Filed 6/30/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MICHAEL SANCHEZ,

Plaintiff and Appellant,

v.

JEFFREY PRESTON BEZOS et al.,

Defendants and Respondents.

 B309364, B312143

 (Los Angeles County

 Super. Ct. No. 20STCV04212)

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.

____________________________
2

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 

1 Unspecified statutory citations are to the Code of Civil 

Procedure.
3

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 
4

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. 
5

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.
6

[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 antiSLAPP 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 
7

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. 
8

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 
9

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-andaffidavit 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.)
10

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.
11

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 
12

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, 
13

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 
14

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 
15

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 16851 

at *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. 
16

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 
17

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 
18

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 
19

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-ofcourt statements are of value to plaintiff only if they are true—if 

they are false, he has no case against defendants. The out-ofcourt 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.)
20

2. The hearsay in plaintiff’s declaration is 

inadmissible to meet his second-step antiSLAPP 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-ofcourt 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 antiSLAPP 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 
21

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 
22

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 
23

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.)
24

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.)
25

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 
26

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 
27

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 
28

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 antiSLAPP 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 
29

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 
30

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 antiSLAPP 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 
31

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 antiSLAPP 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.” 
32

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-
33

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.) 
34

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 
35

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 
36

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.
37

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 crossappeal 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.
38

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.