Overview

Homeowners get angry at their HOAs for good reasons. A director says something false and offensive about you at a board meeting or in posting to the members. The manager tells your neighbors that you’re delinquent when you’re not. The HOA sends out a newsletter that paints you as the problem in the community. Suing for defamation feels like the obvious answer.

It might be the obvious answer, and it might be the right thing to do. But homeowners should proceed cautiously. California has a law that can turn your defamation lawsuit against you. It’s called the anti-SLAPP statute, and it’s found at Code of Civil Procedure 425.16. The statute gives a defendant, like your HOA or the director who insulted you, a special motion to strike, which is a request to throw out a lawsuit early because the lawsuit targets free speech. When an HOA or a director wins that motion, the judge dismisses the claim and orders the homeowner (you) to pay the other side’s attorneys’ fees. And those fees run high. [In my experience, a homeowner shouldn’t be surprised if the motion costs them $30,000-$50,000 in fees.]

This Fact Sheet explains when the anti-SLAPP statute applies to HOA disputes, why defamation claims draw these motions so reliably, and how the same statute protects homeowners when an HOA sues them over something they said. It also explains the one question that decides most of these motions, which is whether your lawsuit attacks what the HOA said or what the HOA did.

Once homeowners understand even a little about the anti-SLAPP statute, it can help them choose wisely when working with their attorneys by focusing on their strongest claims and abandoning those that might cost them the most money.

[This Fact Sheet leaves out a great deal of nuance on purpose. The anti-SLAPP statute and the cases interpreting it are among the most complicated areas of California civil procedure, and lawyers argue about them constantly. Because I wrote this for homeowners, and not for attorneys, I had to make choices about how much detail to include.]

Key Points

The anti-SLAPP statute exists to stop lawsuits that punish people for speaking out. California courts apply it to HOA disputes because HOAs govern communities in ways that resemble how a local government operates. That means the statute cuts both ways in the fight between homeowners and their HOAs. It can wipe out a homeowner’s claim and stick them with a large fee award. It can also rescue a homeowner who gets sued for criticizing the HOA board. The rest of this Fact Sheet walks you through when the statute applies, which claims attract these motions, and what you and your HOA attorneys should discuss before you file anything.

• The anti-SLAPP statute lets a defendant ask the court to kill a lawsuit early because the lawsuit targets free speech. Code of Civil Procedure 425.16 gives any defendant the right to file what the law calls a special motion to strike (aka an “anti-SLAPP”). Defendants (or cross-defendants) must file their anti-SLAPP motions within 60 days after service of the complaint (or cross-complaint), unless the court gives them permission to file later. Court clerks must then set the hearings within 30 days after service of the motions, subject the courts’ calendars.
  • Once a party files an anti-SLAPP motion, all discovery in the case freezes. The filing of an anti-SLAPP stops the case dead in its tracks until the court decides on the anti-SLAPP issue. This means that neither party can take depositions, send written questions, or demand documents while the motion sits with the court. And while either party can make a motion to conduct some discovery upon a showing of good cause, more often than not, courts deny such motions.
• Courts decide these motions in two steps. In step one, the party who filed the motion (typically the defendant, or in this example, let’s say it’s the HOA) has to show that the homeowner’s claim arises from protected speech. If the HOA can’t make that showing, the court will deny the motion and the homeowner’s lawsuit will move forward as planned. If the HOA does make that showing, the court will move onto step two, where the burden shifts to the plaintiff (in our example, the homeowner), who then has to show a probability of winning on the merits of that claim. That second step doesn’t require the homeowner to prove the case. It requires enough evidence that a reasonable judge or jury could rule in the homeowner’s favor. Most HOA-related anti-SLAPP fights get resolved in step one, which is why the words a homeowner uses in the complaint have to be carefully considered. [It’s also yet another reason why it’s so critical to hire an HOA attorney rather than just a “real estate” attorney.]
• Anti-SLAPP motions only reach claims that attack what someone said. Courts call this the “arising from” requirement, and ignorant attorneys lose sight of it constantly. Protected speech that triggered a dispute, or came before it, or set it in motion, doesn’t turn the resulting claim into a SLAPP. Take a homeowner who sues an HOA for refusing to approve a rental. Directors discussed that refusal at an open meeting and voted on it, and both the discussion and the vote involve speech. The claim still attacks the refusal itself, which is conduct, so an anti-SLAPP motion aimed at that claim won’t go anywhere. Now take a homeowner who sues the same directors over the false accusations they made about him during that same meeting. That claim attacks the words uttered by the directors themselves, which puts the claim squarely within the anti-SLAPP statute.
• Speech at HOA board meetings gets anti-SLAPP protection. The anti-SLAPP statute is designed to cover statements made in official government proceedings, and HOA board meetings don’t typically qualify. Courts have said so directly. HOAs don’t perform the government’s duties, and courts don’t review HOA board decisions the way they review decisions by a city council or a planning commission. But, HOA board meetings get anti-SLAPP protection through a different route. Courts treat them as public forums within the community, and they treat community governance as a matter of public interest because HOAs are large private organizations whose decisions affect the daily lives of everyone who lives there. Consequently, statements made at open board meetings, in HOA newsletters, in emails circulated among members about governance disputes, and during election and recall campaigns all fall within the protection of the anti-SLAPP statute.
• Courts don’t protect every dispute inside an HOA. The speech has to connect to something that reaches the community, not just the people arguing about it. For example, in one seminal case, the appellate court refused to apply the anti-SLAPP statute where an HOA sued its former directors over what those directors said about who had to pay to repair some damaged trails. The court in that case held that the question of who paid for those repairs interested only a narrow sliver of the community, so the statements about it weren’t speech on a public issue. Compare that to another case where a homeowner demanded that his HOA enforce a tree trimming covenant against his neighbor. The neighbor sued him over those complaints, and the court in that case applied the anti-SLAPP statute because the covenant at issue burdened every lot in the development, which made the homeowner’s complaints speech about something the whole community had a stake in.
  • Anti-SLAPP protection routinely shows up in election and recall fights. When homeowners campaign for a board seat, circulate a recall petition, or argue publicly about who should run the HOA, courts treat that activity as core free speech on a matter the whole community cares about. Homeowners who sue over campaign statements, therefore, almost always lose during step one. That holds true no matter what the homeowner calls the claim in the complaint, whether it’s defamation, interference with property rights, or emotional distress.
• Defamation claims draw anti-SLAPP motions more reliably than any other claim homeowners bring. The problem is structural. Defamation means suing someone over what they said, and the anti-SLAPP statute exists to protect what people say. So, for example, when homeowners sue their HOAs or individual directors over statements made at board meetings, in meeting minutes, in newsletters, in recall campaign materials, or in emails circulated among members about a governance dispute, the HOA clears step one almost automatically. The entire fight then moves to step two, where the homeowner has to come forward with real evidence, and has to do it without the benefit of any discovery. Homeowners who filed the lawsuit expecting to build their case through depositions and document demands find themselves defending it with whatever they already had in hand.
  • Two other claims carry the same built-in exposure. Malicious prosecution and abuse of process claims attack someone for filing or pursuing an earlier lawsuit, and going to court is the most clearly protected activity the anti-SLAPP statute covers. So homeowners who sue their HOAs for filing a bad faith enforcement action or collection suit clear nothing at step one and land in step two immediately. Those claims can still win, but the homeowner has to be ready to prove the case at the outset.
• The anti-SLAPP statute protects homeowners when the HOA is the one suing. Although this happens much less frequently, HOAs and individual directors sometimes sue homeowners over recall flyers, critical emails to the membership, comments made during open forum, complaints to the city or to a state agency, and posts on social media about how the HOA operates. Every one of those lawsuits attacks speech, and most of that speech concerns HOA governance, which puts the homeowner in position to file the motion instead of defending against one.
  • Watch for the demand letter that threatens a defamation suit. HOA-side attorneys will sometimes send these after a homeowner criticizes the HOA publicly or starts organizing a recall. These ridiculous letters typically demand that the homeowner retract the statements and stop talking. The threat often works because most homeowners don’t know that the lawsuit being threatened is the weak position. Homeowners who receive one of these letters should preserve everything they wrote, avoid responding on their own, and call us at MBK Chapman before they agree to anything. [If you’d like to read more about how the Davis-Stirling Act protects homeowners’ rights to criticize their directors, read my Fact Sheets “Can My California HOA Fine Me for Criticizing It on Social Media?” and “Can Your California HOA Stop You From Criticizing the Board?”]
• Most claims homeowners bring against their HOAs don’t face the risk of an anti-SLAPP. Anti-SLAPP motions fail when the lawsuit attacks what the HOA did rather than what it said. Claims for breach of fiduciary duty, breach of the CC&Rs, failure to maintain the common area, improper assessments, conflicts of interest, misuse of HOA funds, and wrongful denial of an architectural application all target conduct. Less experienced attorneys sometimes file anti-SLAPP motions against those claims anyway, usually because directors discussed the decision at a meeting or voted on it, and courts usually deny those motions.
  • While courts will punish parties who file frivolous anti-SLAPP motions, it happens rarely. Code of Civil Procedure 425.16 requires the court to award attorneys’ fees and costs to a plaintiff who defeats a motion that the court finds frivolous or filed solely to cause delay. That protection is narrower than it sounds, however. It’s difficult to prove that a defendant filed a frivolous anti-SLAPP motion. Consequently, HOAs that file weak anti-SLAPP motions still buy themselves delay and a frozen case, and it usually walks away without paying for it. That’s why it’s so critical to avoid alleging claims that are likely to trigger an anti-SLAPP motion.
• Good HOA attorneys will think about anti-SLAPP potential before filing a lawsuit on behalf of their clients. Sit down with your HOA attorney and separate what the HOA said from what the HOA did. The claims that attack what the HOA did (not said) are the ones that will survive an anti-SLAPP motion, so those should form the backbone of your lawsuit. If a defamation claim is worth bringing, bring it knowing you’ll have to prove it early and without the benefit of discovery, so gather that proof first. Get the recording, the minutes, the newsletter, the email chain, and the names of everyone who heard the statement before you file anything. Timing matters just as much, because once an HOA files an anti-SLAPP motion, a homeowner can’t escape it by dismissing the claim. The court will still decide the motion, and if the HOA wins, the court will still order the homeowner to pay the HOA’s fees. Dismissing a weak claim before the motion arrives works, but a homeowner who has to retreat that way already looks foolish to the court and to the other side. This is why it’s so important to think carefully and not act emotionally. A homeowner who tack a defamation count onto an otherwise strong lawsuit, often just to express how angry they are, do nothing more than hand their HOA a chance to freeze the case, collect fees, and obtain an expensive and early win. [Some less knowledgeable and less experienced attorneys will  confuse an anti-SLAPP motion with the litigation privilege found in Civil Code 47. The privilege is a defense that kills certain claims outright, and it covers statements made in court filings and in the run-up to litigation. The anti-SLAPP statute is a procedural tool for getting rid of a lawsuit early. They’re different things, but they show up together because an HOA that defeats your claim with the privilege at step two wins the anti-SLAPP motion and collects its fees.]
• If you’re thinking about suing your HOA, or your HOA has already sued you, call the HOA attorneys at MBK Chapman. The HOA attorneys at MBK Chapman are among the most experienced homeowner-side HOA lawyers in California, and they’ve handled anti-SLAPP motions from both sides. They’ll tell you which of your claims can withstand one, which claims will cost you money, and whether the statute puts you in position to strike back at an HOA that sued you for speaking up. Call us before you file anything because the decisions that matter most in these cases get made before the complaint hits the courthouse.

The anti-SLAPP statute rewards homeowners who think before they file and punishes those who sue out of anger or emotion. Build your lawsuit around what your HOA did to you and you’ll keep control of your case. Throw in a defamation claim without the proof already sitting in your file and you could lose that claim within months and pay your HOA’s legal bills on the way out. And if your HOA already sued you over something you said, don’t assume you’re on defense. That same statute might end the case and send the bill to your HOA instead.

FAQs

About Michael Kushner

Michael Kushner is a California attorney with over 30 years of experience representing homeowners in disputes with their HOAs. He is widely regarded as California’s leading homeowner-side HOA attorney, and has built one of the state’s most prominent law practices dedicated to holding HOAs accountable under the Davis-Stirling Act and California law.

In addition to his law firm’s work, Michael is a recognized lecturer, author, and the host of the hit HOA HELL podcast, where he provides homeowners living in HOA-governed communities with clear, practical strategies for dealing with bad HOAs. He’s also the author of the best-selling book, HOA HELL | California Homeowners’ Definitive Guide to Beating Bad HOAs, which has become a go-to resource for both homeowners seeking real-world solutions to their HOA disputes, as well as those good HOA board members who are interested in doing a good job.

About MBK Chapman Fact Sheets

Homeowners searching for answers online will often come across articles that appear authoritative, but are actually written as search-engine marketing content rather than by an experienced HOA lawyer. These pieces tend to prioritize keyword density over clarity, accuracy, or legal context, which often leaves homeowners more confused than informed.

At MBK Chapman, our Fact Sheets are part of our HOA Law Library and are written by Michael Kushner, an HOA lawyer with decades of hands-on experience representing California homeowners. In fact, Michael Kushner is the HOA lawyer who pioneered the systems and strategies used by some of California’s most successful homeowner-side HOA law firms.

Each Fact Sheet is deliberately concise, statute-based, and designed as a quick-reference guide to help homeowners understand key HOA laws and enforcement rules at a glance.

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