Sued Over Something You Said? California’s Anti-SLAPP Motion
If you have been sued in California over a review you posted, a complaint you filed, a comment you made at a public meeting, or a statement you made in a lawsuit, the first question is whether the case is a SLAPP — a strategic lawsuit against public participation. California gives the target of that kind of suit a fast, early way out: the special motion to strike under Code of Civil Procedure section 425.16, usually called an anti-SLAPP motion. It can end a claim within months of service, freeze discovery while it is pending, and shift the defendant’s attorney’s fees to the plaintiff.
What a SLAPP is
A SLAPP is a lawsuit whose practical effect is to punish or silence someone for speaking or petitioning. The classic examples are a defamation suit over an online review, a claim against a neighbor who complained to the city, or a suit against someone who reported suspected wrongdoing. The Legislature found a “disturbing increase” in these suits and directed that the statute be construed broadly. The plaintiff’s motive does not matter: a claim is subject to the motion if it arises from protected activity. Whether it survives then depends on its merit.
The four categories of protected activity
Section 425.16(e) defines what the statute protects. A claim is subject to the motion if it arises from:
- A statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law — testimony, pleadings, declarations;
- A statement or writing made in connection with an issue under consideration by one of those bodies — a letter to the planning department, a report to the police, a demand letter sent in anticipation of litigation;
- A statement made in a public forum in connection with an issue of public interest — where most online reviews, social media posts, and public comments land; and
- Any other conduct in furtherance of the right of petition or free speech in connection with a public issue or an issue of public interest.
The first two categories do not require that the subject be of public interest; petitioning is protected on its own. The last two do, and “issue of public interest” is where much of the litigation happens. It turns on context: who the audience was, what was being discussed, and whether the statement contributed to a broader conversation or was a private dispute aired in public.
The two-step analysis
The California Supreme Court laid out the framework in Baral v. Schnitt (2016) 1 Cal.5th 376. At the first step, the defendant must show that the challenged claim arises from protected activity. At the second step, the burden shifts to the plaintiff to establish a probability of prevailing — that the claim is legally sufficient and supported by a prima facie showing of facts that would sustain a judgment. The court does not weigh evidence or resolve conflicts; it accepts the plaintiff’s evidence as true and considers the defendant’s evidence only to see whether it defeats the claim as a matter of law. The court called this a “summary-judgment-like procedure,” and claims with the requisite minimal merit may proceed.
Baral also settled what happens when a single pleaded cause of action mixes protected and unprotected allegations. The court held that the motion reaches any claim for relief based on allegations of protected activity, even if those allegations are bundled with unprotected ones in one count. The unprotected activity is disregarded at the first step; at the second, the plaintiff must show a probability of prevailing on each claim that rests on protected activity. Allegations that merely provide context, without supporting a claim for recovery, are not stricken. A plaintiff cannot save a weak speech-based claim by pleading it alongside an unrelated one.
The 60-day deadline and the discovery stay
Under section 425.16(f), the motion may be filed within 60 days of service of the complaint. The court has discretion to allow a later filing, but that is a request, not a right. The clerk is to set the hearing within 30 days of service of the motion unless the court’s docket requires a later date. A cross-complaint counts as a complaint for this purpose, and the 60 days run alongside the ordinary 30-day deadline to respond.
Filing the notice of motion stays all discovery in the action under section 425.16(g) until notice of entry of the order ruling on the motion. A plaintiff who needs specific discovery to oppose must ask the court for it by noticed motion and show good cause. The plaintiff has to prove up the claim with what it already has.
Fees: mandatory for a winning defendant, available against a frivolous motion
Section 425.16(c) makes the fee award mandatory: a defendant who prevails on the motion is entitled to attorney’s fees and costs. The court decides the reasonable amount, and a narrow set of claims under the open-meeting and public-records laws is excluded, but there is no discretion to deny fees altogether. This is the provision that gives the motion its teeth and the reason to think carefully before suing over speech.
The protection runs both ways. If the court finds the motion frivolous or filed solely to cause delay, it must award costs and reasonable attorney’s fees to the plaintiff under section 128.5. An anti-SLAPP motion aimed at a claim that has nothing to do with protected activity can cost the defendant money rather than save it.
Immediate appeal
Most pretrial rulings cannot be appealed until the case is over. An order granting or denying an anti-SLAPP motion is different: section 425.16(i) makes it appealable, and section 904.1(a)(13) lists it among the orders that go directly to the Court of Appeal. A defendant whose motion is denied can appeal immediately, and in most cases the appeal stays proceedings on the affected claims while it is pending, which can add a year or more to a case.
Two exemptions and the SLAPPback
Section 425.17 carves out two kinds of cases. The public interest exemption covers an action brought solely in the public interest, if the plaintiff seeks no relief greater than or different from the public’s, the suit would enforce an important public right and confer a significant benefit on the public or a large class, and private enforcement is necessary and disproportionately burdensome to the plaintiff. The commercial speech exemption covers claims against a person primarily engaged in selling or leasing goods or services, arising from factual representations about its own or a competitor’s business made to promote sales to actual or potential customers. A business sued over its advertising generally cannot use the motion; a consumer sued over a review generally can. Neither exemption applies to the press, to creators of literary, artistic, or political works, or to nonprofits funded mostly by government grants.
Section 425.18 addresses the aftermath. A SLAPPback is a malicious prosecution or abuse of process claim brought by the person who won an anti-SLAPP motion against the party who filed the original suit. The original plaintiff’s own anti-SLAPP motion against a SLAPPback is deliberately weaker: no mandatory fee award, a 120-day filing window instead of 60, no automatic discovery stay, and writ review rather than an appeal as of right if the motion is denied.
The usual companion: the litigation privilege
The anti-SLAPP motion decides whether a claim can proceed; it does not by itself say whether the speech was lawful. For statements made in or connected to a lawsuit or other official proceeding, the substantive defense is usually the litigation privilege in Civil Code section 47(b). It makes a publication in a legislative, judicial, or other official proceeding privileged, subject to a short list of exceptions — among them knowingly false reports to law enforcement, communications concealing an insurance policy, and certain allegations in dissolution pleadings. The two work together: section 425.16(e)(1) and (2) get the motion to the second step, and section 47(b) is often the reason the plaintiff cannot show a probability of prevailing once there.
If you have been served over something you said, posted, or filed, the 60-day clock is the one to watch. If you are considering suing someone over their speech, assume the motion will be filed and ask whether you can prove the claim now, without discovery, and whether you can afford the other side’s fees if you cannot. For the response deadline that runs at the same time, see Served With a Lawsuit in California? The 30-Day Clock and What to Do. For the filing deadlines that apply to defamation and other speech-based claims, see California Statutes of Limitations: The Deadlines for Common Lawsuits.
Sued over a review, a complaint, or a statement in court, or weighing a suit against someone for theirs? Ask a legal question.