Can I amend to moot an anti-SLAPP motion?
Question: Opposing counsel served an anti-SLAPP motion the day before I was going to amend. Can I still amend to moot the motion?
The short answer: no
Once a special motion to strike is filed under Code of Civil Procedure section 425.16, the plaintiff loses the automatic right to amend the challenged claim, even if the 30-day deadline under section 472 has not yet run. The controlling authority is Simmons v. Allstate Insurance Co. (2001) 92 Cal.App.4th 1068, 1073–1074, and it has been followed consistently for more than two decades.
Why the rule exists
The anti-SLAPP statute is designed to test the merits of a pleading as filed. Allowing the plaintiff to amend the moment the motion arrives would let a plaintiff drop the exposed claim, replead it in a different form, and reset the process every time. That would defeat the statute's purpose, which is to end meritless suits arising from protected activity quickly and to award fees to the moving defendant. The Legislature and the courts have chosen a strict rule because a permissive rule would swallow the statute.
What the plaintiff can still do
- Oppose on the merits. The court applies a two-step analysis: (1) does the moving defendant show that the claim arises from protected activity; and (2) if so, does the plaintiff show a probability of prevailing? The plaintiff's evidence on prong two is not limited to the pleading. Declarations, documents, and admissible evidence can all be considered. So while the plaintiff is stuck with the theory in the challenged pleading, the plaintiff is not stuck with only what was pled.
- Seek leave to amend after ruling. If the court grants the motion, the plaintiff may seek leave to amend under limited circumstances — but only after judgment, and only if amendment would not itself defeat the statute. This is a much narrower path than the section 472 right the plaintiff lost.
- Dismiss and refile carefully. Voluntary dismissal after the motion is filed does not moot the motion; the defendant can still pursue attorney fees. (Coltrain v. Shewalter (1998) 66 Cal.App.4th 94.) Dismissal is rarely the right move once a motion has been filed.
What to do differently next time
If you see an anti-SLAPP motion coming — letters from opposing counsel invoking the statute, a subject matter involving speech, petitioning, or protected conduct — amend before the motion is filed. The moment it hits the docket, the door closes.