Appeals Court Grants Rehearing in Harassment Law Case

By Jorge Casuso

June 25 – The City could get another crack at defending a provision of its tenent harassment ordinance struck down by an Appeals Court last month after the court decided Thursday to grant a rehearing.

The Second Appellate Court’s decision gives the prevailing plaintiffs, the Action Apartment Association, the oppourtunity to file an opposition to the City’s petition for a rehearing.

The decision, however, does not guarantee that the court will open up testimony or alter its ruling, which bars the City or tenants from suing landlords they believe maliciously served an eviction notice or lawsuit.

“The Court of Appeals decision made sense, and I doubt very much they will change their mind,” said Rosario Perry, the attorney representing Action in the case.

In its ruling May 25, the court found 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.

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.

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

In its defense, 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.

If the Appeals Court sticks to its decision, the City can ask the California Supreme Court for a hearing, but it would be up to the court whether to take up the case.