California Anti-SLAPP Law in 2026: Why Defamation Lawsuits Can Be Hazardous

About the author: Scott Lesowitz is a 2007 Harvard Law School graduate and former Assistant United States Attorney whose civil litigation practice is based in Southern California. Scott is a founding partner of Lesowitz Gebelin LLP. Scott lives in San Diego with his wife, three children, and bernedoodle. Scott represents clients throughout California, including San Diego, Los Angeles, and Orange Counties.

In California, one of the primary considerations when evaluating a potential or actual defamation lawsuit is whether the lawsuit is susceptible to an anti-SLAPP motion. This is because if the plaintiff loses an anti-SLAPP motion in full, not only will the lawsuit quickly be dismissed, the award of reasonable attorney’s fees to the defendant will be mandatory.

This article provides a brief overview of California anti-SLAPP law and anti-SLAPP motions. As will be apparent, it is crucial to have an experienced attorney evaluate any potential defamation lawsuit (or other lawsuit potentially implicating free speech rights) before filing it, or when evaluating the response to such a lawsuit. A potential anti-SLAPP motion likely will be the most important aspect of the litigation, and any anti-SLAPP motion will need to occur quickly after the lawsuit is filed. The risk is too great not to have experienced anti-SLAPP counsel.

Overview of an Anti-SLAPP Motion in California

The Elements of an Anti-SLAPP Motion

California’s anti-SLAPP statute, Code of Civil Procedure § 425.16, allows for a defendant to file a special motion to strike a claim “arising from any act of that person in furtherance of the person’s right of petition or free speech…in connection with a public issue…unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (For those curious, “SLAPP” stands for “Strategic Lawsuit Against Public Participation.”)

In most cases, an anti-SLAPP motion will be granted if the lawsuit (a) targets the exercise of free speech regarding a matter of public interest or targets speech made in connection with some type of official proceeding (including a lawsuit), and (b) the plaintiff cannot make a showing that his or her claims have minimal merit.

Anti-SLAPP motions are most commonly thought of regarding defamation lawsuits, but they are certainly not limited to defamation lawsuits.

Anti-SLAPP motions do not have to target the entirety of a lawsuit. An anti-SLAPP motion can target certain claims or causes of action but not others.

Note that the defendant need not show either that the plaintiff intended to impede the defendant’s exercise of legally protected activity or that the defendant’s rights were in fact impeded. Musero v. Creative Artists Agency, LLC, 72 Cal.App.5th 802 (2021).

Also, note that while I refer to the party bringing the anti-SLAPP motion in this article as the defendant, if the defendant files a cross-complaint, then then plaintiff (in the role of cross-defendant) can file an anti-SLAPP motion targeting the cross-complaint.

Attorney’s Fees to a Prevailing Defendant are Mandatory

If a defendant’s anti-SLAPP motion is successful, the plaintiff must pay the prevailing defendant’s reasonable attorneys’ fees incurred both in litigating the anti-SLAPP motion and in requesting the fee award itself (so-called “fees on fees”). If the motion is granted in full, the court must award the reasonable attorney’s fees. Frym v. 601 Main St. LLC, 82 Cal. App. 5th 613 (2022). The awarding of fees in such circumstances is not discretionary; it is mandatory.

However, if the defendant only partially prevails on an anti-SLAPP motion, the court has discretion to reduce the requested award. However, the court will only forgo an award of attorney’s fees altogether if, “the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” Gumarang v. Braemer on Raymond, LLC, 110 Cal.App.5th 370 (2025).

A plaintiff who defeats an anti-SLAPP motion may only receive compensation for its own attorneys’ fees and costs if the court finds that the anti-SLAPP motion was “frivolous” or was “solely intended to cause unnecessary delay.” California Code of Civil Procedure § 425.16(c)(1). This is a difficult standard to meet. Therefore, Plaintiffs are rarely awarded attorneys’ fees.

The Anti-SLAPP Test

A court deciding an anti-SLAPP motion conducts a two-part test. See Ramirez v. McCormack, 113 Cal.App.5th 493 (2025).

Under the first prong, the defendant must show that the plaintiff’s claim or claims arise from the defendant’s exercise of the rights of free speech or petition. Usually whether the claims arise from protected activity is based off the allegations in the complaint themselves. However, the defendant may file evidence with the court that provides additional context in certain scenarios.

If the defendant shows that the plaintiff’s claims arise from the defendant’s exercise of the rights of free speech or petition, under the second prong, the plaintiff then has the burden to provide evidence to establish a “probability” of prevailing on the merits. This means that there is enough evidence for a reasonable jury to rule in favor of the plaintiff.

Procedural Issues related to California Anti-SLAPP Motions

In state court in California, a party may file an anti-SLAPP motion within 60 days of being served with the complaint or cross-complaint. California Code of Civil Procedure § 425.16(f). If not brought within that time, the party loses the ability to file the motion as a matter of right.

Upon the filing of an anti-SLAPP motion, discovery is stayed (paused). However, the court has discretion to grant a plaintiff’s request to conduct limited discovery related to the anti-SLAPP motion. An example of when discovery is likely to be allowed is in cases related to a matter of public concern where the plaintiff must show that the defendant acted with negligence or actual malice.

The plaintiff may want to be cautious about requesting discovery related to the anti-SLAPP motion. If the anti-SLAPP motion is granted, the court will grant the reasonable fees incurred in responding to the discovery. See Norman v. Ross, 101 Cal.App.5th 617 (2024).

If a defendant loses the anti-SLAPP motion, the defendant is entitled to immediate appeal. The case is stayed (paused) in the trial court pending this immediate appeal. This appeal, known as an interlocutory appeal, will likely take approximately one year to be decided. This gives the defendant great power to cause delay.

While a controversial topic among the judges in the Ninth Circuit Court of Appeal, an anti-SLAPP motion may be filed against California-law claims in federal court. However, beware that certain procedures related to an anti-SLAPP motion are different in federal court.

What Courts Say: Real Examples of California Anti-SLAPP Motions

Defamation Only Applies to Statements of Fact, not Opinion

A question that often arises in deciding whether the plaintiff’s defamation claims have minimal merit is whether the statements being sued over contain assertions of fact. Mere opinions cannot be legally defamatory.

For example, in Yelp Inc. v. Superior Court, 17 Cal.App.5th 1 (2017), a former customer posted a bad review of an accountant. The court said the review would merely have been opinion if it only stated that it was too “bad there is no zero star option! I made the mistake of using them and had an absolute nightmare.”

However, that was not where the reviewer left things, and the court found there were potentially defamatory assertions of fact. This included, “if you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action.”

Bently Reserve LP v. Papaliolios, 218 Cal.App.4th 418 (2013) was another case regarding a Yelp review. The Yelp review was an extremely negative review of a landlord. The court agreed that statements calling the landlord a “sociopathic narcissist,” and stating that the landlord “celebrates making the lives of tenants hell,” were hyperbolic opinions.

However, saying that the “new owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to the death of three tenants… [and] the departure of eight more,” were potentially defamatory assertions of fact. Using the word “likely” did not save the defendant from potential liability.

Cases In Which the Actual Malice Standard Applies

If the speech being sued over regards a matter of public concern and the defendant is a public figure (which may even be because of the notoriety of the particular event), the defendant must make a showing of actual malice. This means at least making a showing that the plaintiff acted with reckless disregard for the truth. See Montanez v. PepsiCo, Inc., 784 F.Supp.3d 1369 (C.D. Cal. 2025); Counterman v. Colorado, 600 U.S. 66 (2023).

This can be difficult to do. For example, the California Court of Appeal found that a plaintiff failed to show that Netflix acted with actual malice when it published allegedly defamatory statements. OneTaste Inc. v. Netflix, Inc., 116 Cal.App.5th 174 (2025).

Cases Involving Legal Privilege

Some allegedly defamatory statements might receive complete protection (absolute privilege) or qualified protection from defamation lawsuits under California law. Such statements may include those made during legal proceedings (absolutely privileged) or made in response to a request for information (qualifiedly privileged).

Cases involving privilege often blur the lines between the two prongs of the anti-SLAPP statute. As discussed above, the defendant must show both that the lawsuit regards the exercise of free speech rights and that the plaintiff’s lawsuit lacks minimal merit. Therefore, in a typical case, even if the speech at issue regards a matter of public interest (implicating the First Amendment and free speech rights), if the statements are false statements of fact, then the anti-SLAPP motion fails (assuming that the plaintiff can overcome the actual malice standard, if applicable).

In a case involving a statutory privilege, as in a typical case, the defendant satisfies the first prong of the anti-SLAPP test because the speech involves the exercise of free speech rights. And then–unlike in typical cases–because the exercise of free speech rights implicated a statutory privilege, the plaintiff cannot prevail even if the alleged statements were false statements of fact. (Note that if there is an absolute privilege, then the anti-SLAPP motion fails even if defendant acted with actual malice. But actual malice will generally nullify a qualified privilege inapplicable.)

For example, in Osborne v. Pleasanton Automotive Co., LP, 106 Cal.App.5th 361 (2024), the California Court of Appeal found that the granting of an anti-SLAPP motion was proper where the allegedly false statements were made as part of a letter made in anticipation of litigation. Therefore, even though there was sufficient evidence that the alleged statements were false assertions of fact (which would normally be sufficient to show a likelihood of success on the merits), the litigation privilege meant that the plaintiff could not prevail on the merits.

For More Information

For more information on me, please see my homepage. For more information on defamation law and my defamation litigation practice, please see my defamation page.

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