By Pavel Kolmogorov, California Business Litigation Attorney (State Bar No. 321018). Founder of Kolmogorov Law, P.C., recognized in Chambers and Partners 2026 Spotlight Guide for Litigation: General Commercial in Orange County. Last reviewed: May 2026.

You filed a business-litigation complaint, served the defendant, and within a few weeks the answer arrives with a special motion to strike under California Code of Civil Procedure section 425.16. That is California's anti-SLAPP motion. If granted, the targeted claims are stricken and the defendant typically recovers attorneys' fees from the plaintiff. If denied, the order is immediately appealable and the case stops moving forward.

This guide explains how the anti-SLAPP statute works, what kinds of business-litigation claims trigger it, the two-step test California courts apply, the mandatory fee-shifting rule, and how plaintiffs can structure pleadings to avoid (or survive) a SLAPP motion. For background on California civil procedure generally, see our civil litigation FAQ and civil litigation deadlines quick guide.

What Is a SLAPP Suit, and Why the Anti-SLAPP Statute Exists

SLAPP stands for “Strategic Lawsuit Against Public Participation.” The Legislature enacted CCP § 425.16 in 1992 to give defendants a fast, fee-shifting tool to dispose of meritless lawsuits filed primarily to chill protected speech or petitioning activity. The statute is to be construed broadly (CCP § 425.16(a)).

The anti-SLAPP motion has become one of the most common defense tools in California business litigation. It is not limited to media defendants or political activists. Defendants regularly invoke it in commercial contexts: defamation cases, unfair-competition claims, interference-with-contract suits, and disputes arising from regulatory complaints, online reviews, or pre-litigation demand letters.

The Two-Step Test

California courts apply a two-step test under Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, and Baral v. Schnitt (2016) 1 Cal.5th 376, 384.

Step 1: Defendant's prima facie showing

The defendant must show that the challenged claim arises from “protected activity” under CCP § 425.16(e). Protected activity includes:

• Statements made before a legislative, executive, or judicial proceeding (§ 425.16(e)(1)).
• Statements made in connection with an issue under consideration by such a body (§ 425.16(e)(2)).
• Statements made in a place open to the public or a public forum in connection with an issue of public interest (§ 425.16(e)(3)).
• Other conduct in furtherance of the right of petition or free speech in connection with a public issue (§ 425.16(e)(4)).

The Supreme Court's decision in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 sets the modern test for what counts as a “public issue” under prongs (e)(3) and (e)(4): the defendant must show both that the conduct relates to an issue of public interest and that it furthers that public discourse.

Step 2: Plaintiff's burden of minimal merit

If the defendant carries Step 1, the burden shifts to the plaintiff to demonstrate a “probability of prevailing” on the claim. The standard is comparable to opposing a motion for nonsuit: the plaintiff must produce admissible evidence sufficient to make a prima facie showing on every essential element. Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821. The court does not weigh credibility; it asks only whether the plaintiff has any evidence at all.

Common Business-Litigation Triggers

Defendants frequently file anti-SLAPP motions in business cases. Examples that California courts have repeatedly held arise from protected activity:

• Pre-litigation demand letters sent to settle a dispute. Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (statements made in anticipation of litigation are protected).
• Consumer reviews and online complaints about a business's products or services. Often qualify as speech on an issue of public interest under (e)(3) or (e)(4).
• Regulatory complaints filed with state or federal agencies (e.g., Department of Insurance, Contractors State License Board, Bar complaints).
• Reports to law enforcement alleging fraud or theft, even when the report turns out to be inaccurate.
• Statements in court filings in a separate action (subject to the litigation privilege of Civil Code § 47(b)).
• Whistleblower complaints alleging illegal conduct in the workplace.

If your underlying claim sounds in defamation of business, you should expect an anti-SLAPP motion in nearly every case and plead accordingly.

Mandatory Attorneys' Fees

The fee-shifting provision is what makes anti-SLAPP so consequential. Under CCP § 425.16(c)(1), a prevailing defendant on a special motion to strike is entitled to recover attorneys' fees and costs. The award is mandatory, not discretionary. Ketchum v. Moses (2001) 24 Cal.4th 1122.

The fee award covers fees incurred in bringing the motion and any related appeal. Awards in business-litigation anti-SLAPP cases routinely range from $50,000 to several hundred thousand dollars. A plaintiff who pursues a non-meritorious claim arising from protected activity can find themselves writing a six-figure check to the very defendant they sued.

The reverse is asymmetric: a prevailing plaintiff (defendant lost the motion) recovers fees only if the court finds the motion was “frivolous or solely intended to cause unnecessary delay.” CCP § 425.16(c)(1). That is a high bar.

Procedural Mechanics

• Filing deadline. The motion must be filed within 60 days of service of the complaint (CCP § 425.16(f)). Courts may extend this in their discretion, but extensions are not guaranteed.
• Discovery stay. Filing the motion automatically stays all discovery pending the court's ruling (CCP § 425.16(g)). The plaintiff may apply for limited discovery on a showing of good cause.
• Hearing. The motion must be set for hearing no more than 30 days after service unless the docket requires otherwise.
• Right to immediate appeal. An order granting or denying an anti-SLAPP motion is immediately appealable under CCP § 904.1(a)(13). The appeal automatically stays the case in the trial court.

Plaintiff Strategy: How to Structure Pleadings to Survive

If you anticipate that a defendant will move under § 425.16, several pleading and discovery strategies reduce risk:

• Plead claims that arise from non-protected conduct. The Supreme Court in Baral v. Schnitt made clear that the motion can target individual allegations, not just entire causes of action. Drafting around protected activity matters at the paragraph level, not just at the cause-of-action level.
• Use a well-crafted demand letter as the wedge. A pre-litigation California demand letter often resolves the dispute without ever filing — eliminating the anti-SLAPP exposure altogether.
• Build the evidentiary record before filing. Because the plaintiff has the burden in Step 2, declarations, documents, and witness statements should be ready to attach to the opposition. The 60-day window comes fast.
• Consider the commercial-speech exemption (§ 425.17). Certain claims arising from a defendant's commercial speech about its own products or services to potential customers are exempt from anti-SLAPP. Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12.

Defendant Strategy: When the Motion Is the Right Tool

• Move early. The 60-day clock is firm. Identify protected-activity targets in the complaint immediately on receipt.
• Move on every claim that arises from protected activity, not just the obvious ones. Baral allows targeting individual allegations within mixed claims.
• Separate fee motion. File the fee application after the motion is granted (and any appeal resolved). Document time contemporaneously.
• Consider the cost-benefit of a denial. A denied motion is immediately appealable, which buys time, but the appellate path adds cost and the plaintiff can recover fees only on a frivolousness finding.

Frequently Asked Questions

Q: Does the anti-SLAPP statute apply to federal cases filed in California?
A: Federal courts in the Ninth Circuit apply California's anti-SLAPP statute in diversity cases under U.S. ex rel. Newsham v. Lockheed Missiles & Space Co. (9th Cir. 1999) 190 F.3d 963. Procedural details (such as the discovery stay) are sometimes adjusted to fit the Federal Rules.

Q: My customer left a one-star review accusing me of fraud. Can I sue them, and will they file anti-SLAPP?
A: You can sue, but you should expect an anti-SLAPP motion. Courts often hold that consumer reviews of businesses qualify as speech on an issue of public interest. Whether the motion succeeds depends on whether the review contains provably false statements of fact (potentially actionable defamation) or constitutes protected opinion.

Q: Can a contract claim be subject to anti-SLAPP?
A: Sometimes. The Supreme Court in City of Cotati v. Cashman (2002) 29 Cal.4th 69 held that anti-SLAPP applies when the contract claim arises from protected activity, not merely when protected activity is part of the factual background. The court looks at the “principal thrust or gravamen” of the claim.

Q: What if I lose the anti-SLAPP motion at the trial-court level?
A: As the defendant, you may immediately appeal. The case is stayed pending the appeal, which can take 12-24 months. As the plaintiff, you keep your case alive but face the prospect of an appellate reversal that could undo any progress.

Q: Can I recover fees if I voluntarily dismiss before the anti-SLAPP motion is ruled on?
A: Yes, in many cases. Under Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 and Liu v. Moore (1999) 69 Cal.App.4th 745, a defendant may still recover fees after a voluntary dismissal if the court would have granted the motion. The plaintiff cannot use voluntary dismissal as an end-run around fee shifting.

About the author

Pavel Kolmogorov is the founder of Kolmogorov Law, P.C., a California business-litigation boutique in Irvine. He earned his LL.M. from the University of California, Berkeley School of Law and is licensed in California (SBN 321018), the District of Columbia, and the U.S. District Courts for the Northern, Southern, and Central Districts of California. He represents California businesses in breach of contract, fraud, UCL/B&P 17200, Penal Code 502, conversion, intentional and negligent interference, trade secrets, and partnership/shareholder disputes. Chambers and Partners 2026 recognized him in the Spotlight Guide for Litigation: General Commercial in Orange County.

This guide is general legal information, not legal advice for your specific situation. California law changes, and the facts of every dispute differ. To discuss how the principles in this article apply to your matter, contact our office at (909) 235-6116 or visit our contact page.

Need help? Contact Kolmogorov Law, P.C. at (909) 235-6116 or visit our contact page to schedule a consultation with our California business litigation team in Irvine, California.