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
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"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
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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
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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;
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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;
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(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
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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.
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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
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