Anti-SLAPP Fee Risk in Defamation Cases

Anyone thinking about a defamation case through our other personal injuries practice should understand one rule before anything is filed: California's anti-SLAPP statute, Code of Civil Procedure 425.16. The Legislature itself calls it "the California Anti-SLAPP Law" (Code of Civil Procedure 425.17(a)). It lets a defendant ask the court, at the very start of the case, to throw out a claim that targets protected speech, and it shifts attorney's fees to a defendant who wins that motion.

The Legislature declared that the statute "shall be construed broadly" to protect participation in matters of public significance (Code of Civil Procedure 425.16(a)). This guide explains how the motion works, what you would need to show to defeat it, which claims are exempt, and how to weigh the fee risk before suing.

How does an anti-SLAPP motion work, step by step?

You file and serve the complaint. The motion can be aimed at any cause of action in it, not only defamation, if the claim arises from protected speech or petitioning (Code of Civil Procedure 425.16(b)(1)).
The defendant files the special motion to strike. It may be filed within 60 days after service of the complaint, or later in the court's discretion (Code of Civil Procedure 425.16(f)).
Discovery stops. All discovery is stayed when the motion is filed and stays stopped until notice of the ruling, unless the court orders specific discovery for good cause (Code of Civil Procedure 425.16(g)).
The hearing comes quickly. The clerk schedules it not more than 30 days after the motion is served, unless the court's docket requires a later date (Code of Civil Procedure 425.16(f)).
The court looks at two questions. First, whether the claim arises from an act in furtherance of speech or petition rights in connection with a public issue, as defined in subdivision (e). If so, whether you have established "a probability that the plaintiff will prevail on the claim," judged on the pleadings and sworn declarations (Code of Civil Procedure 425.16(b)).
The ruling decides who pays. If the motion is granted, a prevailing defendant "shall be entitled" to recover attorney's fees and costs (Code of Civil Procedure 425.16(c)(1)). If it is denied, the case goes on.
Either side may appeal. An order granting or denying the motion is appealable (Code of Civil Procedure 425.16(i)), which can add months to the case.

Who pays when the motion is decided?

Outcome	What happens	Source
Motion granted	The claim is struck; the defendant is entitled to recover attorney's fees and costs	Code of Civil Procedure 425.16(b)(1) and (c)(1)
Motion denied	The case continues; the ruling cannot be used as evidence later in the case	Code of Civil Procedure 425.16(b)(3)
Motion denied and found frivolous or solely meant to delay	The court awards the plaintiff costs and reasonable attorney's fees, under section 128.5	Code of Civil Procedure 425.16(c)(1) and 128.5
Claim exempt as a public interest or commercial speech case	Section 425.16 does not apply; a denial on that ground is not immediately appealable under 425.16(i)	Code of Civil Procedure 425.17(b), (c) and (e)
Defamation claim over a privileged report of sexual assault, harassment or discrimination	A prevailing defendant recovers attorney's fees and costs, plus treble damages for harm caused by the lawsuit	Civil Code 47.1(b)

What kinds of statements does the motion protect?

Subdivision (e) lists four kinds of protected acts: a statement made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law; a statement made in connection with an issue under consideration by such a body; a statement made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct furthering free speech or petition rights in connection with a public issue or an issue of public interest (Code of Civil Procedure 425.16(e)).

Many statements that lead to defamation claims can at least raise the question: a comment at a city council meeting, a complaint to a licensing board or the police, a post in an open online forum about a local business, or a statement in a court filing. Statements in judicial and official proceedings are also privileged under Civil Code 47(b), which can defeat the claim on its own. Whether a given statement falls within subdivision (e) depends on its content, setting and audience, and is the first thing to analyze before suing.

A purely private dispute is different. A false statement made to one person about a private matter, with no connection to a public issue or an official proceeding, may fall outside subdivision (e). In that case the motion fails at the first step, and the defendant has no right to fees under subdivision (c).

What would I need to show to defeat the motion?

If the claim arises from protected activity, you must establish a probability of prevailing, and the court decides that from "the pleadings, and supporting and opposing affidavits stating the facts" (Code of Civil Procedure 425.16(b)(2)). Because discovery stops when the motion is filed, the evidence generally has to be in hand already: you cannot count on depositions to fill gaps unless the court orders specific discovery for good cause.

That evidence has to cover each part of the claim. For a private person on a private matter, the jury instruction asks whether the statement was made to someone else, understood to be about you, and made without reasonable care to check its truth (CACI 1704). A public figure must prove by clear and convincing evidence that the speaker knew it was false or had serious doubts about its truth (CACI 1700). Opinions are protected unless they imply a false fact (CACI 1707), and substantial truth is a defense (CACI 1720).

The claim also has to be timely and properly preserved. A lawsuit filed after the one-year deadline cannot show a probability of winning; see how long you have to sue for defamation. Against a newspaper or broadcaster, a missed correction demand limits you to money losses; see correction demands to newspapers and broadcasters.

Which claims are exempt from the anti-SLAPP law?

Section 425.17 removes two groups of cases. The first is an action brought solely in the public interest or on behalf of the general public, if the plaintiff seeks no greater or different relief than the public, the case would enforce an important public right and confer a significant benefit, and private enforcement places a disproportionate financial burden on the plaintiff (Code of Civil Procedure 425.17(b)). A personal defamation case seeking damages for one person generally does not fit this group, because of the first condition.

The second is commercial speech. Section 425.16 does not apply to a claim against a person primarily engaged in selling or leasing goods or services, arising from that person's representations of fact about its own or a competitor's business operations, goods or services, made to promote sales or in delivering its goods or services, when the intended audience is an actual or potential customer (Code of Civil Procedure 425.17(c)). A business that falsely tells customers a competitor is unlicensed may fit this exemption.

The exemptions have their own exceptions. They do not apply to news gatherers and others listed in the state constitution's press provision, to claims based on dramatic, literary, musical, political or artistic works such as a newspaper or magazine article, or to certain nonprofits funded mostly by government (Code of Civil Procedure 425.17(d)).

What changes the answer?

The statement was about a private matter. If it was not made in an official proceeding, in a public forum on an issue of public interest, or otherwise in connection with a public issue, the motion fails at the first step (Code of Civil Procedure 425.16(e)).

The defendant was promoting its own business. Factual claims by a seller about its own or a competitor's goods or services, aimed at customers, can be exempt (Code of Civil Procedure 425.17(c)).

The statement reported sexual assault, harassment or discrimination. A communication made without malice about such an incident by a person with a reasonable basis to complain is privileged, and a prevailing defendant recovers fees, costs and treble damages (Civil Code 47.1).

The claim is not labeled defamation. The motion reaches any cause of action arising from protected activity (Code of Civil Procedure 425.16(b)(1)), so adding a claim for emotional distress without a physical injury based on the same speech does not avoid it.

The motion itself has no merit. If the court finds the motion frivolous or solely intended to cause delay, the fee award runs the other way, to the plaintiff (Code of Civil Procedure 425.16(c)(1)).

What could this look like? An example

For example, imagine the owner of a small Sebastopol bakery who sues a former customer over a post in an open neighborhood forum claiming the bakery "made half our party sick." The customer's lawyer files a special motion to strike 40 days after the complaint is served, and all discovery stops.

The court first asks whether the post was a statement in a public forum in connection with an issue of public interest. If it was, the owner must show a probability of winning with sworn declarations: that the statement was a factual claim, not an opinion, and that it was false, perhaps through the party host's records showing the bakery did not cater the event. If the owner cannot make that showing, the claim is struck and the owner must pay the customer's attorney's fees and costs in an amount the court sets. If the owner can, the motion is denied, the case proceeds, and either side may appeal. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make before suing for defamation?

Filing first and planning to gather proof through discovery, which stops as soon as the motion is filed.
Suing over statements of opinion, or over substantially true statements, that cannot show a probability of winning.
Adding other claims based on the same speech, expecting them to escape the motion.
Not asking whether the statement was made in an official proceeding, a public forum or about a public issue.
Overlooking Civil Code 47.1 when the statement was someone's report of harassment or discrimination.
Not budgeting time for an appeal of the ruling, which either side may take.

What should I do this week?

Save the statement exactly as published, with dates, web addresses and the audience it reached.
Gather documents that show the statement is false, such as records, contracts, photos or messages.
Ask witnesses who can confirm the facts whether they would sign a declaration, and write down their contact information.
Write down where the statement was made: a meeting, an agency complaint, a court filing, an open forum, or a private conversation.
Note whether the speaker sells goods or services and was talking to customers about you or your business.
Count the one-year deadline from the first publication, and leave time to prepare before filing; our guide to California personal injury deadlines lists the other limits.
Have a lawyer review the anti-SLAPP risk before you send a demand letter or file anything, and bring the items on our list of what to bring to a first meeting with a lawyer.

Frequently asked questions

If the motion is denied, do I get my fees back?

Not automatically. A plaintiff recovers costs and reasonable attorney's fees only if the court finds the motion was frivolous or solely intended to cause unnecessary delay (Code of Civil Procedure 425.16(c)(1)).

How fast does all this happen?

The defendant generally has 60 days after service to file the motion, and the hearing is set within 30 days after the motion is served unless the court's calendar requires later (Code of Civil Procedure 425.16(f)). An appeal adds more time; our guide on how long a personal injury case takes describes the usual stages.

Can I appeal if my claim is struck?

Yes. An order granting or denying a special motion to strike is appealable (Code of Civil Procedure 425.16(i)). If the trial court denies the motion because the case is exempt under section 425.17, that immediate appeal is not available (Code of Civil Procedure 425.17(e)).

Does the motion apply to a cross-complaint?

Yes. For this section, "complaint" includes a cross-complaint, and "plaintiff" includes a cross-complainant (Code of Civil Procedure 425.16(h)). A counterclaim over the other side's protected speech can face the same motion.

Is the rule the same in Sonoma and Marin counties?

Yes. Section 425.16 is state law and applies in every California superior court. Our guide to what to expect at Sonoma County Superior Court explains where civil cases are heard locally. For a case in Marin, see personal injury cases in Marin County.

Does the anti-SLAPP law apply when a business used my photo in an ad?

It may come up, but commercial advertising by a seller about its own products can fall within the exemption in section 425.17(c). Read what to do when a business used your name or photo.

Are anti-SLAPP motions tracked anywhere?

Yes. Parties must send the Judicial Council copies of the motion, opposition and orders, and the Judicial Council keeps a public record of them for at least three years (Code of Civil Procedure 425.16(j)).

If you are weighing a defamation claim and want to understand the anti-SLAPP risk first, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation.

Can I end up paying the other side's lawyer if I sue for defamation in California?