BILL ANALYSIS Ó
AB 934
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 934 (Feuer) - As Amended: March 10, 2011
As Proposed to be Amended
SUBJECT : Privileged Communications: TENANT PROTECTION
KEY ISSUE : Should the "litigation privilege," which was
originally intended to shield litigants from derivative
defamation suits, be UPDATED in response to recent judicial
opinions that permit the use of the privilege IN ORDER to
prevent a tenant FROM PURSUING A POTENTIALLY meritorious action
for unlawful eviction?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill addresses the troubling implications of some recent
court opinions that extend the protections of the so-called
"litigation privilege" seemingly far beyond its original purpose
of protecting litigants from derivative defamation suits for
statements or communications made in the course of a judicial or
legislative proceeding. The laudable purpose of that privilege,
courts have held, is to "ensure free access to the courts,
promote complete and truthful testimony, encourage zealous
advocacy, give finality to judgment, and avoid unending
litigation." Although the author is strongly committed to this
ideal, he became very concerned that the privilege was never
intended, contrary to recent court opinions, to bar a tenant
from pursuing his or her day in court by bringing a wrongful
eviction action against a landlord who issues unwarranted
eviction notices or files unlawful detainers in order to
pressure an unwanted tenant to move. The tenant in such a
situation does not object to the statements, the author notes,
but rather to the conduct of abusing notices and unlawful
detainers for illegitimate purposes. Yet, in Action Apartment
v. City of Santa Monica (2007) , the court held that a landlord
could invoke the litigation privilege against a tenant alleging
wrongful eviction under a local ordinance, even if the landlord
acted with "malicious" intent and had no factual or legal basis
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for issuing a notice or filing an unlawful detainer. And in
Feldman v. Park Lane (2008) , the court extended the privilege
beyond actions brought under a local ordinance to include state
law and common law actions for wrongful eviction and related
actions. This bill therefore simply seeks to restore the scope
of the litigation privilege to its pre- Action Apartment status
by providing an exemption for actions made pursuant to specified
provisions of landlord-tenant law. The bill seeks to ensure
that landlords who illegally evict tenants will reasonably be
held accountable by tenants and local government authorities,
just as they were before Action Apartment . The author will
amend the bill in Committee to clarify that the bill will not
prevent a landlord from invoking the litigation privilege where
the action alleges defamation. The bill is supported by the Los
Angeles City Attorney's Office and several legal aid and
tenant's rights groups. It is opposed by various apartment
owner associations, realtors' associations, and individual
landlords.
SUMMARY : Amends the state's "litigation privilege" statute to
exempt certain actions arising in the context of landlord-tenant
law. Specifically, this bill
1)Exempts from the definition of a "privileged communication,"
for purposes of the litigation privilege statute only, any
communications made pursuant to or authorized by those
sections of the Civil Code that authorize and regulate notices
to tenants regarding change or termination of a lease and
sections of the Code of Civil Procedure that authorize and
regulate notices to quit and the filing of an unlawful
detainer for recovery of rental property.
2)Exempts from the definition of "privileged communication," for
purposes of the litigation privilege only, any communication
made unlawful by state statute, including forcible detainers
and violations of civil rights and housing discrimination
laws, or communications made unlawful by a local ordinance
regarding the regulation of rents, termination of tenancy,
eviction, harassment, or discrimination against residential
tenants.
3)Specifies that the above provisions are intended to overrule
the holdings in Action Apartment v. City of Santa Monica
(2007) 41 Cal. 4th 1232, and Feldman v. 1100 Park Lane (2008)
160 Cal. App. 4th 1467.
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EXISTING LAW :
1)Provides that libel is a false and unprivileged written
publication that injures the reputation, and that slander is a
false and unprivileged publication, orally uttered, that
injures the reputation, as specified. Provides that an action
for defamation may be brought for either libel or slander.
(Civil Code Sections 44-46.)
2)Makes certain publications and communications privileged, and
therefore protected from the threat of civil action, including
communications made in a legislative proceeding, judicial
proceeding, or other proceedings authorized by law, subject to
specified exemptions. (Civil Code Section 47 (a)-(b).)
COMMENTS : This bill seeks to address the troubling implications
of recent court opinions that extend the "litigation privilege"
far beyond its original purpose of protecting litigants from
later defamation suits for statements or communications made in
the course of a judicial or legislative proceeding. The
laudable purpose of that privilege, especially as to judicial
proceedings, is to "ensure free access to the courts, promote
complete and truthful testimony, encourage zealous advocacy,
give finality to judgment, and avoid unending litigation."
Although the author is strongly committed to this ideal, he
nonetheless maintains that the privilege was never intended to
prevent a tenant from bringing a wrongful eviction action
against a landlord who issues unwarranted eviction notices or
files an unlawful detainer (UD) in order to encourage an
unwanted tenant to move, even when there is no legal or factual
basis for the eviction. Yet, in Action Apartment the court did
just that: holding that even a "malicious" use of an eviction
notice or UD filing would be protected by the litigation
privilege and could bar a tenant's action for unlawful eviction
under a local anti-harassment ordinance. (Action Apartment v.
City of Santa Monica (2007) 41 Cal. 4th 1232.) A year later an
appellate court, relying on Action Apartment, held that a
landlord could invoke the litigation privilege to dismiss an
action alleging wrongful eviction and retaliatory eviction under
state statute and common law. (Feldman v. 1100 Park Lane
Associates (2008) 160 Cal. App. 4th 1467.) The author notes
that the litigation privilege does not merely provide that
statements made in a judicial proceeding cannot be used as
evidence, but blocks the action in its entirety if the
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allegation for wrongful eviction or retaliatory eviction is
based on the notices or the UD - even if the underlying service
of eviction notices and UD filing were illegal.
AB 934 will preserve tenant rights and restore the original
intent of the litigation privilege by adding an express
exemption for eviction notices and UD filings, or otherwise
using notices or judicial proceedings for a purpose that is
deemed unlawful under existing law. Civil Code Section 47
(b)(2) already contains four statutory exemptions relating to
(1) certain pleadings in marital dissolution and separation
cases; (2) communications or actions taken in furtherance of
altering evidence; (3) communications that attempt to conceal
the existence of an insurance policy; and (4) a lis pendens that
fails to identify a previously filed action. In each of those
instances, the exemption applies to a situation in which the
judicial proceeding (broadly defined to include pre-litigation
communication) constitutes the alleged wrongful behavior. This
is precisely why the litigation privilege has not been applied
to an action for malicious prosecution or abuse of process,
since to apply the litigation privilege would, by definition,
negate those causes of action. By the same reasoning, where a
landlord is using the legal process, including preliminary
notices, to harass or unlawfully evict a tenant, the litigation
privilege should not apply. AB 934, therefore, appears fully
consistent with the original purpose of the litigation privilege
and other statutory exemptions. In addition, this bill
expressly states the intent of the Legislature to overrule the
holdings of Action Apartment and Park Lane as to the scope of
the litigation privilege.
Background: Implications of Action Apartment and Park Lane . In
Action Apartment the California Supreme Court held that a Santa
Monica "anti-harassment" ordinance was pre-empted by the
litigation privilege statute. The ordinance permitted tenants
to bring an action to recover damages against a landlord if the
landlord issued evictions notices or filed a UD knowing that
there was no legal or factual basis for the eviction. The
ordinance was prompted by concerns that landlords were issuing
bogus eviction notices in order to intimidate tenants to vacate
- thereby providing an opportunity to raise rents under the
"vacancy de-control" provisions of Costa-Hawkins. The Court
held that creating a cause of action against landlords who
issued eviction notices or brought UD actions conflicted with
the state litigation privilege, which was meant to exempt
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statements made in judicial proceedings from subsequent
litigation arising from those statements. The Court held that
all UD actions were covered by the privilege, even if malicious
and without merit. The Court held that an eviction notice was
covered by the litigation privilege so long as it was issued
with "good faith" intent to later bring a UD action.
Read most narrowly, Action Apartment arguably only preempted the
anti-harassment ordinance and thus the litigation privilege
could still be invoked against actions brought under such an
ordinance. Significantly, however, the court preempted the
ordinance because the litigation privilege extended to UD
actions and eviction notices issued in anticipation of
litigation. By extension, any wrongful action, whether based on
local ordinance, state law, or common law, could be subject to
the litigation privilege. In the Park Lane case, an appellate
court took this step and went beyond Action Apartment in two
ways: First, Park Lane held that the litigation privilege could
be invoked in many other causes of actions, including actions
for retaliatory eviction, wrongful eviction, breach of contract,
breach of covenant of quiet enjoyment, and, to the extent it was
based solely on the notice and UD, unfair business practices.
The actions were dismissed without any consideration of the
merits of the tenant's claims because the landlord successfully
invoked the litigation privilege. The Court concluded that only
an action for malicious prosecution would be exempt from the
privilege.
Second, Park Lane went beyond Action by holding that issuing
eviction notices and filing UD actions were "protected activity"
within the meaning of the anti-SLAPP (Strategic Lawsuit Against
Public Participation) statute, which allows a defendant to make
a motion to strike an action against any person who is
furthering her or her exercise of the right to petition or free
speech. (Code of Civil Procedure Section 425.16.) In Park
Lane, the landlord filed a UD against subtenants on the grounds
that the sub-tenancy had not been properly authorized. The
subtenants filed a cross-complaint alleging retaliatory
eviction, wrongful eviction, and breach of quiet enjoyment,
among others. The landlord then moved to strike the
cross-complaint under the anti-SLAPP statute. Working through
the anti-SLAPP two-part inquiry, the court held first that
notices and UD actions were "protected activity" under the
statute. Although the statute defines protected activity as the
constitutional rights "to petition and free speech," it
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specifies that this includes "any written or oral statement . .
. made before a legislative, executive, or judicial proceeding."
The court noted that "judicial proceeding" has been construed
broadly to include not only the actual proceeding, but any
preliminary action done in furtherance of the judicial
proceeding. Therefore, a "protected activity" included both the
filing of the UD action and the preliminary eviction notices.
Even if the action is a "protected activity," however, the
second prong of the test provides that a plaintiff can still
survive an anti-SLAPP motion if he or she can show likelihood of
prevailing on the merits. However, because of the landlord's
ability to invoke the litigation privilege under the Action
Apartment precedent, the court reasoned, the plaintiff had no
likelihood of prevailing on the merits. In other words, not
only does the litigation privilege lead to dismissal of the
tenant's cause of action; it also means that the tenant may be
required to pay the landlord's attorney's fees under the
anti-SLAPP provisions. As long as landlords cloak harassment
and illegal conduct in eviction notices, they are largely immune
from suit and can even recover attorney fees.
Consequences on the Ground. The implications noted above are
not merely theoretical. According to tenant's rights groups,
legal aid clinics, and public officials who enforce unlawful
eviction laws, Action Apartment and Park Lane have already had a
profound effect. For example, the Los Angeles City Attorney's
Office reports that it receives hundreds of referrals for
prosecution from local housing agencies regarding a variety of
landlord violations, including the issuing of illegal eviction
notices and the filing of baseless UD actions. With record
numbers of foreclosures, the L.A. City Attorney writes that its
prosecutors have received "an unprecedented volume of cases
involving landlords who have sent unlawful eviction notices to
and filed groundless evictions against tenants, often
identifying foreclosure as the basis for eviction." Although
federal law requires that tenants in foreclosed properties
receive at least a 90-day notice, and foreclosure at any rate is
not a permissible basis for eviction under the Los Angeles Rent
Stabilization Ordinance, many tenants are not aware of their
rights or simply cannot afford the risk of not prevailing should
they challenge the eviction. So they move. Although the City
Attorney's office can enforce the law on tenant's behalf, the
litigation privilege presents a significant obstacle to holding
landlords accountable. The result, according Los Angeles City
Attorney Carmen Trutanich, is that tenants "are left without
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recourse, because they can neither sue the landlords directly,
nor depend on law enforcement to protect their rights."
The reports of other city attorneys and several legal and tenant
rights group reinforce the claims of the Los Angeles City
Attorney. For example, Tenants Together, a tenant's rights
group based in San Francisco, and Bet Tzedek, a legal aid
organization in Los Angeles, and the Los Angeles City Attorney's
Office have provided the Committee with several examples from
around the state in which landlords have issued allegedly
unlawful eviction notices and have either invoked the litigation
privilege when challenged, or tenant's rights groups or local
officials decided not to pursue the matter because, since Action
Apartment, those actions will fail if the landlord invokes the
litigation privilege. For example:
In Palm Desert, California, in September of 2010, an entire
tract of more than a dozen rental homes went into foreclosure
and was purchased by a Florida investor. The investor filed
eviction notices in violation of the 90-day notice required
under federal law. In addition, the notices violated federal
provisions requiring successors in interest to honor existing
leases. No UD notices were filed after the first notices
expired; instead, the landlord issued new notices that were
also in violation federal law. Attorneys believed that tenants
could have filed actions for breach of covenant of quiet
enjoyment, breach of contract, and other claims, but
determined that in light of Park Lane - which held these very
actions subject to the litigation privilege and anti-SLAPP
provisions - the attorneys decided the risks made such a suit
impractical.
Fifteen California cities have laws protecting tenants from
eviction on grounds of foreclosure. The City of Oakland sued
banks for illegal evictions from foreclosed properties, but
the Oakland City Attorney's office found that litigation
privilege concerns significantly limited its ability to pursue
these cases.
In San Francisco, the Lembi/Skyline/CitiApartments landlord
group used aggressive tactics to displace tenants in
rent-controlled units until they lost most of their portfolio
due to foreclosure. A case brought by the San Francisco city
attorney showed a pattern in which the landlord group acquired
rent controlled buildings and then issued pre-textual 3-day
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notices to quit, often on tenants with no history of problems
with the prior landlord.
In another San Francisco case, the landlord group referenced
above attempted to evict a 71-year old tenant claiming that
the tenant was a nuisance. A UD was filed in February of
2008. The tenant, along with other tenants, sued for illegal
eviction and other claims, but the landlord group filed a
motion to strike the eviction-related claims based on Action
Apartment. The case was settled while the motion was pending.
Malicious Prosecution, UD Defenses, and Other Causes of Action
are Not a Realistic Option For Most Tenants . As noted in the
arguments section below, opponents of this bill claim that this
bill is not needed because tenants already have several options
if a landlord issues bogus eviction notices or threatens
baseless UD actions. Opponents contend, for example, that
tenants could bring an action of malicious prosecution. While
this is true, the bar for prevailing in a malicious prosecution
action is extremely high, including a requirement that the
person bringing the action prevailed in the underlying action.
Where the landlord is simply issuing notices, as in the
foreclosure case noted above, there is no underlying action to
which the tenant can prevail. If the tenant tries to raise a
challenge to the notices alone, the landlord can invoke the
litigation privilege to protect the notices by merely asserting
that he had "good faith" intent to file a UD action
subsequently. The burden would be on the tenant to prove bad
faith. (See Action Apartment 41 Cal. 4th at 1251.) Even if the
tenant waits for the landlord to file a UD, the tenant must
still prevail on the underlying action. Opponents have also
suggested the tenant can raise objections to the legality of the
notices and UD actions as a defense, but this presents further
problems and risks for the tenant. First, the UD is a summary
proceeding and the five days in which the plaintiff has to
respond is usually insufficient to develop arguments to support
a separate cause of action. Second, the tenant can never be
certain that the defense will prevail; therefore, he or she may
determine that the risk of trying to fight the UD outweighs the
risk of simply moving. Third, because losing the UD is always a
possibility, the tenant runs the risk of the UD becoming the
black mark on his or her credit report.
Finally, some opponents allege that tenants can bring other
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actions under statute or common law, such as wrongful eviction,
constructive eviction, retaliatory eviction, breach of quiet
enjoyment and the like. However, this argument appears to
neglect the fact that Park Lane permitted the use of the
litigation privilege against precisely these kinds of actions.
It is precisely because the recent rulings either expressly or
impliedly provide that the privilege can be used against
eviction efforts that are prohibited by existing laws, the
author states, that this bill adds paragraph (6) to the list of
exemptions in subdivision (b) of Civil Code Section 47.
Will The Bill Expose Landlords to Frivolous Wrongful Eviction
Suits ? Opponents claim this bill will expose landlords to
retaliatory actions by tenants who have been evicted, even where
the landlord has legitimate grounds for issuing a notice to quit
or filing a UD action. Opponents further claim that landlords
will be reluctant to engage in informal discussions with tenants
about late rent payments or other communications about terms of
a lease for fear that such communications may become the subject
of lawsuit. The author, however, notes that this bill will
merely return the situation to what it was before Action
Apartment and Park Lane. As noted above, it was only recently
that landlords won the right to invoke the litigation privilege
against even meritorious tenant actions for wrongful,
retaliatory, or discriminatory eviction. The opponents have
thus far offered no evidence to the Committee that landlords
faced waves of frivolous litigation prior to Action Apartment,
so there does not appear to be any reason to believe that such a
wave will follow if this recent and unprecedented extension of
the litigation privilege is restored to its original scope. On
the other hand, as noted above, proponents of the bill have
provided the Committee with many examples in which the
litigation privilege, or the prospect that it would be invoked,
has caused city attorneys and tenant advocates to abandon
meritorious claims that they otherwise would have pursued.
The Bill Will Not Subject Landlords to Libel Suits, Especially
as Proposed to be Amended. Many of the opponents claim that
this bill would subject landlords to libel suits for statements
contained in posted notices and encourage tenants to make
accusations of libel and slander. If the landlord only included
the generic and limited nature of the information that typically
appears on a notice to quit, it seems highly unlikely that it
could provide grounds for a defamation suit, especially if the
allegations were true. Contrary to what is claimed by the
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California Business Properties Association, "any type of factual
error" in the posted notice would not appear to be likely
grounds for a libel suit. Nonetheless, the author contends that
it was never his intent to prohibit the use of the litigation
privilege against a defamation suit since this was the original
purpose for the privilege. Indeed, the author informed the
Committee that he concurs that the litigation privilege should
protect all litigants, including landlords, so that litigants
can speak openly, robustly, and zealously in court proceedings.
However, the Action Apartment and Park Lane decisions did not
involve actions for libel or slander, but rather actions for
unlawful evictions brought under local and state laws and
various common law doctrines.
The potential confusion about the bill's purpose may therefore
stem from the fact that what is called the litigation privilege
"statute" is in fact only a definitional section within the
defamation statute. If the court had not recently expanded its
scope to include actions brought under landlord-tenant law,
there would appear to have been little need to amend this
statute. In light of the concerns raised, however, the author
has informed the Committee that he will amend the bill to
specify that the litigation privilege still applies to actions
in defamation (which California law defines to include both
libel and slander). In this way, he notes, the litigation
privilege will be restored to its pre-Action Apartment status
and tenants and public officials will not be barred from holding
landlords accountable for unlawful eviction attempts.
This Bill Does Not Appear to Falsely Assume that Landlords
Routinely Issue Bogus Eviction Notices . Opponents also have
suggested that this bill is unnecessary because it falsely
assumes that landlords regularly issue baseless eviction notices
or file meritless UDs in order to harass tenants into leaving.
They point out, no doubt correctly, that landlords naturally
want to keep good tenants, and that this is especially true in
the present economic climate when vacancy rates are high. The
author has stated that he agrees that the vast majority of
landlords are fair and reasonable and that only a very few use
meritless notices and UD filings to get rid of tenants who
otherwise have a right to stay. But, he states, this is no
reason for not passing the bill, pointing out that most of our
laws targeting bad behavior apply to only a fraction of the
general population who are bad actors. Landlords are no more
likely to issue bogus eviction notices than tenants are likely
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to bring frivolous lawsuits. Still, some do, and this bill
seeks to restore proper balance to the array of rights and
remedies that tenants and landlords enjoyed before Action
Apartment and Park Lane.
"Utmost Freedom of Access to the Courts. " Finally, the author
points to the irony of the courts' recent extension of the
litigation privilege into landlord-tenant law. As the
California Supreme Court noted in Silberg v. Anderson (1990),
more than a decade before the first Action Apartment decision,
the purpose of the litigation privilege is to "give litigants
and witnesses the utmost freedom of access to the courts without
fear of being harassed subsequently by derivative tort actions."
(50 Cal. 3d 205, 213.) Yet, by allowing landlords the ability
to use the litigation privilege to dismiss tenant actions for
wrongful eviction and related actions, the court now permits use
of the litigation privilege to deny tenants "the utmost freedom
of access to the courts."
As Justice Corrigan reminds us in her dissenting opinion in
Action Apartment, the litigation privilege was enacted as a
defense to defamation claims, and while its scope has been
enlarged by the court over the years, it was not applied outside
of the tort context until the Action Apartment case. For
Corrigan, there was certainly no indication in the language of
the statute that it was intended to bar other causes of action
arising under local ordinances. In addition, Justice Corrigan
noted that "the Legislature plainly intended to provide immunity
for communications made in connection with judicial proceedings,
not to invalidate any particular causes of action." (Action
Apartment 41 Cal. 4th at 1254-1255, emphasis added.) In short,
the author informs the Committee, he believes that Justice
Corrigan correctly identified what should be clear from the
language of the statute and its surrounding sections: the
litigation privilege was intended to protect communications made
in a judicial proceeding from subsequent litigation; it was not
meant to create a circular logic that invalidates wrongful
eviction actions that are, of necessity, based on the conduct of
issuing meritless notices and filing meritless UDs for purposes
of harassment.
Proposed Author Amendments : In order to make it clear that this
bill will not hamper a landlord's ability to invoke the
litigation privilege for its original purpose - to shield
statements made in a judicial proceeding from a subsequent
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defamation action -the author has informed the Committee he
wishes to take the following amendments in this Committee:
- On page 2, line 40 after "Procedure." insert:
However, an allegation or averment contained in any
pleading or affidavit filed in an action for unlawful
detainer shall be privileged as to a subsequent cause of
action for defamation as defined in Section 44.
- On page 3, line 11 after "tenants." Insert:
However, an allegation or averment contained in any
pleading or affidavit filed in an action for unlawful
detainer shall be privileged as to a subsequent cause of
action for defamation as defined in Section 44.
Proposed Correction Amendments :
- On page 3, line 8 delete "ordinance" and insert law
- On page 4, line 7 delete "Santa Monica Rent Control Bd."
and insert: The City of Santa Monica
ARGUMENTS IN SUPPORT : The Los Angeles City Attorney's Office
writes that "the abusive practice of issuing unlawful eviction
notices and filing baseless eviction actions has gained traction
since the decision in Action Apartments. . . Relying on Action
Apartments, lower courts have further extended the litigation
privilege in the landlord tenant context, undermining state and
local laws that seek to protect tenants from illegal,
retaliatory and/or discriminatory evictions." The L.A. City
Attorney notes that "the original intent of the litigation
privilege was to guarantee access to the courts without fear of
legal retaliation. The result of its judicial expansion has
been just the opposite. The current interpretation of the
litigation privilege prevents most tenants from taking direct
legal action to address illegal evictions. Accordingly, my
Office is faced with an increased responsibility to enforce the
relevant law. Unfortunately, the litigation privilege presents
a significant obstacle to law enforcement in holding
unscrupulous landlords accountable. Tenants are left without
recourse, because they can neither sue their landlords directly,
nor depend on law enforcement to protect their rights." The
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L.A. City Attorney adds that "unscrupulous landlords have an
additional incentive to illegally vacate their properties in
rent-controlled jurisdictions such as Los Angeles, where the
departure of a tenant deregulates a unit and allows it to be
rented at market rate. To make matters worse, the majority of
illegal eviction cases referred to our Office are in low-income
neighborhoods. These landlords are targeting particularly
vulnerable tenants who are less likely to be aware of their
rights."
Tenant's Together, a statewide organization for tenant's
rights based in San Francisco, writes that "members across
the state are being denied meaningful access to the courts
due to the unwarranted judicial expansion of the litigation
privilege." Tenants Together claims that prior to Action
Apartment "landlords who illegally evicted tenants could be
held accountable by tenants and by government authorities . .
. Ýbut] Action Apartments and its progeny have changed this
by extending the state's litigation privilege to cover the
service of eviction notices and filing of unlawful detainer
actions." These extensions into other areas of
landlord-tenant law "have undermined state and local laws
that seek to protect tenants from illegal, retaliatory,
and/or discriminatory evictions and related misconduct."
In addition, Tenants Together notes that the litigation
privilege combines with the state anti-SLAPP statute, CCP
425.16, to further chill the exercise of tenants' rights,
subjecting tenant actions to dismissal under the litigation
privilege and requiring tenants to pay the landlord's
attorney fees under the anti-SLAPP statute. Finally,
Tenant's Together notes that for decades, "tenants have had
the right to sue over eviction activity that violates state
and local law" and local governments "have been free to file
suit to enforce tenant protections against improper
evictions. The unwarranted judicial expansion of the
litigation privilege undermines these basic tenant
protections, shutting the courthouse doors to tenants and
emboldening unscrupulous landlords to engage in abusive
conduct."
Bet Tzedek Legal Services supports this bill because it will
"ensure that tenants have access to the courts when subjected
to illegal eviction activity." Bet Tzedek claims that many
studies have shown that low income tenants, who typically
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cannot afford a lawyer, will generally move out when
confronted with an eviction notice rather than face the
prospect of a trial. These trends, Bet Tzedek has learned
from experience, "are not lost on the most unethical
landlords" who, knowing such tenants have limited legal
knowledge and resources, "serve notices and file cases that
are deficient, defective, or illegal." Finally Bet Tzedek
stresses that AB 934 "does not create any new obligations for
landlords. The bill simply restores the ability of tenants
and local governments to hold landlords responsible for
conduct that is already illegal."
The Public Counsel Law Center (PCLC), the nation's largest
public interest pro bono law office, supports this bill
because the low-income tenants that it serves are "often the
target of illegal eviction activity." PCLC contends that the
"expansion of the litigation privilege has increased
intimidation and displacement of marginalized populations
such as those we serve at Public Counsel." PCLC also
believes that AB 934 is consistent with state and federal
policies to prevent homelessness during this time of economic
recession, "because passage of this bill will help preserve
housing for those at highest risk of becoming homeless."
The Western Center on Law & Poverty (WCLP) and the California
Rural Legal Assistance Foundation (CRLA) support this bill
because it will "return balance to the litigation privilege, and
restore access to the courts for tenants challenging unlawful or
abusive litigation practices by their landlords." WCLP and CRLA
note that attorneys representing foreclosing banks and landlords
"use eviction notices or summons, sometimes without merit, as
'tools' to threaten, harass or force tenants to leave their
homes prematurely." They observe that tenants have little
ability to challenge these notices and must wait for a UD action
to be filed before asserting their defenses. AB 934, however,
"will allow tenants to affirmatively challenge bogus notices and
summons, allowing them to keep the fight out of eviction court,
where their credit and rental history can be harmed, even if
they win." If AB 934 is enacted "attorneys representing the
foreclosing banks and landlords will no longer be protected for
issuing bogus notice or summons. Because of the likelihood of
having to defend themselves for doing so, they will be more
likely to negotiate without litigation or even better, refrain
from using these unethical tactics."
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Finally, WCLP and CRLA add the following observation: "Opponents
will no doubt argue that the bill opens the door to all sorts of
friviolus litigation. We submit that that door is already wide
open -- frivolous claims are being used to get the tenants out.
ÝAB 934] not only imposes a reasonable balance, but it keeps
cases out of court by ensuring that both parties are on a level
playing field. Accordingly, landlords and tenants have more
incentive to 'work things out' before filing lawsuits."
Several other legal aid and tenant rights organizations, listed
below, support this bill for substantially the same reasons as
those stated above.
ARGUMENTS IN OPPOSITION : The Civil Justice Association of
California (CJAC) opposes this bill because it "will lead to
additional unjustified litigation by limiting the litigation
privilege, an important protection afforded parties in
lawsuits." CJAC believes that the court rulings in Action
Apartment and Park Lane were correctly decided, agreeing with
the court's statement in Action Apartment that there is no
communication "that is more clearly protected by the litigation
privilege than the filing of a legal action." CJAC contends
that where a landlord fraudulently or otherwise unlawfully
evicted a tenant . . . then he or she already may be sued for
malicious prosecution, fraud, or wrongful eviction." By
overturning Action Apartment and Park Lane, CJAC believes that
this bill will "create unjustified liability for legally
required communications in litigation related to real property,
such as eviction proceedings." This in turn will encourage
"unwarranted lawsuits against landlords and property owners
whenever trying to lawfully recover possession of property for
other tort clams." Finally, CJAC contends that this bill would
preclude the litigation privilege from applying to a broad array
of torts, including defamation, libel, and slander. ÝHowever,
it would appear that this final concern, as to defamation
actions, would be addressed by the amendment that the author
will take in Committee.]
The California Apartment Association (CAA) opposes this bill
because it "would remove from the protections of the litigation
privilege real property transactions regarding the regulation of
rents, termination of tenancy, and eviction actions." CAA
believes that AB 934 "goes against the core policy of protecting
litigants' access to the courts" and giving all litigants and
witnesses "the utmost freedom of access to the courts, without
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fear of being harassed by derivative lawsuits." CAA claims that
it would discourage all landlords, including those "motivated by
honest interests, from promptly serving notices to tenants who
violate their leases, disturb other tenants, damage the
property, or violate the law." CAA also points to several
provisions of existing law which it claims offer tenant's
adequate protection, such as fraud, unfair competition, wrongful
eviction, forcible detainer, and breach of covenant of quiet
enjoyment among others.
A joint letter by the California Association of Realtors,
Apartment Association of Greater Los Angeles, San Diego County
Apartment Association, and Santa Barbara Rental Property
Association summarizes their objections to this bill as follows:
The measure discriminates against rental property owners by
denying them the "litigation privilege" that is available to
virtually every other litigant.
The background for the measure, erroneously and with little or
no evidence, presumes owners routinely issue "?bogus eviction
notices, file meritless evictions and otherwise unlawfully
harass tenants".
The measure would allow local ordinances to subject a rental
property owner to criminal penalties, civil lawsuits or
injunctions merely for what is said in an eviction notice.
Such an environment is a certain incentive for owners of
residential rental properties to seek alternative uses for the
property in question.
Many cities require an owner to state a specific cause for
eviction. If it is for something other than non-payment of
rent, nuisance for example, an owner must not only state the
basis for the nuisance but also present oral or written
testimony of witnesses to support the claim. AB 934 will have
a significant chilling effect on bringing nuisance claims
which are virtually always done to preserve the quiet
enjoyment of other tenants.
Existing law provides ample opportunity for tenants to contest
an eviction. The litigation privilege in existing law does
not prevent, for example, tenant claims for malicious
prosecution; aggrieved tenants have judicial recourse.
Several property management companies and individual landlords,
listed below, oppose this bill for substantially the same
reasons as those listed above. Finally, several of the
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opposition letters highlight the possibility that AB 934 would
expose landlords and witnesses to defamation actions for
statements made in any evictions notices or preliminary
communications made in anticipation of filing a UD action.
However, the proposed amendment to be taken in this Committee
would appear to address that concern.
REGISTERED SUPPORT / OPPOSITION :
Support
Asian Law Caucus
Bet Tzedek Legal Services
California Rural Legal Assistance Foundation
Coalition for Economic Survival
Inner City Law Center of Los Angeles
Los City Attorney's Office
Los Angeles Center for Law and Justice
Myron Moskovitz, Professor of Law, Golden Gate University
National Housing Law Project
Public Counsel Law Center
San Francisco Tenants Union
Santa Monicans for Renters' Rights
Tenants Together
Tenderloin Housing Clinic
Western Center on Law & Poverty
Opposition
Alberts and Associates, Inc.
Apartment Association of Greater Los Angeles
Apartment Association of Orange County
Axis Realty Group
Bluffs II Apartments
California Apartment Association
California Association of Realtors
California Business Properties Association
California Southern Cities Apartment Association
Carly Court Apartments
Homes Management
MG Properties Group
Oak Manor Apartments
Palos Verdes Apartments, LLC
San Diego County Apartment Association
San Francisco Association of Realtors
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Santa Barbara Rental Property Association
Shasta Lane Apartment Homes
Torrey Pines Property Management, Inc.
Walters Home Management
Warwick Investments, L.P.
Western Manufactured Housing Communities Association
Five individual landlords
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334