Anti-SLAPP FAQ

California's anti-SLAPP law, codified in California Code of Civil Procedure Section 425.16, is designed to protect individuals and organizations from lawsuits that are intended to chill or silence their exercise of free speech rights on matters of public interest. SLAPP stands for Strategic Lawsuit Against Public Participation. These are lawsuits filed not necessarily to win but to burden defendants with the cost of litigation and discourage them from speaking out.

California's anti-SLAPP statute provides a special procedural mechanism allowing defendants to quickly dismiss such lawsuits through a special motion to strike. The statute was enacted in 1992 and has been amended several times to strengthen protections for free speech. California's anti-SLAPP law is one of the strongest in the nation and applies to any cause of action arising from the defendant's exercise of constitutional rights of petition or free speech in connection with a public issue.

The law provides for mandatory attorney's fees to be awarded to a defendant who prevails on an anti-SLAPP motion, creating a significant deterrent against frivolous suits targeting protected speech.

California's anti-SLAPP statute protects several categories of speech and petitioning activity. Under California Code of Civil Procedure Section 425.16(e), protected activity includes written or oral statements made before a legislative, executive, or judicial proceeding; written or oral statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body; written or oral statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest.

California courts have interpreted these categories broadly to protect a wide range of expressive activities. Examples of protected speech include consumer reviews, media reports on matters of public concern, statements to government agencies, participation in public demonstrations, and online commentary on public issues.

The statute reflects California's strong commitment to protecting free expression and ensuring that citizens can participate in public debate without fear of retaliatory litigation.

The anti-SLAPP motion procedure in California involves a two-step analysis conducted early in the litigation. First, the defendant filing the anti-SLAPP motion must show that the claims against them arise from protected activity, meaning acts in furtherance of the defendant's right of petition or free speech in connection with a public issue. If the defendant meets this threshold showing, the burden shifts to the plaintiff.

In the second step, the plaintiff must demonstrate a probability of prevailing on the claims. This requires the plaintiff to state and substantiate a legally sufficient claim with competent evidence that would be admissible at trial. The anti-SLAPP motion must be filed within 60 days of service of the complaint, unless the court allows additional time for good cause.

Once filed, all discovery is stayed pending resolution of the motion, except that discovery may be permitted upon a showing of good cause. The motion is typically heard within 30 days of filing. If the defendant prevails, the case is dismissed and the defendant is entitled to recover attorney's fees and costs. If the plaintiff prevails, the case proceeds, and the defendant may immediately appeal the denial.

If a California court grants an anti-SLAPP motion, several significant consequences follow. First, the plaintiff's claims that were the subject of the motion are stricken and dismissed. This dismissal operates as an adjudication on the merits for purposes of res judicata, meaning the plaintiff generally cannot refile the same claims.

Second, the defendant who prevailed on the anti-SLAPP motion is entitled to recover their attorney's fees and costs incurred in bringing the motion, as provided by California Code of Civil Procedure Section 425.16(c). This mandatory fee-shifting is a key deterrent against SLAPP suits and can result in significant financial consequences for plaintiffs who bring meritless claims targeting protected speech.

Third, the ruling may be used to support claims against the plaintiff for malicious prosecution if the original lawsuit was filed without probable cause and with malice. Fourth, the dismissal immediately terminates litigation on the stricken claims, allowing the defendant to avoid the expense and burden of full-scale discovery and trial. The plaintiff may appeal the granting of the anti-SLAPP motion, but must do so within the standard appeal timeline.

Attorney's fees are a critical component of California's anti-SLAPP statute and create significant financial stakes for both parties. Under California Code of Civil Procedure Section 425.16(c), a defendant who prevails on an anti-SLAPP motion shall be entitled to recover attorney's fees and costs. This is a mandatory award, not discretionary, meaning courts must award fees to prevailing defendants.

The fee award typically includes all reasonable attorney's fees incurred in bringing the anti-SLAPP motion, including time spent preparing the motion, conducting legal research, and attending hearings. Courts may also award fees for related work such as opposing discovery during the stay period.

Conversely, California Code of Civil Procedure Section 425.16(c)(2) provides that if the court finds the anti-SLAPP motion was frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to the plaintiff. This provision deters defendants from filing meritless anti-SLAPP motions. The fee-shifting mechanism makes anti-SLAPP litigation high-stakes for both sides and encourages parties to carefully evaluate their positions before proceeding.

Anti-SLAPP motions are frequently filed in California defamation cases because defamation claims inherently target speech. When a defendant is sued for defamation based on statements about public issues or matters of public interest, the defendant may file an anti-SLAPP motion arguing the claims arise from protected speech activity.

In the defamation context, the first prong of the anti-SLAPP analysis typically examines whether the allegedly defamatory statements were made in connection with a public issue or issue of public interest. California courts have found that many categories of statements qualify, including consumer reviews, media reports, statements about businesses and their practices, and commentary on public figures or public controversies.

If the defendant establishes the claims arise from protected activity, the plaintiff must demonstrate a probability of prevailing on the defamation claim. This requires the plaintiff to present evidence establishing a prima facie case for defamation, including falsity, publication, fault, and damages. The plaintiff must also show that any applicable defenses, such as truth or opinion, do not apply. The anti-SLAPP procedure effectively requires defamation plaintiffs to prove the viability of their claims at an early stage of litigation.

Yes, anti-SLAPP motions can be denied if the court finds that either the defendant failed to show the claims arise from protected activity, or the plaintiff successfully demonstrated a probability of prevailing on the merits. When an anti-SLAPP motion is denied, several important consequences follow.

First, the litigation proceeds on the merits, and the discovery stay that was in place during the anti-SLAPP proceedings is lifted. Second, under California Code of Civil Procedure Section 425.16(i), the defendant has the right to immediately appeal the denial through an interlocutory appeal. This is a significant procedural right, as most civil rulings cannot be appealed until after final judgment. The appeal automatically stays the trial court proceedings until the appeal is resolved.

Third, if the plaintiff can show the anti-SLAPP motion was frivolous or solely intended to cause unnecessary delay, the plaintiff may be awarded attorney's fees and costs under Section 425.16(c)(2). Fourth, denial of the anti-SLAPP motion does not preclude the defendant from asserting other defenses or filing other motions in the case. The denial simply means the case was not subject to early dismissal under the anti-SLAPP statute.

Under California Code of Civil Procedure Section 425.16(f), an anti-SLAPP motion must 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. The 60-day deadline is strictly enforced, making timely action essential for defendants seeking anti-SLAPP protection.

However, California courts have recognized several circumstances that may affect the deadline. First, if the complaint is amended to add claims arising from protected activity, the 60-day period for challenging those claims begins from service of the amended complaint. Second, courts have discretion to permit late-filed anti-SLAPP motions for good cause shown. Factors courts consider include the length of delay, the reason for the delay, whether the plaintiff would be prejudiced, and the merits of the motion.

Third, if the defendant was not properly served or did not have notice of the action, the deadline may not have begun to run. Defendants who believe they have anti-SLAPP grounds should consult with an attorney immediately upon receiving a complaint to ensure timely filing. Missing the deadline can result in waiver of the right to bring an anti-SLAPP motion.

The concept of "public issue" or "issue of public interest" is central to California's anti-SLAPP law, as the fourth category of protected activity covers statements in connection with issues of public interest. California courts have developed a flexible, case-by-case approach to determining what qualifies as a public issue.

Relevant factors include whether the subject of the speech affects a large number of people beyond the direct participants, whether the topic has been the subject of public attention or controversy, whether the speech contributes to public discourse on a matter of legitimate public concern, and the context and content of the communication.

California courts have found public interest in a wide range of topics, including consumer issues such as product quality and business practices, workplace safety and employment practices, environmental concerns, government activities and public officials, community issues and local controversies, and matters affecting public health or safety. The public interest requirement is interpreted broadly to effectuate the statute's purpose of protecting participation in public debate. However, purely private disputes without a broader public dimension may not qualify for anti-SLAPP protection, even if they involve speech.

California Code of Civil Procedure Section 425.16(g) provides that all discovery proceedings in the action shall be stayed upon the filing of an anti-SLAPP motion. This automatic discovery stay remains in effect until notice of entry of the order ruling on the motion, unless the court orders otherwise. However, the stay is not absolute.

Upon a noticed motion and for good cause shown, the court may order that specified discovery be conducted. To obtain discovery during the anti-SLAPP stay, the plaintiff must demonstrate that the requested discovery is directly relevant to demonstrating a probability of prevailing on the claims subject to the anti-SLAPP motion, that the discovery is necessary because the plaintiff does not otherwise have access to the information, and that the discovery request is tailored and not an attempt to burden the defendant.

California courts have recognized that permitting limited discovery may be appropriate when the defendant has exclusive access to information the plaintiff needs to oppose the motion. Examples include situations where the plaintiff needs to establish actual malice and the defendant's knowledge is uniquely within the defendant's possession. However, courts are cautious about permitting discovery that would undermine the anti-SLAPP statute's purpose of providing early resolution and avoiding burdensome litigation costs.