VOGEL, J., Dissenting. When objections are made to evidence offered in support of or in opposition to a motion for summary judgment, the objector must yell and scream and stamp his feet, or do whatever else it takes to force the trial court to rule on those objections. If he doesn’t, his objections are waived. The rule is tough enough in the summary judgment context, where it is necessary because the Legislature has said the trial court must consider all evidence except that to which objections have been sustained. But there is no similar legislative fiat in the anti-SLAPP statute, and thus (in my view) no reason for the majority’s conclusion that the same rule applies in this case.
[715]I dissent for two reasons. The first is one of judicial restraint, because I do not believe we ought to impose procedural hurdles rejected by the Legislature. My second reason is more pragmatic, and based on my belief that lawyers ought not to be put in the position of haranguing the very judges whose favorable rulings they seek. Judges know they are supposed to rule on evidentiary objections, and those who fail to do so may frown upon the lawyer who presumes to tell the court how to do its job, placing the lawyer in the unenviable position known in chess as “Zugzwang,” where a player is obliged to move but cannot do so without disadvantage (Oxford English Diet. (2d ed. 1989) <http://dictionary.oed.com/cgi/entry/ 50291500?query_type=word&queryword=zugzwang>, as of April 20, 2005). Since meritorious objections were made in this case, I would disregard the inadmissible evidence and affirm the trial court’s order of dismissal.
A.
In a footnote in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [25 Cal.Rptr.2d 137, 863 R2d 207], an appeal from a summary judgment (Code Civ. Proc., § 437c),1 the Supreme Court held thus: “In the trial court, defendants made a series of objections to evidence submitted by Ann M. in opposition to the summary judgment motion. The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal. (. . . § 437c, subds. (b) & (c); Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1301, fn. 4 [284 Cal.Rptr. 53]; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540 [270 Cal.Rptr. 198]; Haskell v. Carli (1987) 195 Cal.App.3d 124, 129-132 [240 Cal.Rptr. 439] . . . .) Although many of the objections appear meritorious, for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670, fn. 1.)
1.
The summary judgment statute supports the rule, the anti-SLAPP statute does not.
Subdivision (b) of section 437c provides, as relevant, that both the motion for summary judgment and any opposition to the motion must be supported by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken,” and that “[e\\videntiary objections not made at the hearing shall be deemed waived. ” [716](§ 437c, subd. (b)(1), (2), (5), italics added.) Subdivision (c) of section 437c provides, “[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence . . . .” (Italics added.)
There is no similar provision in section 425.16. In ruling on the motion, the court must “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based” (§ 425.16, subd. (b)(2)), but there isn’t a word in the statute about evidentiary objections or a need to obtain rulings thereon. Our courts have consistently held that a plaintiff opposing a special motion to strike cannot rely on her own pleadings and must produce evidence that would be admissible at trial, but (except as noted below) have not otherwise enlarged the burden of either party beyond that established by the Legislature. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [12 Cal.Rptr.3d 786]; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584 [132 Cal.Rptr.2d 789].)
2.
The three cases cited by the Supreme Court in Ann M. are all summary judgment cases.
In Golden West Baseball Co. v. Talley, supra, 232 Cal.App.3d at page 1301, footnote 4 (a defense motion for summary judgment), the court explained that the statute required the waiver; “The trial judge never ruled on . . . objections, many of which appear to be meritorious. We are troubled that the absence of such a ruling works in favor of Golden West, especially since it failed to respond to Talley’s objections. Under . . . section 437c, subdivision (c), the trial court is required to consider all evidence ‘except that to which objections have been made and sustained by the court....’ (Italics added.) One court has held that the failure to secure a ruling waives the objection, even where the objection was made by the party who eventually prevailed on summary judgment. (Haskell v. Carli[, supra,] 195 Cal.App.3d, 124, 129 .... The terms of the statute would seem to mandate such a waiver.”
In Ramsey v. City of Lake Elsinore, supra, 220 Cal.App.3d at page 1540 (a defense motion for summary judgment), the plaintiff complained “that the City’s showing on the motion for summary judgment was based on the declaration of the City’s engineer, Kirchner. Ramsey objected to Kirchner’s declaration in the trial court on the ground that no foundation was shown for [717]Kirchner’s statement that the City did not own or control the intersection [where the accident at issue had occurred]. The trial court did not explicitly rule on the admissibility of Kirchner’s declaration; counsel’s failure to secure a ruling on the objection waives the objection. (Haskell v. Carli[, supra,] 195 Cal.App.3d 124, 129, 240 Cal.Rptr. 439____)”
In Haskell v. Carli, supra, 195 Cal.App.3d at pages 129 to 130 (a plaintiff’s motion for summary judgment), the court considered the issue in more detail: “[At the hearing on the motion], no objection was raised to the Carlis’ use of [a certain affidavit or the deposition testimony of two witnesses]. It is well settled by statute and case authority that the failure to object, even to otherwise inadmissible evidence, waives the defect. [Citations.] [f] . . . Even if the objections raised below [to other evidence] could [suffice], the record contains no ruling on any of the objections. Failure of counsel to secure such a ruling waives the objection. [Citations.]
“Although the waiver rules did not apply to summary judgment proceedings prior to the 1980 amendment of.. . section 437c [citation], section 437c, subdivision (b), now provides ‘[e]videntiary objections not made either in writing or orally at the hearing shall be deemed waived.’ Section 437c, subdivision (c), further sets forth that the trial court must consider all evidence unless an objection has been raised and sustained: ‘In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained ....’” (Fns. omitted.)
B.
I see no basis for extending a waiver rule to a motion based on a statute that could have but did not include the specific language of section 437c, and note that the only case that has done so (Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1014, fn. 4 [5 Cal.Rptr.3d 668]) was based on the conclusory assertion that, without regard to the statutory language, “a motion to strike is akin to a summary judgment motion . . . .” {Ibid.)
As noted above, before the 1980 amendment to section 437c, the waiver rule did not apply to summary judgment motions. {Haskell v. Carli, supra, 195 Cal.App.3d at pp. 129-130; Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 817 [116 Cal.Rptr. 412] [in summary judgment proceedings there can be no waiver of the right to object to inadmissible evidence].) In 1980, the Legislature added the “exception” to subdivision (c) of section 437c stating, as it does today, that “[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all [718]of the evidence set forth in the papers, except that to which objections have been made and sustained by the court. . . .” (Stats. 1980, ch. 57, §1, p. 151, italics added; see also Central Mutual Ins. Co. v. Del Mar Beach Club Owners Assn. (1981) 123 Cal.App.3d 916, 926 [176 Cal.Rptr. 895].)
Since then, the waiver rule has been consistently applied in summary judgment cases (e.g., Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 623-624 [124 Cal.Rptr.2d 556], disapproved on another point in Zamos v. Stroud (2004) 32 Cal.4th 958, 973 [12 Cal.Rptr.3d 54, 87 P.3d 802]; Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234-241 [114 Cal.Rptr.2d 151]; see Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1013, fn. 3 [120 Cal.Rptr.2d 281]), but there is no good reason to extend the rule to anti-SLAPP motions.
The Legislature, knowing the change it wrought when it amended subdivision (c) of section 437c in 1980, chose not to include similar language in section 425.16 when it was enacted or when it was thereafter amended (Stats. 1992, ch. 726, § 2, p. 3523; Stats. 1993, ch. 1239, § 1, p. 7106; Stats. 1997, ch. 271, § 1; Stats. 1999, ch. 960, § 1) or when section 425.17 was added to clarify the purpose of section 425.16 (Stats. 2003, ch. 338, § 1). Since the Legislature is presumed to know the law and to make these distinctions intentionally, not whimsically, it seems to me that we should not by judicial fiat amend that legislative decision. {Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [273 Cal.Rptr. 584, 797 P.2d 608] [“When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded’ ”].)
The cases relied on by the majority, Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227 [118 Cal.Rptr.2d 313], and Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1266-1269 [20 Cal.Rptr.3d 673], are inapposite. No proper objection was made in the trial court in Gallagher, and Schoendorf doesn’t even consider the issue of waiver. Conversely, the only issue on this appeal is (or should be) whether evidentiary objections are preserved when they are made in writing but the trial court has failed to rule on them. Since cases are not authority for propositions not considered (Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613]), there is no support for the majority opinion.
C.
Without the inadmissible evidence, the order of dismissal would have to be affirmed.
[7191].
From August 2000 to November 2003, Ann Marie Gallant worked as the City of Carson’s general manager of development services, with a multimillion dollar budget and a staff of about 100 employees (almost one-fourth of the city’s workforce). Throughout that time, Gallant reported to Jerome Groomes, the city manager. In January 2002, Gallant saw a fax from Robert Pryce (a contract attorney for the city) to James Ambroso (an executive at Browning-Ferris Industries, which was then bidding for a solid waste franchise agreement with the city) in which Pryce told Ambroso about a competitor’s bid. Gallant reported the disclosure to Groomes. In October, Gallant was subpoenaed to testify before a grand jury investigating the bid disclosure. After Gallant testified, the city’s mayor and mayor pro tempore were arrested, and both later pleaded guilty to unspecified crimes.
2.
In the fall of 2003, Groomes (with the city council’s approval) terminated Gallant’s employment. Gallant, in turn, filed a government tort claim with the city (Gov. Code, § 900 et seq.), which was later rejected.
On November 1, the Daily Breeze (a local newspaper) published an article, Terminated City Official Files Claim For Damages, identifying Gallant as a “former top Carson official” and describing her government tort claim—in which (according to the Daily Breeze) she related the facts about the bid disclosure, claimed that Groomes had instructed her “to not tell” the city council about the bid disclosure and agreed to do so himself after she refused to be put off, reported that she had testified before the grand jury, claimed that Groomes (with the help of George Penn, the assistant city manager) had tried to force her to resign, and alleged that she had been fired in retaliation for her grand jury testimony.
According to the Daily Breeze: “Gallant was hired by Carson three years ago. She had previously worked as deputy administrator of the Los Angeles Redevelopment Agency, but agreed to step down, according to several Los Angeles Times articles in 1999 and 2000. [][] Gallant was accused of misleading board members on a property appraisal and suspended over a disputed expense account, according to one Times report, which also quotes an attorney for two employees who were fired by the agency and later awarded $580,000 for wrongful termination. . . .”
3.
In January 2004, Gallant sued the city, Groomes, and Penn for damages, alleging two causes of action, one for wrongful termination (against the city [720]only), the other for defamation. Gallant alleges the discovery of the fax and the events described above, and claims she was, as a result, “subjected to a continuing pattern of retaliatory, malicious, and harassing treatment” from Groomes and Penn. She claims her phones were tapped, her mail screened, her e-mails surreptitiously intercepted and, ultimately, her employment terminated.
With regard to her defamation cause of action, she alleges that the city, Groomes and Penn maliciously “published false, unprivileged statements” to Gallant’s “co-workers and other members of the public that she was incompetent, a statement known at the time to be false.” She alleges that Groomes and Penn told “various” city employees and the general public that Gallant’s “ ‘termination was in the best interest of the City,’ ” thereby (according to Gallant) imputing to her “a general disqualification in those respects which her profession peculiarly requires.” She does not say when these statements were made, or whether they were oral or written, or who heard or read theih. The only actual statement alleged is the one quoted, that her termination was “in the best interest of the City.”
4.
The city filed its special motion to strike Gallant’s defamation cause of action (§ 425.16), acknowledging that Groomes had in fact told the city council that Gallant’s termination was in the “best interest of the City” (or words to that effect), but claiming it was a protected comment about the qualifications and performance of a public official, and thus protected by the anti-SLAPP statute.
In opposition to the motion, Gallant offered her own declaration and one from Debbie Torres (an administrative specialist in development services employed by the city), both to the effect that Groomes had told various city employees that Gallant was terminated because she was “incompetent.” Torres also said she had heard Groomes say that Gallant “was a liar and did not tell the truth.”
In reply, the city offered a “clarifying]” declaration from Torres, explaining that she had never really heard Groomes say that Gallant was a “liar” or even that she was “incompetent.”. Rather, Groomes had told her that Gallant was terminated because she “did not meet . . . Groomes’ expectations regarding keeping him informed and involved as to her activities on behalf of the City,” and that they “did not ‘get along,’ ” statements Torres understood to mean that Gallant’s performance did not meet Groomes’s expectations. And Groomes never said Gallant was a “liar”—he simply said that Gallant’s government tort claim, as described by the Daily Breeze article, was “false.” [721]The city also filed written objections to Gallant’s declaration—the statements about what she “learned from a number of [her] subordinate employees”—on hearsay grounds (Evid. Code, § 1200), and to other evidence submitted by Gallant.
The trial court granted the motion to strike the defamation cause of action, construing the cause of action as one for slander and finding the statements were privileged within the meaning of section 425.16, and finding also that Gallant had failed to present any evidence that the statements were false, thus making it clear that she could not prevail on the merits of this claim.
5.
The majority simply assumes the anti-SLAPP statute applies to this case, then reverses based on its conclusion that Gallant has shown a probability of success on the merits. Plainly, the statute does apply, and Gallant cannot avoid its consequences (a) by her assertion that it does not apply or (b) by her assertion that she will probably prevail on the merits of her claim.
Subdivision (b)(1) of section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Italics added.)
Subdivision (e) of the same statute provides, as relevant, that as used in section 425.16, “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement . . . made before a legislative [or] executive . . . proceeding . . . ; (2) any written or oral statement. . . made in connection with an issue under consideration or review by a legislative [or] executive . . . body . . . ; (3) any written or oral statement . . . made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue of public interest.”
Gallant’s complaint does not say where or when the allegedly defamatory statement (that her termination was in the city’s best interest) was made, or whether it was oral or written. In his declaration in support of the city’s motion, Groomes assumes Gallant is referring to a statement he made during [722]discussions with the city council, at which time he “offered [his] opinion that. . . Gallant’s termination was in the City’s best interest, or words to that effect,” an opinion he formed because he “did not feel that she was fulfilling her obligations as Development Services General Manager.” Since this evidence stands unrebutted, it is plain that the allegedly defamatory statement was made during a legislative proceeding and concerned a matter of public interest within the meaning of subdivision (e) of section 425.16. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1121-1122 [81 Cal.Rptr.2d 471, 969 P.2d 564]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473 [102 Cal.Rptr.2d 205]; Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, 1258-1259 [8 Cal.Rptr.3d 507]; Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1116 [57 Cal.Rptr.2d 207].)
By showing that the statement was protected by subdivision (e) of section 425.16, the city met its burden (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal.Rptr.2d 530, 52 P.3d 703]), and it was then up to Gallant to show that she had a “probability of prevailing on [her defamation] claim.” {Ibid.) She did not do so, and in fact offered no evidence to show that her termination was not in the city’s best interests, an omission fatal to her challenge to the trial court’s ruling. (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212 [in opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of her complaint but must produce evidence that would be admissible at trial]; 1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 584.)
To demonstrate that she could prevail on her defamation claim, Gallant had to show that Groomes or Penn or someone else acting for the city made a false and unprivileged statement of fact within the meaning of Civil Code section 46. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 604 [131 Cal.Rptr. 641, 552 P.2d 425]; Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1716 [42 Cal.Rptr.2d 172].) A statement is not slanderous if it does no more than imply a false fact {Gill v. Hughes (1991) 227 Cal.App.3d 1299, 1309 [278 Cal.Rptr. 306]; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 638 [227 Cal.Rptr. 491]), or if it is nothing more than the opinion of the speaker (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 278-280 [105 Cal.Rptr.2d 674]; Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [26 Cal.Rptr.2d 305]). Quite plainly, Gallant’s defamation cause of action fails because Groomes’s statement, generously construed, is nothing more than an implication of something [723]that might be false or a statement of an opinion, and in either event it is privileged. More to the point, there is no evidence that the statement is false, and there is no admissible evidence of any other wrongdoing by Groomes or anyone else.
I would affirm.
A petition for a rehearing was denied May 6, 2005, and respondents’ petition for review by the Supreme Court was denied August 10, 2005. Werdegar, J., did not participate therein.
Undesignated section references are to the Code of Civil Procedure.