California’s anti-SLAPP statute is one of the most powerful early-dismissal tools in civil litigation. When a defendant files a California anti-SLAPP motion, the plaintiff’s case stops, discovery freezes, and the burden moves to the plaintiff to demonstrate a probability of prevailing before the matter goes any further.
CCP 425.16 was designed to protect defendants against suits targeting speech and petition activity, but courts have spent decades calibrating exactly where that protection starts and stops. In the following sections, you’ll discover the two-step framework. In these litigation categories, anti-SLAPP special motion to strike practice succeeds most often, the strategic risks of over-relying on it, and what happens when a motion is denied and the case heads to the Court of Appeal.
California’s Anti-SLAPP Motion: The Two-Step Analysis Under CCP § 425.16
When you file a California anti-SLAPP motion, you are asking the court to strike a claim at the pleading stage on the ground that it arises from protected activity litigation in California. The analysis under CCP 425.16 proceeds in two steps, and both must be addressed before the court rules.
At step one, you must show that the challenged claim emerges from an act in furtherance of your client’s right of petition or free speech in connection with a public issue. Protected activity under the statute includes:
- Statements presented to a legislative, executive, or judicial body.
- Statements relating to a matter that a government agency is examining or addressing.
- Conduct in furtherance of the exercise of constitutional petition or speech activity carried out on a matter of public concern.
At step two, the plaintiff must produce admissible evidence supporting each element of the cause of action. A plaintiff who cannot meet that showing loses the claim, and you are entitled to mandatory attorney’s fees.
For a closer look at how the two-step framework plays out in practice, CEB’s on-demand video on anti-SLAPP awareness walks through the analysis with the depth your litigation team needs.
When Anti-SLAPP Motions Succeed, and When They Don’t
Whether your anti-SLAPP special motion to strike succeeds depends heavily on the claim type and the factual record. California appellate courts have developed a body of case law identifying where the two-step analysis tends to produce consistent results. The following table shows the most litigated categories against their typical outcomes.
| Claim Type | Anti-SLAPP Outcome Trend |
| Defamation | Frequently granted at step one; outcome turns on step two |
| Employment retaliation | Mixed; depends on whether conduct was communicative or operational |
| Business dispute counterclaims | Often denied; litigation privilege does not extend to all conduct |
| Malicious prosecution | Frequently granted; filing a prior suit is protected activity |
| SLAPP-back claims | Viable after prevailing on anti-SLAPP; strategic timing required |
The pattern across these categories reveals that step one is easier to clear than practitioners expect, and step two is where most California anti-SLAPP motion practice is won or lost. Build your opposition around the step-two evidentiary record from the start.
Strategic Considerations: Fee-Shifting, Litigation Risks, and Motion Practice
The California anti-SLAPP motion is an aggressive tool, and it carries strategic consequences your client needs to understand before you file. The upside is that a prevailing defendant is entitled to mandatory attorney’s fees under CCP 425.16, which creates both a deterrent effect and a path to cost recovery. Before you file, work through the following:
- Assess step-one exposure carefully: Filing on claims that do not clearly arise from protected activity risks denial and may generate a fee award against your client.
- Consider malicious prosecution exposure: An anti-SLAPP motion that is frivolous or filed solely for delay can itself become the basis for a subsequent malicious prosecution claim.
- Evaluate the discovery freeze strategically: The automatic stay on discovery benefits your client but may also lock in an underdeveloped plaintiff record that cuts both ways at step two.
- Time the motion carefully: The motion must be filed within 60 days of service of the complaint unless the court grants an extension; missing that window waives the right.
- Assess settlement leverage: A filed anti-SLAPP motion shifts negotiating dynamics significantly; some plaintiffs will resolve rather than meet the step-two burden.
OnLAW Pro plus Practitioner provides current CCP 425.16 case law, anti-SLAPP motion templates, and fee-shifting analysis tools. These are practical resources when you are evaluating whether to file or building your opposition.
Defending Against an Anti-SLAPP Motion and Preserving Appellate Rights
When your client is on the receiving end of a California anti-SLAPP motion, the response requires a disciplined evidentiary strategy, not just legal argument. At step two, you must produce admissible evidence establishing a probability of prevailing on each challenged element. Declarations, documentary evidence, and deposition testimony from earlier proceedings are all viable. What you cannot do is rely on the complaint.
Your defense and appellate preservation strategy should address the following:
- Challenge step one directly: If the alleged conduct does not qualify as protected activity under CCP 425.16, argue it at step one rather than conceding and fighting only at step two.
- Build the step-two evidentiary record immediately: You have limited time and no discovery; identify and marshal your admissible evidence before the opposition deadline.
- Address each element of the cause of action: A gap in your step-two showing on any single element is fatal to that claim.
- Preserve your record for appeal: If the motion is granted, your appellate rights depend on a complete trial court record including all evidence submitted in opposition.
- Understand the interlocutory appeal right: A denial of the motion triggers an automatic right to an anti-SLAPP appeal in California.
The automatic stay triggered by an anti-SLAPP appeal in California filing reshapes the litigation entirely. If you are the plaintiff, understand that a denied motion does not end the disruption because the defendant’s appeal puts your case on hold until the Court of Appeal rules.
Current Anti-SLAPP Authority and Motion Tools in One Place
Anti-SLAPP practice in California moves fast, and the appellate decisions shaping CCP 425.16 continue to refine where the two-step analysis lands across different claim types. OnLAW Pro plus Practitioner gives your firm current case law tracking, anti-SLAPP special motion-to-strike templates, and fee-shifting guidance updated for active litigation. Explore CEB.com today.
