Litigants and witnesses should have the freedom to access the courts without fear of being harassed in subsequent derivative lawsuits.
Over the last dozen years, there have been a number of cases dealing with Code of Civil Procedure Section 425.16, affectionately known as the anti-SLAPP statute. This code section allows a defendant to file a special motion to strike some or all of the allegations contained in the plaintiff’s complaint on the basis that the allegations reference conduct protected by the litigation privilege contained in Civil Code Section 47.
The litigation privilege states that a “publication or broadcast” is privileged when made in any judicial proceeding. This privilege is absolute and applies to “all publications irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 216.) The purpose of the privilege is to allow litigants and witnesses the freedom to access the courts without fear of being harassed in subsequent derivative lawsuits.
In the landlord-tenant context, the service of the eviction notice that initiates the unlawful detainer, if it were not absolutely privileged, might discourage landlords from undertaking lawful evictions. When there is an absolute right, there is a risk for abuse. The courts recognized this in Action Apartment Assn., Inc v. City of Santa Monica when it stated “[C]ourts have emphasized the importance of the litigation privilege’s absolute protection of access to the courts, while recognizing that this absolute protection has its costs,” since, inevitably, its invocation will sometime shield the ‘shady practitioner’ along with honest ones.” Action Apartment Assn., (2007) 41 Cal.4th 1232, 1244. While this may seem unfair, the right to access the courts is deemed to serve a higher public policy.
How does the litigation privilege get applied in the context of the anti-SLAPP statute? For our readers, this happens often when a landlord serves an eviction, followed by an unlawful detainer lawsuit. Once the unlawful detainer is concluded, the tenant files a lawsuit against the landlord alleging wrongful eviction, rent ordinance violations, breaches of the warranty of habitability and retaliation. The landlord then files the anti-SLAPP motion to strike claims and allegations from the tenant’s complaint based on the litigation privilege in Civil Code Section 47.
The court then does a two-step analysis; (1) the landlord must first show that the tenant’s causes of action are based, at least in part, on protected activity, (2) once that threshold is met, the court assesses whether the tenants can prevail on the merits of their claims.
One recent case against a local landlord sheds light on how this happens in practice. The landlord, after serving eviction notices on tenants in two different units in the same building is sued by those tenants. The tenants claimed the landlord had engaged in a pattern of harassment by refusing to accept or collect rent payments and then tried to evict the tenants for nonpayment of rent. Allegations from the tenants included statements that the landlord served them with dozens of frivolous three-day notices and filed frivolous unlawful detainer actions over eight years.
The court reiterated that the filing of an unlawful detainer action fails squarely within the litigation privilege. The court also stated that the service of the notice would be protected by the privilege as well. The court analyzed, not whether the notice was served maliciously, but rather whether it was a prelitigation communication that related to litigation that was contemplated in good faith and under serious consideration. Here the court relied upon and cited Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1486.
The tenants had also alleged malicious prosecution. The court underwent the process of determining whether the tenants would prevail on their claim that the landlord’s conduct was malicious. The court disregarded all allegations that were protected activity and evaluated the remaining causes of action. The court determined that the tenants established a probability that they would prevail on the malicious prosecution claim and only that part of the case continued. Even though much of the landlord’s conduct was protected, the court still found that the landlord could be liable for damages. The court focused on the landlord’s intent when it permitted the tenants to continue with their case.
In another recent local case, the landlord was accused of refusing to undertake repairs. The tenant moved into the unit and reported mildew and pest problems. After repeated complaints to the landlord, the tenant reported the problem to a government agency. The agency issued a citation and the landlord made repairs. The problems persisted, according to the tenant. The tenant withheld rent when no additional repairs were completed, and the landlord served a notice and filed an unlawful detainer. The lawsuit settled and the tenant moved out.
Following the settlement, the tenant filed a lawsuit against the landlord, claiming retaliation under the local ordinance and Civil Code Section 1942.5, among other causes of action. The landlord filed an anti-SLAPP motion alleging that the conduct undertaken was privileged. The court, as to the claim for retaliation, disagreed.
The court, again, confirmed that the filing of an unlawful detainer complaint is a protected activity, as is service of a notice of termination preceding the filing of the lawsuit. But the court recognized that the litigation privilege had to allow a claim for retaliatory eviction.
This court gave a lengthy and informative account of the legislative and legal history of the state, local and common law of retaliation. The landlord’s intent was the focus of the court’s decision. This court found that the litigation privilege is not without limit, holding that to ignore the intent of the landlord allows the landlord to evict a tenant in retaliation for the tenant’s conduct or complaints and defeats the purpose of the law designed to protect the tenant.
Landlords, at times, feel like the law is not “on their side.” All the restrictions, limitations and obligations placed on landlords, especially in eviction-control jurisdictions, can feel overwhelming and unfair. But landlords can take some comfort in knowing that the anti-SLAPP statute provides some degree of protection against frivolous tenant lawsuits.
The information contained in this column is general in nature. Consult the advice of an attorney for any specific problem. Alana Grice Conner is with Fried & Williams, LLP and can be contacted at 415-421-0100.