California's anti-SLAPP motion: 60 days to file, and discovery stops the moment you do

The anti-SLAPP motion is California's most powerful early-case device, and its timing provisions are what make it powerful. Two of them do most of the work: a 60-day filing window, and an automatic discovery stay that begins on filing.

What the statute is for

CCP 425.16(a) states its own purpose, which is unusual and matters to how it is read:

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. … To this end, this section shall be construed broadly.

That last instruction is part of the statute, not a gloss.

The motion

CCP 425.16(b)(1):

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 Constitution or the 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.

That sentence contains the two-step structure California courts apply: the moving defendant shows the claim arises from protected activity, and the burden then shifts to the plaintiff to establish a probability of prevailing.

CCP 425.16(b)(2): 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."

CCP 425.16(b)(3) protects the case from the ruling. If the court finds the plaintiff established a probability of prevailing, "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."

Surviving an anti-SLAPP motion therefore doesn't create a finding the plaintiff can use later.

The 60 days

CCP 425.16(f):

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.

Two numbers, and they behave differently.

Sixty days from service of the complaint is a right. After that, filing is discretionary — the court "may" permit it "upon terms it deems proper." Late anti-SLAPP motions are routinely denied on timeliness alone.

Thirty days to hearing is the clerk's obligation, subject to docket conditions. That is a much faster hearing than ordinary California motion practice under CCP 1005.

The anti-SLAPP window runs 60 days while the ordinary response deadline runs 30. A defendant may need to answer or demur before the anti-SLAPP window closes, which is why the two calendars have to be tracked together.

CCP 425.16(h) extends the vocabulary: "complaint" includes cross-complaint and petition, "plaintiff" includes cross-complainant and petitioner, and "defendant" includes cross-defendant and respondent.

The discovery stay

CCP 425.16(g):

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.

This is the provision that changes the shape of a case. The stay is automatic on filing — no order required — and it covers all discovery, not just discovery directed at the moving defendant. It runs until notice of entry of the ruling.

The escape valve is narrow and belongs to the party wanting discovery: a noticed motion showing good cause, for specified discovery. A plaintiff who needs evidence to establish a probability of prevailing has to make that application rather than simply serving requests.

Fees run both ways, and one direction is mandatory

CCP 425.16(c)(1): except as paragraph (2) provides, "a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs."

Entitled — not "may be awarded." That mandatory fee shift is the economic engine of the statute and the main reason these motions get filed.

The same paragraph runs the other way: "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."

So a losing defendant doesn't automatically pay — only one whose motion was frivolous or purely dilatory.

Immediate appeal

CCP 425.16(i): "An order granting or denying a special motion to strike shall be appealable under Section 904.1."

Both directions are immediately appealable, which is rare for an interlocutory order. Combined with subdivision (g)'s stay running to notice of entry, an anti-SLAPP motion can hold a case still for a considerable period.

Reporting to the Judicial Council

CCP 425.16(j)(1) requires any party filing a special motion to strike, and any party filing an opposition, promptly on filing to transmit to the Judicial Council by email or fax a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or writ petition, and a conformed copy of any order issued under the section.

An easily overlooked obligation that applies to both sides.

Where the statute does not reach

CCP 425.17 was enacted to curb perceived misuse of the anti-SLAPP statute, and it exempts specified categories — including certain public-interest actions and certain claims arising from commercial speech — from CCP 425.16. Anyone assessing an anti-SLAPP motion has to check 425.17 before assuming the section applies.

CCP 425.18 addresses SLAPPback actions — a claim for malicious prosecution or abuse of process arising from a cause of action previously dismissed under 425.16 — and gives them their own treatment.

How this interacts with the rest of a California response

Note the last row. CCP 425.16 does not say that filing a special motion to strike extends the time to answer, the way CCP 418.10(b) and 435(c) expressly do for their motions. That gap is why the two calendars have to be run in parallel.

Also worth knowing: CCP 425.16 is excluded from the amendment-as-of-right provision. CCP 472(b) states that section "shall not apply to a special motion brought pursuant to Section 425.16" — so a plaintiff cannot moot an anti-SLAPP motion by amending as of course.

Where these rules live

• CCP 418.10 — Motion to Quash or Stay
• CCP 425.16 — Special Motion to Strike
• CCP 425.17 — Exemptions
• CCP 425.18 — SLAPPback
• CCP 430.40 — Time to Demur
• CCP 435 — Motion to Strike
• CCP 472 — Amendment Without Leave
• CCP 1005 — Notice of Motion

The California courts run a free self-help site at selfhelp.courts.ca.gov. This page explains what the statutes say. It isn't legal advice, and whether a particular claim arises from protected activity in connection with a public issue is a question decided under a substantial body of California case law that this site doesn't cover.