Manufactured Home Communities Inc. v. County of San Diego

• Decision Date: 26 August 2011
• Docket Number: Nos. 09–55586,10–55496.,s. 09–55586
• Citation: 2011 Daily Journal D.A.R. 13118,655 F.3d 1171,11 Cal. Daily Op. Serv. 11035
• Parties: MANUFACTURED HOME COMMUNITIES, INC., now known as, Equity Lifestyle Properties, Inc., Plaintiff–Appellant,v.COUNTY OF SAN DIEGO; Dianne Jacob, Defendants–Appellees.Manufactured Home Communities, Inc., now known as, Equity Lifestyle Properties, Inc., Plaintiff–Appellant,v.County Of San Diego; Dianne Jacob, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

655 F.3d 1171

11 Cal. Daily Op. Serv. 11,035

2011 Daily Journal D.A.R. 13,118

MANUFACTURED HOME COMMUNITIES, INC., now known as, Equity Lifestyle Properties, Inc., Plaintiff–Appellant,

v.COUNTY OF SAN DIEGO; Dianne Jacob, Defendants–Appellees.Manufactured Home Communities, Inc., now known as, Equity Lifestyle Properties, Inc., Plaintiff–Appellant,

v.County Of San Diego; Dianne Jacob, Defendants–Appellees.

Nos. 09–55586

10–55496.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 2011.Filed Aug. 26, 2011.

David J. Bradford, Bradley Yusim, Jenner & Block, Chicago, IL, Steven S. Fleischman, Robie & Matthai, APC, for the plaintiff-appellant.James Chapin, William A. Johnson, Jr., William L. Pettinghill, Office of the County Counsel, San Diego, CA, for the defendants-appellees.Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, District Judge, Presiding. D.C. Nos. 3:03–cv–02342–J–BLM and 3:03–cv–02342–JAH–BLM.Before: M. MARGARET McKEOWN, WILLIAM A. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Equity Lifestyle Properties, Inc., formerly known as Manufactured Home Communities, Inc. (“MHC”), appeals the district court's decision granting the County of San Diego and County Supervisor Dianne Jacob's (collectively “Defendants”) motion to strike MHC's defamation suit under California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. See Cal.Civ.Proc.Code § 425.16. MHC argues that the district court erred in concluding that MHC failed to make a prima facie case that various statements made by Jacob were false. MHC also appeals the district court's order granting attorney's fees under California's anti-SLAPP statute.

We affirm.

I. Background

MHC is a real estate investment trust based in Chicago. Manufactured Home Cmtys., Inc. v. Cnty. of San Diego ( MHC ), 544 F.3d 959, 961 (9th Cir.2008). MHC owns and operates mobile home parks throughout the United States. Id. MHC has three parks in unincorporated areas of San Diego County, called Lamplighter Village, Rancho Valley, and Rancho Mesa. Id. This appeal is based on allegedly defamatory statements made by Supervisor Dianne Jacob in response to two events at the parks.

The first event was MHC's initiation of phased rent increases at all three parks in July 2002. Id. These rent increases led tenants to complain to Jacob about MHC.

The second event was a sewage backup at Rancho Valley. The backup occurred at the mobile home of Mike Dmochowski and his family on Thursday, December 5, 2002. Dmochowski informed MHC of the backup on December 6. MHC hired MBG Construction to clean up the sewage. MBG Construction, in turn, subcontracted to Flood Rescue Service.

On Saturday, December 7, a member of the Rancho Valley homeowners association reported the backup to San Diego County's Hazardous Incident Report Team (“HIRT”). Tony Torres at HIRT contacted Terry Hanifin at MHC. According to a “chronology of events” prepared by Chimene Adams, Jacob's Policy Advisor, Hanifin told Torres that “the situation was under control.” According to Llew Munter, an employee of the San Diego Department of Environmental Health (“DEH”), Hanifin told Torres that “the problem had been resolved.” Hanifin also told Torres that the carpet at the Dmochowskis' mobile home had been removed and that the home would be cleaned and sanitized by Monday, December 9. Based on Hanifin's assurance that “the situation was under control,” or that “the problem had been resolved,” HIRT did not send a team to Rancho Valley during the weekend.

After receiving more complaints about the sewage backup, HIRT sent a team to Rancho Valley on Monday, December 9. When the team arrived at six o'clock that evening, it discovered that, although Flood Rescue Service had indeed been working on the problem, the Dmochowskis' home was still unfit for habitation. According to a report by Richard Haas, Deputy Director of DEH, the Dmochowskis were still living in the home despite its condition. The Dmochowskis stated that they wanted to leave but could not afford to do so. Many of the owners complained to the HIRT team about the backup and about MHC's inaction.

Supervisor Jacob criticized MHC in numerous statements both before and after the sewage backup. We describe here the six statements on which MHC bases its appeal.

First, Jacob spoke at a Lamplighter Village tenant meeting on November 16, 2002, three weeks before the sewage backup. MHC, 544 F.3d at 962. Jacob criticized MHC and its decision to increase rents. She said:

We are working with County Counsel, our new District Attorney Bonnie Dumanis and your [attorneys] to determine whether or not there are civil and/or criminal actions that should be filed against the company.

Second, on November 18, one of Jacob's assistants, with Jacob's approval, sent an email to residents of the three parks. The email included a summary of Jacob's statements at the November 16 meeting at Lamplighter Village. The email included the following statement:

I have already talked with County Counsel and District Attorney–Elect Bonnie Dumanis and they are very interested in following up to determine whether or not there are civil and/or criminal actions that should be filed against the company.

Third, on December 10, Jacob was interviewed during a television broadcast about the sewage backup at Rancho Valley. Jacob made the following statement:

This company in this case lied to the County. Said to the County that everything was fine, the sewage situation was fixed. And, in fact, it was not.

Fourth, as part of the same televised interview on December 10, Jacob said:

[MHC] has a reputation throughout the country of running people out of older mobile home parks, increasing the value of the park, and then selling it at a profit.

Fifth, on December 29, an article in the San Diego Union–Tribune quoted Jacob as saying the following about MHC's rent increases:

It's a deliberate attempt to force these people out of their homes in order for the company to move newer mobile homes in, increase the value of the park and sell it for a profit.... They have done this throughout the country, not just here in San Diego County.

Sixth, on January 18, 2003, Jacob spoke at a meeting at Lamplighter Village. According to the talking points she used at the meeting, she said:

December 6, 2002, MHC deliberately LIED to the County about the sewage back-up in the Dmochoskis [sic] mobilehome. MHC told the County NOT to respond to the sewage back-up in this unit because MHC said that it had everything under control. That was a lie. It was a dangerous lie for the family that lives there and who had to contend with raw sewage in their home. MHC put the health and safety of this family in jeopardy and MHC should be ashamed of itself.

MHC filed suit against San Diego County in federal district court for the Southern District of California on November 24, 2003, alleging a variety of federal-law claims—a violation of the Equal Protection Clause, a violation of the First Amendment, a taking in violation of the Fifth and Fourteenth Amendments, and a violation of substantive due process. In its First Amended Complaint, MHC added Jacob as a defendant, alleging a violation of the First Amendment. MHC, 544 F.3d at 962. In its Second Amended Complaint, MHC added state-law claims of trade libel (defamation) and tortious interference with prospective economic advantage against the County and Supervisor Jacob, based on Jacob's statements. Id.

Defendants filed an anti-SLAPP motion to strike MHC's two state-law causes of action. Cal.Civ.Proc.Code § 425.16. The district court granted the motion, concluding that Jacob's statements were non-actionable statements of opinion rather than false assertions of fact. A week later, the court dismissed MHC's federal claims against Defendants. The court separately awarded attorney's fees on MHC's federal-law claims under 42 U.S.C. § 1988 and on the motion to strike under the anti-SLAPP statute.

A prior panel of this court affirmed the dismissal of the federal claims, but reversed the grant of the anti-SLAPP motion to strike MHC's state-law claims. The panel described MHC's argument as follows:

MHC notes, for instance, [1] Jacob's statement that MHC “lied to the County. Said to the County that everything was fine, the sewage situation was fixed. And, in fact, it was not.” MHC argues that this statement refers to specific circumstances and times and therefore is susceptible of interpretation as a provably false assertion of fact.... Similarly, MHC argues that a reasonable person could interpret [2] Jacob's statement that MHC “has a reputation throughout the country of running people out of older mobilehome parks, increasing the value of the park, and then selling it at a profit” as a falsifiable assertion of fact. Finally, MHC calls attention to [3] Jacob's claim that the incoming District Attorney was “very interested in following up to determine whether there are civil and/or criminal actions that should be filed against” MHC.

MHC, 544 F.3d at 963–64 (bracketed numbers added).

The panel concluded that although the district court “may have been correct in its assessment that each of these statements is properly interpreted as an assertion of opinion rather than fact, a reasonable factfinder could disagree with that assessment.” Id. at 964. It therefore held that “as to the statements concerning these matters, we cannot declare as a matter of law that no reasonable person could construe them as provably false. Accordingly, we reverse the judgment of the district court as to these statements.” Id. The panel declined to reach the issue of whether MHC had proffered sufficient evidence to establish a probability of success in demonstrating that Jacob's statements were false, leaving that issue to the district court in the first instance. Id. at 965. Judge Callahan dissented. Id....