Anti-SLAPP Suits

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Anti-SLAPP statutes shield those engaged in certain protected activities from harassment suits for defamation or related claims.

An "anti-SLAPP" is a suit brought under state law to dismiss a "strategic lawsuit against public participation."  Generally a "SLAPP" is a civil complaint or counterclaim to punish or deter individuals or organizations from making communications to government or engaging in speech on an issue of public interest or concern.

The purpose of anti-SLAPP statutes is legislative concern that many SLAPPs are ultimately unsuccessful in court, but are successful in draining the resources of the individual or organization speaking on the issue of public interest or concern.  In other words, people were using the courts to burden and impoverish their critics through expensive lawsuits.

California's anti-SLAPP statute became effective in 1993 and may be found at Cal. Code Civ. P. 425.16.  California's anti-SLAPP statute protects activities including:

  • Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  • 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; or
  • 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

California's anti-SLAPP suit provides a special procedural mechanism where the court rules at the start of the suit whether the claimant who filed the SLAPP suit can show a probability of winning.  If the claimant cannot show a probability of winning, the judge will strike the complaint and order the claimant to pay the opposing party's attorney's fees and costs.  Such fees and costs can be expensive for a short exchange.  But an early determination saves the party opposing the SLAPP from the expensive and invasive discovery process.

Common SLAPP claims include, but are not limited to:

  • Defamation
  • Invasion of Privacy
  • Nuisance
  • Malicious Prosecution or Abuse of Process
  • Conspiracy
  • Intentional Infliction of Emotional Distress
  • Interference with Contract or Economic Advantage

If you are an employee suing for defamation, retaliation, and other types of employment related claims, it is important to evaluate whether your employer may claim that its actions were taken in an area protected by the anti-SLAPP statute.  For example, is your claim for defamation based on your employer reporting information of your misconduct to a federal or state regulatory agency?  If yes, you must be able to submit significant evidence that you will prevail in your suit without the benefit of discovery, or risk having your complaint dismissed and being liable for your opponent's costs and legal fees.

If you are an employer, you may be able to quickly dispatch a defamantion or related claim if the employee's claim is based on you having reported information to a regulatory, licensing, professional or other body in the ordinary course of your business.

Anti-anti-SLAPP Suits

Plaintiffs facing an anti-SLAPP motion have limited access to discovery in certain cases.  California Code of Civil Procedure section 425.16 does allow a plaintiff to engage in some discovery where the defendant's anti-SLAPP motion makes actual malice an issue: “The court, on noticed motion and for good cause shown, may order that specified discovery be conducted . . . .”

Permitting a plaintiff to take depositions on actual malice is appropriate where the defendant’s anti-SLAPP motion makes actual malice an issue.  See Garment Workers Center v. Superior Court, (2004) 117 Cal. App. 4th 1156 at 1162 (“The court should [] consider the plaintiff’s need for discovery in the context of the issues raised in the SLAPP motion.”).  There is good cause for granting leave to take depositions where the plaintiff makes a “prima facie showing that the defendant’s published statements contain provably false factual assertions.”  Paterno v. Superior Court, 163 Cal. App. 4th 1342, 1349 (2008).

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