                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MANUFACTURED HOME COMMUNITIES           
INC., a corporation,
                 Plaintiff-Appellant,        No. 05-56401
                  v.                          D.C. No.
                                             CV-03-02342-
COUNTY OF SAN DIEGO; DIANNE                   NAJ/BLM
JACOB,
              Defendants-Appellees.
                                        

MANUFACTURED HOME COMMUNITIES           
INC., a corporation,
                                              No. 05-56559
                 Plaintiff-Appellant,
                  v.                           D.C. No.
                                            CV-03-02342-NAJ
COUNTY OF SAN DIEGO; DIANNE
                                               OPINION
JACOB,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
          for the Southern District of California
        Napoleon A. Jones, District Judge, Presiding

                  Argued and Submitted
          February 7, 2007—Pasadena, California

                     Filed March 6, 2008

 Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
        and Consuelo M. Callahan, Circuit Judges.

               Opinion by Judge O’Scannlain;
                 Dissent by Judge Callahan

                             2045
       MANUFACTURED HOME COMMUNITIES v. SAN DIEGO       2047


                        COUNSEL

David J. Bradford, Jenner & Block LLC, Chicago, Illinois, for
the plaintiff-appellant; Elliot L. Bien, Bien & Summers LLP,
Novato, California, was on the briefs.
2048    MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
William A. Johnson, Jr., Senior Deputy, San Diego, Califor-
nia, for the defendants-appellees; John J. Sansone, County
Counsel, County of San Diego, and James M. Chapin, Senior
Deputy, San Diego, California, were on the brief.


                         OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether a county supervisor’s hostile pub-
lic statements directed at a company owning and managing
several local mobile home parks were actionable as a matter
of law.

                              I

   Manufactured Home Communities, Inc. (“MHC”), a real
estate investment trust headquartered in Chicago, owns and
operates mobile home parks through the United States. The
three parks at issue here—Lamplighter, Rancho Valley, and
Rancho Mesa—lie within unincorporated areas of San Diego
County’s (“County”) Supervisorial District Two. At all rele-
vant times Dianne Jacob (“Jacob”) served as the county
supervisor for that district.

   Beginning in July 2002, MHC initiated phased rent
increases at the three parks after sending 90-day notices as
required by local law. In response to the rent increases, ten-
ants of Lamplighter park contacted Jacob, leading to the fol-
lowing actions complained of by MHC, as summarized by the
district court:

      On November 15, 2002, Jacob issued a news advi-
    sory stating that MHC was preying upon elderly ten-
    ants with fixed incomes by raising rents by 25%.
   MANUFACTURED HOME COMMUNITIES v. SAN DIEGO              2049
   On November 16, 2002, Defendant Jacob attended
a tenants meeting at Lamplighter Park, where Defen-
dant Jacob made several allegedly false statements
about [Plaintiff], including the following: (1) state-
ments that MHC is a greedy, profit-driven company
that enjoys forcing the elderly out of their homes in
order to move in more expensive homes for a greater
profit; (2) a statement that “it would be interesting to
see” if Plaintiff had engaged in any fraudulent
actions; and (3) a statement that Defendant Jacob
had spoken with County Counsel and District Attor-
ney Bonnie Dumanis, who were “very interested” in
following up on whether civil or criminal actions
should be pursued against Plaintiff.

   In a letter dated November 18, 2002, to Plaintiff’s
Chairman, Sam Zell, and distributed to Lamplighter
Park tenants and attached to a subsequent civil com-
plaint, Defendant Jacob made the following alleg-
edly false statements: (1) Plaintiff’s actions were
“rent gouging at its worst” and indicative of “corpo-
rate greed”; (2) some “residents have already been
forced to surrender their homes”; and (3) Plaintiff’s
rent increase was well above the 2003 Fair Market
Rent of $539 for manufactured home spaces.

   On or about December 10, 2002, Defendant Jacob
allegedly stated to local media that MHC had lied to
the Department of Environmental Health about
[Plaintiff’s] clean-up effort in response to a sewage
spill at Rancho Valley Mobile Home Park . . . .
Defendant Jacob allegedly also stated: (1) that Plain-
tiff is a “bad company” and that she wanted them
“out of town,” (2) that they “shouldn’t get away
with” their lies, and (3) that she wanted “to make
sure that they’re cited for every single offense . . .
and whatever actions need to be taken are taken,
civil [sic] or criminally.”
2050     MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
        On January 9, 2003, the San Diego Union Tribune
      published an article with Defendant Jacob’s state-
      ments “to the effect that [Plaintiff] was ‘preying on
      older people of limited economic means,’ and that
      she was going to ‘mak[e] things even hotter for the
      predatory company.’ ”

         On April 5, 2003, Defendant Jacob allegedly
      falsely stated to tenants that Plaintiff made a practice
      of buying “distressed properties with the intent to
      run out the older residents to bring in newer homes,”
      and told tenants that since no rent control ordinance
      had been passed “ ‘we need to take other measures
      . . . like litigation.’ ”

   On at least six other occasions in 2003, Jacob made similar
statements about MHC’s conduct.

   On November 24, 2003, MHC filed suit against the County,
lodging a variety of federal claims.1 On December 30, 2004,
MHC amended the complaint to add a federal claim against
Jacob based on the alleged violation of MHC’s First Amend-
ment rights. On February 1, 2005, MHC amended its com-
plaint a second time to add state law claims of defamation and
tortious interference with prospective economic advantage,
against both the County and Jacob. On May 19, 2005, the dis-
trict court granted defendants’ Motion to Strike State Tort
Causes of Action, brought under the California anti-SLAPP
(“Strategic Lawsuit Against Public Participation”) law and
awarded attorneys’ fees to the County and Jacob on the
motion to strike. And on May 25, 2005, the district court dis-
missed MHC’s remaining claims on summary judgment.
  1
   In a concurrently filed memorandum disposition, we affirm the district
court’s grant of summary judgment to defendants as to these issues. See
Manufactured Home Communities, Inc. v. County of San Diego, Nos. 05-
56401 & 05-56559 (filed March 6, 2008).
        MANUFACTURED HOME COMMUNITIES v. SAN DIEGO           2051
  MHC timely appeals.

                                II

                                A

   [1] California enacted its anti-SLAPP law in reply to a “dis-
turbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of
speech.” CAL. CIV. PROC. CODE § 425.16(a). The statute is
designed to allow the swift dismissal of meritless claims that
are aimed not at remedying legally cognizable harms but at
chilling expression. To prevail on a motion to strike, a defen-
dant must first make a prima facie showing that the suit arises
from activity in furtherance of First Amendment rights of
petition or free speech; once such a showing has been made,
the plaintiff must then demonstrate a probability of prevailing
on the claims. See Vess v. Ciba-Geigy Corp., 317 F.3d 1097,
1110 (9th Cir. 2003).

   [2] A threshold question as to the probability of success on
the merits is whether the statements giving rise to the com-
plaint are actionable at all. The critical determination is
whether the allegedly defamatory statements “convey[ ] a
false factual imputation.” Kahn v. Bower, 284 Cal. Rptr. 244,
249 (Cal. Ct. App. 1991). But, “where potentially defamatory
statements are published in a public debate, a heated labor
dispute, or in another setting in which the audience may antic-
ipate efforts by the parties to persuade others to their positions
by the use of epithets, fiery rhetoric, or hyperbole, language
which generally might be considered as statements of fact
may well assume the character of statements of opinion.”
Gregory v. McDonnell Douglas Corp., 552 P.2d 425, 428
(Cal. 1976). Ordinarily, this context-bound determination is a
question of law for the court, but if the challenged statement
or statements are “reasonably susceptible of an interpretation
which implies a provably false assertion of fact,” then they
may be considered by the jury “to determine whether such an
2052     MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
interpretation was in fact conveyed.” Kahn, 284 Cal. Rptr. at
250.

                                    B

   Here, the district court found that the County and Jacob had
succeeded in showing that Jacob’s statements giving rise to
the lawsuit were in furtherance of rights to petition or free
speech, and MHC does not challenge that determination. Thus
the burden fell to MHC to make a showing as to the probabil-
ity of success on the merits.

   On that issue, the County and Jacob asserted, and the dis-
trict court agreed, that the statements giving rise to the lawsuit
were merely statements of opinion, rather than provably false
assertions of fact, and were therefore not actionable.2 The dis-
trict court thus granted the motion to strike. While MHC con-
cedes that some of Jacob’s statements were opinions uttered
in the heat of political battle, it contends that a reasonable fact
finder could find some of the statements to be actionable as
provably false assertions of fact.

   Specifically, MHC notes, for instance, Jacob’s statement
that MHC “lied to the County. Said to the County that every-
thing 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 inter-
pretation as a provably false assertion of fact. The district
court found this statement to be “nothing more than rhetorical
hyperbole and subjective opinion.” Similarly, MHC argues
that a reasonable person could interpret Jacob’s statement that
MHC “has a reputation throughout the country of running
people out of older mobilehome parks, increasing the value of
  2
   There is no categorical exemption of “opinion” from defamation law,
but if in context no reasonable person would interpret the challenged state-
ment to be conveying a false factual imputation, then the First Amendment
protects the speech from liability. Kahn, 284 Cal. Rptr. at 249-250.
          MANUFACTURED HOME COMMUNITIES v. SAN DIEGO                    2053
the park, and then selling it at a profit” as a falsifiable asser-
tion of fact. Finally, MHC calls attention to Jacob’s claim that
the incoming District Attorney was “very interested in follow-
ing up to determine whether there are civil and/or criminal
actions that should be filed against” MHC. In these instances,
too, the district court found that the statements were not rea-
sonably susceptible of interpretation as provably false asser-
tions of fact.

   [3] While the district court may have been correct in its
assessment that each of these statements is properly inter-
preted as an assertion of opinion rather than fact, a reasonable
factfinder could disagree with that assessment. It does not
seem unreasonable to imagine, for instance, that a juror could
conclude Jacob meant as a matter of fact that MHC had lied
about the sewage situation, or that she meant it as fact that
MHC had a reputation for driving out elderly tenants. Nor
does it seem unreasonable to imagine a juror interpreting a
statement about the intentions of the incoming district attor-
ney as a statement of fact, rather than mere opinion.3 Indeed,
the district court’s decision, before concluding that this state-
ment was not falsifiable, also declared that it was “not factu-
ally untrue.”4 If the district court can assess the truth or falsity
  3
     The dissent gives persuasive reasons why a fact finder might well
regard these statements as non-actionable opinions, but that is not enough.
While we might, as fact finders, be persuaded by the dissent’s arguments,
we cannot conclude that they provide the only reasonable interpretation of
the statements at issue, and under California law—and United States
Supreme Court precedent, see Milkovich v. Lorain Journal, 497 U.S. 1, 19
(1990)—we must conclude that the district court erroneously determined
that Jacob’s statements were non-actionable.
   4
     It is not clear whether the district court meant by calling the statement
“not factually untrue” that it was making a finding that the statement was
true as a description of the incoming district attorney’s intentions or indi-
cated, as the district court also suggests, “nothing more than . . . Jacob’s
strong opinion that [MHC’s] actions should be investigated.” We con-
clude, in any event, that MHC ought to be given the opportunity to put the
statement before a jury to determine whether an ordinary person would
have understood the statement as a factual assertion, and whether it was
false.
2054     MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
of the claim, that seems a strong indication that it was a prov-
ably false assertion of fact, and therefore actionable.

  [4] Thus, 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.5

   [5] In addition, we reverse the district court’s award of
attorneys’ fees associated with the motion to strike.

                                    C

   The dissent disagrees with our treatment of the reasonable
juror standard regarding actionable statements, and urges that
the California Supreme Court gives wide latitude to judges to
take such issues away from juries where the statements in
question were made in the course of public debate. However,
as the dissent recognizes, an essential component of an opin-
ion is that it be “wholly subjective.” See Copp v. Paxton, 52
Cal. Rptr. 2d 831 (1996) (“In making the distinction [between
fact and opinion], the courts have regarded as opinion any
broad, unfocused and wholly subjective comment.”) (internal
quotation removed). Even under the standard adopted by the
dissent, however, a reasonable listener could conclude that
Jacob’s statements were founded in part on an objective, fac-
tual basis, especially in light of Jacob’s role as a public ser-
vant and her having made some of the relevant statements in
response to a news reporter’s questions.

   Likewise, we leave it to the jury to determine whether
Jacob’s statements were opinions based upon express facts. A
reasonable juror could conclude that Jacob did not “outline[ ]
  5
   We agree with the district court, however, that Jacob’s statements that
MHC is “unscrupulous” and “greedy” and engaged in “rent gouging” were
the kind of heated commentary that is often part of such public debates,
and are not actionable as provably false assertions of fact.
        MANUFACTURED HOME COMMUNITIES v. SAN DIEGO          2055
the facts available to [her]” sufficient to “mak[e] it clear that
the challenged statements represent [her] own interpretation”
of express facts. Partington v. Bugliosi, 56 F.3d 1147, 1156-
57 (9th Cir. 1995). Here, Jacob’s statements were not clearly
attached to such an outline of fact, nor did she explicitly link
her statements to an express factual basis. See id. at 1156
(holding that statements in a published work were non-
actionable opinions because they were preceded by an exten-
sive factual discussion, such that the author “can only be said
to have expressed his own opinion after having outlined all
the facts that serve as the basis for his conclusion”); Standing
Comm. on Discipline v. Yagman, 55 F.3d 1430, 1438-40 (9th
Cir. 1995) (holding that a declarant’s statement was non-
actionable opinion where he explicitly disclosed its factual
basis). Accordingly, unlike Partington and Standing Commit-
tee, in this case a reasonable listener could conclude that
Jacob “impl[ied] there are other, unstated facts supporting”
her comments. Franklin v. Dynamic Details, 10 Cal. Rptr. 3d
429, 436, 438 (Ct. App. 2004) (“The dispositive question is
whether a reasonable fact finder could conclude the published
statement declares or implies a provably false assertion of
fact.”).

   The dissent also would hold that MHC failed to proffer suf-
ficient evidence to establish a probability of success on the
merits. However, the district court granted Jacob’s motion to
strike solely on the erroneous ground that her statements were
non-actionable opinions. MHC’s probability of success was
not addressed in the parties’ briefs or at oral argument.
Accordingly, we leave it to the district court to consider that
issue in the first instance.

                               III

   For the foregoing reasons, the judgment of the district court
is REVERSED in part, AFFIRMED in part, and
REMANDED for further proceedings. The parties shall bear
their own costs.
2056    MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
CALLAHAN, Circuit Judge, dissenting:

  I respectfully dissent.

   The California Legislature’s explicit purpose in enacting
California Code of Civil Procedure § 425.16 was to declare
“that it is in the public interest to encourage continued partici-
pation in matters of public significance, and that this partici-
pation should not be chilled through abuse of the judicial
process.” Cal. Code of Civ. P. § 425.16(a). Therefore, we
must construe the statute broadly to protect public participa-
tion and free speech. Id. Manufactured Home Communities,
Inc. (“MHCI”) is attempting to chill the valid exercise of con-
stitutional rights of freedom of speech and petition for the
redress of grievances by filing a lawsuit against county super-
visor Dianne Jacobs based on media interviews about an issue
of public controversy. I would construe the statute broadly to
conclude that not only were Supervisor Jacob’s statements
opinions in the context they were given, but also that MHCI
failed to demonstrate with admissible evidence that they were
factually untrue so as to show a probability of prevailing on
the merits as required by Code of Civil Procedure
§ 425.16(b).

   I agree with the majority that the County of San Diego and
Supervisor Jacob demonstrated that MHCI’s rent increases
and operation of the mobile home park were issues of public
concern. The majority identifies three potential defamatory
statements: 1) that MHCI lied about fixing a sewage leak in
one of their parks; 2) that MHCI enjoys driving out elderly
tenants; and 3) that the district attorney was interested in
investigating MHCI’s operation of its mobile home parks.
The majority then applies a reasonable juror standard taken
from Kahn v. Bower, 284 Cal. Rptr. 244, 250 (Ct. App. 1991),
to conclude that it is possible that Supervisor Jacob’s state-
ments are “reasonably susceptible of an interpretation which
implies a provably false assertion of fact” and therefore
MHCI’s claims survive an anti-SLAPP motion. The majority
        MANUFACTURED HOME COMMUNITIES v. SAN DIEGO          2057
evaluates Supervisor Jacob’s statements for whether a “rea-
sonable person could construe them as provably false.” I dis-
agree with applying this more lenient standard when
distinguishing between an opinion and an assertion of fact in
ruling on an anti-SLAPP motion because Supervisor Jacob’s
statements were opinions based on expressed facts and
because the statements were substantially true. See Franklin
v. Dynamic Details, Inc., 10 Cal. Rptr. 3d 429, 437-38 (Ct.
App. 2004) (discussing opinions accompanied by expressed
facts). When plaintiffs bring suit concerning statements about
matters of public significance, they bear the burden of estab-
lishing a reasonable probability of prevailing on the merits,
and MHCI has failed to satisfy its burden in this case. See
Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal.
2002) (explaining that a plaintiff facing an anti-SLAPP
motion “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 sub-
mitted by the plaintiff is credited.”)

I.   Supervisor Jacob’s statements were opinions based on
     expressed facts.

   “It is an essential element of defamation that the publica-
tion be of a false statement of fact rather than opinion.” Eisen-
berg v. Alameda Newspapers, Inc., 88 Cal. Rptr. 2d 802, 821
(Ct. App. 1999). An opinion is any “broad, unfocused and
wholly subjective comment.” Fletcher v. San Jose Mercury
News, 264 Cal. Rptr. 699, 708 (Ct. App. 1989). “Under the
common law privilege of fair comment, an honest expression
of opinion on matters of public interest is privileged.” Eisen-
berg, 88 Cal. Rptr. 2d at 821. In the context of discussions of
matters of public interest, “courts apply the Constitution by
carefully distinguishing between statements of opinion and
fact, treating the one as constitutionally protected and impos-
ing on the other civil liability for its abuse.” Gregory v.
McDonnell Douglas Corp., 552 P.2d 425, 428 (Cal. 1976).
2058    MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
   When deciding whether or not a statement is an opinion as
a matter of law, “the court must place itself in the position of
the hearer or reader, and determine the sense or meaning of
the statement according to its natural and popular construc-
tion.” Baker v. Los Angeles Herald, 721 P.2d 87, 90 (Cal.
1986). California assesses whether statements are opinions or
statements of fact by examining the totality of the circum-
stances with particular attention to the context of the state-
ment. Id. at 90-91. “Thus, where potentially defamatory
statements are published in a public debate, a heated labor
dispute, or in another setting in which the audience may antic-
ipate efforts by the parties to persuade others to their positions
by use of epithets, fiery rhetoric or hyperbole, language which
generally might be considered as statements of fact may well
assume the character of statements of opinion.” Gregory, 552
P.2d at 428.

   Given the context and content of Supervisor Jacob’s state-
ments, the district court properly concluded that they were
statements of opinion as a matter of law. Whether published
material is reasonably susceptible of an interpretation which
implies a provably false assertion of fact “must be resolved by
considering whether the reasonable or ‘average’ reader would
so interpret the material.” Couch v. San Juan Unified Sch.
Dist., 39 Cal. Rptr. 2d 848, 854 (Ct. App. 1995) (emphasis
added). Rather than considering whether the three statements
implied facts that a reasonable person could construe as prov-
ably false, I would affirm the district court’s conclusion that,
given the context and content of the statements, no reasonable
person would have concluded that Supervisor Jacob was
implying that she had additional, defamatory, factual informa-
tion.

   Supervisor Jacob made the statements that MHCI lied
about a sewage spill, and that the company has a reputation
for running people out of mobile home parks during inter-
views with television stations covering the sewage spill. In the
context of the news report and the reporter’s request for
        MANUFACTURED HOME COMMUNITIES v. SAN DIEGO         2059
Supervisor Jacob’s comments on the situation and MHCI’s
operation of the park, a reasonable listener would conclude
that her responses were opinions. See Standing Comm. on
Discipline v. Yagman, 55 F.3d 1430, 1438-39 (9th Cir. 1995)
(noting distinction between opinions based on implied facts
and opinions based on express facts). Similarly, Supervisor
Jacob’s statement about talking to the County Counsel and the
incoming district attorney were accompanied by Jacob’s dis-
closure that she spoke with attorneys who were interested in
investigating MHCI’s management of the mobile home parks.
Her interpretation of their responses is an opinion accompa-
nied by expressed facts, not a statement that implies addi-
tional defamatory facts. See Franklin, 10 Cal. Rptr. 3d at 438
(discussing effect of expressed facts on statement of opinion).

   In this case, each of Supervisor Jacob’s opinions were
accompanied by the facts she was asked to comment on, or
the facts upon which she based her statement. As a result, her
statements “can be punished only if the stated facts are them-
selves false and demeaning.” Id. (quoting Standing Comm., 55
F.3d at 1439). If the statements were accompanied by the
expressed facts that formed the basis for Supervisor Jacob’s
opinions, whether or not a reasonable listener could have
thought that the statements implied untrue facts is irrelevant
because “no reasonable reader would consider the [statement]
anything but the opinion of the author drawn from the circum-
stances related.” Chapin v. Knight-Ridder, Inc., 993 F.2d
1087, 1093 (4th Cir. 1992); see also Partington v. Bugliosi,
56 F.3d 1147, 1156-57 (9th Cir. 1995) (adopting reasoning of
other circuits “that when an author outlines the facts available
to him, thus making it clear that the challenged statements
represent his own interpretation of those facts and leaving the
reader free to draw his own conclusions, those statements are
generally protected by the First Amendment.”). Therefore, I
would affirm the district court’s conclusion that under the cir-
cumstances, Supervisor Jacob’s statements were opinions.
2060     MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
II.    MHCI has not satisfied its burden of demonstrating
       a reasonable probability of prevailing on the merits.

   Supervisor Jacob’s statements were about matters of public
concern. Therefore, the burden shifted to MHCI to show “a
probability of prevailing on the claims.” Cal. Code of Civ. P.
§ 425.16(b). The California Supreme Court has interpreted
this to mean that the plaintiff “must demonstrate that the com-
plaint 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 plaintiff is credited.” Wilson,
50 P.3d at 739. Not only must the plaintiff demonstrate that
prevailing is possible, it must demonstrate that prevailing is
a “reasonable probability.” Rusheen v. Cohen, 128 P.3d 713,
724 (Cal. 2006) (noting that “the trial court correctly found
that there was no reasonable probability” of plaintiff prevail-
ing and affirming grant of the anti-SLAPP motion); Wilcox v.
Superior Court, 33 Cal. Rptr. 2d 446, 455 (Ct. App. 1994)
(concluding that “probability” is equivalent to a “reasonable
probability” of prevailing) overruled on other grounds by
Equilon Enterprises v. Consumer Cause, Inc., 52 P.3d 685,
694 n. 5 (Cal. 2002). If the plaintiff has the burden of proving
an element of his claim under a certain evidentiary standard,
then in evaluating the plaintiff’s prima facie showing, a court
must apply the same evidentiary standard. See Padres v. Hen-
derson, 8 Cal. Rptr. 3d 584, 594 (Ct. App. 2003) (“plaintiff
must make a prima facie showing of facts that would be suffi-
cient to sustain a favorable judgment under the applicable evi-
dentiary standard.”); Robertson v. Rodriguez, 42 Cal. Rptr. 2d
464, 470 (Ct. App. 1995) (applying clear and convincing stan-
dard of proof where plaintiff had to prove actual malice by
that standard).

   In Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990),
the Supreme Court rejected an opinion privilege for defama-
tion actions and concluded that if an opinion implies a prov-
ably false fact, courts should analyze “whether a reasonable
factfinder could conclude” that the publication asserted the
        MANUFACTURED HOME COMMUNITIES v. SAN DIEGO          2061
defamatory fact. California adopted this standard for evaluat-
ing demurrers and motions for judgment on the pleading to
this specific species of opinion in Kahn, 284 Cal. Rptr. at 250.
Unlike demurrers and motions for judgment on the pleading,
however, special motions to strike under the anti-SLAPP stat-
ute are evaluated based on whether, “as a matter of law, the
defendant’s evidence supporting the motion defeats the plain-
tiff’s attempt to establish evidentiary support for the claim.”
Wilson, 50 P.3d at 739. “Thus, a plaintiff’s burden as to the
second prong of the anti-SLAPP test is akin to that of a party
opposing a motion for summary judgment.” Yu v. Signet
Bank/Virginia, 126 Cal. Rptr. 2d 516, 530 (Ct. App. 2002).

   Under California law, the plaintiff must prove the falsity of
the underlying, implied fact in order to survive summary
judgment. Eisenberg, 88 Cal. Rptr. 2d at 822-23 (affirming
grant of summary judgment in defamation action when plain-
tiff could not prove that the underlying assertions of fact were
false). In this case, MHCI has not satisfied its evidentiary bur-
den to demonstrate the falsity of any underlying facts. See
Gilbert v. Sykes, 53 Cal. Rptr. 3d 752, 766 (Ct. App. 2007)
(noting that truth defense is satisfied if the “gist” or “sting”
of the statement is substantially true). The evidence submitted
showed that MHCI’s representatives assured county officials
that plumbers and other repair work had begun on the sewage
leak when the problem had not been fixed. This was reported
and documented by two local television stations and con-
firmed by the residents of the flooded unit. Furthermore,
Supervisor Jacob did online research to discover that there
were complaints throughout the country about MHCI and
their business practices. The disproportionate effect of
MHCI’s rent increases on the elderly and residents on fixed
incomes was confirmed by the homeowners. Finally, the
incoming district attorney testified that she was interested in
investigating MHCI’s activities, and the county opened a for-
mal investigation into MHCI’s handling of the sewage spill.
MHCI failed to present any evidence to prove the falsity of
the alleged facts it claims were implied by Supervisor Jacob’s
2062    MANUFACTURED HOME COMMUNITIES v. SAN DIEGO
statements. Because all of the expressed facts, and whatever
facts were implied by Supervisor Jacob’s statements, were
“substantially true,” and because MHCI failed to present any
evidence that any allegedly defamatory fact was false, I would
affirm the district court’s order granting Supervisor Jacob’s
anti-SLAPP motion and the award of attorney’s fees.
