Wednesday, June 14, 2017
Court of Appeal Declares:
Landlords Liable for Telling of Tenant’s Plight
Says Liability May Attach for Providing Information About Governmental Acts If Knowledge of the Acts Was Gained From Non-Official Sources
By a MetNews Staff Writer
The Court of Appeal for this district has upheld a jury’s $825,000 award in general and punitive damages for invasion of privacy against landlords who informed tenants that an occupant of a unit in their apartment building, who had poured some gasoline down a kitchen drain, had been placed by police on a psychiatric hold.
Div. Three, in an opinion by Justice Luis Lavin, rejected the contention of landlords Joyce and Kelli Urode that the actions taken by governmental agencies were not “private” facts. The panel held Monday, in an opinion that was not certified for publication, that disclosure of acts of government, garnered from non-public sources, can give rise to liability.
The Oct. 15, 2013 notice, taped to the front doors of apartments, said:
“ HERE ARE THE FACTS THAT WE KNOW ARE TRUE:
“The police were called out by the Department of Mental Health, they placed Adam on a 51/50 psychiatric hold. We do not know where he is or when he will be released or if he’ll be released.
“We know that he poured less than 6 ounces of gasoline down the kitchen drain which HAZMAT [hazardous material unit of the fire department] came and remediated.
“He did NOT pour gas anywhere in the apartment or attempt to light anything on fire.
“This building is under Rent Control which governs what we can do and how we can do it. We are in contact with our attorney and he is looking into this matter. This is a legal matter which will take time and have to go through the proper legal channels.
“We will keep you updated as we know how we can proceed and if we need any letters from you.
“We know you all are concerned as we are, rest assured we are doing everything we can.”
Punitive Damages Deleted
A jury awarded the tenant, Adam Swendrak, $200,000 in non-economic damages and $625,000 in punitive damages. Los Angeles Superior Court Judge Gerald Rosenberg granted a judgment notwithstanding the verdict to the extent of wiping out the punitive-damage award, saying the “weight of the evidence did not support a finding of malice by clear and convincing evidence.”
He denied judgment NOV as to liability, but granted a new trial, without stating reasons.
Monday’s opinion declared that the orders eliminating punitive damages and granting a new trial must be reversed, and rebuffed the landlords’ contention on a cross appeal that there was no invasion of privacy by disclosing official governmental acts.
Invasion of Privacy
In responding to the cross-appeal, Lavin wrote:
“To support a claim for invasion of privacy, an expectation of privacy in the fact at issue need not be absolute….It is also not necessary that the fact at issue be secret….Therefore, a fact or information does not lose its ‘private’ nature simply because the fact or information is known by someone other than the plaintiff….Information disclosed to a few people may remain private.”
The jurist continued:
“In this case, there is evidence to support the jury’s finding that defendants disclosed private information about Swendrak that would support a claim for invasion of privacy. Specifically, the administrator of records for the Santa Monica Police Department testified that the department does not publicize records of a person’s detention under section 5150 because that information is private and cannot be disclosed, unless the person who has been detained consents to the information’s release.”
Lavin rejected the landlords’ contention that by the time they posted the notice in question, the facts concerning the detention of Swendrak had become public information.
The justice wrote:
“The jury, however, may have disbelieved Joyce [Urode]’s testimony about how she received the information about Swendrak’s detention. Indeed…, Joyce could not recall at trial what website she viewed to obtain the information. In any event, to the extent defendants testified that they retrieved the information of Swendrak’s detention from public sources, such as a fire department’s HAZMAT report or a police department’s website, that testimony simply establishes a conflict in the evidence as to whether the information of Swendrak’s detention was publicly available, a conflict that the trial court properly resolved in Swendrak’s favor on liability when it ruled on defendants’ JNOV motion.”
Lavin agreed with Swendrak that the punitive-damage award must be reinstated. He explained:
“Substantial evidence…supports the jury’s finding that defendants acted with malice or oppression when they posted the notice. For example, there is evidence that would support an inference that defendants used the notice to manufacture a purported concern for other tenants when they really just wanted to force Swendrak out of the complex so they could obtain higher rent for his unit. At the time of trial, Swendrak paid about $830 per month for his two-bedroom apartment that he has rented since the early 1980s. Defendants testified that Swendrak’s lease was protected by Santa Monica’s rent control laws, and that they would be able to obtain higher rent if Swendrak’s lease were terminated and they found a new tenant to rent his unit.”
With respect to the award of a new trial, Lavin said:
“On appeal, defendants argue the court properly granted their motion for new trial for insufficient evidence to support the punitive damages award. They do not attempt to argue, however, that the court granted a new trial on any of the other grounds stated in their motion. Defendants’ concession is fatal….[A] new trial order that does not set forth any grounds or reasoning for why the new trial was granted cannot be affirmed on appeal for insufficient evidence or excessive damages.”
The defendants apparently did not raise an issue concerning the possible applicability of Civil Code §479c) which renders privileged “a communication, without malice, to a person interested therein,…by one who is also interested.”
The case is Swendrak v. Urode, B275175.
Frances M. Campbell and Nima Farahani of Campbell & Farahani, LLP represented Swendrak and Gregory R. de la Peña and Malcolm E. McLorg of de la Peña & Holiday LLP were attorneys for the lessors.
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