Is a demand letter protected activity under section 425.16 of the California Anti-SLAPP Act?

Under section 425.16, subdivision (e) an "'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . . ; [or] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . ." "'A cause of action "arising from" defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.' [Citations.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

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2. No Protected Activity

The court found the contents of the two letters were protected activity under section 425.16, stating "a demand letter is protected activity." We conclude this was an overly broad interpretation of Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, on which it relied, and is not supported by the facts.

Under the statute, "'statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute.'" (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789.) "'[A]lthough litigation may not have commenced, if a statement "concern[s] the subject of the dispute" and is made "in anticipation of litigation 'contemplated in good faith and under serious consideration'" [citation] then the statement may be petitioning activity protected by section 425.16.' [Citations.]" (Id. at pp. 789-790.)

Blanchard is consistent with Bailey. Although that court did state the section 47(b) litigation privilege² "has been broadly applied to demand letters and other prelitigation communications by attorneys [citations]" (Blanchard v. DIRECTV, Inc., supra, 123 Cal.App.4th at p. 919), it went on to explain that the letters had to be sent "'in connection with a proposed litigation that is "contemplated in good faith and under serious consideration [citation]" [citations]'" (ibid.).