California Anti SLAPP Demand Letter Strategy
California Anti-SLAPP & Demand Letter Strategy
CCP §425.16 – Strategic Lawsuit Against Public Participation
California Anti-SLAPP Law – CCP §425.16
🚨 Powerful Defense Mechanism: California’s anti-SLAPP statute is among the strongest in the nation. It provides early dismissal of meritless lawsuits targeting protected speech, with mandatory attorney’s fee awards to defendants. Ignoring SLAPP risk can result in six-figure fee awards against plaintiffs.
What is a SLAPP?
Strategic Lawsuit Against Public Participation: Lawsuit filed to chill exercise of free speech rights, typically against individuals or organizations for speaking out on public issues.
CCP §425.16 – Two-Step Process
| Step | Burden | Standard |
|---|---|---|
| Step 1: Defendant’s Burden | Defendant must show claim arises from protected activity | Speech or petitioning activity in connection with public issue or official proceeding |
| Step 2: Plaintiff’s Burden | If Step 1 met, plaintiff must show probability of prevailing | Legally sufficient claim + admissible evidence supporting each element (more than just pleadings) |
Protected Activities Under §425.16(e)
- (e)(1): Official Proceedings: Statements/writings in legislative, judicial, or official proceedings (testimony, court filings, testimony to city council)
- (e)(2): Issue Under Review: Statements/writings in connection with issue under consideration by legislative, executive, or judicial body
- (e)(3): Public Place / Forum: Statements/writings in public place or forum in connection with issue of public interest
- (e)(4): Other Conduct: Any other conduct in furtherance of exercise of free speech/petition rights in connection with public issue
💡 “Public Issue” Broadly Construed: Courts interpret “public issue” expansively. Consumer reviews, workplace complaints, social media commentary on businesses, whistleblowing, and community discussions are typically protected.
One-Way Fee Shifting
- Defendant wins anti-SLAPP motion: MANDATORY attorney’s fees and costs to defendant (typically $50,000–$200,000+)
- Plaintiff defeats anti-SLAPP motion: No fees to plaintiff (unless defendant’s motion was frivolous)
- Result: Enormous risk for plaintiffs filing weak defamation/harassment claims about protected speech
Stays Discovery Pending Motion
CCP §425.16(g): Filing anti-SLAPP motion stays all discovery unless court orders otherwise for good cause. This prevents plaintiffs from using discovery as harassment tool before defendant can get case dismissed.
Appeal Rights
CCP §425.16(i): Immediate appealable order. Both grant and denial of anti-SLAPP motion can be immediately appealed, staying trial court proceedings.
Assessing SLAPP Risk Before Sending Demands
High SLAPP Risk Scenarios
| Speech Type | SLAPP Risk | Notes |
|---|---|---|
| Consumer reviews (Yelp, Google) | VERY HIGH | Consumer commentary on business quality = public issue; courts routinely grant anti-SLAPP |
| Whistleblower complaints to government | VERY HIGH | Reports to regulatory agencies, police, licensing boards = protected petitioning |
| Social media posts about businesses | HIGH | Public forum + public issue; protected unless clearly not public concern |
| Employee complaints about workplace | HIGH | Particularly if involve safety, discrimination, or other public interest issues |
| Media/blogger coverage | VERY HIGH | Journalism about public figures/issues = core protected speech |
| Community activism / protests | VERY HIGH | Quintessential public participation; anti-SLAPP strongly applies |
| Court testimony or filings | VERY HIGH | Absolute litigation privilege (Civ. Code §47(b)) + anti-SLAPP protection |
Lower SLAPP Risk Scenarios
| Speech Type | SLAPP Risk | Notes |
|---|---|---|
| Private communications (1-on-1 emails/texts) | LOW-MODERATE | Not public forum; may not be “public issue” depending on content |
| Commercial speech / advertising | LOW | Commercial competitors making false claims in ads = lower protection |
| Breach of contract disputes | LOW | Pure contract claims without speech element not covered by anti-SLAPP |
| Private defamation (not public issue) | MODERATE | Gossip about private individual’s personal life may not be “public issue” |
SLAPP Risk Checklist
Before sending defamation demand or filing lawsuit, assess:
- Is speech in public forum? (Social media, review site, public meeting = YES)
- Does speech relate to public issue? (Consumer protection, business practices, community issues = YES)
- Can you prove falsity with admissible evidence? (Opinions, substantially true statements = NO → case will be dismissed)
- Can you prove actual malice (if public figure)? (Very high bar; most cases fail)
- Do you have specific damages evidence? (Plaintiff needs concrete proof, not speculation)
- Is there litigation privilege? (Statements in court filings, to government agencies = absolute protection)
⚠️ Cost-Benefit Reality Check: Even if you narrowly survive anti-SLAPP motion, you face $100k–$500k in litigation costs to trial. If you lose anti-SLAPP, add $50k–$200k in defendant’s fees. Risk/reward must justify these costs.
When SLAPP Risk is Acceptable
- Speech is provably false (not opinion, not substantially true)
- Speech is not on public issue (narrow: truly private gossip)
- Speaker has no good-faith basis (fabricated facts, demonstrated malice)
- You have strong admissible evidence of falsity and damages
- You’re willing to invest $200k–$500k in litigation costs
SLAPP-Aware Demand Letter Drafting
Strategic Approach
When SLAPP risk is moderate to high but you still want to address harmful speech:
- Tone down threats: Avoid language suggesting you’ll definitely sue; frame as “considering legal options”
- Focus on correction, not censorship: Request factual corrections rather than complete removal of protected opinions
- Offer dialogue: “We believe there may be misunderstandings; can we discuss?” vs. “You will be sued immediately”
- Provide evidence upfront: Show why statements are false rather than demanding blind compliance
- Acknowledge protected speech: “We respect your right to express opinions, but ask that factual statements be accurate”
Red Flag Language to Avoid
🚨 Language That Screams “SLAPP”:
- “We will bury you in legal fees”
- “You will be sued into bankruptcy”
- “Cease all speech about our company/client immediately”
- “Remove your review or face $1 million lawsuit”
- “We will pursue you to the fullest extent of the law”
- Demands for gag orders or broad speech restrictions
SLAPP-Aware Letter Structure
| Element | SLAPP-Risky Approach | SLAPP-Aware Approach |
|---|---|---|
| Opening | “You will be sued immediately unless…” | “We are writing to address factual inaccuracies in your statements about…” |
| Claims identification | “All of your statements are defamatory” | “While you’re entitled to your opinions, these specific factual statements are inaccurate: [list]” |
| Evidence | “You’re a liar” (conclusory) | “Here is documentation showing why the statements are false: [attach evidence]” |
| Request | “Remove everything you’ve said about us” | “We request correction of the factual inaccuracies listed above” |
| Consequences | “We will sue you into oblivion” | “If we cannot resolve this, we may need to consider legal remedies” |
| Tone | Threatening, absolutist | Professional, open to dialogue |
Alternative Strategies to Demands
When SLAPP risk is very high, consider non-legal responses:
- Public factual response: Post your side with evidence (e.g., Yelp business response to review)
- Platform reporting: Use platform’s abuse/fake review reporting (not legal threat)
- Reputation management: Generate positive reviews, SEO optimization to push negative content down
- Private outreach: Friendly message asking if there’s misunderstanding (not legal letter)
- Ignore it: Sometimes engaging amplifies (Streisand Effect)
When to Proceed Despite SLAPP Risk
If you determine risk is acceptable, draft demand that:
- Identifies specific false statements of fact (not opinions)
- Provides concrete evidence of falsity
- Documents actual damages (lost customers, quantified harm)
- Shows speaker had no good-faith basis (if possible)
- Keeps focus narrow (specific false facts, not all speech about you)
💡 Document Legitimate Harm: Even in SLAPP-risky cases, thorough documentation of provable falsity and quantified damages strengthens your position if you need to demonstrate probability of prevailing at Step 2.
Sample SLAPP-Aware Letters
Sample 1: SLAPP-Aware Request (High Risk Case)
[Your Business Name]
[Address]
[Email]
[Date]
[Reviewer Name]
[Address]
Re: Request to Correct Factual Inaccuracies
Dear [Reviewer]:
We are writing regarding your review of our business posted on [Platform] on [Date]. We appreciate that you’re sharing your experience and recognize your right to express your opinions about our services.
However, your review contains several specific factual statements that we believe are inaccurate, and we wanted to provide you with information that may clarify matters:
1. Your review states: “[Quote factual claim, e.g., ‘They are not licensed’]”
Our records show: We hold [License Type] License No. [XXX], issued by [Agency] and in good standing since [Date]. [Copy attached for your reference.]
2. Your review states: “[Quote, e.g., ‘They charged me twice’]”
Our records show: We have one charge of $[Amount] on [Date], which matches your signed service agreement. [Receipt attached.] If you were charged twice in error, we’d like to investigate and resolve this immediately—please contact us.
We understand that you may have had a disappointing experience, and we’re sorry to hear that. However, we’d appreciate the opportunity to discuss these factual discrepancies with you and, if appropriate, request that you update the review to reflect accurate information.
We’re not asking you to remove your opinions about the quality of service—those are yours to express. We simply want to ensure that the factual record is accurate.
If you’d like to discuss this matter, please contact me at [Email/Phone]. We’re open to resolving any misunderstandings.
Thank you for considering this request.
Sincerely,
[Your Name / Title]
[Attachments: License, Receipt/Agreement, etc. – evidence offered in good faith]
Sample 2: Measured Demand (Moderate Risk)
[Your Name]
[Address]
[Email]
[Date]
[Speaker Name]
[Address]
Re: Concerns About Statements Posted on [Platform]
Dear [Speaker]:
I am writing regarding statements you made about me on [Platform] on [Date]. Specifically, you stated:
“[QUOTE]”
I believe these statements contain factual inaccuracies that are harmful to my reputation. Specifically:
[Explain why false, with evidence attached—keep factual, not emotional]
I understand you may have been misinformed or may be relying on incomplete information. I’m providing documentation that contradicts these claims [attach evidence] and would welcome the opportunity to discuss this with you if there’s been a misunderstanding.
I respectfully request that you:
1. Review the attached information;
2. Consider removing or correcting the factually inaccurate portions of your statements.
I recognize and respect your right to express opinions and commentary on matters of public concern. My concern is solely with the factual accuracy of specific statements, not with your right to speak.
If you believe your statements are accurate and can provide supporting documentation, I’d appreciate seeing it. Otherwise, I hope we can resolve this matter amicably.
Please feel free to contact me at [Email] to discuss.
Sincerely,
[Your Name]
Sample 3: Stronger Demand (Lower SLAPP Risk)
[Your Name / Business]
[Address]
[Email / Phone]
[Date]
[Defendant Name]
[Address]
CEASE AND DESIST – False Statements
Dear [Defendant]:
On [Date], you made the following statements about [me/our business] in [private email to third parties / small group chat / other non-public or limited forum]:
“[QUOTE]”
These statements are false and defamatory. [Explain why false with evidence.]
While this matter does not involve public speech or issues of public concern, your statements have caused [specific harm: lost business relationship with [Party], termination from [position], quantified financial loss of $X].
I demand that you:
1. Immediately cease making these false statements;
2. Retract the statements to all individuals to whom you made them;
3. Agree in writing not to repeat these false claims.
I have consulted with legal counsel and am prepared to pursue defamation claims if necessary. However, I prefer to resolve this matter without litigation if you will take corrective action.
Please respond by [Date – 10 days] confirming your compliance.
Sincerely,
[Your Name]
[Note: This letter is more assertive because it targets private/limited communication (lower SLAPP risk) and documents specific quantifiable harm needed for Step 2 of anti-SLAPP analysis.]
Defending Against SLAPPs
If You Receive a SLAPP Demand
✅ You Have Strong Protections: If your speech is protected (consumer reviews, public commentary, reports to government, etc.), California law provides powerful defenses and the opportunity to recover your attorney’s fees.
Initial Response Strategy
- Don’t panic or immediately comply: Evaluate whether your speech is protected
- Consult attorney immediately: Anti-SLAPP requires specific procedural steps and expertise
- Preserve evidence: Save all communications, documentation supporting truthfulness
- Don’t delete speech (yet): Removing speech can be used against you (implies guilt)
- Assess truth/opinion defenses: Is your speech substantially true? Protected opinion?
When They File Lawsuit – Anti-SLAPP Motion
| Step | Deadline/Action |
|---|---|
| Defendant files anti-SLAPP motion | Within 60 days of service (can request extension once for 30 days) |
| Discovery stayed | Automatic upon filing motion (with limited exceptions) |
| Opposition & reply briefs | Per court’s briefing schedule |
| Hearing | Usually 30-60 days after motion fully briefed |
| Court’s ruling | Grant (case dismissed, mandatory fees to defendant) OR Deny (case proceeds) |
Winning Step 1: Protected Activity
Show your speech was:
- Made in public forum (social media, review site, public meeting)
- Concerns issue of public interest (consumer protection, business practices, community issues, workplace safety, government conduct)
- In furtherance of free speech/petition rights
Burden: You need only make prima facie showing; bar is low
Step 2: Plaintiff Must Prove Probability of Prevailing
If you satisfy Step 1, burden shifts to plaintiff to show:
- Legally sufficient claim: Elements of defamation properly pled
- Admissible evidence: Not just allegations; actual evidence supporting each element
- Overcome defenses: Show your statements are not protected by truth, opinion, privilege
Plaintiffs often fail at Step 2 because they can’t prove:
- Falsity (statements are true or substantially true)
- Your statements are fact (not protected opinion)
- Actual malice (if plaintiff is public figure)
- Specific damages
Attorney’s Fee Award
If you win anti-SLAPP motion:
- Mandatory: Court must award fees and costs
- Amount: Typically $50,000–$200,000+ depending on case complexity
- Full lodestar: Reasonable hours × reasonable rate, not reduced
- Collectible: Judgment against plaintiff (individually and/or their attorneys if frivolous)
Other Defenses Available
- Litigation privilege (Civ. Code §47(b)): Absolute immunity for statements in judicial/official proceedings
- Truth: Complete defense to defamation
- Opinion: Not actionable if reasonable reader would understand as opinion
- Lack of actual malice: (For public figure plaintiffs)
💡 Fee Awards Deter SLAPPs: The mandatory fee-shifting creates enormous deterrent against filing weak defamation claims. Plaintiffs face not only losing their case but paying defendant’s full legal costs.
Attorney Services for SLAPP Matters
SLAPP Risk or Anti-SLAPP Defense?
I advise plaintiffs on SLAPP risk before sending demands or filing defamation suits, and I defend speakers against SLAPPs with anti-SLAPP motions and fee recovery.
For Potential Plaintiffs (SLAPP Risk Assessment)
- Evaluate anti-SLAPP risk before sending demand letters
- Draft SLAPP-aware demand letters when risk is moderate
- Advise on alternative strategies (platform reports, public responses)
- Assess probability of prevailing at anti-SLAPP Step 2
- Calculate risk/reward of litigation (fee exposure vs. potential recovery)
- Identify cases where SLAPP risk is low enough to proceed
For Speakers/Defendants (Anti-SLAPP Defense)
- Respond strategically to SLAPP demand letters
- File anti-SLAPP motions (CCP §425.16)
- Brief and argue protected activity (Step 1) and defenses (Step 2)
- Obtain dismissal of meritless defamation lawsuits
- Recover mandatory attorney’s fees and costs
- Assert truth, opinion, and privilege defenses
- Protect anonymous speech rights
Why Anti-SLAPP Expertise Matters
Specialized Area with High Stakes: Anti-SLAPP law is procedurally complex with specific timing requirements, burden-shifting, and fee consequences. Attorneys without anti-SLAPP experience make costly mistakes on both sides—plaintiffs file cases doomed to dismissal with six-figure fee awards, and defendants waive protections by missing deadlines.
Common SLAPP Cases
- Consumer review lawsuits (Yelp, Google, Trustpilot)
- Social media defamation claims
- Suits against whistleblowers who reported to government agencies
- Employee retaliation claims for workplace complaints
- Claims against community activists and protesters
- Suits targeting journalists and bloggers
- Business defamation claims about competitors
Schedule a Call
Book a call to discuss your SLAPP matter. I’ll assess whether the speech is protected, evaluate anti-SLAPP risk, and recommend strategy for plaintiffs or defendants.
Contact Information
Email: owner@terms.law
Frequently Asked Questions
Three consequences: (1) Your case is dismissed, (2) You must pay defendant’s attorney’s fees and costs (typically $50k–$200k+), and (3) You’ve created public record of failed lawsuit that can harm your reputation. This is why SLAPP risk assessment before filing is critical—the downside is enormous if your case is weak.
No. Anti-SLAPP applies to any claim “arising from” protected activity, regardless of how you label it. If the core conduct is speech on public issue, calling it “intentional infliction of emotional distress,” “interference with business,” or “harassment” doesn’t avoid anti-SLAPP. Courts look at the substance: does the claim seek to punish protected speech? If yes, anti-SLAPP applies.
Ask: Can I prove with admissible evidence (not just allegations) that the statements are (1) false statements of fact (not opinion), (2) made with required fault (negligence or actual malice), and (3) caused specific damages? If any element is weak or you’re relying on “I’ll prove it in discovery,” you’ll likely lose at Step 2. Discovery is stayed during anti-SLAPP, so you need evidence you already have.
Not automatically. If your review is truthful or fair opinion based on your actual experience, you have strong protections. Consult attorney before removing—removal can be used as evidence you knew statements were false. However, if you determine statements were inaccurate, correcting or removing voluntarily shows good faith and avoids litigation. Evaluate each case individually with legal counsel.