Defeating an anti-SLAPP motion: keeping a meritorious case alive

An anti-SLAPP motion is the most procedurally aggressive defense in civil practice. It freezes discovery, requires the plaintiff to produce evidence at the pleading stage, supports an interlocutory appeal, and — when granted — awards substantial attorney fees to the defendant. For a plaintiff with a meritorious claim, defeating the motion is essential. For a plaintiff with a marginal claim, defeating the motion is hard.

This guide walks through the response strategy in the order a court considers it. The two-step framework gives the plaintiff two distinct angles of attack: contesting the defendant's step-one showing that the claim arises from protected activity, and meeting the plaintiff's step-two burden to show a probability of prevailing. A response that addresses both will give the court multiple paths to denial.

Why anti-SLAPP motions can be beaten

Anti-SLAPP statutes are designed to protect speech, not to grant defendants in any case involving communication a free dismissal. The two-step framework is structured to filter out abuse. A defendant who cannot show that the claim arises from protected activity loses at step one. A plaintiff who can produce evidence of a prima facie case meets the step-two burden, and the motion is denied.

Most successful responses combine three elements: a precise attack on the defendant's step-one characterization of the claim; an evidentiary record built from declarations, exhibits, and any available pre-motion discovery; and a clean legal framing that puts the case within recognized exceptions or outside the statutory categories. Each component matters; missing any one usually loses the motion.

Step one: attacking the protected-activity finding

The threshold question is whether the lawsuit arises from protected activity. The defendant's brief will characterize the claim broadly to bring it within the statute. The response should challenge that characterization at the granular level.

The Supreme Court of California's framework in Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017), is influential and informative even outside California. A claim "arises from" protected activity only when the protected activity is the wrongful conduct on which liability is based — not merely background, context, or evidence of the wrongful conduct.

Apply this distinction to each cause of action. If the protected speech is just the means by which the underlying wrong was committed, it may not be the gravamen. If the speech is incidental to a fundamentally non-speech-based claim (breach of contract that involved communications; fraud carried out through speech; employment discrimination that involved statements), the protected-activity characterization is suspect.

The response should walk each claim element and identify the conduct that gives rise to liability. Defamation: the false statement of fact. Contract breach: the failure to perform. Employment discrimination: the discriminatory employment decision. The protected speech may be evidence of these wrongs without being the wrong itself. Frame this distinction precisely.

The gravamen argument

Mixed cases — where the complaint alleges both protected and unprotected conduct — turn on gravamen analysis. The court asks which conduct supplies the gravamen of the claim. Baral v. Schnitt, 1 Cal. 5th 376 (2016), clarified that mixed claims can be partially struck: the protected components can be stricken while non-protected components survive.

The response should identify allegations that are not connected to protected activity. Conduct, transactions, employment decisions, business actions — anything the plaintiff can point to as the actual wrong, separate from speech. When the non-speech components state a claim on their own, the gravamen is non-protected and the motion fails.

Defendants will often quote isolated allegations of speech and characterize them as the "gravamen" when they are really illustrative or background. The response should put each allegation in context — quote the full paragraph, explain its role in the cause of action, and identify the non-speech allegations the same paragraph contains.

Step two: building the evidentiary record

At step two, the plaintiff has to make a prima facie evidentiary showing for each element of each claim. This is summary-judgment-style work compressed into the pleading stage, and most plaintiffs are not ready for it.

Preparation starts with the elements. For each cause of action, identify the elements and the evidence the plaintiff has for each. Documents in plaintiff's possession. Declarations from the plaintiff and any witnesses. Public records, contracts, communications, prior testimony.

The evidence has to be admissible. Hearsay, speculation, and conclusory assertions do not satisfy the burden. Declarations should be from people with personal knowledge, attesting to specific facts, with exhibits authenticated and attached.

The standard is not preponderance — the plaintiff need only show a "minimal merit" or a "prima facie case." Navellier v. Sletten, 29 Cal. 4th 82 (2002), framed the burden as akin to opposing a nonsuit motion: enough evidence that, if credited, would support a verdict. The response should emphasize this lower bar and explain why the evidence offered clears it.

For elements that require fault — defamation actual malice, fraud knowledge, tortious interference improper purpose — the evidence may need to be circumstantial. Direct evidence of a defendant's mental state is rare. The response should marshal circumstantial evidence and argue the inferences it supports.

Using the discovery application

Most anti-SLAPP statutes permit the plaintiff to apply for specified discovery on a showing of good cause. The discovery has to be narrow and necessary to oppose the motion.

The application is hard to win but worth making in the right case. If the elements of the claim require evidence the defendant has and the plaintiff cannot otherwise obtain — internal communications, identity of decision-makers, financial records — the application is plausible.

The response should frame the discovery application narrowly. Specific documents. Specific deposition topics. Specific interrogatories. A broad request looks like a fishing expedition and will be denied. A narrow request tied to specific elements has a chance.

Statutory exemptions

Many anti-SLAPP statutes contain exemptions for specific types of cases. California's § 425.17, for example, exempts certain public-interest actions, certain commercial-speech actions, and class actions brought solely on behalf of the public. Each state's exemptions are different.

The response should check the local statute for exemptions and apply them where they fit. Some statutes exempt actions against businesses for false advertising or unfair competition. Some exempt actions where the plaintiff is the government suing in a regulatory capacity. Some exempt cases where the plaintiff is suing for personal injury or property damage based on conduct that incidentally involved speech.

Exemption analysis is statute-specific and tightly construed. The response should quote the exemption, identify the elements, and explain why the case fits within them.

Mixed causes of action

A single cause of action can be partially protected and partially not. The response should welcome the partial-strike analysis: if the court strikes the protected components and leaves the non-protected components, the case proceeds.

This requires careful pleading. The response should identify which allegations are protected and which are not, and propose a partial-strike order that preserves the surviving allegations. The court may follow that proposal or substitute its own — but a plaintiff who has thought through the partial-strike structure goes into the hearing with a much better chance of preserving the case.

How to structure the response

The response should open with framing: the statute is designed to protect speech, not to grant blanket immunity to defendants in any case involving communication. The two-step framework is a filter; the response will show that the motion fails at one or both steps.

Step one: attack the protected-activity characterization for each cause of action. Walk each claim, identify the wrongful conduct, and explain why the protected speech is not the gravamen.

Gravamen: in mixed cases, identify the non-speech components that support each claim independently and propose a partial-strike framework that preserves them.

Step two: present the evidence. Walk the elements of each surviving claim and identify the evidence for each. Attach declarations, exhibits, and any pre-motion discovery. Frame the burden as "minimal merit" and explain why the evidence clears it.

Statutory exemptions: if any apply, raise them as an alternative basis for denial.

Discovery application: if necessary, request narrowly tailored discovery to fill specific evidentiary gaps.

The response should close by addressing the relief the defendant seeks. If the motion is granted in part, the response should propose a narrow order that preserves the surviving claims. If the court is inclined to grant the motion in full, the response should preserve appellate issues by ruling explicitly on each step.

Common pitfalls

Treating the motion as a 12(b)(6) motion. Anti-SLAPP requires evidence, not pleading. A response that argues "we have stated a claim" without producing evidence will lose at step two.

Missing the deadline. Responses are due on an expedited schedule. The defendant's discovery stay and fee-shifting incentives mean any delay reads as harm. The response should be filed on time, fully briefed, with the evidence attached.

Conceding step one. Plaintiffs sometimes treat step one as automatic and focus entirely on step two. This is a mistake. Winning at step one ends the motion without requiring evidence; the response should fight step one carefully even when step two looks winnable.

Conclusory declarations. Step-two evidence has to be specific, admissible, and from people with personal knowledge. A response that attaches a single declaration with broad assertions and no documentary support invites denial.

Ignoring the partial-strike framework. Even when the defendant is right that some allegations are protected, partial strike may preserve the case. A response that fights every protected-activity finding without proposing the partial-strike alternative misses an opportunity.

The bottom line

Anti-SLAPP motions are powerful but defeatable. The two-step framework gives the plaintiff multiple paths to denial: contest the protected-activity finding at step one, identify non-speech gravamen in mixed cases, build an evidentiary record for step two, leverage statutory exemptions where they apply, and propose a partial-strike framework that preserves surviving claims. A response that addresses each path methodically, attaches the evidence, and cites the controlling state-court authority will be hard to defeat.

When the response succeeds, the case proceeds and the defendant carries the cost of an unsuccessful procedural attack. When it fails, the appellate review preserves the strongest issues for higher review.