SLAPPs and Bogus Claims: Legal Progress in Building the Under $20,000 House

Brenda Barnes, President, Home Grown Food Network, Inc.

As I’ve written before, at least one of us had to stay here at all times this summer at the Home Grown Food Network demonstration house near Palm Springs, in a mobilehome park in Desert Hot Springs, California. All summer I’ve been in Arizona (which is even hotter and more humid, it seems to me—freaky weather everywhere), most weekdays and home weekends. This week what I was doing there on a real estate project stalled so much I couldn’t stand staying there for no reason by myself, so I came home Tuesday night. I wanted to see the progress Peter told me on the phone he was making on our house, which we decided a few weeks ago is most accurately called “the under $20,000 house.”
I also expected to be served before now with an unlawful detainer action as to which a response is due quickly, so I figured I’d better be here. I’ve written before about how since we started the lawsuit for damages against the park owners in June 2006 for interfering with how we are remodeling our house, and for retaliating against us for going to the government about that interference and numerous violations of our rights like trespassing, they are getting more and more desperate trying to find some violation we are committing of park rules so they could first, get an injunction against our doing that. So far they have not been successful in doing that in two years of trying. The idea of getting an injunction against us clearly was that they were hoping a court would issue such a general injunction that we would then violate it and they could evict us easily for violation of the injunction. What actually happened, even though the law for evicting people states–as is plenty obvious to anyone, even these people who do not seem to be able to read a law to save their lives–eviction is more serious than getting an injunction, now they served a 60-day notice in May that they will try to evict us if we don’t move ourselves and our home by the end of that time.

It was obvious from the beginning that they were not really trying to get either an injunction or evict us for violating park rules or the California state administrative regulations applying to mobilehomes that the Mobilehome Residency Law allows them to use. I had not been a tenant except in rent-controlled apartments in Santa Monica owned by law office clients—hardly a situation where a lawyer has to worry about being evicted—since I was a college student in the early 60s. I had represented landlords in rent control administrative cases for 15 years and been both a landlord and an investor in housing for millions in profits for over 30 years, so by that time my point of view was pretty much on the side of landlords. I thought tenants destroyed property values and there were far too many hindrances on landlords being able to control them.

Then I had two landlords in a row try to evict me for totally bogus reasons, and both of them lied about serving papers on me and such things, as tenants had always seemed to claim happened when I was helping landlords but I did not ever believe the tenants. A friend of mine always said, “All tenants are scum,” when I would be telling a story about what some tenant said in a case, and there are all kinds of legal presumptions such as presuming correctness of a sworn process server’s statement, that make it difficult to prove such statements are lies. It seems to me now a very sad case of unfair karma that the same systemic disbelief of tenants and holding of stereotypical beliefs to hurt them have made life so difficult for us. I didn’t know I was misjudging a whole class of people and making my living in a system that just bulldozed their rights, no matter what laws said. It doesn’t seem fair to have to pay for my ignorance then, now.

However, when I think about it more, it hasn’t been so bad. The two landlords did not succeed, since I am, unlike people we have seen landlords consistently hire, educated in the top 10% of a then-top 10 law school; experienced in legal practice for 20 years, even though I wasn’t a litigator; and still competent to learn and apply law, though I stopped practicing law to get qualified to start Home Grown Food Network over 11 years ago. We’ve also had an incredible amount of luck along the way, which has made us think maybe the Universe knows it is unfair to punish good people like us and help people who lie and otherwise do act like true scum, so we deserve some amazing breaks to help us. One process server, for example, claimed to have posted a three-day notice on our door because no one could be found on the property to personally serve us, at the very same time when there were at least five workers AND THE LANDLORD on the property along with both of us. The landlord’s case based on that alleged service eventually had to be dismissed, and that led to a long delay that was part of two years when we were not paying rent because we had given notice that the property was uninhabitable, which is why there were workers there working. Not getting rent for two years and paying attorney’s fees for that kind of sloppy work eventually made the landlord want to pay us what it took to settle.

Many breaks just like that happened in the cases against the current landlord. For example, retaliating against us for exercising constitutional rights is an issue over and over. The landlords have to keep proving whatever they did in the particular context was really done because we were violating park rules or a law and that is what they were really concerned about. That becomes difficult when we have WRITTEN documents showing we got the very first letter from any of their lawyers 11 days after the date of our complaint to the government against them. It also is difficult to prove they really care about park rules when that letter tells us we must stop parking on the common area driveways as we had been doing every day and night we were here for 18 months by that time. Kinda seems like they were trying to get us for some other reason.

That was over two years ago, on May 12, 2006. Since then we have numerous other obvious moments of truth about our landlords. As time has gone on and we have gotten more and more of our building projects done, it is more and more obvious we never were and certainly aren’t now violating any park rules or laws. I wrote them letters showing exactly how that was so every time they made some bogus claim. For instance, as we were accumulating the recycled building materials we have later used in our building and gardening here, there have been what they could with some surface legitimacy call instances where something that looked like “clutter” could be pointed out. They always went overboard and called it debris and trash instead, so it would have been difficult for them once there was opposition to a case based on those notices, which were never specific as the law requires anyway. However, as time went on they became so desperate to point some such something out that it has become not just easy to prove there is some other reason they are doing it, but it has become laughable. For instance, lately they actually called our $500 cement mixer “clutter” in one of their notices to us.

Another time they said the $300 gazebo we had put up in our side yard—almost completely invisible to them from park driveways behind oleanders anyway—had to be removed because it was allegedly “combustible.” That’s about all they could say, since “patio furniture” is allowed in yards under their rules, so whatever was objectionable about ours had to go beyond its being not something that in their opinion should be outside, which was at the time their catchall objection. (Canvas cushions on patio chairs, for instance, were one of their repeated favorite objections about our yards. No problem to them that every time I got a notice about canvas cushions outside—besides the obvious well-known fact that canvas cushions are common in yards throughout America—I would take pictures of about 20 canvas cushions in other yards here in the park that same day. One day there were planks open in the fence between our yard and the manager’s behind us when we received such a notice, so I actually took pictures of canvas cushions on a chaise in THE MANAGER’S yard!)

Clearly gazebos are by definition made to go outside. So it seemed easy enough to these rocket scientists to just say ours was “combustible,” so it had to go. Any desperate attempt to make us seem in violation of some rule. (Of course we start with the small problem for them of there actually being no rule or law against combustible things in yards, which is why one of our neighbors has a wooden BUILDING in the back yard, taking up virtually all the yard, and the owner himself has a wooden workshop building built right up to the property line next to our parking spaces. Both of these had been there since we moved here in 2004, and one day flames started from an electrical transformer not 10 feet above that wooden workshop. These Einsteins got around the nonexistence of a rule against combustible items by saying we had “impermissible items” in our yard and citing no rule that made the gazebo even “impermissible.”) The day we got the notice about our gazebo we got proof from its manufacturer and provided that to the landlords’ attorneys that it was made of fire-retardant metal, and it is proper and safe for use next to and even attached to combustible homes. The next notice about that just left out the claim that the gazebo was “combustible,” but it still said we had to remove it. By then, deleting the claim about combustibility left no reason we would have to remove it, but that did not bother these brilliant people in the slightest.

So it has been an incredible series of lucky breaks that we can now prove from their very own writing that it could not possibly have been some legitimate reason they were trying to get us to stop remodeling our house the way we were and stop suing them about their interference with our constitutional rights. That always beings us back to, then why would they do it? Why would they spend thousands of dollars on attorneys’ fees and waste years litigating against tenants just remodeling their own house? First I say to myself, just think what Dr. Phil told Oprah when the beef growers in Texas were suing her for saying after she learned about mad cow disease she was never going to eat another burger again, and she kept saying it was unbelievable that she had to disrupt her life to defend against such a ridiculous suit. He said stop wondering why they are doing it and spend your time devising a winning strategy, or the line to sue Oprah will get very long. We don’t have to worry so much about people suing us, as we are hardly the deep pockets Oprah is. As deep pockets go, we’re more like a solid seam, totally judgment-proof. However, wondering why they are doing it and saying it is unbelievable are for the most part the same kind of waste of time for us from devising a winning strategy as they were for Oprah. In our case why they are doing it turns out later to be an important issue, but when we are beginning to devise a strategy and spending time working on it, we need to stick to that, instead of wondering why anyone would do this to us.

Then I tried, three or four times, to get the resident manager, then one of the landlords himself, then all of the landlords’ attorneys I have dealt with, to see we are not dangerous people if they would just leave us alone. We are not violating any rules except trivial ones we haven’t been notified about, like forgetting to get our car registration renewed 25 days before we got a notice about it, the same day I took pictures of cars parked here over TWO YEARS past the registration dates on their license plates. (By the way, I took pictures again a few weeks ago, three or so months after we got that notice about our car registration, and some of those with 2005 license plates are still parked here, where I have seen them the whole time, dusty, with flat tires, terrible looking actually whereas our car was drivable and clean. Also, in the meantime a wrecked car with the front windshield totally smashed and the top caved in has been parked in the corner of the park for a month. Nothing has been done that I can see to protect property owners of and in this park from destruction of their property values from that trash and debris being parked right in plain sight in the front of the park. It’s still there today. I just looked.)

After that didn’t work, I did just what Dr. Phil convinced Oprah to do: no matter how silly or unfair it is that we have to lose $150,000 in income to fight these landlords, we are doing it, and we will ultimately win and get our money back, plus more, and make an example of these landlords to deter other landlords from doing the same kind of thing to other tenants just lawfully exercising their constitutional rights. Anyway, so far we have won. We are still here, almost two-and-a-half years later, after they first tried to get us to leave, and they have yet to win anything against us. We are on appeal about denial of our motion to dismiss their case for being a SLAPP, which is a retaliatory lawsuit someone files against someone else, knowing it can’t win, but trying to keep the other side from exercising constitutional rights. Even the judge who denied our motion knows it should have been granted–and it should certainly have been–so I hope we will find an attorney who wants to go on the appeal with us and get $50,000 or so in attorney’s fees for winning that appeal. The landlords did not even present any evidence to the judge of why they were suing us other than to retaliate against us for remodeling our house in a way they do not like and complaining to the government about their earlier violations of our rights. NO EVIDENCE! NONE! They just presented argument. I have never seen such an easy case.

The reason I know the judge knows he should have granted our motion is he made us write the statement of decision we requested when he announced we lost the motion, when the winner always has to write that; we wrote it saying there was no evidence to support what the landlords said but the judge just believed them and that was that; the landlords didn’t even file any objections to that proposed statement of decision; and over two months later the judge issued a minute order that he was denying our request for a statement of decision. He had already decided we were going to get a statement of decision. That is why he ordered us to write, serve, and file the proposed one. But when you look at what happened in black and white–that he ruled in their favor with absolutely no evidence to support that ruling–he just couldn’t sign the statement of decision saying that. Of course the rocket scientists didn’t help him any by not filing any objections to that proposed statement, but on the other hand, what could they do? There wasn’t any evidence submitted. You can’t both manufacture the evidence afterwards and manufacture the fact that it was submitted in response to the motion, as well.

There simply is no evidence that they ever had any legitimate reason to try to get an injunction against us, and that is why they tried to obfuscate issues by arguing instead of submitting evidence of facts. I write them letters showing exactly why they have no legitimate reason, every time they try again to come up with some reason. Their notices never have what the law requires in the first place: dates, times, witnesses, and specific facts showing violation of a rule. That is, except for the trivial retaliatory things like car registration 25 days overdue when others are years overdue and nothing happens to them. Nonetheless, I give dates, times, witnesses, and specific facts showing there either is no violation of any rule or that there is could not be why we got a notice.

So for now, being here is the best revenge against unfair, illegitimate actions attacking us for exercising our constitutional rights. We are not wasting any more time asking why the attack happened. We are just trying not to violate even any trivial rules, to stick to issues of substance, and to keep on doing the necessary footwork to win. We also are continuing to exercise our constitutional right of freedom of expression. We are doing that by remodeling our house any legal way that seems appropriate to us and possibly helpful to 30 million people in America who never will own their own homes unless some inexpensive workable way to provide owned housing is demonstrated. The issues of 30 million and two people’s freedom of expression are not subject to anyone’s unlawful veto.

E mail: brenda@home-grown.org
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