintiff himself
witnessed defendants make defamatory comments, he could
testify to those comments without running afoul of the hearsay
rule. In that event, he would offer the evidence not for the truth
of the matter asserted but to establish the comments were made.
Here, however, plaintiff’s declaration recounted not what he
himself had witnessed, but what reporters told him they had
witnessed. The reporters’ statements were offered for the truth of
the matter asserted, namely that the reporters heard defendants
make defamatory comments about plaintiff. The reporters’
statements therefore are hearsay.
Plaintiff misreads Sweetwater. That case reaffirmed that
hearsay, absent an applicable exception, may not be considered
for anti-SLAPP purposes. The only examples of “curable”
hearsay in that decision were statements made under oath or
penalty of perjury. Those statements by analogy fell within the
hearsay exception for affidavits and declarations in anti-SLAPP
proceedings. The reporters’ statements recounted in plaintiff’s
declaration, in contrast, were not made under oath or penalty of
perjury, and the trial court properly declined to consider them.
Accordingly, we affirm the judgment and the subsequent
order awarding attorney fees and costs to defendants.
PROCEDURAL BACKGROUND
On January 31, 2020, plaintiff filed a complaint against
defendants asserting causes of action for defamation and
intentional infliction of emotional distress. Plaintiff alleged that
after the Enquirer published a story revealing an extramarital
relationship between plaintiff’s sister and Bezos, Bezos directed
3
de Becker, his “security chief,” to uncover who leaked the story to
the Enquirer. Plaintiff, who served as his sister’s manager,
alleged he “became a target in Mr. de Becker’s investigation.”
Plaintiff alleged defendants defamed him by falsely telling news
outlets that plaintiff “was the source of graphic, nude
photographs of Mr. Bezos,” and that plaintiff “was involved in a
conservative conspiracy with high-profile political operatives,
including Roger Stone and Carter Page, and the Saudi
government to take down Mr. Bezos.”
Defendants filed an anti-SLAPP motion. They contended
plaintiff’s claims arose from protected First Amendment activity,
specifically statements in a public forum about an issue of public
interest, and news reporting. Defendants further contended
plaintiff could not show a probability of prevailing on those
claims because (a) plaintiff had not identified any instance in
which defendants or a media outlet made any of the purportedly
defamatory statements about him; and (b) media outlets had
reported that plaintiff had in fact leaked information about the
relationship between his sister and Bezos, and therefore the
purported defamatory statements were substantially true.
In opposition, plaintiff admitted that, to protect his sister’s
reputation, he provided information to the Enquirer about his
sister’s and Bezos’ relationship “in exchange for [the Enquirer]
delaying and softening the story.” This included “a few text
messages and non-explicit photographs shared with [plaintiff] by
[his] sister.” He contended defendants’ accusations against him
nonetheless were false and defamatory, because they specifically
accused plaintiff of providing explicit, nude photographs of Bezos,
which plaintiff asserted he did not do, and further falsely accused
him of involvement in a conservative conspiracy to harm Bezos.
4
To establish the merit of his claims, plaintiff submitted his
own declaration detailing, inter alia, the purportedly defamatory
statements by defendants. He stated that “through my business
relationship with reporters from the Daily Beast,” “I learned
that” de Becker “told them that I was involved in a conservative
conspiracy to harm Mr. Bezos and that I was responsible for
leaking explicit photos of Mr. Bezos’ genitalia.” Plaintiff also
averred that “Alexandra Berzon, a reporter for the Wall Street
Journal, contacted me and told me that Mr. de Becker had told
her I was the person who had ‘provided the sexually explicit
pictures’ to the National Enquirer, and asked me to confirm the
story.” Plaintiff further asserted that “Reporters from The Sun,
Page Six, The Daily Beast, and The Washington Post all informed
me that de Becker had told them I was involved in a right-wing
conspiracy with Carter Page and Roger Stone.”2
Simultaneously with his opposition to the anti-SLAPP
motion, plaintiff filed a motion to lift the discovery stay so he
could depose and obtain documents from his sister. Plaintiff
contended his sister “has knowledge that Defendants were keenly
aware that their statements were baseless and unsupported, yet
they continued to recklessly propagate falsehoods about
2 Plaintiff stated in his declaration, “My sister also
confirmed that Mr. de Becker told reporters that I was the one
who gave the Enquirer Mr. Bezos’ genitalia pictures,” and, “My
friend Carter Page also informed me that Mr. de Becker told
reporters for the Daily Beast that I was involved in a conservative
conspiracy with Roger Stone and Carter Page to harm
Mr. Bezos.” Plaintiff does not cite this evidence in support of his
position on appeal. Our focus therefore is on the information he
purportedly received from reporters.
5
[plaintiff].” This evidence, plaintiff claimed, would “augment the
record” that defendants acted with actual malice.
Defendants filed an opposition to plaintiff’s motion to lift
the discovery stay and a reply brief in support of their anti-
SLAPP motion. In both, defendants argued, inter alia, that
plaintiff’s evidence that defendants made the purportedly
defamatory comments to reporters was inadmissible hearsay, and
therefore plaintiff had not made a prima facie showing of
publication, a necessary element of a defamation claim.
Defendants argued that because plaintiff had failed to meet this
threshold requirement for defamation, plaintiff’s requested
discovery concerning actual malice was “unwarranted.”
Plaintiff filed a reply in support of his motion to lift the
discovery stay, arguing, inter alia, that under Sweetwater,
hearsay was admissible to defeat an anti-SLAPP motion “[a]s
long as it is reasonably possible that a witness will ultimately
testify to the matter at trial.”
The trial court first heard plaintiff’s motion to lift the
discovery stay, with the hearing on the anti-SLAPP motion
scheduled for a later day. The trial court denied plaintiff’s
motion, finding, as defendants had argued, that plaintiff’s
evidence that defendants had made defamatory statements to
reporters was hearsay, and thus there was “no admissible
evidence of publication by the Defendants.” The trial court
rejected plaintiff’s interpretation of Sweetwater, and ruled that
“hearsay within a declaration is inadmissible.”
Prior to the hearing on the anti-SLAPP motion, the parties
submitted supplemental briefs. Plaintiff in his brief argued that
the defamatory statements described in his declaration were not
hearsay because they were not offered for the truth of the matter
6
asserted. Alternatively, he again argued under Sweetwater that
any hearsay problems could be cured at trial by calling the
reporters as witnesses. Defendants disputed these contentions in
their supplemental brief.
Following a hearing, the trial court granted defendants’
anti-SLAPP motion. The court noted that plaintiff’s opposition
had not addressed whether his causes of action arose from
protected conduct, and thus plaintiff had conceded the issue. The
court further concluded on the merits that defendants had shown
the causes of action arose from protected conduct.
The trial court again ruled that plaintiff had failed to
provide “admissible evidence that Defendants published the
subject statements.” The court reasoned, “Plaintiff’s statements
[in his declaration] about what he was told by reporters [citation]
constitute hearsay because they relate to out-of-court statements
that are being used to prove the truth of the matter asserted—
specifically, that Defendants published the subject statements.”
The court again rejected plaintiff’s interpretation of Sweetwater.
Having concluded there was no admissible evidence of
publication, the trial court struck the defamation claim and the
“derivative claim for intentional infliction of emotional distress.”
The court subsequently entered judgment in favor of defendants,
striking the complaint and dismissing the lawsuit with prejudice.
Plaintiff timely filed a notice of appeal from the judgment.
Defendants moved for $1,676,919.50 in attorney fees and
$36,019.26 in costs. The trial court found the number of hours
billed was “not reasonable,” and exercised its discretion “to itself
set a reasonable amount of attorneys’ fees.” The court awarded
$218,385 in fees and the full amount of requested costs,
$36,019.26.
7
Defendants appealed from the fee award and plaintiff
cross-appealed. Defendants dismissed their appeal prior to
briefing. Plaintiff maintained his cross-appeal solely for the
purpose of “seek[ing] vacatur of the fee award should [the Court
of Appeal] reverse the trial court’s grant of the anti-SLAPP
motion.” We ordered plaintiff’s cross-appeal consolidated with
his appeal from the judgment for purposes of oral argument and
decision.
DISCUSSION
A. Applicable Law
“[T]he anti-SLAPP statute is designed to protect
defendants from meritless lawsuits that might chill the exercise
of their rights to speak and petition on matters of public concern.
[Citations.] To that end, the statute authorizes a special motion
to strike a claim ‘arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue.’ (§ 425.16, subd. (b)(1).)” (Wilson
v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884
(Wilson).)
Anti-SLAPP motions “are brought at an early stage of the
litigation, ordinarily within 60 days after the complaint is served.
(§ 425.16, subd. (f).) Discovery is stayed, absent permission from
the court. (§ 425.16, subd. (g).) Thus, the defendant may test the
sufficiency of the plaintiff’s claims before incurring the costs and
disruptions of ordinary pretrial proceedings.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 384, fn. 5.)
“A court evaluates an anti-SLAPP motion in two steps.
‘Initially, the moving defendant bears the burden of establishing
8
that the challenged allegations or claims “aris[e] from” protected
activity in which the defendant has engaged. [Citations.] If the
defendant carries its burden, the plaintiff must then demonstrate
its claims have at least “minimal merit.” ’ [Citation.]” (Wilson,
supra, 7 Cal.5th at p. 884.) “ ‘[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).” (Sweetwater, supra, 6 Cal.5th at
p. 941, italics omitted.) “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.” (Sweetwater, at
p. 941.)3
If the plaintiff fails to meet the second-step burden,
the court will strike the claim. (Wilson, supra, 7 Cal.5th at
p. 884.) As a general matter, “a defendant that prevails on a
special motion to strike is entitled to attorney fees and costs.
(§ 425.16, subd. (c).)” (Wilson, at p. 884.)
3 An affidavit is “ ‘a written declaration under oath’
[citation], taken before ‘any officer authorized to administer
oaths.’ [Citations.]” (Kulshrestha v. First Union Commercial
Corp. (2004) 33 Cal.4th 601, 609.) Because “the oath-and-
affidavit procedure was both cumbersome and widely ignored,”
the Legislature in 1957 enacted section 2015.5, which “allows use
of ‘unsworn’ declarations made under penalty of perjury” in place
of an affidavit. (Kulshrestha, at pp. 609–610.) “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.’ [Citations.]”
(Sweetwater, supra, 6 Cal.5th at p. 941.)
9
We review de novo the grant or denial of an anti-SLAPP
motion. (Sweetwater, supra, 6 Cal.5th at p. 940.) We review the
trial court’s evidentiary rulings for abuse of discretion. (Klem v.
Access Ins. Co. (2017) 17 Cal.App.5th 595, 606.)
The particular cause of action challenged by defendants’
anti-SLAPP motion is defamation, the elements of which are
“ ‘(a) a publication that is (b) false, (c) defamatory, and
(d) unprivileged, and that (e) has a natural tendency to injure or
that causes special damage.’ [Citation.]” (Taus v. Loftus (2007)
40 Cal.4th 683, 720.)4 “Publication means communication to
some third person who understands the defamatory meaning of
the statement and its application to the person to whom reference
is made. Publication need not be to the ‘public’ at large;
communication to a single individual is sufficient.” (Smith v.
Maldonado (1999) 72 Cal.App.4th 637, 645 (Smith).)
B. The Trial Court Properly Granted the Anti-SLAPP
Motion
On appeal, plaintiff does not challenge the trial court’s
finding that plaintiff’s claims arose from activity protected under
the anti-SLAPP statute, the first step of anti-SLAPP analysis.
The issue before us therefore concerns the second step, whether
4 If a plaintiff claiming defamation is a “public figure,” the
plaintiff additionally “must show, by clear and convincing
evidence, that the defamatory statement was made with
actual malice—that is, with knowledge that it was false or with
reckless disregard of whether it was false.” (Mitchell v. Twin
Galaxies, LLC (2021) 70 Cal.App.5th 207, 218.) The parties to
the instant case disputed below whether plaintiff was a “public
figure” who had to prove actual malice. We need not decide that
question to resolve this appeal, and decline to do so.
10
plaintiff met his burden to demonstrate his claims have minimal
merit.
The trial court concluded plaintiff had not met his burden
because the only evidence he offered to prove publication—in this
case, to prove that defendants made the purportedly defamatory
statements to reporters—was plaintiff’s own declaration
recounting what the reporters purportedly had told him. This,
the trial court ruled, was hearsay and therefore inadmissible to
meet plaintiff’s burden.
Plaintiff argues, as he did below, that the reporters’
statements recounted in his declaration were not in fact hearsay,
and if they were, Sweetwater would allow the trial court to
consider them. We disagree with both arguments.
1. Plaintiff’s declaration contained hearsay
“Hearsay is an out-of-court statement offered for
the truth of the matter asserted and is generally inadmissible.”
(People v. Flinner (2020) 10 Cal.5th 686, 735; see Evid. Code,
§ 1200 [“ ‘Hearsay evidence’ is evidence of a statement that was
made other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated.”].)
In contrast, “ ‘[w]hen evidence that certain words were
spoken or written is admitted to prove that the words were
uttered [or written] and not to prove their truth, the evidence
is not hearsay. [Citations.]’ ” (Hart v. Keenan Properties, Inc.
(2020) 9 Cal.5th 442, 447, italics added.) “ ‘ “That means that the
statement must be capable of serving its nonhearsay purpose
regardless of whether the [finder of fact] believes the matters
asserted to be true. [Citations.]” [Citation.]’ [Citation.]” (Ibid.)
Plaintiff argues the statements in his declaration fall into
this latter, nonhearsay category. The gist of his argument is that
11
when proving defamation, what matters is not the truth of the
defamatory statements, which indeed by definition are false, but
that they are uttered. Put another way, it is the utterance of the
defamatory statement, not its truth, that satisfies the publication
element of defamation.
Plaintiff is correct that a witness who personally hears a
slanderous remark does not run afoul of the hearsay rule by
testifying to the content of the remark and its speaker. Although
the slanderous remark is an out-of-court statement, it is not
being offered for its truth, but simply for the fact that it was
uttered.
Plaintiff, however, has not offered a declaration from
anyone who personally heard defendants make any defamatory
comments. Instead, he offered his own declaration describing
what reporters purportedly told him defendants said. Plaintiff’s
declaration thus contains two levels of out-of-court statements.
Whereas defendants’ alleged defamatory comments are not being
offered for their truth, the reporters’ statements describing those
comments and identifying defendants as the speakers are being
offered for their truth. If what the reporters told plaintiff is not
true, then he has no evidence of publication and no case against
defendants. Accordingly, the reporters’ purported out-of-court
statements recounted in plaintiff’s declaration are hearsay.
Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908(Cornell) supports our conclusion. The defendant tennis club
moved for summary adjudication of the plaintiff’s defamation
claim, contending the alleged defamatory statements were shared
only with other club personnel or members, and thus were
subject to the common interest privilege under Civil Code section
47, subdivision (c). (Cornell, at p. 949.) To defeat the privilege,
12
the Cornell plaintiff offered statements from herself and her
father “that they had heard from numerous other non-Club
members that someone else had told them” the defamatory
statements. (Ibid.)
The Court of Appeal agreed with the trial court that the
statements by the plaintiff and her father were inadmissible
hearsay. (Cornell, supra, 18 Cal.App.5th at pp. 950–951.) As
plaintiff does in this case, the Cornell plaintiff “relie[d] on the
‘ “ ‘well-established exception or departure from the hearsay rule
applying to cases in which the very fact in controversy is whether
certain things were said or done and not . . . whether these things
were true or false.’ ” ’ ” (Id. at p. 950, quoting Russell v. Geis
(1967) 251 Cal.App.2d 560, 571 (Russell).) The Court of Appeal
was not persuaded: “While this principle might justify admission
of testimony by non-Club members that they were told [the
defamatory comments], Cornell does not explain how her and her
father’s statements about what the non-Club members said they
were told also fall into a hearsay exception.” (Cornell, at p. 950.)
In the instant case, plaintiff, like the Cornell plaintiff and
her father, offered not the declarations or testimony of witnesses
who directly heard the slander, but his own declaration
recounting those witnesses’ out-of-court statements. Plaintiff’s
declaration, like the statements of the Cornell plaintiff and her
father recounting what club nonmembers told them, is hearsay.
Plaintiff relies on Russell, the case distinguished in Cornell,
but Russell does not support his position. In Russell, the
plaintiffs sued their former employer for defamation, alleging he
wrongly accused them of embezzlement. (Russell, supra,
251 Cal.App.2d at pp. 564–565.) The appellate court affirmed the
trial court’s permitting the plaintiffs “to testify to hearsay
13
statements concerning the effect of defendant’s defamatory
statements.” (Id. at p. 571.) For example, one plaintiff testified
“that her daughter came home from school and said she was no
longer permitted to play with children she had formerly played
with, and that children told her her mother was a thief.” (Ibid.)
The appellate court held these statements properly were
admitted because “they were admitted not for the purpose of
determining the truth of the statements, but to prove that the
statements were, in fact, made.” (Ibid.) “There was no error in
permitting [the plaintiff] to relate the hearsay statements in her
testimony concerning her humiliation and mental suffering.” (Id.
at p. 572.)
Notably, the out-of-court statements admitted in Russell
were not offered to identify the speaker of the defamatory
comments, as they were in the instant case, but to show that the
plaintiff herself heard the comments, including from her own
child, thus causing her “humiliation and mental suffering.”
(Russell, supra, 251 Cal.App.2d at p. 572.) The truth of the
out-of-court statements was immaterial—what mattered was
their effect on the plaintiff.
In the instant case, in contrast, plaintiff necessarily offers
the reporters’ out-of-court statements for their truth, because
those statements are the only evidence linking the purportedly
slanderous comments to defendants.
Plaintiff also relies on Luster v. Retail Credit Co. (8th Cir.
1978) 575 F.2d 609, a diversity case applying Arkansas
substantive law. (Id. at p. 613.) In Luster, the plaintiff sued
defendant for defamation after an insurance company, Bowes and
Company, canceled the plaintiff’s coverage in light of a report
prepared by the defendant concerning a fire at the plaintiff’s
14
business. (Id. at pp. 611–612.) As relevant here, a witness,
Davidson, was permitted to testify that an insurance
intermediary named Newell, now deceased, “told Davidson that a
Bowes and Company representative had told Newell that the
defendant’s report suggested arson and that he assumed it
referred to the plaintiff.” (Id. at p. 615.) Citing the Federal Rules
of Evidence, rule 801(c)5 and an evidence treatise, the Eighth
Circuit tersely rejected defendant’s hearsay objection, concluding
the testimony “was not hearsay because it was not admitted to
prove the truth of the matter asserted. It was admitted solely to
prove the fact that the words were said. [Citations.] A proper
limiting instruction was given the jury at the time of the disputed
testimony.” (Luster, at p. 615.)
The brief discussion of the hearsay issue in Luster is
insufficient to sway us from our conclusion. Luster does not state
for what purpose Davidson’s testimony was offered, so we cannot
analogize it to the instant case. (See GMO Rice v. Hilton Hotel
Corp. (D.D.C. Sept. 1, 1987, Civ. A. No. 85–1470) [1987 WL 16851at *2, fn. 2] [“The language of [Luster] is far from clear, and it is
impossible to determine the purpose for which Davidson’s
testimony was admitted.”].) Luster refers to a limiting
instruction given to the jury, but does not state what that
instruction was, further impairing our ability to compare Luster
to the facts before us. If anything, the Eighth Circuit’s reference
to a limiting instruction “suggests that [the trial and reviewing
5 Federal Rules of Evidence, rule 801(c) defines hearsay as
a statement that: [¶] (1) the declarant does not make while
testifying at the current trial or hearing; and [¶] (2) a party
offers in evidence to prove the truth of the matter asserted in the
statement.
15
court in Luster] were sensitive to the hearsay potential of
Davidson’s testimony, and it further suggests that the limiting
instruction limited the jury’s consideration of this testimony to its
proper non-hearsay uses.” (GMO Rice, at p. *2, fn. 2.) The
discussion in Luster is too thin, therefore, to support plaintiff’s
assertion that an out-of-court statement offered to prove the
identity of a purported defamer is not hearsay, an incorrect
conclusion under California law. (See Cornell, supra,
18 Cal.App.5th at p. 950.)
Plaintiff’s reliance on another Arkansas case, Wal-Mart
Stores, Inc. v. Dolph (1992) 308 Ark. 439 (Dolph) is also
misplaced. In that case, the plaintiff, Dolph, sued Wal-Mart for
slander after a loss prevention officer accused her of shoplifting
within earshot of other people in the store. (Id. at p. 440.) The
primary issue on appeal was whether substantial evidence
supported the jury’s finding of publication, that is, that other
people actually heard the officer’s accusations. (Id. at p. 441.)
Although “there was no direct testimony from a third party who
heard the slanderous statement,” the Arkansas Supreme Court
consulted Rhode Island, South Carolina, and Florida cases, and
held the evidence was “sufficient to raise a reasonable inference
of publication” when the officer made the accusations in an area
of the store with “heavy customer traffic” and Dolph testified
“[t]wo Wal-Mart employees were specifically staring at her” while
the officer was questioning her. (Id. at pp. 441–442.)
In addition to the substantial evidence challenge, Wal-Mart
“raise[d] a collateral hearsay issue relating to publication” in
regard to certain testimony by Dolph. (Dolph, supra, 308 Ark. at
p. 442.) “Dolph testified that her sister’s mother-in-law had been
told by one of the Wal-Mart employees that Dolph had been
16
caught shoplifting.” (Ibid.) The trial court admitted the evidence
but instructed the jury that “the testimony of Ms. Dolph as to
what someone else told her—and you heard the linkage of where
it came from—is not being offered for the truth of what Ms. Dolph
said was told to Ms. Dolph, but merely for the purpose of showing
that she did, in fact, receive some information, whether true or
not. And my instruction to you is, you are not to consider it as
being given or stated here for the truth of what Ms. Dolph said,
but merely to show that she heard something.” (Id. at pp. 442–
443.) Wal-Mart argued this evidence constituted “triple hearsay”
and was wrongly admitted. (Id. at p. 443.)
The Arkansas Supreme Court disagreed. (Dolph, supra,
308 Ark. at p. 443.) Citing Luster, which the Arkansas court
interpreted as concerning proof of publication, the court
concluded “the testimony of the sister’s mother-in-law about what
the Wal-Mart employee said was not offered to prove the truth of
what was said. It was offered to prove the fact that it was said,
which then became some evidence of publication.” (Ibid.)
In Dolph, unlike the instant case, the identity of the
defamer was not at issue, because Dolph herself was a direct
witness to the defamation and properly could testify to it.
Rather, the key issue in Dolph was whether anyone heard the
loss prevention officer’s accusations—if no one did, there was no
publication and hence no defamation. The Dolph court held that
Dolph’s testimony regarding what a Wal-Mart employee
purportedly told Dolph’s sister’s mother-in-law was admissible to
prove dissemination of the slander. Assuming arguendo that
conclusion was correct, it nonetheless does not support the
proposition advanced by plaintiff here that out-of-court
17
statements identifying the source of defamatory comments is
admissible nonhearsay.
Plaintiff cites one federal district court case, Walker v.
Wanner Engineering, Inc. (D. Minn. 2012) 867 F.Supp.2d 1050(Walker), that appears to support his position. In Walker, the
plaintiff sued his former employer for defamation contending,
among other allegations, that the employer’s controller, Grewe,
stated at an employee meeting that the plaintiff had been
terminated and arrested for stealing from the company. (Id. at
p. 1053.) To prove Grewe made these statements, the plaintiff
offered his own deposition testimony that another employee,
Granison, had told him what Grewe had said at the meeting. (Id.
at p. 1057.) There is no indication the plaintiff offered any
testimony or declaration from Granison himself.
In considering the defendant’s summary judgment motion,
the district court ruled the plaintiff’s testimony admissible under
Federal Rules of Evidence, rule 801(c): “These statements are
not being offered for their truth; in fact, [plaintiff] ardently
contests the veracity of Grewe’s statement, denying that he stole
anything from [the employer]. Rather, the statements are being
offered to show that Grewe made the statements to the
employees. Accordingly, this statement is nonhearsay and is
admissible.” (Walker, supra, 867 F.Supp.2d at p. 1057.)
Respectfully, we disagree with the reasoning of the district
court. Although the truth of the slanderous comments
themselves was not at issue in Walker, whether Grewe actually
made those comments was at issue, and the only evidence of that
were Granison’s out-of-court statements describing what Grewe
said. Granison’s out-of-court statements therefore were offered
for their truth, and were hearsay. We are not bound by federal
18
district court decisions (See’s Candies, Inc. v. Superior Court
(2021) 73 Cal.App.5th 66, 92), and we decline to follow Walker.
Plaintiff argues that the reporters’ repetition of de Becker’s
alleged statements constitutes republication of the slander, which
he characterizes as “an independent verbal act.” (See Ringler
Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th
1165, 1180 [“when a person repeats a slanderous charge, even
though identifying the source or indicating it is merely a rumor,
this constitutes republication and has the same effect as the
original publication of the slander”].)
We need not decide the legal significance, if any, of the
reporters’ purportedly repeating the slander themselves, whether
that be deemed republication or something else.6 Regardless, to
prevail in this action plaintiff must make a prima facie showing
that defendants were the origin of those statements. As
defendants argue, “[T]here is no ‘republication’ without proof of
the prior publication.” Again, the only evidence that defendants
were the origin of the slander comes from out-of-court statements
by reporters recounted in plaintiff’s declaration. Those out-of-
court statements are of value to plaintiff only if they are true—if
they are false, he has no case against defendants. The out-of-
court statements therefore are offered for their truth, and are
hearsay.
6 We note that defamation requires publication to a “third
person” (Smith, supra, 72 Cal.App.4th at p. 645), and a
slanderous statement made solely to the plaintiff cannot, as a
general matter, satisfy that element. (See Dible v. Haight
Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 854.)
19
2. The hearsay in plaintiff’s declaration is
inadmissible to meet his second-step anti-
SLAPP burden
Plaintiff alternatively argues that if his declaration
contains hearsay, under Sweetwater the trial court may consider
it for anti-SLAPP purposes “if that hearsay can be cured by the
time of trial.” Plaintiff claims the hearsay can be cured by calling
the reporters as trial witnesses.
We reject plaintiff’s broad interpretation of Sweetwater. As
we explain, that decision supports the proposition that out-of-
court statements made under oath or penalty of perjury, such as
in an affidavit, declaration, or transcript of prior court testimony
taken under oath, may be considered for anti-SLAPP purposes,
despite being hearsay. The reporters’ unsworn out-of-court
statements plaintiff offers in the instant case do not meet this
requirement. We begin with a detailed summary of Sweetwater.
a. Sweetwater
In Sweetwater, the plaintiff school district sued to void
construction contracts after school district officials and others
were indicted in a bribery investigation concerning the awarding
of the contracts. (Sweetwater, supra, 6 Cal.5th at p. 938.)
Defendants, the parties awarded the contracts, filed an anti-
SLAPP motion arguing “the complaint stemmed from
constitutionally protected political expression.” (Ibid.)
To meet its second-step burden, the school district offered
guilty and no-contest plea forms from the bribery investigation,
each of which “incorporated a written factual narrative attested
to under penalty of perjury.” (Sweetwater, supra, 6 Cal.5th at
pp. 938–939.) The school district also offered transcript excerpts
20
from grand jury testimony. (Id. at p. 939.) The trial court
overruled the defendants’ evidentiary objections and denied the
anti-SLAPP motion, and the Court of Appeal affirmed. (Ibid.)
The defendants argued before the Supreme Court that the
factual narratives attached to the plea forms and the grand jury
testimony excerpts were hearsay, admissible only “if they fell
within the former testimony hearsay exception.” (Sweetwater,
supra, 6 Cal.5th at p. 941.) The Supreme Court rejected this
argument. (Id. at p. 945.)
The court agreed the hearsay rule applied to anti-SLAPP
proceedings. (Sweetwater, supra, 6 Cal.5th at pp. 941–942.) The
court noted, however, that sections 425.16, subdivision (b)(2) and
2015.5 “provide an exception to the hearsay rule,” and permit
courts adjudicating anti-SLAPP motions to consider affidavits
and declarations, which otherwise would be hearsay if offered for
their truth. (Sweetwater, at p. 942.) “The purpose of the
statutory references to affidavits and declarations is to enhance
reliability.” (Id. at p. 941.) The court held the plea forms and
their factual narratives “qualify as declarations” because “ ‘each
individual who signed and dated a plea form attested to the truth
of the contents . . . under penalty of perjury under the laws of
California.’ ” (Id. at p. 942.)
The Supreme Court further concluded the trial court
properly could consider the transcripts of grand jury testimony
for anti-SLAPP purposes. (Sweetwater, supra, 6 Cal.5th at
p. 943.) The Supreme Court explained that “the important
aspect” of affidavit and declaration evidence “is that it be made
under penalty of California’s perjury laws. [Citation.] Sworn
testimony made before a grand jury obviously is made under
penalty of perjury.” (Ibid.) Thus, “a transcript of this testimony
21
is the equivalent of a testifying witness’s declaration under
penalty of perjury, assuming the authenticity of the transcript
can be established.” (Ibid.)
To conclude otherwise, the court stated, “would not serve
the purposes of the SLAPP Act.” (Sweetwater, supra, 6 Cal.5th at
p. 943.) “This sworn testimony is at least as reliable as an
affidavit or declaration.” (Ibid.) In the anti-SLAPP context, “the
affidavit or declaration is offered to demonstrate that admissible
evidence exists to prove plaintiff’s claims. The statements must
reflect that they were made by competent witnesses with
personal knowledge of the facts they swear to be true. A
transcript of a witness’s testimony under oath before a grand jury
would serve to establish personal knowledge and competence in
the same manner that an affidavit or declaration could.” (Id. at
pp. 944–945.)
Further, because anti-SLAPP motions are “filed early in
the case,” and “[d]iscovery is stayed once the motion is filed,” “it
may not be practicable for a plaintiff to obtain declarations from
various witnesses, particularly those associated with the
defense.” (Sweetwater, supra, 6 Cal.5th at pp. 943–944.)
“[U]nder the present circumstances, even if declarations were
obtained, they would have added little to the evidence already in
plaintiff’s possession. It seems doubtful that the Legislature
contemplated dismissal of a potentially meritorious suit for want
of declarations largely duplicating available evidence.” (Id. at
p. 944.)
“Thus,” stated the court, “in determining a plaintiff’s
probability of success, the court may consider statements that are
the equivalents of affidavits and declarations because they were
made under oath or penalty of perjury in California,” including
22
the plea forms and grand jury testimony transcripts.
(Sweetwater, supra, 6 Cal.5th at p. 945.)
This conclusion “does not end the inquiry,” stated the court,
because “[i]n addition to submission in the proper form, courts
have long required that the evidence relied on by the plaintiff [in
contesting an anti-SLAPP motion] be admissible at trial.”
(Sweetwater, supra, 6 Cal.5th at pp. 945–946.) The Sweetwater
defendants argued the plea forms and grand jury testimony
would be admissible at trial only if the school district established
the preconditions to certain hearsay exceptions, such as the
unavailability of the declarants as witnesses or that the
defendants had had an opportunity to cross-examine the
witnesses at the grand jury proceeding. (Id. at p. 946.) The
defendants contended the school district was required to satisfy
those preconditions at the anti-SLAPP hearing itself before the
trial court could consider the evidence. (Ibid.)
The Supreme Court disagreed, holding that “evidence may
be considered at the anti-SLAPP motion stage if it is reasonably
possible the evidence set out in supporting affidavits, declarations
or their equivalent will be admissible at trial.” (Sweetwater,
supra, 6 Cal.5th at p. 947, italics added.) The distinction, the
court explained, is “between evidence that may be admissible at
trial and evidence that could never be admitted.” (Id. at p. 948.)
In a footnote, the court emphasized that “the written statements
themselves”—that is, the affidavits, declarations, and their
equivalents—“need not be admissible at trial, but it must be
reasonably possible that the facts asserted in those statements
can be established by admissible evidence at trial.” (Id. at p. 948
fn. 12, some italics omitted.)
23
In support, the Supreme Court cited Fashion 21 v.
Coalition for Humane Immigrant Rights of Los Angeles (2004)
117 Cal.App.4th 1138 (Fashion 21), a decision holding that an
edited videotape properly could be considered for anti-SLAPP
purposes although it “was not properly authenticated” at the time
of the anti-SLAPP hearing. (Sweetwater, supra, 6 Cal.5th at
p. 947, citing Fashion 21, at pp. 1146–1148.) The Supreme Court
quoted from Fashion 21: “ ‘[T]he proper view of ‘admissible
evidence’ for purposes of the SLAPP statute is evidence which, by
its nature, is capable of being admitted at trial, i.e., evidence
which is competent, relevant and not barred by a substantive
rule. Courts have thus excluded evidence which would be barred
at trial by the hearsay rule, or because it is speculative, not based
on personal knowledge or consists of impermissible opinion
testimony. This type of evidence cannot be used by the plaintiff
to establish a probability of success on the merits because it
could never be introduced at trial. . . . [¶] Evidence such as the
videotape in this case, which is only excludable on the ground it
lacks proper authentication, stands on a different footing in
terms of its ability to support the plaintiffs’ cause of action. . . .
[E]vidence that is made inadmissible only because the plaintiff
failed to satisfy a precondition to its admissibility [at trial] could
support a judgment for the plaintiff assuming the precondition
could be satisfied.’ ” (Sweetwater, at p. 947, quoting Fashion 21,
at pp. 1147–1148.) Because of “ ‘the high probability Fashion 21
would succeed in offering the videotape into evidence at trial and
the “minimal” showing necessary to overcome a SLAPP motion,’ ”
the Fashion 21 court held the trial court properly considered the
videotape at the second step of anti-SLAPP analysis.
(Sweetwater, at pp. 947–948, quoting Fashion 21, at p. 1148.)
24
The Supreme Court cited other cases illustrating “ ‘the sort
of evidentiary problem a plaintiff will be incapable of curing by
the time of trial,’ ” therefore rendering the evidence inadmissible
for anti-SLAPP purposes, such as evidence barred by privilege, or
witness statements that were “incompetent for lack of personal
knowledge.” (Sweetwater, supra, 6 Cal.5th at p. 948, citing
Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416;
Evans v. Unkow (1995) 38 Cal.App.4th 1490; Wilcox v. Superior
Court (1994) 27 Cal.App.4th 809.) The court also found
instructive a case holding that when an expert’s opinion failed to
comply with statutory disclosure requirements, the expert’s
opinion was “incurably inadmissible at trial” and therefore
“could not properly be considered in ruling on a summary
judgment motion.” (Sweetwater, at p. 948, citing Perry v.
Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536.)
The court concluded that the evidence at issue in
Sweetwater, like the evidence in Fashion 21, was “potentially
admissible at trial.” (Sweetwater, supra, 6 Cal.5th at p. 949.)
“[T]here is no categorical bar to statements contained in the
grand jury transcript and plea forms. Indeed, the statements
themselves appear to be statements against interest. (Evid.
Code, § 1230.) Further, there are no undisputed factual
circumstances suggesting the evidence would be inadmissible at
trial. In Fashion 21, the videotape at issue could be admitted at
trial if properly authenticated. In the videotaped demonstration,
‘employees and representatives of Fashion 21 . . . along with’
others were present [citation], suggesting there were identifiable
witnesses who had personal knowledge of the events. The
signers of those documents or other competent witnesses could
testify at trial to support the [school] District’s claims. That live
25
testimony would supplant any improper reliance on hearsay.
Finally, plaintiff would have the opportunity to satisfy the
requirements of any other applicable hearsay exceptions before
admission at trial.” (Sweetwater, at p. 949.)
The court reiterated that because anti-SLAPP motions are
filed early in the case and trigger a stay of discovery, “[i]t may
not be possible at the hearing to lay a foundation for trial
admission, even if such a showing could be made after full
discovery. While it may prove difficult at this early stage to
obtain declarations from those who have pled guilty in the
bribery case, it is not unreasonable to expect that those witnesses
may be deposed and/or produced for trial. To strike a complaint
for failure to meet evidentiary obstacles that may be overcome at
trial would not serve the SLAPP Act’s protective purposes.
Ultimately, the SLAPP Act was ‘intended to end meritless
SLAPP suits early without great cost to the target’ [citation],
not to abort potentially meritorious claims due to a lack of
discovery.” (Sweetwater, supra, 6 Cal.5th at p. 949.) The court
then noted that, “[n]otwithstanding the discovery stay, the court
has discretion to order, upon good cause, specified discovery if
required to overcome the hurdle of potential inadmissibility.”
(Ibid.)
The court concluded: “In sum, at the second stage of an
anti-SLAPP hearing, 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. If an evidentiary objection
26
is made, the plaintiff may attempt to cure the asserted defect or
demonstrate the defect is curable.” (Sweetwater, supra, 6 Cal.5th
at p. 949.)
b. Analysis
Sweetwater has two main holdings. First, the Supreme
Court extended the statutory hearsay exception for affidavits and
declarations in anti-SLAPP proceedings to other evidence
submitted under oath or penalty of perjury, such as plea forms
and grand jury testimony. (Sweetwater, supra, 6 Cal.5th at
p. 945.) Second, while acknowledging the rule that courts may
consider affidavits and their equivalents for anti-SLAPP
purposes only to the extent they contain evidence admissible at
trial, the Supreme Court clarified that parties need not establish
all preconditions to admissibility at the anti-SLAPP stage.
Rather, “evidence may be considered at the anti-SLAPP motion
stage if it is reasonably possible the evidence set out in
supporting affidavits, declarations or their equivalent will be
admissible at trial.” (Id. at p. 947, italics added.)
The question before us is whether it is “reasonably
possible” the evidence of publication in plaintiff’s declaration “will
be admissible at trial.” (Sweetwater, supra, 6 Cal.5th at p. 947.)
The Supreme Court explained that evidence is “ ‘ capable of being
admitted at trial’ ” if it is “ ‘competent, relevant and not barred
by a substantive rule.’ ” (Id. at p. 947, quoting Fashion 21, supra,
117 Cal.App.4th at p. 1147.)
The evidence of publication in plaintiff’s declaration
does not meet this test. The only evidence plaintiff offers to
demonstrate defendants made defamatory comments are his
recounting of out-of-court statements from reporters. As
discussed ante, this is hearsay. Sweetwater itself affirmed the
27
hearsay rule is a substantive rule barring admission—the
Supreme Court favorably quoted Fashion 21’s language listing
hearsay as an example of evidence that “ ‘cannot be used by the
plaintiff to establish a probability of success on the merits
because it could never be introduced at trial.’ ” (Sweetwater, at
p. 947, quoting Fashion 21, supra, 117 Cal.App.4th at p. 1147.)
Plaintiff contends it is reasonably possible the evidence in
his declaration will be admissible at trial because the reporters
themselves can testify, thus curing any hearsay issue. He cites
Sweetwater’s footnote stating that it is not the declaration itself
that must be admissible at trial, but that it “be reasonably
possible that the facts asserted in those [affidavits, declarations,
and their equivalents] can be established by admissible evidence
at trial.” (Sweetwater, supra, 6 Cal.5th at p. 948, fn. 12.) In
plaintiff’s view, the “facts asserted” in his declaration are that
defendants made defamatory comments to reporters, facts the
reporters themselves can confirm through testimony at trial.
Sweetwater does not support this argument. Sweetwater
makes clear the importance that statements considered for anti-
SLAPP purposes be given under oath or penalty of perjury,
absent an applicable hearsay exception. The Supreme Court
explained that “the affidavit or declaration is offered to
demonstrate that admissible evidence exists to prove plaintiff’s
claims. The statements must reflect that they were made by
competent witnesses with personal knowledge of the facts they
swear to be true.” (Sweetwater, supra, 6 Cal.App.4th at pp. 944–
945, italics added.) Plaintiff has failed to submit statements
given under oath or penalty of perjury from any “competent
witnesses with personal knowledge” that defendants defamed
him. (Ibid.) The only facts asserted in plaintiff’s declaration of
28
which he himself has personal knowledge are the statements
reporters made to him recounting defendants’ purportedly
slanderous comments, and those reporters’ statements are
inadmissible hearsay.
Sweetwater’s only examples of “curable” hearsay were the
plea forms and grand jury transcripts. The Supreme Court held
these could be considered for anti-SLAPP purposes because
(a) they were given under oath or penalty of perjury, and thus
effectively fit within the statutory hearsay exception for affidavits
and declarations; and (b) the sworn statements within the plea
forms and grand jury transcripts were potentially admissible at
trial because the original declarants could repeat the statements
in live testimony, or because they fell within the hearsay
exception for statements against interest. (Sweetwater, supra,
6 Cal.5th at pp. 945, 949.)
In the instant case, had the reporters submitted their own
declarations attesting under penalty of perjury to the defamatory
comments defendants purportedly made to them, or testified to
those facts under oath in another proceeding, that evidence
would be comparable to the plea forms and grand jury transcripts
in Sweetwater. In those circumstances, the reporters’ statements,
as reflected in their declarations or testimony, would be “made by
competent witnesses with personal knowledge of the facts they
swear to be true.” (Sweetwater, supra, 6 Cal.5th at pp. 944–945.)
Those statements, moreover, likely would be admissible if the
reporters repeated them at trial. The reporters’ statements
recounted in plaintiff’s declaration, however, are insufficient to
show “that admissible evidence exists to prove plaintiff’s claims”
(id. at pp. 944–945), because they were not made under oath or
penalty of perjury, and the hearsay rule bars plaintiff from
29
testifying as to what the reporters told him to prove publication
of purported defamation by defendants.
It is true Sweetwater stated, when explaining why the
hearsay nature of the plea forms and grand jury transcripts was
curable, that “[t]he signers of those documents or other competent
witnesses could testify at trial to support the [school] District’s
claims.” (Sweetwater, supra, 6 Cal.5th at p. 949, italics added.)
This does not indicate, however, that unsworn statements from
“other competent witnesses” may be considered for anti-SLAPP
purposes. Rather, we read this language to mean that when
competent witnesses attest under oath or penalty of perjury to
certain events, there is sufficient reason to conclude, for anti-
SLAPP purposes, that admissible evidence of those events exists,
either through the testimony of the attesting witnesses or that of
other competent witnesses involved in the events.
Plaintiff argues his declaration adequately identifies
admissible evidence despite the hearsay rule, because at trial
“[t]he reporters could either confirm what Mr. de Becker told
them, or if they did not confirm what he said, [plaintiff] could
testify at trial to their prior inconsistent statements.” (See Evid.
Code, § 1235 [“Evidence of a statement made by a witness is not
made inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing and is offered in
compliance with [Evidence Code] Section 770.”].)7 In other
7 Evidence Code section 770 provides, “Unless the interests
of justice otherwise require, extrinsic evidence of a statement
made by a witness that is inconsistent with any part of his
testimony at the hearing shall be excluded unless: [¶] (a) The
witness was so examined while testifying as to give him an
opportunity to explain or to deny the statement; or [¶] (b) The
30
words, plaintiff contends the reporters’ statements in his
declaration inevitably will be admissible at trial, either as direct
testimony from the reporters, or, should the reporters deny
making their earlier statements, as plaintiff’s own testimony
describing the reporters’ prior inconsistent statements.
In making this argument, plaintiff seeks to assert the prior
inconsistent statement hearsay exception preemptively, before a
witness has actually appeared at trial and provided testimony
inconsistent with the prior statement. Plaintiff cites no authority
allowing this. Indeed, if a plaintiff could preemptively assert that
exception, it would eviscerate the hearsay rule for purposes of
anti-SLAPP proceedings, because it is always theoretically
possible the original declarant will appear at trial and contradict
his or her earlier statement. Yet as Sweetwater makes clear,
hearsay is evidence that “ ‘cannot be used by the plaintiff to
establish a probability of success on the merits because it could
never be introduced at trial.’ ” (Sweetwater, supra, 6 Cal.5th at
p. 947, quoting Fashion 21, supra, 117 Cal.App.4th at p. 1147; see
also Sweetwater, at pp. 941–942 [“the hearsay rule applies” in
anti-SLAPP proceedings].) Sweetwater cannot be read to allow a
plaintiff so easily to evade the hearsay rule.
Further, although under Sweetwater a plaintiff need not
satisfy all preconditions to admissibility at the time of the anti-
SLAPP hearing, the plaintiff nonetheless must demonstrate it is
“reasonably possible” the evidence “will be admissible at trial.”
(Sweetwater, supra, 6 Cal.5th at p. 947.) Plaintiff’s speculation as
to what might happen at trial is insufficient to show a reasonable
witness has not been excused from giving further testimony in
the action.”
31
possibility that his hearsay testimony will be admitted under the
prior inconsistent statement exception.
Plaintiff assumes the only two possibilities are the
reporters confirming or denying the evidence in his declaration.
These are not the only possibilities. As a general matter, a party
may invoke the prior inconsistent statement exception only if the
declarant testifies at trial and has an opportunity, either before
or after the introduction of the prior statement, to explain or
deny it. (Evid. Code, § 770.) The occurrence of these
preconditions is far from certain. The reporters might be
unavailable to testify, or plaintiff might fail to compel their
presence. The reporters might testify they do not recall the
conversation with plaintiff. (See People v. Anderson (2018)
5 Cal.5th 372, 403 [“ ‘Ordinarily, a witness’s inability to
remember an event is not inconsistent with that witness’s prior
statement describing the event.’ ”].) The reporters might invoke
the “newsperson’s shield law” (Facebook, Inc. v. Superior Court
(Touchstone) (2020) 10 Cal.5th 329, 346, fn. 7), which protects
them from disclosing their sources. (See Cal. Const., art. I, § 2,
subd. (b); Evid. Code, § 1070.) In short, plaintiff’s hope that the
reporters will appear at trial and either confirm or deny the
statements in his declaration is too speculative to demonstrate
potentially admissible evidence in support of his defamation
claim.
Plaintiff argues that under our holding, “the ability to bring
slander cases in California will be greatly circumscribed. If the
plaintiff is not in earshot of the slanderous statement, and if the
plaintiff does not have the voluntary cooperation of the third
party recipient of the slander to provide a declaration at the time
the complaint is filed, he will not be able to survive an anti-
32
SLAPP motion.” He notes Sweetwater’s admonition “not to abort
potentially meritorious claims due to a lack of discovery.”
(Sweetwater, supra, 6 Cal.5th at p. 949, italics omitted.)
The Supreme Court addressed a similar concern in Wilson,
in which the defendant filed an anti-SLAPP motion against the
plaintiff’s suit for discrimination and retaliation. (Wilson, supra,
7 Cal.5th at p. 891.) Noting that “the plaintiff’s second-step
burden is a limited one,” the court nonetheless acknowledged
that “in the absence of discovery, even this reduced barrier could
pose particular difficulties for discrimination and retaliation
plaintiffs, whose claims depend on assertions of motive that are
peculiarly within the defendant’s knowledge.” (Ibid.)
This problem could be mitigated, stated the Supreme
Court, by the trial court’s authority to “ ‘order[ ], where
appropriate, “that specified discovery be conducted
notwithstanding” the motion’s pendency.’ [Citation.]” (Wilson,
supra, 7 Cal.5th at p. 891.) “Where a defendant relies on motive
evidence in support of an anti-SLAPP motion, a plaintiff’s request
for discovery concerning the asserted motive may often present
paradigmatic ‘good cause.’ (§ 425.16, subd. (g).)” (Wilson, at
pp. 891–892; see also The Garment Workers Center v. Superior
Court (2004) 117 Cal.App.4th 1156, 1162 (Garment Workers
Center) [“the fact [that] evidence necessary to establish the
plaintiff’s prima facie case is in the hands of the defendant or a
third party goes a long way toward showing good cause for
discovery”].) Sweetwater also emphasized that
“[n]otwithstanding the discovery stay, the court has discretion to
order, upon good cause, specified discovery if required to
overcome the hurdle of potential inadmissibility.” (Sweetwater,
supra, 6 Cal.5th at p. 949.)
33
In this case, plaintiff knew which reporters had the
information he needed, because he identified at least some of
them in his declaration, and could have sought declarations from
them. To the extent the reporters were uncooperative, plaintiff
could have requested limited discovery of evidence demonstrating
publication. Plaintiff made no such request, instead asking to
take discovery of his sister to establish the element of actual
malice. The trial court denied that request given the absence of
evidence of publication, and defendant has not challenged that
denial.
At oral argument, plaintiff contended that a request for
discovery would have been futile, because case law bars discovery
in defamation anti-SLAPP proceedings unless the plaintiff first
can establish a prima facie case of publication based on available
evidence. In support, plaintiff cited Garment Workers Center,
supra, 117 Cal.App.4th 1156, and John Doe 2 v. Superior Court
(2016) 1 Cal.App.5th 1300 (John Doe 2). We disagree with
plaintiff’s reading of those cases.
Garment Workers Center addressed whether a trial court
abused its discretion in an anti-SLAPP proceeding by permitting
discovery on the issue of actual malice. (Garment Workers
Center, supra, 117 Cal.App.4th at p. 1159.) Listing factors a
court should consider before granting discovery, the Court of
Appeal stated, “if it appears from the SLAPP motion there are
significant issues as to falsity or publication—issues which the
plaintiff should be able to establish without discovery—the court
should consider resolving those issues before permitting what
may otherwise turn out to be unnecessary, expensive and
burdensome discovery proceedings” on the issue of actual malice.
(Id. at p. 1162.) In that case, the appellate court noted the
34
defendant “raised a meritorious challenge to the pleadings,
contending the complaint failed to state a cause of action for
libel,” and “there [were] serious questions about the falsity of the
statements [the defendant] is alleged to have made.” (Id. at
pp. 1162–1163.) The appellate court remanded for the trial court
to address those issues before considering whether to issue a
discovery order on the issue of actual malice. (Id. at p. 1163.)
John Doe 2, also an anti-SLAPP case, held that the trial
court abused its discretion by allowing discovery to determine the
author of anonymous emails, because the libel plaintiff had failed
to show that the emails contained “provably false and defamatory
statements of fact or that the e-mails caused [the plaintiff] to
suffer actual damage.” (John Doe 2, supra, 1 Cal.App.5th at
p. 1305.) John Doe 2 relied on Paterno v. Superior Court (2008)
163 Cal.App.4th 1342, 1349–1351 for the proposition that “a libel
plaintiff may not obtain special discovery under the anti-SLAPP
statute . . . without first making a prima facie showing of the
elements of libel for which the material facts are available to the
plaintiff.” (John Doe 2, at pp. 1311–1312; see Paterno, at p. 1351
[party to defamation anti-SLAPP motion not entitled to discovery
on the issue of actual malice absent “sufficient evidence to
establish a prima facie case of falsity or unprivileged
statements”].)
Garment Workers Center, John Doe 2, and Paterno stand
for the proposition that if evidence already available to a
plaintiff, without need for further discovery, demonstrates a
defamation claim is without merit—for example, because the
purportedly defamatory comments identified by the plaintiff
are not in fact defamatory—there is no point to ordering
discovery on other issues. Nowhere do these cases suggest, as
35
plaintiff contends, that a court must deny discovery on the issue
of publication even if that evidence rests uniquely in the hands of
the defendants or third parties. Indeed, as we have already
quoted, Garment Workers Center emphasized “the fact [that]
evidence necessary to establish the plaintiff’s prima facie case is
in the hands of the defendant or a third party goes a long way
toward showing good cause for discovery.” (Garment Workers
Center, supra, 117 Cal.App.4th at p. 1162.)
It is true that Garment Workers Center stated that
publication was an “issue[ ] which the plaintiff should be able to
establish without discovery.” (Garment Workers Center, supra,
117 Cal.App.4th at p. 1162.) We read that comment in the
context of the circumstances of that case, in which the purported
defamation arose in “demonstrations, leafleting, press releases
and web site postings,” at least some of which presumably would
be available to the plaintiff without discovery. (Id. at p. 1160.)
Garment Workers Center did not involve, and therefore does not
preclude, discovery when a plaintiff seeks to establish slander
occurring in private conversations to which the plaintiff was not
privy. In short, there was no per se bar to plaintiff requesting
discovery to demonstrate publication in the instant case.
Having concluded the trial court correctly ruled that
plaintiff had failed to make a prima facie showing of publication,
we do not address defendants’ alternative argument that the
purported slander was substantially true. Defendants also raise
this argument in separately filed motions for sanctions and to
dismiss the appeal, which we deny in separate orders.
36
C. We Affirm the Award of Attorney Fees, and the Trial
Court May Determine in the First Instance Any
Award of Appellate Attorney Fees
As noted, defendants dismissed their appeal challenging
the trial court’s order awarding them reduced attorney fees.
Plaintiff’s consolidated cross-appeal does not challenge the
substance of that order. Instead, plaintiff argues that we must
reverse the order were we to reverse the grant of the anti-SLAPP
motion. Because we affirm the grant of the anti-SLAPP motion,
we also affirm the award of attorney fees and costs.
At oral argument, plaintiff argued that should defendants
prevail in the appeal from the grant of the anti-SLAPP motion,
we nonetheless should construe the dismissal of their appeal
from the fee award as a loss. Therefore, plaintiff contends,
neither party should be deemed prevailing on appeal for purposes
of an award of appellate attorney fees under section 425.16,
subdivision (c).8 (See Maughan v. Google Technology, Inc. (2006)
143 Cal.App.4th 1242, 1253–1254 [determining no party
prevailed in appeal from grant of anti-SLAPP motion when
plaintiffs’ notice of appeal was untimely and defendant lost cross-
appeal from fee award].)
Plaintiff cites no authority construing a voluntary dismissal
of an appeal prior to briefing as a loss for purposes of a prevailing
party determination. Regardless, we leave the issue of attorney
fees to the trial court in the first instance, which is in a better
position to determine entitlement to and amount of attorney fees.
(See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal
8 Plaintiff made a similar argument in a sanctions motion
that we deny in a separate order.
37
Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267.) We will,
however, deem defendants the prevailing party for purposes of
appellate costs under California Rules of Court, rule 8.278.
DISPOSITION
The judgment and the order awarding attorney fees and
costs are affirmed. Defendants are awarded their costs on
appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
38