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 participation in matters of public significance, and that this participation 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 participation and free speech. Id. Manufactured Home Communities, Inc. (“MHCI”) is attempting to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances *966by filing a lawsuit against county supervisor Dianne Jacob 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, 232 Cal.App.3d 1599, 284 Cal.Rptr. 244, 250 (Ct.App.1991), to conclude that it is possible that Supervisor Jacob’s statements 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 evaluates Supervisor Jacob’s statements for whether a “reasonable person could construe them as provably false.” I disagree 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., 116 Cal.App.4th 375, 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 establishing 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, 28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733, 739 (Cal.2002) (explaining that a plaintiff facing an antiSLAPP 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 submitted 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 publication be of a false statement of fact rather than opinion.” Eisenberg v. Alameda Newspapers, Inc., 74 Cal.App.4th 1359, 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, 216 Cal.App.3d 172, 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.” Eisenberg, 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 imposing on the other civil liability for its abuse.” Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 131 Cal.Rptr. 641, 552 P.2d 425, 428 (Cal.1976).
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 construction.” Baker v. Los Angeles Herald, 42 *967Cal.3d 254, 228 Cal.Rptr. 206, 721 P.2d 87, 90 (Cal.1986). California assesses whether statements are opinions or statements of fact by examining the totality of the circumstances with particular attention to the context of the statement. 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 anticipate 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, 131 Cal.Rptr. 641, 552 P.2d at 428.
Given the context and content of Supervisor Jacob’s statements, 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., 33 Cal.App.4th 1491, 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 provably 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 information.
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 interviews with television stations covering the sewage spill. In the context of the news report and the reporter’s request for 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 disclosure 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 accompanied by expressed facts, not a statement that implies additional 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 themselves 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 circumstances related.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir.1993); 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, *968those statements are generally protected by the First Amendment.”). Therefore, I would affirm the district court’s conclusion that under the circumstances, Supervisor Jacob’s statements were opinions.
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 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 plaintiff is credited.” Wilson, 123 Cal.Rptr.2d 19, 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, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713, 724 (Cal.2006) (noting that “the trial court correctly found that there was no reasonable probability” of plaintiff prevailing and affirming grant of the anti-SLAPP motion); Wilcox v. Superior Court, 27 Cal.App.4th 809, 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., 29 Cal.4th 53, 124 Cal.Rptr.2d 507, 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 plaintiffs prima facie showing, a court must apply the same evidentiary standard. See Padres v. Henderson, 114 Cal.App.4th 495, 8 Cal.Rptr.3d 584, 594 (Ct.App.2003) (“[p]laintiff must make a prima facie showing of facts that would be sufficient to sustain a favorable judgment under the applicable eviden-tiary standard”); Robertson v. Rodriguez, 36 Cal.App.4th 347, 42 Cal.Rptr.2d 464, 470 (Ct.App.1995) (applying clear and convincing standard of proof where plaintiff had tó prove actual malice by that standard).
In Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court rejected an opinion privilege for defamation actions and concluded that if an opinion implies a provably false fact, courts should analyze “whether a reasonable factfinder could conclude” that the publication asserted the defamatory fact. California adopted this standard for evaluating demurrers and motions for judgment on the pleadings 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 statute are evaluated based on whether, “as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim.” Wilson, 123 Cal.Rptr.2d 19, 50 P.3d at 739. “Thus, a plaintiffs 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, 103 Cal.App.4th 298, 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 plaintiff could not prove that the underlying assertions of fact were false). In this case, MHCI has not satisfied its evidentiary burden to demonstrate the falsity of any underlying facts. See Gilbert v. Sykes, 147 Cal.App.4th 13, 53 Cal.Rptr.3d 752, 766 (Ct.App.2007) (not*969ing 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 confirmed 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 formal 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 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.