California's Anti-SLAPP Statute: What Business Litigants Should Know
By Matthew W. Reiser | Last reviewed September 29, 2026
California's anti-SLAPP statute, Code of Civil Procedure section 425.16, lets a defendant file an early "special motion to strike" against claims that arise from protected speech or petitioning activity. Most people know it from defamation cases. It shows up in business disputes too, in part because it protects statements made in and about court proceedings. And because a prevailing defendant is generally entitled to attorney's fees, both sides should think about it before the complaint is filed, not after.
What the anti-SLAPP statute covers
A cause of action arising from an act "in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue" is subject to a special motion to strike, unless the plaintiff establishes "a probability that the plaintiff will prevail on the claim." Cal. Civ. Proc. Code § 425.16(b)(1). The Legislature directed that the statute "be construed broadly." Id. § 425.16(a).
The statute identifies four categories of protected activity:
- statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
- statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
- statements made in a place open to the public or a public forum in connection with an issue of public interest; and
- any other conduct in furtherance of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest.
Id. § 425.16(e). The first two categories reach statements made in or in connection with court proceedings. That is one reason pleadings and other litigation communications can end up at the center of an anti-SLAPP motion in a commercial case.
The two-step test
The California Supreme Court describes the analysis in two steps. First, the defendant must establish that the challenged claim arises from activity protected by the statute. If the defendant makes that showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. Baral v. Schnitt, 1 Cal. 5th 376 (2016). Baral also held that the motion may target particular allegations of protected activity that support a claim for relief, even when the same cause of action also rests on unprotected conduct.
At the first step, the question is what the claim is actually based on. Protected activity must itself supply the basis for liability. It is not enough that the defendant's speech or petitioning came before the claim or serves as evidence supporting it. Park v. Bd. of Trs. of Cal. State Univ., 2 Cal. 5th 1057 (2017).
At the second step, the court considers the pleadings and the supporting and opposing affidavits stating the facts on which the liability or defense is based. Cal. Civ. Proc. Code § 425.16(b)(2). A plaintiff facing the motion should be ready to support the claim with evidence rather than allegations alone.
Timing: the 60-day window, the discovery stay and appeals
The motion may be filed within 60 days after service of the complaint or, in the court's discretion, at any later time on terms the court deems proper. The clerk must schedule the hearing not more than 30 days after the motion is served unless the court's docket conditions require a later hearing. Id. § 425.16(f).
Filing the motion stays all discovery until notice of entry of the order ruling on the motion. On a noticed motion and for good cause, the court may order that specified discovery go forward. Id. § 425.16(g). For a plaintiff who needs documents from the defendant to prove the claim, that stay can be the hardest part of the motion.
An order granting or denying the motion is appealable. Id. §§ 425.16(i), 904.1(a)(13).
Attorney's fees for the prevailing side
A prevailing defendant on a special motion to strike is generally entitled to recover attorney's fees and costs. If the court finds that the motion was frivolous or solely intended to cause unnecessary delay, it must award costs and reasonable attorney's fees to the prevailing plaintiff. Id. § 425.16(c)(1). Plaintiffs should weigh that exposure before filing. Defendants should make sure a motion is well founded before bringing one.
The commercial speech exemption
Section 425.17(c) removes certain claims from the statute's reach. The exemption applies to claims against a person primarily engaged in the business of selling or leasing goods or services, arising from that person's representations of fact about its own or a competitor's business operations, goods, or services, made to promote sales or commercial transactions or in the course of delivering the goods or services, where the intended audience is an actual or potential buyer or customer or someone likely to repeat the statement to or influence one. Id. § 425.17(c).
The exemption matters in false-advertising and competitor disputes. If a trial court denies a special motion to strike because this exemption applies, the anti-SLAPP appeal provisions do not apply to that ruling. Id. § 425.17(e).
Anti-SLAPP motions in federal court after Gopher Media
For state-law claims pending in federal court in the Ninth Circuit, the rules on appeal changed in 2025. Sitting en banc, the Ninth Circuit held that an order denying a California anti-SLAPP motion does not qualify for immediate appeal under the collateral-order doctrine. Gopher Media LLC v. Melone, 154 F.4th 696 (9th Cir. 2025) (en banc), cert. denied, 146 S. Ct. 2726 (2026). A defendant who loses the motion in federal court in the Ninth Circuit generally cannot obtain appellate review until later in the case.
Practical advice for both sides
Defendants should calendar the 60-day filing window the day the complaint is served and decide early whether the claims arise from protected activity. Plaintiffs should ask, before filing, whether any claim rests on litigation-related statements or other protected conduct, and should be ready to present admissible evidence of each element if a motion comes.
Anti-SLAPP motions can come up in ownership disputes too. For the substantive side of those cases, see our article on minority shareholder rights in California.
Talking with Reiser Law
Reiser Law, P.C. litigates business disputes in California state and federal courts, representing both plaintiffs and defendants. Learn more about our practice areas, contact our Bay Area office, or send us a message.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. The law changes, and its application depends on the facts of each case. Attorney advertising.