What is a SLAPP Suit?
SLAPP = Strategic Lawsuit Against Public Participation. These are meritless lawsuits filed to silence critics, punish whistleblowers, or chill protected speech. California's Anti-SLAPP statute (CCP 425.16) lets defendants file a special motion to strike these claims early—within 60 days of service—and recover mandatory attorney fees if they prevail.
The motion triggers an automatic stay of discovery and forces the plaintiff to show a probability of prevailing on the merits. If they can't, the case gets dismissed and the defendant gets their fees.
Understanding SLAPP Litigation
SLAPP stands for Strategic Lawsuit Against Public Participation. These are lawsuits that may appear legitimate on their face but are actually designed to:
- Silence critics who have made statements about matters of public concern
- Punish whistleblowers who have reported wrongdoing to authorities
- Chill protected activity by making the cost of defense prohibitive
- Retaliate against parties who have exercised their constitutional rights
The classic SLAPP scenario: a corporation sues a consumer who posted a negative online review, or a developer sues neighbors who spoke against a project at a city council meeting. The plaintiff doesn't necessarily expect to win—they expect to drain the defendant's resources and deter future speech.
Without Anti-SLAPP protection, anyone can be sued into silence. The cost of defending even a frivolous defamation claim can exceed $100,000. The Anti-SLAPP statute flips the economics: defendants can force an early merits determination and recover fees, making SLAPP suits economically irrational for plaintiffs.
California's Anti-SLAPP Statute: CCP 425.16
California enacted its Anti-SLAPP statute in 1992, and it has since become one of the strongest in the nation. The statute provides:
- Special motion to strike: Defendants can file a motion to strike claims arising from protected activity
- Early determination: The motion must be heard within 30 days of filing (unless continued for good cause)
- Discovery stay: All discovery is automatically stayed pending resolution of the motion
- Burden shifting: If defendant shows protected activity, plaintiff must demonstrate probability of prevailing
- Mandatory fees: Prevailing defendants are entitled to attorney fees and costs
- Immediate appeal: Orders denying Anti-SLAPP motions are immediately appealable
"The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process."
Common Claims That Trigger Anti-SLAPP Analysis
Anti-SLAPP motions are most frequently filed in response to these types of claims:
| Claim Type | Typical Scenario | Anti-SLAPP Success Rate |
|---|---|---|
| Defamation | Online reviews, news articles, public statements about individuals or businesses | High |
| Intentional Interference | Statements to third parties about business dealings, competitive speech | Moderate-High |
| IIED/NIED | Claims based on distress from defendant's statements or publications | High |
| Breach of Contract | NDAs, non-disparagement clauses targeting protected speech | Varies |
| Unfair Competition | B&P 17200 claims based on advertising or competitive statements | Moderate |
| Conspiracy/Aiding | Derivative claims based on protected underlying conduct | High |
Anti-SLAPP motions must be filed within 60 days of service of the complaint. This deadline can only be extended by court order for good cause—and courts are stingy with extensions. Miss it, and you lose the right to file the motion entirely. Calendar it immediately upon receiving service.
Quick Reference: Key Deadlines and Numbers
- Anti-SLAPP protects free speech by providing a quick, cost-effective way to dismiss meritless lawsuits targeting protected activity
- 60-day filing deadline runs from service of the complaint—no exceptions without court order
- Two-step test: (1) Does claim arise from protected activity? (2) Can plaintiff show probability of prevailing?
- Mandatory attorney fees for prevailing defendants make SLAPP suits economically irrational
What Qualifies as Protected Activity?
CCP 425.16(e) defines four categories of protected activity. The statute protects statements and conduct in connection with official proceedings, public issues, and the exercise of free speech rights. The activity must be in furtherance of the right of petition or free speech—purely private disputes typically don't qualify.
The Four Categories of Protected Activity
CCP 425.16(e) defines protected activity as any act in furtherance of the right of petition or free speech under the U.S. or California Constitution in connection with a public issue, including:
Statute: "Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law."
Examples:
- Testimony in court proceedings
- Statements at legislative hearings
- Comments at city council meetings
- Submissions to administrative agencies
- Complaints filed with regulatory bodies
Key Point: The statement must be made before or to the official body. A statement about litigation made to a third party falls under category (2), not (1).
Statute: "Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law."
Examples:
- Pre-litigation demand letters
- Statements about pending litigation to the press
- Communications about investigations
- Discussions about regulatory proceedings with third parties
- Attorney communications about legal matters
Key Point: The connection to the official proceeding must be genuine, not pretextual. The proceeding must be actually pending or reasonably contemplated.
Statute: "Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest."
Examples:
- Online reviews on Yelp, Google, social media
- Blog posts about public figures or businesses
- Newspaper articles and opinion pieces
- Statements at public meetings or rallies
- Television or radio commentary
Key Point: The internet is a "public forum." Online reviews and social media posts typically qualify if they concern matters of public interest.
Statute: "Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
Examples:
- Organizing protests or boycotts
- Circulating petitions
- Investigative journalism activities
- Consumer advocacy
- Environmental activism
Key Point: This catchall provision protects conduct, not just speech. But it must be in furtherance of the exercise of free speech or petition rights—ordinary business activity doesn't qualify.
What Constitutes a "Public Issue"?
Categories (3) and (4) require the speech or conduct to concern a "public issue" or "issue of public interest." Courts consider:
- Public figures: Statements about politicians, celebrities, business leaders, or anyone who has thrust themselves into public controversy
- Businesses serving the public: Consumer reviews of restaurants, doctors, contractors, and other service providers
- Government action: Statements about proposed legislation, regulations, government contracts, or public spending
- Community issues: Development projects, school policies, environmental concerns affecting the community
- Safety concerns: Warnings about dangerous products, practices, or individuals
When drafting your Anti-SLAPP motion, spend significant effort establishing the public interest connection. Even private disputes can have public interest dimensions: a dispute with a contractor implicates consumer protection; an employment dispute may involve workplace safety; a neighbor dispute may concern community standards. Think creatively about why the public should care.
The Commercial Speech Exception
CCP 425.17 limits Anti-SLAPP protection for commercial speech. The statute does not apply to claims against:
- Persons primarily engaged in selling goods or services
- Statements made for the purpose of promoting those goods or services
- Where the intended audience is actual or potential buyers
However: This exception doesn't apply to statements about competitors (comparative advertising is still protected) or to statements made in connection with regulatory proceedings.
AB 2973 (2024) narrowed CCP 425.16(e)(4) to require a showing that the conduct was "in connection with a public issue or an issue of public interest." This aligns category (4) with category (3) and may affect cases where the defendant's conduct, while arguably protected, doesn't clearly implicate public concerns.
Protected Activity Examples by Industry
| Industry/Context | Typically Protected | Typically NOT Protected |
|---|---|---|
| Online Reviews | Consumer reviews of businesses, doctors, attorneys; ratings and commentary | Fake reviews by competitors; reviews containing trade secrets |
| Employment | Whistleblower complaints; EEOC charges; public statements about workplace safety | Purely internal personnel disputes; theft of proprietary information |
| Real Estate | Comments at planning meetings; petitions against developments; neighborhood alerts | Private boundary disputes; breach of sales contracts |
| Healthcare | Medical board complaints; public warnings about practitioners; patient reviews | HIPAA violations; misappropriation of medical records |
| Legal | State bar complaints; litigation-related statements; client reviews | Fee disputes; malpractice based on non-communicative conduct |
The Anti-SLAPP Two-Step Analysis
Two questions, two burdens. Step 1: Defendant must show the claim arises from protected activity. Step 2: If defendant succeeds, plaintiff must demonstrate a probability of prevailing on the merits. If plaintiff fails Step 2, the claim is stricken and defendant recovers fees.
Claim proceeds normally
Claim stricken + fees awarded
Claim proceeds to merits
Step 1: Arising From Protected Activity
The defendant bears the initial burden of showing that the challenged claim arises from protected activity. This requires demonstrating:
- The activity is protected: The conduct falls within one of the four categories of CCP 425.16(e)
- The claim arises from that activity: The protected activity is the "gravamen" or essence of the claim, not merely incidental to it
"In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity... A claim arises from protected activity when that activity underlies or forms the basis for the claim."
The California Supreme Court confirmed that courts must focus on the "substance" of the claim, examining what conduct the plaintiff is challenging, not how the plaintiff has framed the claim.
The "Mixed Cause of Action" Problem
Many claims involve both protected and unprotected activity. Courts apply the following analysis:
- If claim is based solely on protected activity: Entire claim subject to Anti-SLAPP analysis
- If claim is based solely on unprotected activity: Anti-SLAPP motion fails at Step 1
- If claim is "mixed": Court analyzes whether protected activity is merely incidental or is the gravamen of the claim
Example: A claim for wrongful termination alleging that defendant (1) made false statements about plaintiff to others (protected) and (2) physically assaulted plaintiff (unprotected) requires the court to determine which conduct forms the basis of the termination claim.
Step 2: Probability of Prevailing
If defendant satisfies Step 1, the burden shifts to plaintiff to demonstrate a "probability of prevailing" on the claim. This requires:
- Legally sufficient claim: The complaint states a cause of action upon which relief can be granted
- Supported by admissible evidence: Plaintiff must present evidence, not just allegations, that would support a judgment in plaintiff's favor
- No complete defense: Defendant's evidence doesn't establish a defense as a matter of law
Standard of Review
The court applies a standard similar to summary judgment, but with key differences:
| Anti-SLAPP Step 2 | Summary Judgment |
|---|---|
| Plaintiff must show probability of prevailing | Moving party must show no triable issue of fact |
| Court considers plaintiff's evidence | Court considers all evidence |
| Plaintiff need only make a prima facie showing | Burden shifts based on moving party's showing |
| Credibility determinations disfavored | Credibility determinations prohibited |
Even at Step 2, defendants should present evidence supporting affirmative defenses that can be established as a matter of law. Truth is a complete defense to defamation; opinion is protected speech; litigation privilege may apply. If defendant can establish a defense conclusively, plaintiff cannot show probability of prevailing.
Common Defenses Raised at Step 2
Truth is a complete defense to defamation. If defendant can show the challenged statements are substantially true, plaintiff cannot prevail. The statement need not be literally true in every detail—substantial truth is sufficient.
Evidence: Documents, records, third-party testimony establishing the truth of defendant's statements.
Only statements of fact can be defamatory. Pure opinion is constitutionally protected. Courts consider whether a reasonable reader/listener would understand the statement as asserting a verifiable fact.
Evidence: Context of the statement, medium of publication, overall tenor of the communication.
Civil Code 47(b) provides absolute privilege for communications made in judicial or quasi-judicial proceedings. This covers pleadings, discovery, and communications reasonably related to litigation.
Application: The privilege is broadly construed to include pre-litigation communications and statements to potential witnesses.
Civil Code 47(c) provides qualified privilege for communications made without malice on subjects of mutual interest. The privilege is defeated by a showing of actual malice.
Application: Employment references, communications among business partners, statements to regulatory bodies.
- Step 1 is defendant's burden: Show the claim arises from conduct protected under CCP 425.16(e)
- Step 2 is plaintiff's burden: If Step 1 satisfied, plaintiff must show probability of prevailing with admissible evidence
- Focus on gravamen: Courts look at the substance of the claim, not the label plaintiff applies
- Defenses matter at Step 2: Defendants should present evidence of affirmative defenses that can be established as a matter of law
Anti-SLAPP Motion Procedure
File within 60 days, get a hearing within 30 days, and discovery stops automatically. The Anti-SLAPP procedure is designed for speed. Miss the 60-day deadline and you lose the motion entirely. File timely and you get an automatic stay of discovery plus an expedited hearing.
Filing Deadline: 60 Days
CCP 425.16(f) requires the motion to be filed within 60 days of service of the complaint:
- Triggering event: Service of the complaint (or cross-complaint, or amended complaint adding new claims)
- Extension: Only by court order, upon noticed motion and for good cause shown
- Late filing: Motion is untimely and must be denied regardless of merits
The 60-day deadline runs from service, not filing. If you receive a complaint by mail, add 5 calendar days for CCP 1013(a) extension—but don't cut it close. The safest practice: calendar 50 days from service as your internal deadline, leaving 10 days buffer for drafting completion and filing logistics.
The Automatic Discovery Stay
CCP 425.16(g) provides that all discovery is stayed upon filing of an Anti-SLAPP motion:
"All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion."
What the stay covers:
- Depositions (cannot be noticed or taken)
- Interrogatories (response deadline tolled)
- Requests for production (response deadline tolled)
- Requests for admission (response deadline tolled)
- Subpoenas (cannot be issued or enforced)
Exception: The court may order "specified discovery" upon noticed motion and for good cause shown. Courts grant such motions sparingly.
The discovery stay is one of the Anti-SLAPP statute's most powerful features. It prevents plaintiffs from conducting fishing expeditions before having to prove their case has merit. If plaintiff serves discovery before you file your motion, the stay doesn't retroactively void the requests—but it does toll your response deadlines. File your motion promptly to maximize the stay's benefit.
Hearing Timeline
CCP 425.16(f) requires the motion to be heard within 30 days of filing:
- Initial setting: Motion must be scheduled for hearing not more than 30 days after filing
- Continuances: Court may continue the hearing "for good cause shown"
- Practical reality: Many courts have crowded calendars; continuances are common but should be monitored
Motion Components
- Notice of Motion (specifying CCP 425.16)
- Memorandum of Points and Authorities
- Declaration(s) establishing protected activity
- Declaration(s) supporting affirmative defenses (if applicable)
- Request for Judicial Notice (if citing public records, prior proceedings)
- Proposed Order
- Proof of Service
Opposition and Reply
| Document | Deadline | Key Requirements |
|---|---|---|
| Opposition | CRC 3.1300: 9 court days before hearing | Must include declarations and evidence showing probability of prevailing; cannot rely solely on allegations in complaint |
| Reply | CRC 3.1300: 5 court days before hearing | Address plaintiff's Step 2 showing; present additional evidence if needed to rebut plaintiff's prima facie case |
Anti-SLAPP in Federal Court
The application of California's Anti-SLAPP statute in federal court involves Erie doctrine issues:
- Ninth Circuit rule: The Anti-SLAPP statute applies in federal court sitting in diversity, but only to the extent it doesn't conflict with Federal Rules of Civil Procedure
- What applies: The substantive standards (protected activity, probability of prevailing)
- What doesn't apply: The automatic discovery stay (conflicts with FRCP 26); the mandatory fee-shifting may be discretionary
- Key case: Planned Parenthood v. Center for Medical Progress (9th Cir. 2018) clarified the applicable framework
In federal court, the Anti-SLAPP motion is treated similarly to a motion to dismiss under FRCP 12(b)(6), with the defendant entitled to present evidence. The automatic discovery stay does not apply—parties must seek a protective order under FRCP 26(c). Fee-shifting remains available but may be subject to federal discretionary standards.
Amended Complaints and Serial Anti-SLAPP Motions
If plaintiff amends the complaint after an Anti-SLAPP motion is denied:
- New claims: A new 60-day window opens for claims added by amendment
- Same claims repleaded: Generally no new motion permitted; prior denial is law of the case
- Substantially different claims: May warrant new motion if the gravamen has changed
Attorney Fees and Appeals
Win your Anti-SLAPP motion, get your fees. CCP 425.16(c)(1) makes attorney fees mandatory for prevailing defendants—not discretionary. And if the trial court denies your motion, you can appeal immediately without waiting for final judgment. These features make Anti-SLAPP one of the most defendant-friendly procedures in civil litigation.
Mandatory Attorney Fees
CCP 425.16(c)(1) provides:
"A prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs."
"Shall be entitled"—this is mandatory, not discretionary. If defendant prevails on the Anti-SLAPP motion, the court must award fees. The only questions are:
- Who is the prevailing party? The defendant who obtains an order granting the motion
- What fees are recoverable? Reasonable attorney fees incurred in bringing the motion
- What about partial success? If motion granted as to some claims but denied as to others, defendant may recover fees for the successful portion
Calculating Reasonable Fees
Courts use the lodestar method to calculate reasonable fees:
- Reasonable hours: Time actually and reasonably spent on the motion
- Reasonable rate: Prevailing market rate for attorneys of similar skill and experience
- Lodestar: Hours x Rate = Base fee amount
- Adjustments: Court may adjust upward or downward based on factors like complexity, results obtained, and fee arrangement
| Fee Component | Typically Recoverable | May Be Reduced |
|---|---|---|
| Motion drafting | Yes | If excessive for complexity |
| Reply brief | Yes | If duplicative of motion |
| Hearing preparation/attendance | Yes | If multiple attorneys unnecessary |
| Fee motion | Yes (fees on fees) | If contested and excessive |
| Appeal (if taken) | Yes | Determined by appellate court |
From day one, keep detailed time records specifically identifying Anti-SLAPP work. Use billing codes or matter numbers that segregate Anti-SLAPP time from other case work. When you file your fee motion, you'll need to show exactly what time was spent on the motion—vague block billing will result in reductions.
Frivolous Motion Penalty
CCP 425.16(c)(1) also provides:
"If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion."
When does this apply?
- Motion is completely without merit (no reasonable attorney would file it)
- Motion filed solely for delay (discovery stay abuse)
- Defendant knew or should have known claims don't arise from protected activity
Practical reality: Courts rarely find Anti-SLAPP motions frivolous. The bar is high, and the penalty is typically reserved for egregious abuse.
Immediate Appealability
CCP 425.16(i) provides:
"An order granting or denying a special motion to strike shall be appealable under Section 904.1."
This is one of the Anti-SLAPP statute's most powerful features:
- Order denying motion: Defendant can appeal immediately without waiting for final judgment
- Order granting motion: Plaintiff can appeal immediately
- Interlocutory appeal: Unlike most discovery and motion rulings, Anti-SLAPP orders are immediately reviewable
Appeal Timeline
| Event | Deadline | Notes |
|---|---|---|
| Notice of Appeal | 60 days from notice of entry of order | CRC 8.104(a)(1) |
| Appellant's Opening Brief | 40 days from record filing | CRC 8.212(a)(1) |
| Respondent's Brief | 30 days from opening brief | CRC 8.212(a)(2) |
| Reply Brief | 20 days from respondent's brief | CRC 8.212(a)(3) |
Anti-SLAPP rulings are reviewed de novo. The appellate court independently determines whether the defendant made a threshold showing of protected activity and, if so, whether the plaintiff demonstrated a probability of prevailing. Flatley v. Mauro (2006) 39 Cal.4th 299.
Stay Pending Appeal
If defendant appeals denial of an Anti-SLAPP motion:
- No automatic stay: The case can proceed in the trial court
- Discretionary stay: Defendant can move for stay pending appeal under CCP 916
- Practical impact: Many defendants seek stay to preserve the discovery stay benefit
- Fees are mandatory for prevailing defendants—"shall be entitled" means the court must award them
- Document time carefully from day one to maximize fee recovery
- Denial is immediately appealable—you don't have to wait for final judgment
- De novo review means the appellate court takes a fresh look at both steps
Anti-SLAPP Motion Services
I'm Sergei Tokmakov (CA Bar #279869), a California attorney who handles Anti-SLAPP motions for defendants facing meritless lawsuits targeting protected speech. Whether you need full representation or co-counsel support, I can help navigate the two-step analysis, hit the 60-day deadline, and recover your attorney fees.
Anti-SLAPP Services
- ✓ Anti-SLAPP motion drafting and filing
- ✓ Protected activity analysis
- ✓ Opposition to plaintiff's Step 2 showing
- ✓ Reply brief preparation
- ✓ Hearing appearance (remote or in-person)
- ✓ Fee motion and recovery
Appeal Services
- ✓ Appeal of denied Anti-SLAPP motion
- ✓ Appellate brief drafting
- ✓ Oral argument preparation
- ✓ Stay pending appeal motions
- ✓ Defense of granted motions on appeal
- ✓ Amicus brief support
What I Need for Anti-SLAPP Evaluation
- ✓ Complaint and proof of service (for deadline calculation)
- ✓ The speech/conduct at issue (reviews, statements, filings, etc.)
- ✓ Context materials (what prompted the speech)
- ✓ Any discovery served or responses due
- ✓ Prior related proceedings (if any)
- ✓ Your assessment of truth/accuracy of challenged statements
Engagement Model
| Service | Typical Structure | Timeline |
|---|---|---|
| Full Anti-SLAPP Representation | Flat fee or hourly (complexity-dependent) | Must engage with 45+ days remaining on deadline |
| Motion Drafting Only | Flat fee | 2-3 weeks for draft delivery |
| Co-Counsel Support | Hourly | Flexible based on your needs |
| Appeal | Flat fee for briefs; hourly for argument prep | Per appellate calendar |
Because Anti-SLAPP provides mandatory fee-shifting, many defendants can recover their legal costs from the plaintiff if the motion succeeds. This changes the economics of defense: rather than absorbing costs to fight a meritless suit, you can potentially make the plaintiff pay for your defense. I'll discuss fee recovery prospects during our initial consultation.
California discovery rules, deadlines, and procedures. Understand how the Anti-SLAPP discovery stay interacts with standard discovery obligations.
When meet and confer is required, how to document it, and strategic considerations for motion practice.
Service rules that trigger the 60-day Anti-SLAPP deadline. Understanding service dates is critical for deadline calculation.
Electronic filing procedures for California courts. Ensure your Anti-SLAPP motion is properly filed before the deadline.