BILL ANALYSIS Ó
AB 934
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ASSEMBLY THIRD READING
AB 934 (Feuer)
As Amended March 29, 2011
Majority vote
JUDICIARY 7-0
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|Ayes:|Feuer, Wagner, Dickinson, | | |
| |Huber, Huffman, Monning, | | |
| |Wieckowski | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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, notwithstanding the above provisions, 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.
4)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)
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160 Cal. App. 4th 1467.
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.
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.
FISCAL EFFECT : None
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
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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
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.
This bill 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. This bill, 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.
According to the tenant's rights groups, legal aid clinics, and
public officials who support this bill, the recent opinions
expanding the litigation privilege have already had a profound
and negative effect. These groups claim that the landlord's
ability to invoke the litigation privilege in the wake of these
opinions makes it very difficult for tenants and local officials
to hold landlords accountable for unlawful eviction. Supporters
point to several examples from around the state in which
landlords have issued allegedly unlawful eviction notices in
effort to force tenants into vacating, either to raise rents or
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push out tenants in recently foreclosed upon rental property.
In some of these cases, the landlords have invoked the
litigation privilege when challenged. In others, 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.
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."
The bill's opponents - various landlord and realtor associations
- claim that this bill will expose landlords to meritless
litigation, even when eviction notices and UD actions are fully
warranted. They also contend that the bill is unnecessary
because tenants already have other remedies, such as raising a
defense in the UD action or bringing a subsequent action for
malicious prosecution. The author and supporters respond that
these options are not viable for a variety of reasons. For
example, where a landlord only issues eviction notices, there is
no opportunity to raise a defense and no basis for a malicious
prosecution eviction, since the latter requires prevailing on
the merits in an underlying action. Even where a UD is filed,
the author and supporters maintain that this summary procedure
does not provide adequate time or an adequate forum for fleshing
out wrongful eviction allegations. In addition, many of the
other options cited by the opponents - such wrongful or
retaliatory eviction - were held to be subject to the litigation
privilege in the Park Lane decision.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0000140
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