Appeals Court Strikes Down Anti-Harassment Provision

By Jorge Casuso

May 26 -- An Appeals Court on Tuesday struck down a provision in Santa Monica’s tenant harassment ordinance that allowed the City or tenants to sue landlords they believe maliciously served an eviction notice or lawsuit.

The Second Appellate Court ruled that the challenged portions of the ordinance adopted by the City Council in 1995 “prohibit, and punish, what the litigation privilege protects” and is “contradictory” to state law, which preempts the local ordinance.

Rosario Perry, who represented the Action Apartment Association in the class action suit, called the published ruling “big,” noting that it covers all written communication dealing with potential litigation.

“The court found that the City or tenant cannot judge the motives or intent of a landlord who serves a notice or complaint,” Perry said. “The City was sending out letters like water threatening criminal and civil prosecution to landlords sending three day notices or warning letters.”

City officials have not decided whether to appeal the decision.

“We’re obviously disappointed,” said Deputy City Attorney Adam Radinsky, who heads the Consumer Protection Division. “The City will be reviewing its options and will decide where to go from here.”

A “handful” of civil suits filed by the City against landlords charged with violating the provision have gone to trial, Radinsky said. In most, if not all of the cases, landlords also allegedly violated other portions of the ordinance, he said.

In overruling a lower court decision, the appeals court found that the provision violates a landlord’s fundamental right to resort to the courts without fearing legal action on behalf of the tenants.

“Under the litigation privilege, a landlord serving an eviction notice or filing an unlawful detainer is immune from suit based on those notices or filings, and cannot be enjoined from that conduct, even if the motivation is malicious, the factual allegations known to be untrue, and the legal theory untenable under the true facts,” the court wrote in its ruling.

“Under the ordinance, that same landlord, with the same lawsuit, is subject to criminal penalties, a civil lawsuit, and an injunction,” the court wrote. “The ordinance thus punishes what the Civil Code protects, is contradictory to state law, and is preempted.”

The City argued that the ordinance does not conflict with a landlord’s litigation privilege because it addresses acts, not communications, and because malicious prosecution is an exemption to the privilege.

“We find neither argument convincing,” the court wrote. “An unlawful detainer complaint is a landlord’s communication to the court that a tenant has failed to pay rent or has violated another portion of the rental agreement, and as such is privileged.

“We note, too, that a landlord’s need for access to the courts is an unusually vital one, in that the landlord’s business relationship with his customers, the tenants, is highly regulated by law,” the court wrote.

Tenant activists warned that Tuesday’s ruling could embolden landlords to file malicious eviction notices, which might cause the tenant to move out or put the tenant’s credit at risk.

“I think this will cause some increase in phony baloney lawsuits,” said Michael Tarbet, a tenant organizer for Santa Monicans for Renters’ Rights (SMRR). “Tenants have to be very aware this will happen and call a lawyer or SMRR or the Rent Control Board whenever they’re at risk.”

Tenants who are served an eviction notice that may be malicious might have other recourses, Radinsky said.

“We still encourage any tenant who believes they have received a malicious and false three-day notice or eviction case to let us know about it,” he said. “There are other consumer protection laws that may apply depending on their situation.”

Perry noted that the tenant harassment ordinance already prohibits a variety of malicious acts, including verbal abuse, physical threats and interfering with a tenant’s right to quiet use and enjoyment of a unit.

“The tenants are amply protected with the other provisions of the ordinance, which were never attacked,” said Perry, who may seek attorney’s fees from the City.

If anything, Perry said, the ruling will lead to clearer understanding between landlords and tenants.

“It will force landlords to put it in writing, which is nice,” Perry said. “It’s clear and there is no misunderstanding.”