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 








                                                                  AB 934
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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 








                                                                  AB 934
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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