California's anti-SLAPP statute was written to stop lawsuits filed to punish people for speaking out. But in practice, Code of Civil Procedure § 425.16 shows up constantly in ordinary business litigation — defamation counts over online reviews, cross-complaints attacking demand letters, claims arising from statements to regulators. An anti-SLAPP motion can end a claim within months, freeze discovery, and shift attorney fees. Business plaintiffs and defendants both need to understand how it works.
What the statute protects
Section 425.16 provides a special motion to strike any cause of action arising from an act "in furtherance of the person's right of petition or free speech ... in connection with a public issue." The statute lists four protected categories, including statements made before or in connection with an issue under review by a legislative, executive, or judicial body, and conduct in furtherance of free speech rights in connection with a public issue. In business disputes, the recurring examples are:
- Statements made in litigation or in serious contemplation of it — complaints, discovery, and pre-suit demand letters
- Reports and complaints to government agencies and regulators
- Online reviews and public commentary about businesses, where an issue of public interest is involved
- Press statements about pending disputes
Note the pairing with the litigation privilege (Civil Code § 47(b)), which separately makes most litigation-related communications immune from tort liability. Many claims aimed at a lawyer's letter or a court filing lose twice: struck under § 425.16, and barred by § 47(b) on the merits.
The two-step test
Anti-SLAPP motions run a burden-shifting analysis:
- Step one — protected activity. The moving defendant must show the claim arises from protected petitioning or speech activity. The focus is on what conduct supplies the elements of the claim, not the labels in the complaint. Under Baral v. Schnitt (2016) 1 Cal.5th 376, courts can strike individual allegations within a mixed cause of action, so artful pleading does not immunize a claim.
- Step two — probability of prevailing. If step one is met, the burden shifts to the plaintiff to show, with admissible evidence, a probability of prevailing — that the claim has at least minimal merit. The court does not weigh credibility, but a plaintiff with no evidence, or a claim defeated by a privilege, loses here.
Why the motion hits so hard
Three features give anti-SLAPP motions outsized leverage. First, filing the motion generally stays all discovery until it is decided, absent a court order for good cause — the plaintiff must show minimal merit largely on what it already has. Second, a prevailing defendant is entitled to attorney fees and costs under § 425.16(c); fee awards routinely reach tens of thousands of dollars, and a plaintiff who prevails gets fees only if the motion was frivolous or solely intended to cause unnecessary delay. Third, the denial or grant of the motion is immediately appealable, which can put the merits of the case on hold for a year or more. The motion should normally be filed within 60 days of service of the complaint, though courts have discretion to allow later filings.
The commercial speech exemption
Businesses invoking the statute must clear § 425.17(c), which exempts certain commercial speech from anti-SLAPP protection: statements by a seller about its own or a competitor's products or services, made to actual or potential customers, for the purpose of promoting sales. In other words, a company generally cannot use the anti-SLAPP statute to shield its advertising or sales pitches from a false advertising claim. Section 425.17 also exempts certain public-interest suits. These exemptions are construed narrowly, but they are the first thing to check before building a motion around a company's marketing statements.
Pleading and defending with the statute in mind
For plaintiffs: before adding a defamation or interference count based on a demand letter, a court filing, or a regulator complaint, assume it will draw an anti-SLAPP motion and price in the fee risk — often the claim adds little and endangers much. For defendants: evaluate the motion immediately on being served, since the 60-day window and the discovery stay reward speed. This early fork in the road is exactly where experienced business litigation counsel earns its keep — the decision to file, oppose, or plead around an anti-SLAPP motion often determines the economics of the whole case.
Talk to a California business attorney
If your business has been sued over statements it made — or a claim you filed just drew a special motion to strike — the anti-SLAPP clock is short and the fee stakes are real. Schedule a free consultation or call (949) 418-2113.
This article is attorney advertising and provides general information only. It is not legal advice and does not create an attorney–client relationship. Facts matter; consult a lawyer about your specific situation.
