{"id":302339,"date":"2026-05-06T09:00:08","date_gmt":"2026-05-06T09:00:08","guid":{"rendered":"https:\/\/www.newsbeep.com\/us-ca\/302339\/"},"modified":"2026-05-06T09:00:08","modified_gmt":"2026-05-06T09:00:08","slug":"california-anti-slapp-law-takes-a-hit-in-supreme-court-ruling","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us-ca\/302339\/","title":{"rendered":"California Anti-SLAPP Law Takes a Hit in Supreme Court Ruling"},"content":{"rendered":"

The US Supreme Court\u2019s ruling in Berk v. Choy<\/a> raises questions about how federal courts should apply California\u2019s statute<\/a> 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.<\/p>\n

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\u2019s territory. <\/p>\n

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\u2019s anti-SLAPP statute offers a salient example of a state law whose procedural features have placed it within this tension.<\/p>\n

Anti-SLAPP Retrenchment<\/p>\n

In Berk, the justices unanimously held that Delaware couldn\u2019t apply its requirement in federal court that medical malpractice claims include an affidavit of merits.<\/p>\n

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<\/a>, the xcourt emphasized that when a valid federal rule already answers a procedural or substantive question, a state statute can\u2019t impose a conflicting or additional requirement in federal court.<\/p>\n

This principle applies with equal force to California\u2019s 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.<\/p>\n

For example, the Ninth Circuit declined to apply the statute\u2019s automatic discovery stay<\/a>, reasoning that it collides with Rule 56\u2019s guarantee of adequate time to obtain discovery before summary judgment. It also refused to enforce the statute\u2019s bar on amending complaints<\/a>, concluding that Rule 15(a)\u2019s liberal amendment regime governs in federal court.<\/p>\n

Additionally, it has treated California\u2019s 60-day deadline<\/a> for filing anti-SLAPP motions as inapplicable, instead following Rule 56\u2019s timing provisions and allowing such motions to be filed for up to 30 days after the close of discovery.<\/p>\n

In its Gopher Media LLC v. Melone<\/a> ruling last October, the Ninth Circuit held that denials of anti-SLAPP motions aren\u2019t immediately appealable as of right, again departing from how California state courts apply the anti-SLAPP statute.<\/p>\n

In a detailed concurrence that catalogued the above-described erosions, Ninth Circuit Judge Daniel Bress\u2014joined by Judges Daniel Collins, Kenneth Lee, and Patrick Bumatay\u2014concluded that the FRCP and California\u2019s anti-SLAPP statute are incompatible. He urged that the \u201ctime was therefore ripe\u2014beyond ripe\u2014for bringing our circuit in line with the overwhelming majority view and holding that California\u2019s anti-SLAPP statute is a state procedural device that does not apply in federal court.\u201d<\/p>\n

Placed against this backdrop, Berk intensifies the pressure on one of the California anti-SLAPP statute\u2019s 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:<\/p>\n

Rule 8 sets the pleading standardRule 12 limits what materials may be considered in a motion to dismissRule 56 governs evidentiary showings at summary judgment<\/p>\n

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\u2014when, and under what standards, a claim may be dismissed.<\/p>\n

Under Berk\u2019s reasoning, California\u2019s anti-SLAPP evidentiary burden may therefore be viewed as displaced in federal court.<\/p>\n

Looking Ahead<\/p>\n

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.<\/p>\n

Although anti\u2011SLAPP statutes weren\u2019t at issue in Berk, the opinion\u2019s reasoning casts significant doubt on the continued viability of applying California\u2019s anti\u2011SLAPP statute, particularly its evidentiary burden, in federal court.<\/p>\n

As lower courts apply Berk, California\u2019s 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. <\/p>\n

Conversely, defendants litigating in California federal courts should be prepared to rely on alternative defenses, as the availability of California\u2019s anti-SLAPP statute may become increasingly limited.<\/p>\n

The case is Berk v. Choy<\/a>, U.S., No. 24-440, decided 1\/20\/26.<\/p>\n

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.<\/p>\n

Author Information<\/p>\n

Josh Patashnik<\/a> is a partner at Perkins Coie and former deputy solicitor general at the California Department of Justice.<\/p>\n

Danielle Sivalingam<\/a> is a California employment law attorney and former counsel at Perkins Coie.<\/p>\n

Lara Rae Owen<\/a> is a member of Perkins Coie\u2019s patent litigation practice.<\/p>\n

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