Overview

California's anti-SLAPP statute (Code of Civil Procedure section 425.16) provides a powerful early-stage mechanism to strike claims arising from constitutionally protected activity -- speech, petition, and association. While most commonly associated with defamation and First Amendment cases, anti-SLAPP motions increasingly appear in PI litigation when claims are characterized as arising from protected conduct.

Key takeaway
Anti-SLAPP motions impose a significant early-stage burden on plaintiffs. The motion triggers a discovery stay, requires the plaintiff to present admissible evidence at the pleading stage, and carries mandatory attorney fees if granted. Take these motions seriously and respond with strong evidence.

The Two-Step Analysis

Step 1 -- Arising From Protected Activity: The defendant must demonstrate the challenged claim arises from an act in furtherance of the defendant's right of petition or free speech in connection with a public issue.

Step 2 -- Probability of Prevailing: If the defendant meets Step 1, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim with admissible evidence.

If the defendant satisfies Step 1 and the plaintiff fails Step 2, the claim is stricken and the defendant recovers mandatory attorney fees.

Step 1: Protected Activity

CCP 425.16(e) defines protected activity as: statements made before official proceedings; statements in connection with issues under review by government bodies; statements in public forums on public issues; and other conduct in furtherance of constitutional petition or free speech rights on issues of public interest.

The claim must arise from the protected activity -- it must be the basis of the claim, not merely incidental. Courts examine the gravamen (principal thrust) of the claim. A PI claim based on physical conduct is not subject to anti-SLAPP merely because the defendant also made statements.

Facing an anti-SLAPP motion? Talk to a California attorney now. Call (424) 353-4624 or text us. Free. Confidential. No obligation.

Step 2: Probability of Prevailing

The plaintiff must present admissible evidence -- declarations and documentary exhibits -- supporting each element of the cause of action. This is not a full summary judgment standard; the plaintiff must show enough that a reasonable trier of fact could find in their favor. Conclusory declarations or reliance on the pleadings alone will not suffice.

Discovery Stay

CCP 425.16(g) automatically stays all discovery upon filing of an anti-SLAPP motion. The plaintiff may seek limited discovery for good cause by showing it is relevant to the motion, necessary to meet the Step 2 burden, and narrowly tailored. If you anticipate an anti-SLAPP motion, conduct investigation before it is filed.

Commercial Speech and Public Interest Exceptions

CCP 425.17(c) exempts claims against businesses arising from representations of fact about products or services made for promoting sales. CCP 425.17(b) exempts actions brought solely in the public interest that would confer significant benefit on the general public. These exceptions protect many PI claims from anti-SLAPP challenge.

Attorney Fees

A defendant who prevails on an anti-SLAPP motion recovers mandatory attorney fees -- the court has no discretion to deny. Fees can be $50,000 to $200,000+. A plaintiff who defeats a frivolous anti-SLAPP motion may recover fees only if the motion was frivolous or solely intended to cause delay. Factor this fee exposure into every case evaluation.

Automatic Right of Appeal

Anti-SLAPP orders are immediately appealable (CCP 425.16(i)). When a motion is granted and the plaintiff appeals, all trial court proceedings are automatically stayed -- potentially 12-24 months. When denied and the defendant appeals, there is no automatic stay.

PI Attorney Strategies

Defending against anti-SLAPP: Challenge Step 1 by arguing the claim arises from conduct, not speech. Invoke CCP 425.17 exceptions. Meet Step 2 with declarations and documentary evidence. Seek limited discovery if needed.

Offensive use: PI attorneys may file anti-SLAPP motions when a defendant files a malicious cross-complaint arising from the plaintiff's exercise of petition rights, or a defamation counterclaim against a plaintiff who publicized the case.

Anti-SLAPP threatening your PI claim? We handle these motions throughout California. Call (424) 353-4624 or text us for a free case review.

Cross-References

Common Questions

Can an anti-SLAPP motion be used against a personal injury claim?
Rarely, but it happens. Anti-SLAPP motions appear in PI cases when claims are characterized as arising from protected conduct -- such as defamation counterclaims against a plaintiff who publicized their lawsuit, malicious prosecution claims, or claims arising from statements made in judicial proceedings. A standard negligence claim based on physical conduct is not subject to anti-SLAPP.
What is the discovery stay and how does it affect my case?
When an anti-SLAPP motion is filed, all discovery in the action is automatically stayed until the motion is resolved, including any appeal. This is significant because it prevents the plaintiff from gathering evidence while requiring the plaintiff to present admissible evidence showing probable success. If you anticipate an anti-SLAPP motion, conduct as much investigation as possible before it is filed.
What happens with attorney fees if I lose an anti-SLAPP motion?
If the anti-SLAPP motion is granted, the defendant is entitled to mandatory attorney fees and costs. The court has no discretion to deny fees. These fees can be substantial -- often $50,000 to $200,000 or more. This fee exposure must be factored into the cost-benefit analysis before filing any claim that could trigger anti-SLAPP.
What is the commercial speech exception?
CCP 425.17(c) provides that anti-SLAPP does not apply to claims against a business arising from representations of fact about its products or services made for the purpose of promoting sales. This protects many PI claims from anti-SLAPP challenge, including products liability claims involving safety representations and consumer protection claims.

Sources & Citations

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Local Resources

  1. California Code of Civil Procedure § 425.16. Anti-SLAPP statute: special motion to strike claims arising from protected activity.
  2. California Code of Civil Procedure § 425.17. Commercial speech and public interest exceptions to anti-SLAPP.
  3. Navellier v. Sletten (2002) 29 Cal.4th 82. Plaintiff must demonstrate probability of prevailing with admissible evidence.
  4. City of Cotati v. Cashman (2002) 29 Cal.4th 69. Gravamen analysis: protected activity must be the basis, not merely incidental.
  5. Park v. Board of Trustees (2017) 2 Cal.5th 1057. Claims arising from insurance conduct, not speech, fail Step 1.
  6. California Code of Civil Procedure § 425.16(i). Orders granting or denying anti-SLAPP are immediately appealable.