California’s anti-SLAPP statute remains a powerful early-dismissal and fee-shifting device, but its operation now differs more sharply between state and federal court. In Gopher Media LLC v. Melone, 154 F.4th 696 (9th Cir. 2025) (en banc), the Ninth Circuit overruled Batzel v. Smith and held that a federal district court’s denial of a California anti-SLAPP motion is not immediately appealable under the collateral-order doctrine.

California state court retains the statutory procedure

In California court, Code of Civil Procedure section 425.16 supplies a two-step special motion to strike. The movant first must show that a claim arises from protected speech or petitioning activity. The burden then shifts to the claimant to demonstrate a probability of prevailing.

Filing the motion generally stays discovery, subject to statutory exceptions and court-ordered discovery for good cause. A prevailing defendant ordinarily receives attorney’s fees and costs. Most important for appellate strategy, California statutes authorize an immediate appeal from an order granting or denying the motion. See Cal. Civ. Proc. Code §§ 425.16(i), 904.1(a)(13).

Federal court uses a narrower procedural version

Ninth Circuit precedent has allowed aspects of section 425.16 in federal diversity cases, but federal rules limit how the motion operates. When the motion attacks the legal sufficiency of the pleading, federal courts apply Rule 12 standards. When it attacks the factual sufficiency of a claim, Rule 56 procedures and safeguards apply. The state statute does not displace federal amendment rules, and filing the motion does not automatically produce the same discovery stay available in state court.

The fee provision remains important, but the broader question whether California’s anti-SLAPP procedure should apply in federal court remains unsettled. Gopher Media assumed applicability for purposes of deciding appealability and expressly declined to resolve the Erie issue. Competing concurrences exposed a significant division within the en banc court over whether some or all of the statute conflicts with the Federal Rules.

The immediate-appeal difference is now decisive

Before Gopher Media, a defendant could immediately appeal a federal denial under Ninth Circuit precedent. The en banc court held that a denial is not sufficiently separate from the merits and is not effectively unreviewable after final judgment. It therefore does not qualify as a collateral order.

The practical consequence is substantial. A state-court defendant generally may pause and seek appellate review after an anti-SLAPP denial. A federal-court defendant ordinarily must continue litigating through final judgment before obtaining appellate review. A grant remains reviewable through the ordinary final-judgment route.

Limited alternatives remain. A district court may certify a controlling legal question under 28 U.S.C. § 1292(b), and a party may seek mandamus in exceptional circumstances. Neither is an appeal as of right.

Read the en banc opinion in Gopher Media LLC v. Melone.

Forum selection and motion strategy

The forum can affect timing, discovery, leverage, and appellate review even when the same California claims and protected conduct are involved. Before filing or removing, counsel should evaluate:

  • whether federal subject-matter jurisdiction exists and is strategically desirable;
  • whether the motion will be treated under Rule 12 or Rule 56;
  • what discovery may proceed while the motion is pending;
  • whether amendment could moot or reshape the motion;
  • the value and timing of potential fee recovery; and
  • the cost of proceeding without an immediate appeal if the motion is denied.

Gopher Media did not eliminate anti-SLAPP practice in federal court. It did eliminate one of its most valuable federal procedural protections, while leaving open a larger question about the statute’s future federal role.

This article is for general informational purposes only and is not legal advice. Anti-SLAPP strategy depends on the claims, protected activity, evidentiary record, forum, procedural posture, and current law.