Metropolitan News-Enterprise


Monday, February 9, 2009


Page 3


Court Reinstates Suit Over Alleged Rent Control Violations


By STEVEN M. ELLIS, Staff Writer


A woman’s action against a former landlord who evicted her from a rent-controlled Westwood apartment—ostensibly to free it for the landlord’s daughter, who never moved in—is not a strategic lawsuit against public participation, this district’s Court of Appeal has ruled.

Ruling that long-term tenant Karen Clark’s claims against Mahvash Mazgani were based on alleged violations of state and local rent control laws, and not on Mazgani’s actions in furtherance of the right of free speech or petition, Div. One reversed a trial court’s order granting the landlord’s motion to strike in a decision ordered published Thursday.

Clark had been renting a unit in a triplex from Mazgani for about eight years at a monthly rent of approximately $1,100 when Mazgani successfully brought an unlawful detainer action to evict her in January 2006.

The property was subject to the Los Angeles Rent Stabilization Ordinance, which permits eviction from a rent-controlled apartment if the landlord intends to remove the unit from the rental market to free it for occupancy by an immediate family member, and Mazgani said she was evicting Clark in order to allow Mazgani’s daughter to move in.

Five months after her April 2006 eviction, Clark brought suit claiming that Mazgani’s daughter never took occupancy and that Mazgani made fraudulent representations in her action, intending instead to purposefully keep the apartment unoccupied to perform renovations and re-let it to a new tenant at a higher rent.

Clark alleged violation of the ordinance, fraud and unfair business practices in violation of state law, and further claimed that Mazgani stopped payment on a $3,000 check for relocation expenses required by the ordinance, but Mazgani responded with a motion to strike under the Anti-SLAPP statute.

Mazgani contended Clark’s complaint arose from the landlord’s privileged communications in the course of proceedings before the Los Angeles City Housing Department and in the unlawful detainer action, and from the acts of filing and serving the eviction notice.

Los Angeles Superior Court Judge Tricia A. Bigelow agreed and dismissed the action, but former Superior Court Judge Stanley M. Weisberg, sitting by assignment, wrote on appeal that Clark’s claims were not based on Mazgani’s engagement in a “protected activity.”

Weisberg, who retired from the Superior Court in April, wrote initially that “[t]here is no question that the prosecution of an unlawful detainer action is indisputably protected activity” under the Anti-SLAPP statute.

However, pointing to interpretations of the Ellis Act—which allows landlords who comply with its provisions to go out of the rental business even if doing so would otherwise violate a local rent control ordinance—set forth in Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 and Dept. of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, Weisberg opined that Clark’s complaint was not premised on such protected activity.

 “[W]e assume, without deciding, that statements made by Mazgani were in furtherance of her right of petition or free speech,” he wrote. “Nevertheless, Clark’s claims do not ‘arise from’ Mazgani’s conduct in exercising those constitutional rights.”

Noting that the gravamen of Clark’s action was a claim that wrongful eviction was the result of fraud in that Mazgani did not fulfill the ordinance’s requirement that her daughter reside in the apartment for at least six months, Weisberg observed that the claim could only be raised and determined months after Mazgani accomplished the eviction.

“A landlord’s fraudulent act of terminating a tenancy or removing a unit from the rental market and allowing that unit to stand empty, in breach of the [ordinance], is an actionable unlawful eviction…,” he explained. “Neither that act, nor the failure to make good on the check tendered to her former tenant are acts protected by Mazgani’s constitutional rights of petition or speech.”

Paraphrasing an observation in DFEH, Weisberg added:

“‘[I]f we were to accept [Mazgani’s] argument, then [she] could preclude any judicial review of [her] violation of the rent control law, no matter how egregious, by simply filing a SLAPP motion…’ as was done here…. We, like the other courts that have considered the issue, remain ‘confident that the Legislature intended no such application of [the rent control laws].’”

Presiding Justice Robert M. Mallano and Justice Frances Rothschild joined Weisberg in his opinion.

Los Angeles attorney Steven A. Blum of Blum Collins LLP represented Clark, while Marzgani was represented by Los Angeles attorney Yevgeniya G. Lisitsa.

The case is Clark v. Mazgani, 09 S.O.S. 736.


Copyright 2009, Metropolitan News Company