California Anti-SLAPP Motion: Deadline, Two-Step Test, and Fees

An anti-SLAPP motion in California is a special motion to strike under Code of Civil Procedure section 425.16, and it gives a defendant a fast route to dismiss a lawsuit that targets protected speech or petitioning activity. You have 60 days from service of the complaint to file it. The motion works in two steps: you show the claim arises from protected activity, then the plaintiff has to show the claim has enough merit to keep going. If the plaintiff can’t, the court strikes the claim and you recover attorney fees.

The 60-Day Filing Deadline

The motion must be filed within 60 days after service of the complaint.¹ The clock runs from service of the earliest complaint containing the targeted cause of action. If the plaintiff amends the complaint and the challenged claim remains essentially the same, the clock does not restart. If a genuinely new SLAPP-eligible claim appears in an amended complaint, a fresh 60-day window opens for that claim.

The court has discretion to allow a late filing, but only on a showing of good cause, and judges are skeptical of requests that look like afterthoughts. Treat the deadline as firm.

Once you file with the clerk, the motion is served on the opposing party under standard civil procedure rules. The clerk schedules the hearing no more than 30 days after service of the motion, though crowded court calendars sometimes push the date out further. Both sides must also promptly transmit copies of the filed motion, opposition, and any resulting court orders or appeal notices to the Judicial Council by email or fax.¹

The Two-Step Framework

Every anti-SLAPP motion turns on a two-part analysis. At step one, the defendant must show the lawsuit targets conduct that falls within one of the statute’s four categories of protected activity. The focus is on what the defendant did, not why the plaintiff sued. Clear that threshold and the burden shifts.

At step two, the plaintiff must demonstrate a “probability of prevailing” on the challenged claim. That means presenting enough admissible evidence to support a favorable judgment if a jury believed it. The court reviews the pleadings and sworn declarations from both sides.¹ The plaintiff doesn’t have to prove the case, but conclusory allegations in the complaint won’t do it. Actual evidence must back each element of the claim.

If the court finds the plaintiff has established a probability of prevailing and denies the motion, that determination cannot be used as evidence at trial or in any later proceeding, and it doesn’t shift the plaintiff’s burden of proof going forward.¹ The anti-SLAPP ruling is a procedural checkpoint, not a preview of trial.

What Counts as Protected Activity

The statute defines four categories of protected conduct, all tied to free speech or the right to petition the government:

Statements made before a legislative, executive, or judicial body, or any other official proceeding authorized by law.
Statements made in connection with an issue under consideration by one of those bodies.
Statements made in a public forum about an issue of public interest.
Any other conduct that furthers the constitutional rights of petition or free speech in connection with a public issue.¹

A recurring question is whether statements made during lawsuits or government proceedings must also involve a “public issue.” The California Supreme Court answered that in Briggs v. Eden Council for Hope & Opportunity: statements made in or in connection with an official proceeding do not need to separately concern a matter of public significance.² Testimony in a custody hearing, statements in an administrative complaint, and allegations in a lawsuit all qualify under the first two categories without any public interest showing.

The third and fourth categories do require a connection to a public issue. Courts look at whether the speech involved someone in the public eye, whether it could affect a large number of people beyond the direct participants, and whether it arose in the context of an ongoing public controversy. The statement must also contribute to public debate on the issue rather than merely reference a topic of general interest.

Mixed Claims That Combine Protected and Unprotected Conduct

Lawsuits often lump protected and unprotected conduct into a single cause of action. A defamation claim might rest partly on statements in court filings and partly on private conversations unrelated to any official proceeding. The question is whether an anti-SLAPP motion can reach the protected portions.

The California Supreme Court addressed this in Bonni v. St. Joseph Health System, holding that courts should analyze each individual claim for relief rather than treating the entire cause of action as one indivisible unit. The defendant identifies the specific acts alleged in the complaint that are protected, and the court evaluates whether those acts supply the basis for any claims. Unprotected acts alleged within the same cause of action are set aside at step one. If some claims rest on protected activity, the court moves to step two for those claims only.³

Drafting the Motion Package

Quality of the initial filing matters, because the compressed timeline leaves little room to supplement later. The package typically includes:

A notice of motion identifying the motion as brought under section 425.16 and specifying the department, date, and time for the hearing, along with the causes of action targeted.
A memorandum of points and authorities organized around the two-step framework. Section one identifies the specific protected activity and connects it to the plaintiff’s claims. Section two argues the plaintiff cannot demonstrate a probability of prevailing, whether because the evidence is insufficient, a defense like the litigation privilege applies, or the plaintiff cannot establish one or more elements. Every argument needs supporting case law and statutory citations.
Declarations presenting the admissible evidence. Your own declaration typically establishes the circumstances of the protected conduct. Witness or expert declarations may be needed depending on the claims.
A request for judicial notice for any court records, government filings, or other official documents your arguments rely on.
A proposed order granting the motion.

The memorandum is where most motions are won or lost. A common mistake is spending too much time on step one when the protected activity is obvious, and not enough on step two, where the real fight usually happens.

The Automatic Discovery Stay

Filing the motion immediately freezes all discovery in the case. No depositions, no interrogatories, no document requests. The stay takes effect the moment the motion is filed and lasts until the court enters its order ruling on the motion.¹ This is one of the statute’s most powerful defensive features because it prevents the plaintiff from using discovery costs as leverage while the motion is pending.

The stay is not absolute. A plaintiff who needs specific evidence to oppose the motion can file a noticed motion asking the court to allow targeted discovery. The court grants the request only on a good cause showing for the particular discovery sought.¹ Broad fishing expeditions don’t qualify.

Attorney Fees for the Prevailing Defendant

A defendant who wins an anti-SLAPP motion is entitled to recover attorney fees and costs. The statute uses mandatory language, so the court has no discretion to deny fees to a prevailing defendant. One narrow exception: fees are not available when the cause of action was brought under California’s open-meetings laws (the Brown Act or Bagley-Keene Act) or public-records statutes.¹

Courts calculate the award using the lodestar method: a reasonable hourly rate for attorneys in the local market multiplied by the hours reasonably spent on the motion. The court can then adjust that figure based on the risk of nonpayment, delay in payment, and the level of skill required.

Fees run the other direction only when the court finds the anti-SLAPP motion itself was frivolous or filed solely to cause delay. In that situation, the plaintiff recovers fees under the sanctions standard in Code of Civil Procedure section 128.5.¹ That standard is high, and fee awards to plaintiffs are uncommon.

When the Statute Does Not Apply

Not every claim touching speech or petitioning activity is subject to an anti-SLAPP motion. Section 425.17 carves out two important categories.

Public Interest Lawsuits

The statute does not apply to lawsuits brought solely in the public interest or on behalf of the general public if three conditions are met: the plaintiff seeks no relief beyond what benefits the public or a class they belong to (attorney fees don’t count as extra relief); a successful outcome would enforce an important public right and benefit a large group of people; and private enforcement is necessary and imposes a disproportionate financial burden on the plaintiff compared to their personal stake.⁴

Commercial Speech

The statute also does not protect businesses from claims arising out of their own commercial statements. This exemption applies when a business makes factual representations about its own or a competitor’s products, services, or operations to promote sales, and the intended audience is actual or potential customers.⁴ A company that makes misleading advertising claims about a competitor cannot use the anti-SLAPP statute to deflect the resulting suit.

Government Enforcement Actions

The anti-SLAPP statute does not apply to enforcement actions brought by the Attorney General, a district attorney, a city attorney acting as prosecutor, or the Insurance Commissioner.¹

Immediate Right to Appeal

An order granting or denying a special motion to strike is immediately appealable. You do not have to wait for the case to reach final judgment. A defendant whose motion is denied can appeal without litigating the rest of the case first. A plaintiff whose claims are struck can challenge the ruling immediately rather than waiting on remaining claims. The appeal itself must also be reported to the Judicial Council along with the underlying motion and orders.¹

Anti-SLAPP Motions in Federal Court

If a California case ends up in federal court through diversity jurisdiction, the availability of the state anti-SLAPP statute depends on the circuit. The Ninth Circuit, which covers California, held in Newsham v. Lockheed Missiles & Space Co. that California’s anti-SLAPP statute applies in federal court because it can coexist with the Federal Rules of Civil Procedure. The court reasoned that refusing to apply the statute would encourage forum-shopping.⁵

Other circuits have reached the opposite conclusion. The Fifth Circuit found that the Texas anti-SLAPP law conflicts with Federal Rules 12 and 56 because it requires courts to weigh evidence in ways those rules don’t contemplate. If your case is in a California federal court within the Ninth Circuit, the motion remains available. Outside the Ninth Circuit, the outcome depends on which circuit hears the case.

1
California Legislative Information. California Code CCP 425.16 – Special Motion to Strike
2
Justia Law. Briggs v Eden Council for Hope and Opportunity (1999)
3
California Supreme Court. Bonni v St. Joseph Health System
4
California Legislative Information. California Code CCP 425.17 – Exemptions to Anti-SLAPP Law
5
FindLaw. Newsham v Lockheed Missiles Space Company Inc (1999)