Thursday, February 17, 2005
S.C. to Rule on Whether Santa Monica Ordinance on ‘Tenant Harassment’ Is Preempted by State Law
By a MetNews Staff Writer
The California Supreme Court yesterday agreed to decide whether “tenant harassment” provisions of Santa Monica’s rent control ordinance which purport to criminalize bad faith evictions are preempted by state law.
Justices, at their weekly conference in San Francisco, voted unanimously to review an October ruling of this district’s Div. Five in Action Apartment Association, Inc. v. City of Santa Monica, B165082. That ruling also struck down provisions allowing tenants to file civil suits against landlords and obtain injunctions.
The challenged provisions violate the state’s litigation privilege, codified at 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.
“[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 statement 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.
In other conference action, the justices unanimously agreed to review a Fourth District, Div. One ruling which dismissed a class-action lawsuit accusing cigarette makers of illegally targeting minors in their ads.
The San Diego-based panel said federal law pre-empted California unfair business practices claims when it comes to cigarette marketing allegedly targeting those not old enough to smoke.
The original 1998 lawsuit against corporate tobacco companies sought to have them forfeit between $700 million and $2 billion allegedly earned from sales to an estimated 1.5 million teen smokers in California between 1994 and 1999. But the appeals court ruled that federal cigarette labeling laws and the First Amendment pre-empted allegations brought under California unfair business practices laws.
The case is In Re Tobacco Cases II, JCCP 4042.
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