TL;DR — Key Takeaways
- An anti-SLAPP motion asks the court to strike a claim that arises from protected speech or petitioning activity, and it can end a case months after filing.
- Filing it stays discovery immediately. A plaintiff who filed in order to obtain evidence loses that route at the moment the motion is served.
- The motion runs in two steps: the defendant shows the claim arises from protected activity, then the burden shifts to the plaintiff to show a probability of prevailing.
- A defendant who wins is generally entitled to attorney’s fees. A plaintiff who defeats a frivolous motion can recover fees too. The exposure runs both ways.
- A denial is immediately appealable in most circumstances, which can suspend the case for a year or more.
- Protected activity is broader than defamation. Statements to a government agency, positions taken in other litigation, and public statements on matters of public interest all qualify.
An anti-SLAPP motion is a special motion to strike, available under Code of Civil Procedure section 425.16, that lets a defendant ask the court to dismiss a claim arising from protected speech or petitioning activity early in the case. It is one of the few procedural tools in California that can end a lawsuit before discovery rather than after it.
The acronym stands for strategic lawsuit against public participation, and the statute exists to stop lawsuits brought to silence people rather than to remedy a wrong. In practice the motion reaches well beyond that original target, which is why both plaintiffs and defendants need to understand it before a complaint is drafted.
What counts as protected activity
Section 425.16(e) defines it in four categories. In summary:
Statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
Statements made in connection with an issue under consideration or review by such a body or proceeding.
Statements made in a place open to the public or a public forum in connection with an issue of public interest.
Any other conduct in furtherance of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest.
The practical reach is wider than people expect. A report to a licensing board, a complaint to a code enforcement office, testimony in someone else’s case, a demand letter sent in anticipation of litigation, a review posted publicly, a statement at a city council meeting: all have been treated as protected in one context or another.
That means claims you would not think of as speech cases can draw the motion. Suing a neighbor over what they told the planning department, suing a former employee over what they said in a Labor Commissioner proceeding, or suing anyone over positions they took in prior litigation are all exposed.
If you are drafting a complaint and any part of it rests on something the defendant said or filed, that is worth checking before it goes out. Call Bay Legal at (650) 668-8000 in Northern California or (213) 668-8000 in Southern California.
The two steps
Step one, the defendant’s burden. Show that the challenged claim arises from protected activity. “Arises from” is narrower than “relates to.” The protected activity has to supply the basis for the claim, not merely form the background against which it occurred. A claim that a defendant breached a contract does not arise from protected activity just because the breach was announced in a court filing.
Step two, the plaintiff’s burden. Show a probability of prevailing on the merits. The plaintiff has to produce admissible evidence sufficient to sustain a favorable judgment, taking the plaintiff’s evidence as true. It is a low bar in theory and a real obstacle in practice, because of what happens to discovery.
Mixed causes of action. Where one claim contains both protected and unprotected allegations, the court analyzes the protected portions separately rather than treating the claim as a single unit. The protected allegations can be struck while the rest survives, unless the protected conduct is merely incidental to the unprotected conduct.
The discovery stay is the real weapon
This is the feature that decides outcomes and it gets the least attention.
Section 425.16(g) provides that all discovery proceedings in the action are stayed upon the filing of the notice of motion. The stay remains in effect until notice of entry of the order ruling on the motion. The court may, on noticed motion and for good cause shown, order that specified discovery be conducted.
Read what that does to a plaintiff. You filed partly to obtain evidence the defendant holds. The motion arrives, discovery stops, and you are required to demonstrate a probability of prevailing using only what you already have. The good-cause exception exists but it is a motion you have to win, on a compressed schedule, while the main motion is pending.
For a plaintiff with documentary proof in hand this is survivable. For a plaintiff whose case depends on what discovery would reveal, it frequently ends the claim.
Fees run both ways
A prevailing defendant is generally entitled to recover attorney’s fees and costs under section 425.16(c). This is not discretionary in the way most fee awards are, and it is why the motion is attractive to defendants even where the claim is otherwise defensible.
A plaintiff who defeats a frivolous motion can recover fees against the moving defendant, under the same subdivision, on a showing that the motion was frivolous or solely intended to cause unnecessary delay.
So the exposure is symmetrical in structure, though not in practice: prevailing-defendant awards are common, and frivolous-motion awards against defendants are rare.
Because California follows the American Rule generally, this is one of the few places a fee award arrives without a contract or a subject-specific statute. Who pays attorney’s fees in California covers the general framework.
Timing, and the appeal problem
The 60-day window. Section 425.16(f) provides that the motion may be filed within 60 days of service of the complaint, or, in the court’s discretion, at any later time upon terms it deems proper. Read the second half: the deadline is not absolute, and a late motion can be permitted.
The hearing. The statute directs that the motion be scheduled for hearing not more than 30 days after service unless the court’s docket requires a later date.
The appeal. An order granting or denying a special motion to strike is appealable under Code of Civil Procedure section 904.1. That means a defendant who loses the motion can appeal immediately rather than waiting for final judgment, and the case can sit while the appeal runs. A denial that costs a year of delay is a meaningful outcome for a defendant even though they lost.
Section 425.17(e) removes the immediate appeal for motions brought against claims in the categories that section exempts, which is one of the reasons the exemptions matter.
How long a California civil lawsuit takes covers what an interlocutory appeal does to a schedule.
The exemptions
Section 425.17 carves categories out of the statute, on the premise that anti-SLAPP had itself begun to be used strategically.
The two that come up most often are the public interest exemption, for certain actions brought solely in the public interest or on behalf of the general public, and the commercial speech exemption, for certain claims against a person primarily engaged in the business of selling goods or services, arising from representations about those goods or services. Both are conditioned and both are litigated.
Section 425.18 separately addresses SLAPPback actions, meaning a malicious prosecution claim brought after prevailing on an anti-SLAPP motion, and limits the use of anti-SLAPP against them.
How to avoid drafting a complaint that invites one
Four habits.
Separate the conduct from the speech. If the wrong is a breach, a conversion, or a failure to perform, plead the wrong. Do not build the claim on what the defendant said about it.
Leave out the litigation conduct. Allegations about what the defendant filed, argued, or reported are frequently protected, and including them as a basis for liability rather than as context invites the motion and risks the claim.
Plead what you can prove now. The discovery stay means the evidence you have at filing may be the evidence you get. A complaint drafted on the assumption that discovery will fill the gaps is exposed.
Ask whether the claim survives without the protected parts. If striking every speech-based allegation leaves nothing, the claim is a SLAPP in substance whatever it is called.
And the honest version: if your real grievance is that someone reported you, criticized you, or took a position against you in a proceeding, California has decided that is generally not actionable, and filing anyway is likely to cost you your fees as well as the case. Filing as leverage covers the broader risk of filing to create pressure.
Bay Legal handles anti-SLAPP motions from both sides. Reach us at (650) 668-8000, (213) 668-8000, or through baylegal.com/contact-us.
Frequently Asked Questions
What is an anti-SLAPP motion and which claims does it target?
It is a special motion to strike under Code of Civil Procedure section 425.16, aimed at claims arising from protected speech or petitioning activity. It targets lawsuits brought to punish or deter someone for speaking, reporting, or participating in a proceeding, though in practice it reaches many claims that were not filed with that intent.
What is protected activity under CCP 425.16?
Four categories: statements before an official proceeding, statements in connection with an issue under review by such a body, statements in a public forum on an issue of public interest, and other conduct furthering petition or free speech rights in connection with a public issue. Reports to agencies, positions taken in other litigation, and public reviews commonly qualify.
What happens to fees if an anti-SLAPP motion succeeds?
A prevailing defendant is generally entitled to recover attorney’s fees and costs under section 425.16(c). A plaintiff who defeats a motion shown to be frivolous or solely intended to cause delay can recover fees under the same subdivision, though that is far less common.
How does an anti-SLAPP motion affect case timing?
Filing the motion stays all discovery until the court rules, subject to a good-cause exception the plaintiff must move for. An order granting or denying the motion is immediately appealable in most circumstances, so a denial can suspend the case for a year or more while the appeal runs.
How do you avoid drafting a complaint that invites one?
Build the claim on conduct rather than on what the defendant said, leave allegations about the defendant’s filings and reports out of the liability theory, plead what you can prove with evidence already in hand, and test whether the claim survives if every speech-based allegation is struck.
