Anti-SLAPP & SLAPP-back
California Code of Civil Procedure: Part 2, Title 6, Chapter 2, Article 1
Cal. Code Civ. Proc. §§ 425.16 – 425.18
- The Legislature finds and declares that there has been
a disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances. The Legislature finds and
declares that it is in the public interest to encourage continued
participation in matters of public significance, and that this
participation should not be chilled through abuse of the judicial
process. To this end, this section shall be construed broadly.
- A cause of action against a person arising from any act of
that person in furtherance of the person's right of petition or free
speech under the United States or California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.
- In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.
- If the court determines that the plaintiff has established a
probability that he or she will prevail on the claim, neither that
determination nor the fact of that determination shall be admissible
in evidence at any later stage of the case, or in any subsequent
action, and no burden of proof or degree of proof otherwise
applicable shall be affected by that determination in any later stage
of the case or in any subsequent proceeding.
- In any action subject to subdivision (b), a prevailing
defendant on a special motion to strike shall be entitled to recover
his or her attorney's fees and costs. If the court finds that a
special motion to strike is frivolous or is solely intended to cause
unnecessary delay, the court shall award costs and reasonable
attorney's fees to a plaintiff prevailing on the motion, pursuant to
- This section shall not apply to any enforcement action brought
in the name of the people of the State of California by the Attorney
General, district attorney, or city attorney, acting as a public
- As used in this section, "act in furtherance of a person's
right of petition or free speech under the United States or
California Constitution in connection with a public issue" includes:
(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) any written or oral statement or
writing 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; (3) any written or oral
statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest; (4) or any
other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.
- The special motion may be filed within 60 days of the service
of the complaint or, in the court's discretion, at any later time
upon terms it deems proper. The motion shall be scheduled by the
clerk of the court for a hearing not more than 30 days after the
service of the motion unless the docket conditions of the court
require a later hearing.
- All discovery proceedings in the action shall be stayed upon
the filing of a notice of motion made pursuant to this section. The
stay of discovery shall remain in effect until notice of entry of the
order ruling on the motion. The court, on noticed motion and for
good cause shown, may order that specified discovery be conducted
notwithstanding this subdivision.
- For purposes of this section, "complaint" includes
"cross-complaint" and "petition," "plaintiff" includes
"cross-complainant" and "petitioner," and "defendant" includes
"cross-defendant" and "respondent."
- An order granting or denying a special motion to strike shall
be appealable under Section 904.1.
- Any party who files a special motion to strike pursuant to
this section, and any party who files an opposition to a special
motion to strike, shall, promptly upon so filing, transmit to the
Judicial Council, by e-mail or facsimile, a copy of the endorsed,
filed caption page of the motion or opposition, a copy of any related
notice of appeal or petition for a writ, and a conformed copy of any
order issued pursuant to this section, including any order granting
or denying a special motion to strike, discovery, or fees.
- The Judicial Council shall maintain a public record of
information transmitted pursuant to this subdivision for at least
three years, and may store the information on microfilm or other
appropriate electronic media.
- The Legislature finds and declares that there has been
a disturbing abuse of Section 425.16, the California Anti-SLAPP Law,
which has undermined the exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances,
contrary to the purpose and intent of Section 425.16. The
Legislature finds and declares that it is in the public interest to
encourage continued participation in matters of public significance,
and that this participation should not be chilled through abuse of
the judicial process or Section 425.16.
- Section 425.16 does not apply to any action brought solely in
the public interest or on behalf of the general public if all of the
following conditions exist:
- The plaintiff does not seek any relief greater than or
different from the relief sought for the general public or a class of
which the plaintiff is a member. A claim for attorney's fees,
costs, or penalties does not constitute greater or different relief
for purposes of this subdivision.
- The action, if successful, would enforce an important right
affecting the public interest, and would confer a significant
benefit, whether pecuniary or nonpecuniary, on the general public or
a large class of persons.
- Private enforcement is necessary and places a disproportionate
financial burden on the plaintiff in relation to the plaintiff's
stake in the matter.
- Section 425.16 does not apply to any cause of action brought
against a person primarily engaged in the business of selling or
leasing goods or services, including, but not limited to, insurance,
securities, or financial instruments, arising from any statement or
conduct by that person if both of the following conditions exist:
- The statement or conduct consists of representations of fact
about that person's or a business competitor's business operations,
goods, or services, that is made for the purpose of obtaining
approval for, promoting, or securing sales or leases of, or
commercial transactions in, the person's goods or services, or the
statement or conduct was made in the course of delivering the person'
s goods or services.
- The intended audience is an actual or potential buyer or
customer, or a person likely to repeat the statement to, or otherwise
influence, an actual or potential buyer or customer, or the
statement or conduct arose out of or within the context of a
regulatory approval process, proceeding, or investigation, except
where the statement or conduct was made by a telephone corporation in
the course of a proceeding before the California Public Utilities
Commission and is the subject of a lawsuit brought by a competitor,
notwithstanding that the conduct or statement concerns an important
- Subdivisions (b) and (c) do not apply to any of the following:
- Any person enumerated in subdivision (b) of Section 2 of
Article I of the California Constitution or Section 1070 of the
Evidence Code, or any person engaged in the dissemination of ideas or
expression in any book or academic journal, while engaged in the
gathering, receiving, or processing of information for communication
to the public.
- Any action against any person or entity based upon the
creation, dissemination, exhibition, advertisement, or other similar
promotion of any dramatic, literary, musical, political, or artistic
work, including, but not limited to, a motion picture or television
program, or an article published in a newspaper or magazine of
- Any nonprofit organization that receives more than 50 percent
of its annual revenues from federal, state, or local government
grants, awards, programs, or reimbursements for services rendered.
- If any trial court denies a special motion to strike on the
grounds that the action or cause of action is exempt pursuant to this
section, the appeal provisions in subdivision (j) of Section 425.16
and paragraph (13) of subdivision (a) of Section 904.1 do not apply
to that action or cause of action.
- The Legislature finds and declares that a SLAPPback is
distinguishable in character and origin from the ordinary malicious
prosecution action. The Legislature further finds and declares that a
SLAPPback cause of action should be treated differently, as provided
in this section, from an ordinary malicious prosecution action
because a SLAPPback is consistent with the Legislature's intent to
protect the valid exercise of the constitutional rights of free
speech and petition by its deterrent effect on SLAPP (strategic
lawsuit against public participation) litigation and by its
restoration of public confidence in participatory democracy.
- For purposes of this section, the following terms have the
- "SLAPPback" means any cause of action for malicious
prosecution or abuse of process arising from the filing or
maintenance of a prior cause of action that has been dismissed
pursuant to a special motion to strike under Section 425.16.
- "Special motion to strike" means a motion made pursuant to
- The provisions of subdivisions (c), (f), (g), and (i) of
Section 425.16, and paragraph (13) of subdivision (a) of Section
904.1, shall not apply to a special motion to strike a SLAPPback.
- A special motion to strike a SLAPPback shall be filed
within any one of the following periods of time, as follows:
- Within 120 days of the service of the complaint.
- At the court's discretion, within six months of the service of
- At the court's discretion, at any later time in extraordinary
cases due to no fault of the defendant and upon written findings of
the court stating the extraordinary case and circumstance.
- The motion shall be scheduled by the clerk of the court for a
hearing not more than 30 days after the service of the motion unless
the docket conditions of the court require a later hearing.
- A party opposing a special motion to strike a SLAPPback may
file an ex parte application for a continuance to obtain necessary
discovery. If it appears that facts essential to justify opposition
to that motion may exist, but cannot then be presented, the court
shall grant a reasonable continuance to permit the party to obtain
affidavits or conduct discovery or may make any other order as may be
- If the court finds that a special motion to strike a SLAPPback
is frivolous or solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney's fees to a plaintiff
prevailing on the motion, pursuant to Section 128.5.
- Upon entry of an order denying a special motion to strike a
SLAPPback claim, or granting the special motion to strike as to some
but less than all causes of action alleged in a complaint containing
a SLAPPback claim, an aggrieved party may, within 20 days after
service of a written notice of the entry of the order, petition an
appropriate reviewing court for a peremptory writ.
- A special motion to strike may not be filed against a
SLAPPback by a party whose filing or maintenance of the prior cause
of action from which the SLAPPback arises was illegal as a matter of
- This section does not apply to a SLAPPback filed by a public