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

A California anti-SLAPP motion is a special motion to strike under Code of Civil Procedure Section 425.16 that lets a defendant get a lawsuit dismissed early when the claims target speech or petitioning activity protected by the First Amendment.¹ If the motion succeeds, the claim is stricken, discovery stays frozen while the motion is pending, and the plaintiff pays the defendant’s attorney fees. The statute is designed to shut down lawsuits filed to punish or chill public participation rather than remedy a real legal wrong.

What Counts as Protected Activity

The motion only works if the lawsuit targets conduct that falls into one of four categories the statute protects:¹

Statements made in or in connection with a legislative, executive, judicial, or other official proceeding. Testimony, court filings, and letters to regulators sit here.
Statements about an issue under consideration or review by a government body, such as comments on a proposed zoning change or pending regulatory action.
Statements made in a public forum, or any place open to the public, about an issue of public interest. Online reviews, protests, community meetings, and social media posts about public issues commonly land here.
Any other conduct that furthers free speech or petition rights on a public issue. This is the catch-all.

In practice, the motion shows up most often in defamation suits over newspaper articles, online reviews, and website posts. Businesses suing critics, landlords suing tenants who complained to a government agency, and organizations suing protesters have all faced anti-SLAPP motions. The common thread is a lawsuit whose real purpose is to punish someone for speaking or petitioning on a matter of public concern.

How the Court Decides: The Two-Step Test

The court evaluates the motion in two steps, with the burden shifting between the parties.¹

First, the defendant must show the claim arises from protected activity under one of the four categories. If the defendant can’t connect the lawsuit to protected conduct, the motion is denied and the case proceeds.

Second, if the defendant clears step one, the burden flips. The plaintiff must show a probability of prevailing on the claim by presenting admissible evidence (declarations, documents, and similar proof) supporting every element of the cause of action. The court credits the plaintiff’s evidence and looks at the defendant’s evidence only to see whether it defeats the claim as a matter of law. If the plaintiff can’t demonstrate at least minimal merit, the court strikes the claim.

If the plaintiff does survive the motion, that finding of probable success cannot be used as evidence later in the case and does not shift anyone’s burden at trial.¹

When a Claim Mixes Protected and Unprotected Allegations

A single cause of action often rests on more than one factual theory. The California Supreme Court held in Baral v. Schnitt that an anti-SLAPP motion can target specific allegations within a cause of action, not just whole claims.²

The defendant identifies the allegations based on protected activity, and the court sets aside the ones based on unprotected conduct. The plaintiff then has to show a probability of prevailing on the protected-activity allegations specifically. If the plaintiff can’t, those allegations are stricken and the rest of the claim survives. A plaintiff can’t shield weak speech-based allegations by bundling them with stronger claims resting on unprotected conduct.²

The 60-Day Filing Deadline

A defendant generally has 60 days from service of the complaint to file the special motion to strike. Courts have discretion to allow a late filing for good cause. The clerk schedules a hearing no more than 30 days after the motion is served, though crowded calendars often push the real hearing date later.¹

An amended complaint does not automatically reset the clock. In Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, the California Supreme Court held that a defendant must move to strike a cause of action within 60 days of the earliest complaint containing that claim. An amended complaint reopens the window only for genuinely new causes of action, or for new allegations that make an existing claim subject to anti-SLAPP for the first time.³ A defendant who missed the deadline on the original complaint cannot wait for an amendment to get a second chance.

The Automatic Discovery Stay

Filing the motion automatically freezes all discovery in the case. The stay takes effect the moment the motion is filed and runs until notice of entry of the court’s order on the motion, not just the ruling itself.¹

The reasoning is practical. Discovery is expensive, and a plaintiff filing a SLAPP suit often counts on those costs to pressure the defendant into silence. Freezing depositions, document requests, and interrogatories while the motion is pending removes that financial weapon. A party who needs specific discovery during the stay must file a separate motion and show good cause.¹

Lawsuits the Statute Doesn’t Reach

Not every lawsuit that brushes against speech is subject to an anti-SLAPP motion. Section 425.16 itself exempts enforcement actions brought by the Attorney General, the Insurance Commissioner, a district attorney, or a city attorney acting as a public prosecutor.¹

Section 425.17 adds two broader exemptions.⁴ The statute does not apply to a lawsuit brought solely in the public interest or on behalf of the general public when three conditions are all met: the plaintiff seeks no personal relief beyond what any member of the public would receive, the case would enforce an important right and benefit a large group of people, and private enforcement is necessary but creates a financial burden disproportionate to the plaintiff’s personal stake. A claim for attorney fees or penalties does not count as personal relief for this purpose.

The statute also does not protect businesses from lawsuits based on their own commercial statements. If a company primarily sells goods or services and the suit targets factual claims about its own or a competitor’s products, made to promote sales or services, with actual or potential customers as the intended audience, the company cannot use anti-SLAPP to escape the lawsuit.⁴

Attorney Fees for the Winner

A defendant who wins the motion is entitled to attorney fees and costs. The statute makes this mandatory, not discretionary.¹ Filing a meritless SLAPP suit therefore risks more than losing: the plaintiff pays for the other side’s lawyers.

Courts calculate fees using the lodestar method: hours reasonably spent on the motion multiplied by a reasonable hourly rate for attorneys in the community. In appropriate cases a multiplier can apply, accounting for complexity, the quality of the work, and contingent risk. Enhancements are not automatic and cannot be used to punish the losing side.

There is a narrow carve-out. A prevailing defendant cannot recover fees if the underlying lawsuit was brought under certain government transparency statutes, including the California Public Records Act and open meeting laws.¹

The picture is different for a plaintiff who defeats the motion. The plaintiff recovers fees only if the court finds the motion was frivolous or filed solely to cause delay, which requires showing that no reasonable attorney would have filed it.¹

Appealing the Ruling

In California state court, an order granting or denying an anti-SLAPP motion is immediately appealable. Code of Civil Procedure Section 904.1 lists these orders among those that go up right away, instead of waiting for final judgment.⁵ Most pretrial rulings don’t get this treatment.

Federal court is different. In October 2025, the Ninth Circuit ruled in Gopher Media LLC v. Melone that a denial of an anti-SLAPP motion is not immediately appealable in federal court under the collateral order doctrine. The court overruled its earlier precedent and held that no interlocutory appeal is available as of right, whether the motion is granted or denied. A party has to wait until the case concludes.⁶

Anti-SLAPP in Federal Court

California’s anti-SLAPP statute can be invoked in federal diversity cases. The Ninth Circuit established this in United States ex rel. Newsham v. Lockheed Missiles & Space Co., holding that the statute’s core provisions don’t conflict with the Federal Rules of Civil Procedure.⁷

The federal version is weaker, though. The 2025 Gopher Media decision eliminated the right to an immediate appeal of anti-SLAPP rulings in federal court.⁶ Whether the automatic discovery stay applies in federal court remains contested, since federal courts have their own discovery rules. Other federal circuits have taken varying approaches to state anti-SLAPP statutes, with some declining to apply them at all. A defendant facing a SLAPP suit in California federal court still has access to the motion, but with fewer procedural protections than in state court.

SLAPPback Lawsuits

After winning the motion and getting a SLAPP suit dismissed, a defendant may have grounds to file a SLAPPback: a malicious prosecution or abuse-of-process lawsuit against the person who filed the original SLAPP. Section 425.18 treats these follow-up cases differently from ordinary malicious prosecution claims.⁸

Deadlines run longer. A defendant in a SLAPPback has 120 days to file a special motion to strike, with the court able to extend that window to six months or more in extraordinary circumstances. Mandatory fee-shifting and the automatic discovery stay from the regular anti-SLAPP statute do not apply. And a defendant in the SLAPPback cannot file an anti-SLAPP motion at all if the original SLAPP suit was illegal as a matter of law.⁸

1
California Legislative Information. California Code CCP 425.16
2
Justia Law. Baral v Schnitt
3
Justia Law. Newport Harbor Ventures LLC v Morris Cerullo World Evangelism
4
California Legislative Information. California Code CCP 425.17
5
California Legislative Information. California Code CCP 904.1
6
United States Court of Appeals for the Ninth Circuit. Gopher Media LLC v Melone
7
FindLaw. Newsham v Lockheed Missiles Space Company Inc
8
California Legislative Information. California Code CCP 425.18