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SR-092507-7A~~r City of Santa Monica To: Mayor and City Council City Council Report City Council Meeting: September 25, 2007 Agenda Item: ~ - From: Marsha Jones Moutrie, City Attorney Subject: Ordinance Modifying Municipal Code Relating to Tenant Harassment Recommended Action Staff recommends that the City Council introduce for first reading the attached proposed ordinance amending the tenant harassment ordinance to conform to the recent decision of the California Supreme Court. Executive Summary The attached, proposed ordinance would amend the City's tenant harassment law, S.M.M.C. §4.56.020(1)(1), by requiring that a tenant first prevail in an unlawful detainer action before a landlord could be liable for bringing a wrongful action to recover possession of the rental housing unit. Adoption of the proposed ordinance will have no impact on the General Fund. The City Attorney's Office expenditures in this area are expected to remain the same. Discussion Santa Monica Municipal Code Section 4.56.020(1)(1) currently prohibits owners of rent- controlled residential housing units from taking action to recover possession of a unit 1 "based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord." The California Supreme Court recently reviewed this prohibition and held that it is preempted by Civil Code Section 47(b), establishing the litigation privilege. (Action Apartment Assn. v. City of Santa Monica, Case No. S129448.) The Court had previously established that the litigation privilege does not protect wrongful litigation when three prerequisites are met: favorable termination of the prior action, lack of probable cause, and malice. The latter two conditions are already required under the ordinance. The ordinance only failed to mesh with state law because favorable termination of the unlawful detainer was not required to establish a violation. Amending the ordinance to require favorable termination for the tenant would rectify the problem and conform the ordinance to the Supreme Court's decisions. This section is an important one for the City. It provides a needed check on frivolous and malicious eviction actions at a time when landlords have a strong financial incentive to remove tenants who pay controlled rents. The proposed amendment will afford maximum protection to tenants consistent with the court's decision. As noted by Myron Moskovitz, the state's leading commentator on landlord-tenant law, the effectiveness of the amended provision may depend on private attorneys' willingness to defend tenants. His commentary is attached. It explains that the Supreme Court decision is, in effect, a 2 victory for tenants because it preserves their right to sue landlords who commit harassment. Alternatives The Council could consider other possible means to address tenant harassment and impacts of the Supreme Court's decision. Budget/Financial Impact Adoption of the proposed ordinance would have no direct financial impact. Prepared by: Marsha Jones Moutrie, City Attorney \\Csmfst\City Attorvey\MUnicipalLaw\COnsumerPmtedion\Tenant harassmentUction\TH SR 09250].doc 3 Approved: Forwarded to Council: MunicipalLaw\ConsumerProtection\Tenant harassment\Action\TH ord 092507.doc City Council Meeting 9-25-07 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTION 4.56.020(1)(1) RELATING TO TENANT HARASSMENT WHEREAS, the California Supreme Court recently held that Municipal Code Section 4.56.020(1)(1) is partly invalid due to preemption by Civil Code Section 47(b), also known as the litigation privilege (Action Apartment Assn. v. City of Santa Monica, Case No. S129448); and WHEREAS, in prior decisions, the court has held that the litigation privilege does not protect wrongful litigation when three prerequisites are met: favorable termination of the prior action, lack of probable cause, and malice; and WHEREAS, Section 4.56.020(1)(1) requires lack of probable cause and malice, but does not require favorable termination for the tenant of the prior action; WHEREAS, the court in the Action decision specifically noted the lack of a favorable termination requirement in holding that portion of section 4.56.020(1)(1) invalid; 1 WHEREAS, the full protections of section 4.56.020(1)(1) are critical to help protect against malicious and groundless eviction actions by landlords against tenant in controlled rental units; and WHEREAS, the City has a strong interest in preserving stability in the local housing market and in preserving affordable rental housing units, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Santa Monica Municipal Code Section 4.56.020 is hereby amended to read as follows: Section 4.56.020. Prohibition. No landlord shall, with respect to property used as a rental housing unit under any rental housing agreement or other tenancy or estate at will, however created, do any of the following with malice: (a) Interrupt, terminate or fail to provide housing services required by contractor by State, County or local housing, health or safety laws; (b) Fail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws; 2 (c) Fail to exercise due diligence in completing repairs and maintenance once undertaken; (d) Abuse the landlord's right of access into a rental housing unit as that right is specified in California Civil Code Section 1954; (e) Abuse the tenant with words which are offensive and inherently likely to provoke an immediate violent reaction; (f) Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; (g) Threaten the tenant, by word or gesture, with physical harm; (h) Violate any law which prohibits discrimination based on race, gender, sexual preference, sexual orientation, ethnic background, nationality, religion, age, parenthood, marriage, pregnancy, disability, AIDS or occupancy by a minor child; (i) (1) Take action to terminate any tenancy including service of any notice to quit or other eviction notice or bring any action to recover possession of a rental housing 3 unit based upon facts which the landlord has no reasonable cause to believe to be true or upon a legal theory which is untenable under the facts known to the landlord. No landlord shall be liable under this subsection (i)(1) for bringing an action to recover possession unless and until the tenant has obtained a favorable termination of that action. (2) This subsection shall not apply to any attorney who in good faith initiates legal proceedings against a tenant on behalf of a landlord to recover possession of a rental housing unit; (j) Interfere with a tenants right to quiet use and enjoyment of a rental housing unit as that right is defined by California law; (k) Refuse to acknowledge receipt of a tenant's lawful rent payment; (I) Interfere with a tenant's right to privacy. SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. 4 SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: MA SHA J ES MOU RIE City Attorne 5