An anti-SLAPP motion is a legal procedure that allows a defendant to seek early dismissal of certain claims arising from protected speech or petitioning activity. In California, it is formally known as a special motion to strike and is governed primarily by California Code of Civil Procedure Section 425.16.
The term SLAPP stands for Strategic Lawsuit Against Public Participation. A SLAPP generally refers to litigation involving claims based on conduct connected to speech, petitioning, or participation in matters of public significance. California’s anti-SLAPP statute provides a procedure for determining at an early stage whether qualifying claims should be allowed to continue.
An anti-SLAPP motion is not automatic immunity from liability. Instead, California courts use a two-step analysis to determine whether the challenged claim should be struck.
How Does an Anti-SLAPP Motion Work?
California courts generally analyze an anti-SLAPP motion in two steps.
Step 1: Does the Claim Arise From Protected Activity?
First, the defendant must show that the challenged claim arises from an act protected by California’s anti-SLAPP statute.
Section 425.16 identifies several categories of potentially protected conduct, including certain statements:
- made before legislative, executive, judicial, or other official proceedings;
- made in connection with issues being considered in official proceedings;
- made in public forums concerning issues of public interest; or
- involving other qualifying conduct furthering constitutional rights of petition or free speech in connection with public issues.
The existence of speech somewhere in a dispute does not automatically make a claim subject to the anti-SLAPP statute. Courts examine the conduct from which the plaintiff’s claim actually arises.
Step 2: Can the Plaintiff Show the Claim Has Merit?
If the defendant satisfies the first step, the burden shifts to the plaintiff.
The plaintiff must establish a probability of prevailing on the claim.
California courts have described this requirement as showing that the claim has at least minimal merit. The plaintiff generally must demonstrate both that the claim is legally sufficient and that there is evidence capable of supporting it.
This stage does not amount to a full trial. The court is not deciding whether the plaintiff ultimately will win the lawsuit. Instead, it determines whether the challenged claim has enough legal and evidentiary support to survive the anti-SLAPP motion.
How Can You Defeat an Anti-SLAPP Motion?
To defeat an anti-SLAPP motion in California, a plaintiff generally must succeed at one of the two stages of the anti-SLAPP analysis under California Code of Civil Procedure Section 425.16.
1. Show That the Claim Does Not Arise From Protected Activity
At the first step, the defendant has the burden of showing that the challenged claim arises from conduct protected by California’s anti-SLAPP statute, such as certain statements or activities connected to free speech or petitioning rights.
A plaintiff may defeat the motion at this stage by showing that the defendant has not established the required connection between the claim and protected activity.
If the defendant fails to satisfy this first step, the court generally does not proceed to the second stage.
2. Show That the Claim Has Sufficient Legal and Factual Merit
If the defendant establishes that the claim arises from protected activity, the burden shifts to the plaintiff.
The plaintiff must then demonstrate a probability of prevailing on the claim. This generally requires showing that:
- the claim is legally sufficient;
- the plaintiff has evidence supporting the essential elements of the claim; and
- the evidence, if credited, is sufficient for the claim to continue.
At this stage, the allegations in the complaint alone are generally not enough. The court considers the pleadings as well as evidence submitted by both sides in determining whether the plaintiff has shown sufficient merit.
For that reason, declarations, documents, recordings, communications, testimony, and other admissible evidence may become important when opposing an anti-SLAPP motion.
What Happens When an Anti-SLAPP Motion Is Filed?
California’s anti-SLAPP statute contains procedural rules designed to address qualifying claims relatively early in litigation.
A special motion to strike generally may be filed within 60 days after service of the complaint, although a court has discretion to permit a motion later.
Filing the motion also generally stays discovery until notice of entry of the order ruling on the motion. A court may nevertheless permit specified discovery upon a showing of good cause.
Attorney’s fees can also become significant. Subject to statutory exceptions, a defendant who prevails on an anti-SLAPP motion generally is entitled to recover attorney’s fees and costs. If a court determines that an anti-SLAPP motion was frivolous or filed solely to cause unnecessary delay, a prevailing plaintiff may be awarded attorney’s fees and costs under the applicable statutory rules.
Can an Anti-SLAPP Decision Be Appealed?
Yes.
California law provides that an order granting or denying a special motion to strike is appealable. This means an anti-SLAPP dispute can move from the trial court into the appellate courts before the entire underlying lawsuit reaches a final judgment.
An appeal may involve questions about whether the alleged conduct qualifies as protected activity, whether the plaintiff presented sufficient evidence, how the trial court interpreted the applicable law, or whether particular evidence should have been considered.
Parties challenging or defending appealable civil orders may therefore seek assistance from experienced appellate lawyers in evaluating the trial-court record, legal standards, and issues available for appellate review.
What Happens If an Anti-SLAPP Motion Is Denied?
Defeating an anti-SLAPP motion does not mean that the plaintiff has won the lawsuit.
It means only that the challenged claim has survived the anti-SLAPP procedure and may continue through later stages of the case, such as discovery, summary judgment proceedings, or trial.
In short, a plaintiff may defeat an anti-SLAPP motion by showing either that the claim does not arise from protected activity or, if it does, that the claim has sufficient legal and evidentiary support to proceed.
Conclusion
An anti-SLAPP motion can significantly affect a California civil case by allowing courts to address claims involving protected speech or petitioning activity at an early stage. Because the analysis involves both legal and evidentiary issues, understanding the applicable standards and preserving the appropriate issues for appeal can be important when challenging or defending an anti-SLAPP ruling.
If an anti-SLAPP motion has affected your case and you are considering an appeal, Brownstone Law provides appellate representation for clients seeking to challenge trial-court rulings and protect their legal rights through the California appellate process.
Frequently Asked Questions
Q1. Is an anti-SLAPP motion the same as a motion to dismiss?
No. A general motion to dismiss challenges a complaint under the procedural rules applicable to the case, such as whether the allegations state a legally recognized claim.
A California anti-SLAPP motion is a specific statutory procedure for claims arising from qualifying speech or petitioning activity. It uses a two-step framework that examines both whether protected activity is involved and, if so, whether the plaintiff can demonstrate sufficient merit for the challenged claim to proceed.
Q2. Do all states have anti-SLAPP laws?
No. Anti-SLAPP protections vary considerably across the United States. Some states have broad statutes, others provide narrower protections, and the procedures, covered activity, attorney-fee rules, and appeal rights can differ from one jurisdiction to another.
The rules governing California anti-SLAPP motions therefore should not automatically be applied to cases filed in another state.
Q3. Does anti-SLAPP apply to defamation lawsuits?
It can. Defamation claims often involve speech, so they may fall within California’s anti-SLAPP statute when the claim arises from speech or petitioning activity protected by Section 425.16.
However, a defamation claim is not automatically dismissed merely because speech is involved. The defendant must first establish that the challenged claim arises from protected activity. If that burden is met, the plaintiff may still defeat the motion by demonstrating the required probability of prevailing on the claim.
