Metropolitan News-Enterprise


Friday, August 3, 2007


Page 1


S.C. Rejects Part of Santa Monica ‘Tenant Harassment’ Ordinance




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

In a 5-2 decision partially affirming and partially reversing a ruling by Div. Five of this district’s Court of Appeal, the court held that the city may not penalize the bringing of an unfair unlawful detainer action. But all seven justices agreed that Santa Monica may sanction bad faith pre-litigation tactics such as the service of an eviction notice for an improper purpose and with no intent to actually sue.

The city passed its anti-harassment provisions in 1995, largely in response to the Legislature’s enactment of the Costa-Hawkins Rental Housing Act, which eased some of the burdens on landlords in Santa Monica and other rent control cities. Among other things, the law imposes “vacancy decontrol,” meaning that if a tenant leaves or is evicted, the landlord may raise the rent for that unit to whatever the market will bear.

Recognizing that this created incentives to evict tenants, lawmakers expressly preserved the right of cities “to regulate or monitor the grounds for eviction.”

The city’s enactment 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.

Suit Filed

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 the litigation privilege of Civil Code Sec. 47(b) and other state laws.

Los Angeles Superior Court Judge Ray L. Hart sustained the city’s demurrer, but the Court of Appeal reversed, saying the challenged provisions violated the litigation privilege.

The privilege applies to publications made in a “judicial any other official proceeding authorized by law, the initiation or course of any other proceeding authorized by law.” It has been held in the past to cover both pleadings and pre-litigation communications connected with anticipated litigation.

Justice Carlos Moreno, writing for the Supreme Court, said the ordinance, to the extent it purports to penalize the filing of an unlawful detainer action, “would cut against the litigation privilege’s ‘core policy’ of protecting access to the courts.”

He noted that the ordinance would permit the city or a private party to sue, even if the landlord prevailed in the underlying action. This would, he said, “have a chilling effect on landlords pursuing evictions through the courts.”


Nor, he wrote, does Costa-Hawkins, by preserving local governmental authority to regulate evictions, save the ordinance. Those provisions maintain the authority cities had before the statute became law, but do not  expand their authority so as to avoid preemption under older statutes, the justice wrote.

The justice also rejected the city’s contention that the ordinance was directed at acts, not privileged communications.

“An action brought pursuant to this provision of the ordinance is necessarily based on the filing of a legal action, which by its very nature is a communicative act,” the jurist wrote. “...We contemplate no communication that is more clearly protected by the litigation privilege than the filing of a legal action.”

Moreno went on to reject the claim that the challenged provisions of the ordinance came within the established exception to Sec. 47(b) for malicious prosecution suits.

He noted that unlike in a malicious prosecution suit, the ordinance does not require that the party suing under the ordinance have prevailed in the underlying action. If a tenant wins an eviction suit, he added, he or she may sue for malicious prosecution without the protection of the ordinance.

But Moreno agreed with the city in part, concluding that a section of the ordinance making it illegal to serve “any notice to quit or other eviction notice...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,” is enforceable in some circumstances.

The litigation privilege, he explained, protects prelitigation communications only when litigation “is contemplated in good faith and under serious consideration.” Whether any particular eviction notice is privileged, he wrote, is necessarily a fact-specific inquiry, so the Court of Appeal erred in holding that the landlords were entitled to a declaration that the challenged section is entirely preempted.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin Baxter, and Ming Chin concurred.

Justice Carol Corrigan, joined by Justice Kathryn M. Werdegar, argued in dissent that the ordinance should be upheld in its entirety.

“Landlords are free to raise the litigation privilege in actions brought under the ordinance, and in such cases the scope of the defense could properly be explored and established,” Corrigan wrote. “The majority, however, wields the defense not as the shield it was intended to be but as a sword against the legislative authority of local government.  Doing so, it distorts both the doctrine of preemption and the privilege itself. “

The litigation privilege, she wrote, was intended as a defense to certain tort actions, particularly for defamation, and not to preempt local regulation. The majority opinion is also “internally inconsistent,” she wrote in allowing some claims under the ordinance, but disallowing others, even if the elements of malicious prosecution are established.

Santa Monica attorney Rosario Perry argued the case for the landlords, Deputy City Attorney Adam Radinsky for Santa Monica, and Rasha Gerges of Jones Day for Bet Tzedek Legal Services and Legal Aid Foundation of Los Angeles as amici.

Amicus briefs were also filed on behalf of the California Apartment Association, San Francisco Apartment Association, San Francisco Association of Realtors and Coalition for Better Housing in support of the landlords and for Tenderloin Housing Clinic, Inc., the League of California Cities, San Francisco Tenants’ Union, San Francisco Housing Rights Committee, St. Peter’s Housing Committee, Oakland Just Cause, and the California District Attorneys Association as on behalf of the city.

The case is Action Apartment Association, Inc. v. City of Santa Monica, 07 S.O.S. 4852.


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