The California Supreme Court just set forth clear rules as to what a Court can consider when ruling on an anti-SLAPP motion. In Sweetwater Union School District v. Gilbane Building Co. (Cal. 2016) 202 Cal.Rptr.3d 711 [371 P.3d 223], the Court held that “In determining a plaintiff’s probability of success the (trial ) court may consider statements that are the equivalent of affidavits and declarations because they are made under oath or penalty of perjury in California…”
The Court went on to state that changes of plea, factual narratives, and excerpts from testimony would satisfy this requirement. The Court also held that the “written statements themselves 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.”
