Gallagher

We are presented with a variation on the age-old riddle of the tree that falls in the forest when there is no one around to hear it. It is well settled that in opposing a SLAPP motion the plaintiff must show a probability of prevailing on his cause of action and the showing must be based on admissible evidence. This appeal poses the question: “If the plaintiff submits inadmissible evidence but no one objects to it is the evidence ‘admissible’ for purposes of showing a probability of success on the merits?” In light of the deep-rooted principle that evidentiary objections are waived if not properly made and the policy and procedures underlying California’s anti-SLAPP statute we conclude the evidence can be considered in determining whether the plaintiff met his burden of proof. For this and other reasons discussed below we affirm the trial court’s order denying the defendant’s SLAPP motion.

FACTS AND PROCEEDINGS BELOW

This case arises from a controversy over who should be the beneficiary of the trust of Anne Petone, a 92-year-old widow with a million-dollar estate.

In 1992 Petone placed most of her assets in a living trust. Several individuals and charities were named…