California Anti-SLAPP Law: Motions, Fees, and SLAPPback Claims

California’s anti-SLAPP law, codified at Code of Civil Procedure section 425.16, lets a defendant sued over speech or petitioning activity file a special motion to strike early in the case, freeze discovery while the motion is pending, and recover attorney’s fees if the plaintiff can’t show the claim has legal merit. The Legislature told courts to read the statute broadly because it exists to keep meritless lawsuits from being used to punish public participation.¹

What Speech and Conduct the Law Covers

The motion is available when a claim targets an act “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.” That definition breaks into four categories:

Written or oral statements made before a legislative, executive, or judicial body, or any other official proceeding authorized by law.
Written or oral statements made in connection with an issue under consideration or review by such a body.
Written or oral statements made in a place open to the public or a public forum on an issue of public interest.
Any other conduct in furtherance of free speech or petition rights on a public issue or issue of public interest.

That fourth category is the catchall, and it has real limits. In FilmOn.com v. DoubleVerify, the California Supreme Court held that a court must first identify what public issue the speech implicates, then ask whether the speech functionally contributes to public conversation about that issue. Simply touching a topic the public cares about isn’t enough. Confidential reports produced for profit and shared only with paying clients didn’t qualify, even though the subject matter was of public concern.²

How the Two-Step Motion Works

The court decides the motion in two steps. First, the defendant has to show the lawsuit arises from protected activity. If that showing is made, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.¹

At step two, the plaintiff has to put forward evidence that, if a jury believed it, would support a judgment in the plaintiff’s favor. The judge doesn’t weigh conflicting evidence or judge credibility at this stage. It’s a screening test. Does the plaintiff have enough on paper to move forward?

The motion can also target specific allegations inside a broader claim, not just entire causes of action. In Baral v. Schnitt, the California Supreme Court held that when a single cause of action mixes protected and unprotected activity, a court can strike the protected-activity allegations and leave the rest of the claim standing.³ That closed a loophole where plaintiffs bundled weak speech-based allegations with stronger unprotected claims to shield the whole package.

Deadlines and Hearing Timing

The motion has to be filed within 60 days of service of the complaint. Courts have discretion to accept later filings on whatever terms they consider appropriate, so missing the deadline isn’t automatically fatal, but a defendant without a good reason for the delay shouldn’t count on permission.¹

Once filed, the clerk has to schedule the hearing within 30 days of service of the motion, unless the court’s calendar forces a later date. The compressed timeline is deliberate. The statute is meant to get defendants out of meritless suits quickly.

What Happens Once the Motion Is Filed

Filing the motion triggers three procedural protections that reshape the case immediately.

Discovery freezes. All discovery in the case stops the moment the motion is filed and stays stopped until the court rules. A plaintiff who needs discovery to oppose the motion can request limited discovery for good cause, but that requires a separate noticed motion and the request has to be narrowly tied to the issues raised by the anti-SLAPP motion.¹

The plaintiff can’t freely amend the complaint. The statute prohibits amending the pleading in response to the motion without the court’s permission. That stops the tactic of repackaging the same speech-based claims in different language once the original complaint looks vulnerable.

An order on the motion is immediately appealable. Most pretrial rulings have to wait until final judgment for appellate review. An anti-SLAPP ruling doesn’t. A defendant whose motion is denied can take the issue straight to the Court of Appeal.

Attorney’s Fees

A defendant who wins the motion is entitled to reasonable attorney’s fees and costs from the plaintiff. That award is mandatory, not discretionary, and courts set the amount based on the complexity of the case and the work defense counsel actually did.¹ The fee-shifting is what gives the statute its bite: filing a SLAPP suit means real financial exposure to the other side’s legal bills.

The fee rule cuts both ways. If the court finds a defendant’s motion was frivolous or filed solely for delay, the plaintiff can recover fees and costs. Judges also keep authority to impose additional sanctions on parties or counsel who misuse the anti-SLAPP process.

When the Statute Doesn’t Apply

Section 425.17 carves out two important exemptions. Not every lawsuit involving speech is subject to an anti-SLAPP motion.

Public Interest Actions

The motion isn’t available against claims brought solely in the public interest or on behalf of the general public if three conditions are met: the plaintiff doesn’t seek relief greater than or equal to what would be sought against the defendant on the same claim by anyone else, a successful result would enforce an important public right and confer a significant benefit on the general public or a large class of people, and private enforcement is necessary and places a disproportionate financial burden on the plaintiff relative to their personal stake.⁴

Commercial Speech

Businesses can’t use the motion to escape consumer claims where the speech consists of factual representations about the business’s own goods or services, or a competitor’s, made to actual or potential customers for the purpose of promoting sales. The California Supreme Court has said this commercial speech exemption should be read narrowly, and the party invoking it carries the burden of proving it applies. The exemption only reaches statements that themselves meet the statutory criteria. A business can’t invoke it just because a defamatory remark happened to appear next to a promotional one.⁴

Going on the Offense After Winning: SLAPPback Claims

A defendant who successfully strikes a SLAPP suit can turn around and sue for malicious prosecution or abuse of process. The Legislature calls this a “SLAPPback” and treats it differently from an ordinary malicious prosecution action because it reinforces the anti-SLAPP statute’s deterrent purpose.⁵

The original SLAPP plaintiff who now wants to file an anti-SLAPP motion against the SLAPPback has 120 days from service, extendable by the court to six months or, in extraordinary circumstances, longer. Several of the standard anti-SLAPP protections do not carry over to a motion against a SLAPPback: no automatic discovery stay, no mandatory fee-shifting, and no immediate appeal. And if the original SLAPP suit was illegal as a matter of law, the party who filed it can’t use an anti-SLAPP motion against the SLAPPback at all.

Federal Court

Whether the statute applies in federal diversity cases is unsettled. The Ninth Circuit’s 1999 decision in Newsham v. Lockheed held that it does, and that precedent is still on the books, but it faces open skepticism inside the court. In the 2025 en banc decision in Gopher Media v. Melone, the Ninth Circuit assumed without deciding that the statute applies and overruled its prior precedent allowing interlocutory appeal of anti-SLAPP denials in federal court. A federal defendant whose motion is denied can no longer take an immediate appeal.⁶ Until the circuit squarely decides the question, defendants in federal diversity cases in California should assume the motion is available but should not count on immediate appellate review if it fails.

1
California Legislative Information. California Code of Civil Procedure CCP 425-16
2
Justia Law. FilmOn.com Inc. v. DoubleVerify Inc.
3
Justia Law. Baral v. Schnitt
4
California Legislative Information. California Code of Civil Procedure CCP 425-17
5
California Legislative Information. California Code of Civil Procedure CCP 425.18
6
United States Court of Appeals for the Ninth Circuit. Gopher Media LLC v. Melone