California Anti-SLAPP Law Takes a Hit in Supreme Court Ruling

The US Supreme Court’s ruling in Berk v. Choy raises questions about how federal courts should apply California’s statute on strategic lawsuits against public participation. Although the January decision was about a Delaware medical malpractice statute, its implications extend far beyond Delaware and the facts of the case.

Berk strengthens the principle that cases involving lawsuits over state laws in federal court must give way to the Federal Rules of Civil Procedure if they intrude on the FRCP’s territory.

As a practical matter, litigants must weigh the benefits of a federal forum against the risk that the state statutes they invoke may be deemed incompatible with the Federal Rules, and thus unavailable in federal proceedings. California’s anti-SLAPP statute offers a salient example of a state law whose procedural features have placed it within this tension.

Anti-SLAPP Retrenchment

In Berk, the justices unanimously held that Delaware couldn’t apply its requirement in federal court that medical malpractice claims include an affidavit of merits.

The requirement amounted to a merits screening mandate at the pleading stage that conflicted with FRCP Rules 8 and 12, the Court found. Applying the Rules Enabling Act, the xcourt emphasized that when a valid federal rule already answers a procedural or substantive question, a state statute can’t impose a conflicting or additional requirement in federal court.

This principle applies with equal force to California’s anti-SLAPP statute and is already evident in the US Court of Appeals for the Ninth Circuit, which repeatedly has narrowed the California statute to avoid conflicts with federal rules.

For example, the Ninth Circuit declined to apply the statute’s automatic discovery stay, reasoning that it collides with Rule 56’s guarantee of adequate time to obtain discovery before summary judgment. It also refused to enforce the statute’s bar on amending complaints, concluding that Rule 15(a)’s liberal amendment regime governs in federal court.

Additionally, it has treated California’s 60-day deadline for filing anti-SLAPP motions as inapplicable, instead following Rule 56’s timing provisions and allowing such motions to be filed for up to 30 days after the close of discovery.

In its Gopher Media LLC v. Melone ruling last October, the Ninth Circuit held that denials of anti-SLAPP motions aren’t immediately appealable as of right, again departing from how California state courts apply the anti-SLAPP statute.

In a detailed concurrence that catalogued the above-described erosions, Ninth Circuit Judge Daniel Bress—joined by Judges Daniel Collins, Kenneth Lee, and Patrick Bumatay—concluded that the FRCP and California’s anti-SLAPP statute are incompatible. He urged that the “time was therefore ripe—beyond ripe—for bringing our circuit in line with the overwhelming majority view and holding that California’s anti-SLAPP statute is a state procedural device that does not apply in federal court.”

Placed against this backdrop, Berk intensifies the pressure on one of the California anti-SLAPP statute’s distinctive features: Once the defendant makes a threshold showing, the plaintiffs must produce prima facie evidence demonstrating a probability of prevailing on the merits. That evidentiary burden is difficult to reconcile with Rules 8, 12, and 56:

• Rule 8 sets the pleading standard
• Rule 12 limits what materials may be considered in a motion to dismiss
• Rule 56 governs evidentiary showings at summary judgment

Requiring plaintiffs to produce evidence at a stage where the federal rules demand only well-pleaded allegations reflects the tension identified in Berk: a state statute imposing merits-screening requirements that answer the same question as the federal rules—when, and under what standards, a claim may be dismissed.

Under Berk’s reasoning, California’s anti-SLAPP evidentiary burden may therefore be viewed as displaced in federal court.

Looking Ahead

Berk v. Choy reinforces a strict approach to the Rules Enabling Act and the preemption of state statutes that encroach on territory occupied by the federal rules.

Although anti‑SLAPP statutes weren’t at issue in Berk, the opinion’s reasoning casts significant doubt on the continued viability of applying California’s anti‑SLAPP statute, particularly its evidentiary burden, in federal court.

As lower courts apply Berk, California’s anti-SLAPP statute may face further erosion or be deemed inapplicable altogether in federal proceedings. This development reinforces the need for litigants to weigh the benefits of the federal forum against the risk that state statutes will be unavailable. For California plaintiffs, filing suit in federal court may reduce the likelihood that anti-SLAPP procedures will constrain their claims.

Conversely, defendants litigating in California federal courts should be prepared to rely on alternative defenses, as the availability of California’s anti-SLAPP statute may become increasingly limited.

The case is Berk v. Choy, U.S., No. 24-440, decided 1/20/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Josh Patashnik is a partner at Perkins Coie and former deputy solicitor general at the California Department of Justice.

Danielle Sivalingam is a California employment law attorney and former counsel at Perkins Coie.

Lara Rae Owen is a member of Perkins Coie’s patent litigation practice.

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