Metropolitan News-Enterprise


Wednesday, May 26, 2004


Page 1


C.A. Overturns Santa Monica ‘Tenant Harassment’ Ordinance


By DAVID WATSON, Staff Writer


“Tenant harassment” provisions of Santa Monica’s rent control ordinance which purport to criminalize bad faith evictions are preempted by state law, this district’s Court of Appeal ruled yesterday.

Portions of the law allowing tenants to file civil suits against landlords and obtain injunctions also violate the state’s litigation privilege, Civil Code Sec. 47(b), Justice Orville A. Armstrong said in an opinion for Div. Five. The court reversed a ruling by Los Angeles Superior Court Judge Ray L. Hart.

The harassment section of the rent control provisions bars landlords from maliciously interrupting services, failing to perform repairs, threatening or verbally abusing tenants, or taking action to terminate a tenancy “based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord.” It makes violation of its provisions a misdemeanor, permits either private parties or the city to bring civil enforcement actions, and authorizes injunctions, civil penalties, and damage awards.

Landlord Doreen Dennis and a nonprofit landlords’ group sued to block enforcement of the provisions affecting evictions and sought certification of the litigation as a class action, raising free speech and equal protection claims as well as citing Sec. 47(b) and other state laws. Hart sustained the city’s demurrer.

Armstrong said it was not necessary to address the plaintiffs’ constitutional arguments or Hart’s ruling that they lacked standing to assert them, since the challenged provisions were preempted by the litigation privilege.

Sec. 47(b) establishes a privilege for publications made in a “judicial proceeding,—in any other official proceeding authorized by law, or—in the

initiation or course of any other proceeding authorized by law—.” Armstrong noted that it has been held to cover both pleadings and pre-litigation communications connected with anticipated litigation.

He declared:

“[U]nder the litigation privilege, a landlord serving an eviction notice or filing an unlawful detainer is immune from suit based on those notices or filings, and cannot be enjoined from that conduct, even if the motivation is malicious, the factual allegations known to be untrue, and the legal theory untenable under the true facts. Under the ordinance, that same landlord, with that same lawsuit, is subject to criminal penalties, a civil lawsuit, and an injunction. The ordinance thus punishes what the Civil Code protects, is contradictory to state law, and is preempted.”

The justice rejected the city’s contention that the ordinance was directed at acts, not privileged communications. A cause of action under the ordinance “would not be based on allegations that the landlord acted by filing a complaint or serving a statutory notice, but would instead rest on allegations concerning the statements made in those documents,” Armstrong observed.

“An unlawful detainer complaint is a landlord’s communication to the court that a tenant has failed to pay rent or has violated another portion of the rental agreement, and as such is privileged,” he added.

Armstrong also rejected the argument that the challenged provisions of the ordinance came within the established exception to Sec. 47(b) for malicious prosecution suits. By providing for statutory minimum damages, criminal prosecution, injunctive relief, and initiation of a suit against the landlord prior to termination of the unlawful detainer action in the tenant’s favor the ordinance “departs—in significant ways” from the malicious prosecution exception, the justice explained.

Santa Monica attorney Rosario Perry, who represented the plaintiffs, yesterday called their victory “total, total.” He said he expected the Santa Monica City Attorney’s Office to immediately stop its practice of sending threatening letters citing the harassment provisions to landlords.

“It’s a whole intimidation issue which now has been removed,” Perry said. While only a few landlords had been prosecuted under the ordinance, Perry said, he asserted that “hundreds” of letters had been sent to landlords, with the city in effect “second guessing” the landlord’s decision to seek eviction.

Often, Perry explained, landlords abandoned efforts to remove troublesome tenants in the face of city opposition, sometimes with disastrous results for the apartment complex involved.

Perry said the court’s decision is likely to put deputy city attorneys, “who by the way don’t know how to run an apartment building,” out of business of trying to do so.

He noted that while attorneys involved in eviction proceedings are exempted from the provisions of the ordinance if they act “in good faith,” some members of the plaintiffs’ unlawful detainer bar did not find that exemption very reassuring.

Perry said doubted the state Supreme Court could be persuaded to review the case.

Deputy City Attorney Adam Radinsky, who litigated it, said the city is reviewing its options. In the meantime, he said, it will not try to enforce the disputed provisions.

He noted that the harassment section of the rent control ordinance contains about a dozen other provisions which were not challenged. The city will continue its enforcement of them, he said.

The case is Action Apartment Association, Inc. v. City of Santa Monica, 04 S.O.S. 2653.


Copyright 2004, Metropolitan News Company