Defending Against Frivolous Lawsuits in California: Sanctions, Anti-SLAPP, and Cost-Shifting

Not every California civil filing has merit. Defendants regularly face lawsuits whose primary purpose is leverage rather than relief — claims that lack factual or legal foundation, claims targeting protected activity, claims pursued primarily to impose litigation cost on the defendant. California provides several distinct procedural tools for responding to these filings, and the right tool depends on what specifically makes the lawsuit frivolous.

This article walks through the principal California defenses available against frivolous lawsuits: the anti-SLAPP statute under CCP § 425.16, the sanctions provisions of CCP § 128.5 and § 128.7, the malicious-prosecution cost-recovery provision under CCP § 1038, demurrer and motion-to-strike practice, and the strategic considerations for choosing among them.

The strongest defensive responses use these tools in coordination. Anti-SLAPP is fast, fee-shifting, and brutal when it fits. § 128.7 sanctions are slower but reach a broader range of frivolous filings. § 1038 applies in specific contexts where state-defendant or specific-statute provisions activate. Demurrers and motions to strike address the pleading itself.

Anti-SLAPP under CCP § 425.16

California’s anti-SLAPP statute is the most powerful — and most procedurally specific — tool for defending against frivolous lawsuits that target protected speech or petitioning activity. SLAPP stands for “Strategic Lawsuit Against Public Participation,” and CCP § 425.16 was enacted to provide a fast, fee-shifting procedure for dismissing such lawsuits.

What anti-SLAPP covers

The statute applies to causes of action “arising from any act of [the defendant] in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” CCP § 425.16(b)(1). The statutory definition of protected activity is broad:

• Statements made in legislative, executive, or judicial proceedings
• Statements made in connection with issues under consideration by official bodies
• Statements made in public forums in connection with issues of public interest
• Other conduct in furtherance of free speech or petitioning rights

The statute is deliberately worded broadly. California courts have applied it in a wide range of contexts: defamation cases targeting commentary about public officials or public-interest issues, breach-of-contract claims targeting good-faith litigation conduct, business-tort claims targeting petition rights, and many others.

The two-step framework

An anti-SLAPP motion proceeds in two steps:

Step one: defendant’s burden.The defendant must show that the cause of action arises from protected activity within the statute’s scope. This is the threshold question: does the claim target conduct that the anti-SLAPP statute covers? If the answer is no, the motion fails at the threshold.

Step two: plaintiff’s burden.If the defendant satisfies step one, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits. The plaintiff must present admissible evidence (declarations, documents, judicially noticeable facts) sufficient to make a prima facie showing on each element of the claim. This is a meaningful burden — substantively, plaintiffs must produce the kind of evidence that would defeat summary judgment.

If the plaintiff fails to meet step two, the cause of action is stricken and the defendant is entitled tomandatory attorneys’ feesunder CCP § 425.16(c)(1). The fee-shifting is one-way: defendants who prevail on anti-SLAPP motions get fees; plaintiffs who prevail (defeating the motion) don’t, unless they show the motion was frivolous or solely intended to cause unnecessary delay.

Procedural mechanics

Anti-SLAPP motions have specific procedural features:

• Filing window.The motion must be filed within 60 days of service of the complaint, with extensions only on a court’s order for good cause. (CCP § 425.16(f).)
• Discovery stay.Once an anti-SLAPP motion is filed, discovery is automatically stayed pending the motion’s resolution. (CCP § 425.16(g).) This stops the plaintiff’s discovery from continuing while the motion is pending.
• Direct appeal.A denial of an anti-SLAPP motion is immediately appealable. (CCP § 425.16(i).) This is unusual in California civil practice — most denials are not immediately appealable — and creates substantial leverage for defendants.
• Mandatory fees on success.Successful defendants are entitled to attorneys’ fees and costs as a matter of right; the court has no discretion to deny fees.

When anti-SLAPP fits

Anti-SLAPP fits when the lawsuit targets conduct that is (1) clearly within the statute’s definition of protected activity and (2) the plaintiff’s case has factual or legal weakness that prevents the plaintiff from making the prima-facie showing required at step two.

Common anti-SLAPP targets:

• Defamation cases over statements about public officials, public figures, or public-interest issues
• Business-tort cases targeting prior litigation conduct (e.g., a malicious-prosecution claim with weak factual support)
• Claims targeting communications to government agencies, regulators, or public bodies
• Cases targeting public commentary on public-interest issues

Anti-SLAPP doesn’t fit when the underlying activity is not within the statute’s scope (purely commercial conduct between private parties, ordinary business disputes without speech or petitioning content) or when the plaintiff has substantial evidence supporting their claim (the step-two showing).

Sanctions under CCP § 128.7 and § 128.5

For frivolous filings outside the anti-SLAPP framework, California provides two general sanctions provisions: CCP § 128.7 (modeled on Federal Rule 11) and CCP § 128.5 (the older, broader bad-faith sanctions provision).

CCP § 128.7 — the Rule 11 analog

CCP § 128.7 makes attorneys and parties responsible for the legal and factual sufficiency of pleadings, motions, and other documents filed with the court. By signing a filing, the attorney or party certifies that:

• The filing is not being presented for an improper purpose (harassment, delay, increase in costs)
• The legal contentions are warranted by existing law or a non-frivolous argument for change in law
• The factual contentions have evidentiary support or, for specifically identified contentions, are likely to have such support after reasonable discovery
• The denials of factual contentions are warranted on the evidence or, for specifically identified denials, are reasonably based on belief or lack of information

Violations of these certifications can be sanctioned. The court may impose monetary sanctions on the attorney, the party, or both — including the opposing party’s attorneys’ fees and costs.

The safe-harbor provision.§ 128.7 has a 21-day safe harbor: the moving party must serve the proposed sanctions motion on the offending party 21 days before filing it with the court, allowing the offending party to withdraw or correct the offending filing during that window. This safe harbor is a meaningful procedural feature; many § 128.7 issues resolve through withdrawal during the safe-harbor period.

CCP § 128.5 — the broader bad-faith provision

CCP § 128.5 reaches further than § 128.7 in some respects. The provision allows sanctions for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Unlike § 128.7, which focuses on signed filings, § 128.5 reaches a broader range of litigation conduct.

The provision was substantially revised over the years and currently includes its own safe-harbor procedures (similar to but distinct from § 128.7’s). The substantive standard — bad-faith, frivolous, or solely-for-delay tactics — overlaps with § 128.7 but addresses different categories of conduct.

When sanctions fit

Sanctions practice is best suited to:

• Claims with no legal basis (asserting causes of action that don’t exist, asserting elements that have been judicially rejected)
• Claims with no factual basis (no evidentiary support for material allegations)
• Tactics designed to cause delay or expense without serving any legitimate litigation purpose
• Filings made for improper purposes (harassment, leverage in unrelated matters)

Sanctions don’t fit ordinary aggressive litigation conduct. California courts have repeatedly emphasized that hard-fought litigation, even where the parties’ positions are weakly supported, isn’t sanctionable absent specific bad-faith or frivolousness findings.

CCP § 1038 — cost recovery for specific defenses

CCP § 1038 provides cost recovery (including attorneys’ fees) for defendants in specific categories of claims that the plaintiff brought without reasonable cause and not in good faith. The statute applies primarily to:

• Claims against public entities (government tort claims, public-employee-related claims)
• Claims for unliquidated damages where the defendant prevailed entirely

The procedural requirements are specific: the defendant must move for cost recovery after prevailing on the underlying claim, with the showing focused on the absence of reasonable cause and good faith at filing.

§ 1038 has a more limited scope than the anti-SLAPP and sanctions frameworks but provides a meaningful tool in its specific contexts. Defendants in public-entity tort cases or in malicious-prosecution defenses should specifically evaluate § 1038 availability after prevailing on the merits.

Demurrer and motion to strike

Beyond the sanctions and fee-shifting frameworks, traditional pleading challenges remain important tools:

Demurrer

A demurrer challenges the legal sufficiency of the pleading. Where the complaint fails to state a cause of action — whether because the alleged facts don’t support the claim, the elements of the claim aren’t pleaded, or the claim is barred as a matter of law — the demurrer is the procedural vehicle for raising the issue.

Demurrers don’t produce fee-shifting, but they can produce dismissal at the pleading stage. For frivolous claims that are facially defective, the demurrer is often the first line of defense — particularly when paired with a motion to strike specific portions of the pleading or with anti-SLAPP for the qualifying causes of action.

Motion to strike

Motions to strike (CCP § 435 et seq.) address specific portions of pleadings that are improper, irrelevant, or false. The motion can target specific allegations, specific prayer items, or specific exhibits. Strategic uses include challenging punitive-damage allegations that lack factual support, addressing improper joinder of causes of action, and removing irrelevant or scandalous material.

Choosing among the tools

For a defendant facing a potentially frivolous California lawsuit, the analytical framework:

Step 1: Is the claim within anti-SLAPP scope?If the lawsuit targets protected speech or petitioning activity, anti-SLAPP is the strongest tool — fast, fee-shifting, with discovery stay. Evaluate within the 60-day window.

Step 2: Is the pleading legally insufficient?If the complaint fails to state a cause of action (regardless of underlying merit), demurrer or motion to strike address the pleading defects directly. These motions don’t produce fee-shifting but can dismiss the claim.

Step 3: Is the filing factually or legally baseless?Where the underlying claim has no factual or legal foundation, § 128.7 sanctions practice is appropriate. Use the safe-harbor procedure first (a properly drafted safe-harbor letter often produces withdrawal without motion practice).

Step 4: Is the conduct broader than the filing itself?For bad-faith litigation tactics that go beyond a single filing — repeated frivolous discovery, obstructive motion practice, harassment-driven scheduling — § 128.5 may reach where § 128.7 doesn’t.

Step 5: Is § 1038 cost recovery available?In public-entity claims, malicious-prosecution defenses, and certain other contexts, § 1038 provides post-prevailing cost recovery. Don’t overlook this where it applies.

The strongest defensive responses use these tools together. An anti-SLAPP motion paired with a demurrer (in the alternative) addresses both the protected-activity targeting and the pleading defects. A sanctions motion can be filed in coordination with substantive motions when the underlying filing was baseless.

Action step

When you receive a California complaint that looks frivolous, spend the first 30 days mapping the response: anti-SLAPP eligibility, demurrer grounds, sanctions exposure, § 1038 availability. Anti-SLAPP’s 60-day window means you don’t have time to evaluate slowly. The strategic choice — which tools, in what sequence — affects both the outcome and the cost of defense substantially.

When to involve counsel

Frivolous-lawsuit defense in California is technically demanding. Anti-SLAPP procedure, sanctions safe-harbor mechanics, demurrer requirements, and the interactions among these tools each require specific procedural knowledge. The cost of counsel involvement is typically small relative to the cost of unfocused defensive litigation; the cost of doing it wrong (missing the anti-SLAPP window, mis-pleading sanctions, bringing motions that don’t fit the underlying problem) is substantial.

For defendants facing claims that appear frivolous but where the strategic response isn’t obvious, a focused early consultation often produces a defensive plan that resolves the litigation efficiently — often with fee shifting that compensates for the cost of defense.

Related practice pages and guides

• Civil Litigation Defense— practice page
• Pre-Litigation Strategy— practice page
• Should You File a Lawsuit? A California Decision Framework— pillar guide on the plaintiff-side decision (the inverse perspective)
• The California Civil Litigation Process— pillar guide on the broader civil-procedure framework

Speak with counsel

If you’ve been served with a California civil complaint that you believe is frivolous — or if you’re evaluating defensive strategy on a complaint that has weak factual or legal support —request a case evaluationorcontact our office. The evaluation is complimentary.