Manufactured Home Communities v. County of San Diego, et al
Filing
FILED OPINION (M. MARGARET MCKEOWN, WILLIAM A. FLETCHER and RICHARD R. CLIFTON) AFFIRMED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [7871905] [09-55586, 10-55496]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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.
No. 09-55586
D.C. No.
3:03-cv-02342J-BLM
No. 10-55496
D.C. No.
3:03-cv-02342JAH-BLM
OPINION
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
January 12, 2011—Pasadena, California
Filed August 26, 2011
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MANUFACTURED HOME v. SAN DIEGO COUNTY
Before: M. Margaret McKeown, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge William A. Fletcher
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MANUFACTURED HOME v. SAN DIEGO COUNTY
COUNSEL
David J. Bradford, Bradley Yusim, JENNER & BLOCK, Chicago, Illinois, 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,
California, for the defendants-appellees.
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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.
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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
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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.
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Fifth, on December 29, an article in the San Diego UnionTribune 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.
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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
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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. at 965-69 (Callahan, J., dissenting). She argued
that all of the statements were statements of opinion rather
than fact, and that even if they were statements of fact, MHC
had failed to make a prima facie case that the statements were
false. Id.
On remand, Defendants filed a renewed motion to strike
under the anti-SLAPP statute. The district court granted the
motion. Manufactured Home Cmtys., Inc. v. Cnty. of San
Diego, 606 F. Supp. 2d 1266 (S.D. Cal. 2009). The court analyzed only the three statements to which our prior panel had
referred in its opinion. Id. at 1272-74. The court concluded
that MHC had failed to make a prima facie showing that any
of these statements was false. Id. It did not discuss the other
statements making similar criticisms of MHC.
In a separate order, the district court awarded attorney’s
fees under the anti-SLAPP statute. The award included fees
not only for the post-remand motion to strike, but also for the
original motion to strike.
MHC appealed both the grant of the motion to strike and
the award of attorney’s fees. We have consolidated the two
appeals.
II.
Standard of Review
We review a district court’s decision to grant a defendant’s
anti-SLAPP motion de novo. Price v. Stossel, 620 F.3d 992,
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999 (9th Cir. 2010). Under California law, we review a trial
court’s award of attorney’s fees for abuse of discretion. We
must consider whether the district court’s award “exceeded
the bounds of reason.” Dove Audio, Inc. v. Rosenfeld, Meyer
& Susman, 47 Cal. App. 4th 777, 785 (1996) (internal quotation marks and citation omitted).
III.
A.
Discussion
Anti-SLAPP Motion to Strike
California’s anti-SLAPP statute provides:
A cause of action against a person arising from any
act of that person in furtherance of the person’s right
of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability
that the plaintiff will prevail on the claim.
Cal. Civ. Proc. Code § 425.16(b)(1). The statute is based on
the California legislature’s finding that “it is in the public
interest to encourage continued participation in matters of
public significance, and that this participation should not be
chilled through abuse of the judicial process.” Id. § 425.16(a);
see also Gilbert v. Sykes, 147 Cal. App. 4th 13, 21-22 (2007).
The legislature instructed courts that the statute “shall be construed broadly.” Cal. Civ. Proc. Code § 425.16(a).
[1] The California Supreme Court has described the burden a plaintiff must carry in opposing an anti-SLAPP motion:
[T]he plaintiff must demonstrate that the complaint
is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the
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plaintiff is credited. In deciding the question of
potential merit, the trial court considers the pleadings
and evidentiary submissions of both the plaintiff and
the defendant; though the court does not weigh the
credibility or comparative probative strength of competing evidence, it should grant the motion if, as a
matter of law, the defendant’s evidence supporting
the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim.
Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811, 821
(2002) (internal quotation marks and citations omitted),
superseded by statute in part as stated in Hutton v. Hafif, 150
Cal. App. 4th 527, 547-48 (2007). Lower California courts
have described plaintiffs’ burden in responding to an antiSLAPP motion as being “similar to the standard used in determining motions for nonsuit, directed verdict, or summary
judgment.” Gilbert, 147 Cal. App. 4th at 26 (internal quotation marks and citation omitted); see also Mindys Cosmetics,
Inc. v. Dakar, 611 F.3d 590, 599 (9th Cir. 2010).
We note that MHC may be a limited purpose public figure
for the purposes of this defamation suit. See Gilbert, 147 Cal.
App. 4th at 24-25. If MHC were a limited purpose public figure, it would be required to prove by clear and convincing
evidence that Jacob’s statements were false and made with
actual malice. Id. at 26. However, Defendants have not argued
that MHC is a limited purpose public figure, and we therefore
treat it as a private figure.
[2] California law requires, in the case of a defamation
claim by a private figure, that the allegedly defamatory statements be false. Taus v. Loftus, 40 Cal. 4th 683, 720 (2007).
The issue in this case is whether MHC made a sufficient
prima facie showing that Jacob’s statements were false to
carry its burden under the anti-SLAPP statute.
MHC contends that the district court erred in analyzing
only the three statements to which we referred in our previous
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opinion. Those three statements follow the bracketed numbers
in the quotation from our prior opinion. See p. 16479, supra.
Those statements correspond to the second, third, and fourth
statements quoted in chronological order at the beginning of
this opinion. See p. 16477, supra (one statement on November
18, 2002, and two statements on December 10, 2002). MHC
contends that these three statements were provided as examples rather than as an exhaustive list of the relevant statements
made by Jacob. It contends that the district court should have
also considered the first, fifth, and sixth statements quoted at
the beginning of this opinion. See pp. 16476-77, 16478, supra
(statements on November 16, 2002, December 29, 2002, and
January 18, 2003). We agree that the three statements to
which the panel referred were intended to be examples rather
than an exhaustive list. We therefore consider all six statements on appeal. We divide the statements into three groups.
1.
Statements Concerning MHC’s Reputation
[3] Two of Jacob’s statements concern MHC’s reputation.
One was made during the television interview on December
10, 2002. Jacob stated that “[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.” The second was quoted in the article in the San
Diego Union-Tribune on December 29, 2002. Jacob stated
that MHC’s rent hike was “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.”
[4] Jacob contends, relying on a series of news articles,
that these statements are true. One of the articles notes that
after MHC bought Willow Lakes Estate outside of Chicago,
residents “began seeing price increases of up to 14 percent,”
making their rents the highest known in the state. A resident
quoted in the article said, “In effect, what they’re telling us is
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if you can’t afford it, get out.” A second article discusses an
attempt by MHC to challenge a local rent control ordinance
and to triple rents at a park in Los Osos, California. A resident
said, “There’s people who are going to go hungry and lose
their homes if we lose our rent-stabilization law.” A third article describes a public hearing in Los Osos during which audience members shouted and hissed at MHC representatives. A
fourth article, focusing on MHC’s rent increases at a park in
Santa Cruz, California, describes MHC as having filed “a
slew of simultaneous federal lawsuits against cities . . . that
have rent control laws.” The article describes MHC’s strategy
as “filing so many suits that cities cannot afford to defend
them all and eventually will seek compromises with the
mobile home park owners. Santa Cruz already has amassed
almost $300,000 in legal bills defending its rent control ordinance since MHC first filed suit.” The article notes that the
outcome of these suits “could affect hundreds of thousands”
of Californians, “many of them seniors on fixed incomes.”
[5] MHC introduced no evidence that it does not have a
reputation for driving up rents and forcing out existing tenants
to increase the value of its parks. Instead, it contends that its
activities are undertaken not to sell parks at a profit, but as
part of its long-term investment in the parks. Defendants concede that MHC does not have a reputation for selling parks
but contend that the part of Jacob’s statement discussing the
sale of parks was not defamatory.
Under California law “[i]t is well settled that a defendant
is not required in an action of libel to justify every word of
the alleged defamatory matter; it is sufficient if the substance,
the gist, the sting of the libelous charge be justified, and if the
gist of the charge be established by the evidence the defendant
has made his case.” Gilbert, 147 Cal. App. 4th at 28 (internal
quotation marks and citation omitted). Furthermore, a “slight
inaccuracy in the details will not prevent a judgment for the
defendant, if the inaccuracy does not change the complexion
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of the affair so as to affect the reader of the article differently.” Id. (internal quotation marks and citation omitted).
[6] We agree with Defendants that the “substance,” or
“gist” and “sting,” of Jacob’s statements were that MHC has
a reputation for aggressively raising rents, with the result that
poor and elderly residents are forced out of MHC’s parks in
order to benefit MHC. The articles upon which Defendants
rely show that it has such a reputation. Whether MHC reaps
a benefit through selling parks or through increasing rents
does not change the basic nature of Jacob’s statements. We
therefore conclude that MHC failed to make a prima facie
showing that the “substance” of Jacob’s statements concerning MHC’s reputation is false.
2.
Statements Concerning Jacob’s Interactions with
Dumanis
[7] Two of Jacob’s statements concerned her interactions
with District Attorney-Elect Bonnie Dumanis. The November
18 email sent to Lamplighter Village residents by Jacob’s
assistant stated, “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 [MHC].” In the meeting with Lamplighter Village residents two days earlier, Jacob had said essentially the same
thing. The only difference is that she had said she was “working with” Dumanis and the County Counsel rather than saying
she had “already talked” with them.
MHC contends that Jacob’s statements suggest that
Dumanis intended to bring a criminal action against MHC if
elected, and that Dumanis had no such intent. Jacob did not
say that Dumanis intended to bring a criminal action if
elected. She said only that Dumanis was interested in investigating whether there was a basis for a criminal action. MHC
also contends that Dumanis was not “very interested” in look-
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ing into criminal violations, and that Dumanis was not “working with” Jacob at the time Jacob made these statements.
To support its contentions, MHC relies on Dumanis’s deposition, in which she stated that she never indicated to Jacob
that she was more interested in investigating issues relating to
MHC than she was in any other matter that might be brought
to her attention. MHC also relies on the following exchange
during Dumanis’s deposition:
Q.
And you mentioned that you had contact with
Ms. Jacob during the course of your campaign.
Did you work together or campaign together at
times?
A.
No. But we frequently went to the same
events. . .
Finally, MHC relies on Jacob’s deposition testimony that she
could not remember how often she had interacted with
Dumanis’s office when she made her statements.
[8] Other parts of Dumanis’s deposition, not mentioned by
MHC, indicate that Jacob’s statements were true. Dumanis
testified that she “expressed [to Jacob that] if I were the district attorney this [i.e., issues related to MHC] would be
something I would be interested in looking into, along with
some other matters.” Dumanis testified that, although she did
not remember the timing, Jacob had “mentioned to me some
issues of concern to her that she would like me to consider as
the district attorney, if I would be interested in following up
on those things.” Dumanis stated, “And I expressed my interest and told her that, you know, I’d have to wait until I was
in office and have some research done on the topic, but I was
very interested in lots of areas, including white collar type
things, code enforcement type things, things that hadn’t been
pursued in the past.” Dumanis testified that after one conversation with Jacob about MHC’s potential criminal liability,
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she told Jacob she “would be interested in following up on
this conversation.” Dumanis testified that although she did not
work or campaign with Jacob, “Supervisor Jacob calls me on
a regular basis. She has all of my phone numbers. I have conversations with her via the telephone on various issues. And
there is just no way for me, I speak with her so frequently, to
really tell you how many conversations I may have had with
her on [MHC’s potential civil/criminal violations].”
[9] MHC has not made a prima facie case that the “substance” of Jacob’s statements was false. The fact that
Dumanis was not more interested in MHC’s activities than
she was in other matters does not mean that she was not “very
interested” in following up on allegations against MHC.
Jacob’s statement that she was “working with” Dumanis
regarding potential MHC civil or criminal violations can readily be understood to mean that Jacob was in discussions with
Dumanis about these violations.
3.
Statements Concerning the Sewage Backup
[10] Finally, two of Jacob’s statements involve the sewage
backup at Rancho Valley. During the December 10, 2002,
television interview, Jacob said, “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.”
At the January 18, 2003, meeting at Lamplighter Village,
Jacob said:
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.
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[11] MHC contends that the first statement is false because
Terry Hanifin of MHC never told Tony Torres of HIRT that
the sewage situation was fixed; rather, he said only that it was
under control. MHC argues the second statement is false
because Hanifin did not lie in saying that “everything was
under control,” and because he never told the County not to
respond to the sewage backup.
The precise wording of Hanifin’s December 7 statement to
Torres is unclear. There is hearsay evidence in the record that
Hanifin said either that “the situation was under control” or
that “the problem had been resolved.” But MHC has put nothing in the record from the speaker, Hanifin, about what he
said to Torres, even though Hanifin is its own employee.
Depending on the context, there may not be a great deal of
difference between a statement that a problem is “under control” and that is has been “fixed.” There is virtually no difference between a problem having been “fixed” and its having
been “resolved.”
[12] We conclude that MHC has not made a prima facie
case that the “substance” of Jacob’s statement about what
Hanifin said on December 7 was false. The situation was neither “fixed,” “resolved,” nor “under control.” It is undisputed
that work had begun on the problem created by the sewage
backup when Hanifin spoke to Torres on December 7. But it
is also undisputed that when Hanifin spoke to Torres the
Dmochowskis’ mobile home was not fit for human habitation.
Indeed, Richard Haas of the Department of Environmental
Health reported that the Dmochowskis were still living in the
home on Monday, December 9, because they could not afford
to rent rooms elsewhere. It is hard to see how a situation in
which a family is living in a sewage-infested house without
the means to leave three days after an initial sewage backup
could truthfully be described as “under control.”
When Tony Torres from HIRT called Terry Hanifin from
MHC after hearing about the sewage incident, he was calling
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to determine whether a HIRT response was needed. Hanifin’s
response, whether that the situation was “under control” or
“resolved,” sent the clear message to HIRT that they did not
need to respond to the incident. It is undisputed that the effect
of Hanifin’s statement to Torres was that HIRT did not send
a team to investigate the situation on December 7. HIRT did
not send a team out to Rancho Valley until Monday evening,
December 9, at which point the Dmochowskis had been living
in their sewage-infested home for several days. We therefore
conclude that MHC failed to make a prima facie case that the
substance of Jacob’s statements was false.
B.
Attorney’s Fees
[13] Under California’s anti-SLAPP statute, “a prevailing
defendant on a special motion to strike shall be entitled to
recover his or her attorney’s fees and costs.” Cal. Civ. Proc.
Code § 425.16(c)(1); see also ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1020 (2001). In determining if a
trial court abused its discretion in awarding attorney’s fees,
we must consider whether the trial court’s award “exceeded
the bounds of reason.” Dove Audio, 47 Cal. App. 4th at 785
(internal quotation marks and citation omitted).
The district court awarded attorney’s fees to the County of
San Diego for work on both of Defendants’ anti-SLAPP
motions. In awarding attorney’s fees for work on the first
anti-SLAPP motion, the district court found that the “initial
motion laid the groundwork for [Defendants’] eventual success in dismissing all claims pursuant to the anti-SLAPP statute.” It described the first motion as “integral in achieving
[Defendants’] ultimate objective.”
MHC argues that Lafayette Morehouse, Inc. v. Chronicle
Publishing Co., 39 Cal. App. 4th 1379, 1383 (1995), precludes attorney’s fees for work on the first anti-SLAPP
motion. Lafayette held that when a suit includes causes of
action not covered by an anti-SLAPP motion to strike, attor-
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ney’s fees incurred in obtaining dismissal of the non-antiSLAPP causes of action cannot be awarded under the antiSLAPP statute. Id. Here, however, all of the fees at issue were
incurred in connection with the anti-SLAPP motions. The district court specifically found that the fees from the first
motion to strike were “integral” in achieving the second antiSLAPP motion and that “the work related to each of these
statements was overlapping.”1
MHC argues further that under the “law of the case” doctrine, the County is not entitled to recover these fees for work
on the first motion because our previous decision reversed
that fee award. The law of the case doctrine precludes a court
“from reconsidering an issue previously decided by the same
court, or a higher court in the identical case.” United States
v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000).
The award of fees for work on the first motion is not barred
by the law of the case doctrine. Our prior panel reversed the
fee award because at that point Defendants were no longer the
prevailing party. Now that Defendants are again the prevailing party, they are entitled to attorney’s fees for work done in
the course of bringing their ultimately successful anti-SLAPP
motion.
[14] We conclude that the district court did not abuse its
discretion in awarding Defendants’ attorney’s fees for work
on their first anti-SLAPP motion based on its finding that the
work relating to the two motions overlapped and that the first
anti-SLAPP motion was integral to Defendants’ eventual success. See Mann v. Quality Old Time Serv., Inc., 139 Cal. App.
4th 328, 345 (2006) (“The fees awarded to a defendant who
was only partially successful on an anti-SLAPP motion
1
Furthermore, Lafayette Morehouse may have been superseded by statute, as recognized in Metabolife International, Inc. v. Wornick, 213 F.
Supp. 2d 1220, 1223-24 (S.D. Cal. 2002) (noting that Lafayette Morehouse was decided before the California Legislature amended the antiSLAPP statute to mandate that the statute be “construed broadly”).
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16491
should be commensurate with the extent to which the motion
changed the nature and character of the lawsuit in a practical
way.”).
Conclusion
MHC failed to make a prima facie case that the “substance”
of Jacob’s statements was false. The district court did not
abuse its discretion in awarding attorney’s fees incurred by
Defendants in bringing both anti-SLAPP motions. We therefore affirm both decisions of the district court.
AFFIRMED.
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