sr-032211-13d13-D
March 22, 2011
Council Meeting: March 22, 2011 Santa Monica, California
CITY CLERK'S OFFICE -MEMORANDUM
To: City Council
From: Mayor Pro Tem Davis and Councilmember McKeown
Date: March 22, 2011
13-D: Request of Mayor pro tem Davis and Councilmember McKeown that the
Council authorize City of Santa Monica support for two housing-related
bills in the state legislature: AB934 (Feuer), amending California's litigation
privilege, Civil Code 47(b), to ensure that tenants have access to the courts
when subjected to illegal eviction activity; and AB265 (Ammiano),
extending California's three day pay-or-quit eviction law to fourteen days,
assisting in resident retention and housing stability.
13-D
March 22, 2011
AB 934 responds to recent court rulings that
effectively prevent tenants from bringing
meritorious claims against landlords who issue
bogus eviction notices, file meritless unlawful
detainers (IJD), or otherwise unlawfully harass
tenants into abandoning a tenancy. The recent
rulings construe the "litigation privilege" statute
(Civil Code Section 47) so broadly as to shield
even unlawful practices -under the guise of
laudably protecting the landlord's right to take legal
actions (including pre-litigation actions) without
fear that those actions will become the target of
subsequent litigation. The litigation privilege,
when used as originally intended, secures access to
the courts without fear of legal retaliation.
Unfortunately, the recent and unprecedented
judicial extension of the privilege into landlord-
tenant law runs contrary to the original purpose of
the privilege: it denies tenants access to the courts,
even when the tenant has a meritorious claim
against the unlawful actions of a landlord.
Action Apartment, Park Lane, and the
"Litigation Privilege": In the Action Apartment
case (2007), the California Supreme Court found
that a Santa Monica tenant anti- harassment
ordinance was pre-empted by the state lifigation
privilege statute because it permitted a tenant to
bring an action against a landlord who had issued
eviction notices or filed a UD. Such actions, the
court held, were protected from derivative suits by
the litigation privilege. Even though the Santa
Monica ordinance only applied if the landlord had
no factual or legal basis to believe that an eviction
was warranted, the Court still held that the
landlord's efforts were protected by the litigation
privilege -- regardless of the IandZord's motive.
The Court held that the UD action and the eviction
notices (if issued in anticipation of a UD action)
were "judicial proceedings" within the meaning of
the statute and therefore protected. In Park Lane
(2007), a California Court of Appeal made it clear
that the litigation privilege did not merely preempt
a local ordinance; rather, it could be used to shield
a landlord from other wrongful evictions and
related tort actions based on common law or state
statute. In addition, Park Lane permitted a landlord
to bring ananti-SLAPP motion against the tenant
and thereby recover attorney fees from the tenant.
The Troubling Implications of Action Apartment
and Park Lane: As long as landlords cloak
harassment and illegal conduct in eviction
notices, they are largely immune from suit. As
a result, city attorneys, legal aid groups, and
tenant rights groups report that they have not
pursued many meritorious cases because, in the
wake of Action Apartment and Park Lane, they
are simply too risky. The problem is especially.
acute in post-foreclosure properties. Some
banks and private investors that acquire renter-
occupiedproperties -but who do not wish to
be landlords -have issued eviction notices that
violate federal and state law. Many tenants
choose to vacate upon notice rather than face
the risky and uncertain prospect of taking legal
action or even waiting to defend if, and when, a
UD action is filed. In rent control jurisdictions,
a landlord may repeatedly issue bogus eviction
notices in hopes that the tenant will vacate so
that rents can be raised under "vacancy
decontrol" rules.
Restoring Tenant Legal Protection and the
Original Intent of the Litigation Privilege: As is
obvious from the placement of the litigation
privilege statute, its original intent was to protect
litigants from the prospects of facing de amation
suits on the basis of writings or statements made in
ajudicial proceeding. In subsequent years, the
courts extended the privilege to other common law
torts. Not until Action Apartment did the court
extend the privilege far beyond defamation and tort
actions to include tenant actions based on tenant
protections embodied in local ordinances and state
statutes. As the California Supreme Court noted in
Silberg v. Anderson (1990), 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.)
However, as Justice Corrigan noted in her Action
Apartment dissent, the litigation privilege has never
before been applied where the judicial proceedings
themselves constitute the wrongful and illegal act.
By cutting off the tenant's right of action when a
landlord abuses eviction notices and UD filings -
even with malicious intent -the Action
Apartment and Park Lane rulings are contrary to
the original purpose the litigation privilege, because
to the courts." (Id.)
What this bill does: AB 934 will preserve tenant
rights and restore the original intent of the litigation
privilege by adding an express exemption for
eviction notices and LID 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 applyYhe 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. AB 934, therefore, is 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 invalidate the holdings of Action
Apartment and Park Lane as to the scope of the
litigation privilege.
Contact: Thomas Clark, Assembly Judiciary,
Committee/ 319-2334/ Thomas.Clark(a~asm.ca.gov
CALIFORNIA LEGISLATURE-2011-12 REGULAR SESSION
ASSEMBLY BILL No. 934
Introduced by Assembly Member Feuer
February 18, 2011
An act to amend Section 47 of the Civil Code, relating to privileged
communlcahons.
LEGISLATIVE COUNSEL'S DIGEST
AB 934, as introduced, Feuer. Privileged communications.
Existing law 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. Existing law 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, except as specified.
This bill would identify specified communications that are not made
privileged under those provisions, including communications authorized,
or made unlawful, by certain provisions of state law relating to real
property transactions, or by local ordinances regarding the regulation
of rents, termination of tenancy, eviction, or harassment of residential
tenants, or discrimination against residential tenants.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 47 of the Civil Code is amended to read:
2 47. A privileged publication or broadcast is one made:
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AB 934
-2-
1 (a) In the proper discharge of an official duty.
2 (b) In any (1) legislative proceeding, (2) judicial proceeding,
3 (3) in any other official proceeding authorized by law, or (4) in
4 the initiation or course of any other proceeding authorized by law
5 and reviewable pursuant to Chapter 2 (commencing with Section
6 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except
7 as follows:
8 (1) An allegation or averment contained in any pleading or
9 affidavit filed in an action for marital dissolution or legal separation
10 made of or concerning a person by or against whom no affirmative
11 relief is prayed in the action shall not be a privileged publication
12 or broadcast as to the person making the allegation or averment
13 within the meaning of this section unless the pleading is verified
14 or affidavit sworn to, and is made without malice, by one having
15 reasonable and probable cause for believing the truth of the
16 allegation or averment and unless the allegation or averment is
17 material and relevant to the issues in the action.
18 (2) This subdivision does not make privileged any
19 communication made in furtherance of an act of intentional
20 destruction or alteration of physical evidence undertaken for the
21 purpose of depriving a party to litigation ofthe use ofthat evidence,
22 whether or not the content of the communication is the subject of
23 a subsequent publication or broadcast which is privileged pursuant
24 to this section. As used in this paragraph, "physical evidence"
25 means evidence specified in Section 250 of the Evidence Code or
26 evidence that is property of any type specified in Chapter 14
27 (commencing with Section 2031.010) of Title 4 of Part 4 of the
28 Code of Civil Procedure.
29 (3) This subdivision .does not make privileged .any
30 communication made in a judicial proceeding knowingly
31 concealing the existence of an insurance policy or policies.
32 (4) A recorded lis pendens is not a privileged publication unless
33 it identifies an action previously filed with a court of competent
34 jurisdiction which affects the title or right of possession of real
35 property, as authorized or required by law.
36 (5) This subdivision does not make privileged any
37 communication made pursuant to or authorized by Section 827,
38 1946, 1946.1,1946.5, or 1951:3 of this code, or by Sections 1161,
39 1161 a, and 1161 b of the Code of Civil Procedure.
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(6) This subdivision does not make privileged any
communication made unlawful by any provzsion of Part 2
(commencing with Section 43) ofDivision 1 orTitle 5 (commencing
with Section 1925) of Part 4 ofDivision 3 of this code, or Chapter
4 (commencing with Section 1159) of Title 3 ofPart 3 of the Code
of Civil Procedure, or Part 2.8 (commencing with Section 12900)
of Division 3 of DtZe 2 of the Government Cade, or by a local
ordinance regarding the regulation ofrents, termination of tenancy,
eviction, or harassment of residential tenants, or discrimination
of tenancy, eviction, or harassment of residential tenants, or
discrimination against residential tenants.
(c) In a communication, without malice, to a person interested
therein, (1) by one who is also interested, or (2) by one who stands
in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be
innocent, or (3) who is requested by the person interested to give
the information. This subdivision applies to and includes a
communication conceming the job performance or qualifications
of an applicant for employment, based upon credible evidence,
made without malice, by a current or former employer of the
applicant to, and upon request of, one whom the employer
reasonably believes is a prospective employer of the applicant.
This subdivision authorizes a current or former employer, or the
employer's agent, to answer whether or not the employer would
rehire a current or former employee. This subdivision shall not
apply to a communication conceming the speech or activities of
an applicant for employment if the speech or activities are
constitutionally protected, or otherwise protected by Section 527.3
of the. Code of Civil Procedure or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a
public journal, of (A) a judicial, (B) legislative, or (C) other public
official proceeding, or (D) of anything said in the course thereof,
or (E) of a verified charge or complaint made by any person to a
public official, upon which complaint a warrant has been issued.
(2) Nothing in paragraph (1) .shall make privileged any
communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional
Conduct.
(B) Breaches a court order.
(C) Violates any requirement of confidentiality imposed by law.
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AB 934 -4-
1 (e) By a fair and true report. of (1) the proceedings of a public
2 meeting, if the meeting was lawfully convened for a lawful purpose
3 and open to the public, or (2) the publication of the matter
4 complained of was for the public benefit.
5 (fl In enacting paragraphs (5) and (6) of subdivision (b), it is
6 the intent of the Legislature to invalidate the holdings in Action
7 Apartment Assn v Santa Monica Rent Control Bd. (2007) 41
8 Cal.4th 1232 and Feldman v 1100 Park Lane Associates (2008)
9 I60 Cal.App.4th 1467.
O
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March 12, 2 011
The Honorable Mike Feuer, Chair
Assembly Judiciary Committee
1020 N Street, Room 104
Sacramento, CA 95814
Fax. # 916.319.2188
Re: Support of AB 934 & Request for Amendment
Dear Chair Feuer
We are writing on behalf of Santa Monicans for Renters' Rights (SMRR) fo express our support for AB
934, a bill to amend the litigation privilege, Civil Code 47(b), to ensure that tenants have access to the
courts when subjected to illegal eviction activity. This is a matter of fundamental fairness for tenants
whose rights have been violated. We appreciate your leadership in authoring this important piece of
legislation, but we are requesting a small amendment (see the last paragraph).
SMRR has been working to balance the rights of landlords and tenants in Santa Monica since 1978.
We've pushed for good cause evictions, rent control and protections from harassment. We operate a
tenant help line and have heard from many tenants who have been harassed and intimidated with
successive unfounded notices. Some have felt they had to leave their homes to avoid the harassment.
Prior to Action Apartments v. Santa Monica Rent Control Board (2007) 41 Cal. 4`h 1232, landlords who
illegally evicted tenants could be held accountable by tenants and by government authorities. The
Action Apartments decision and its progeny have changed this by extending the state's litigation
privilege to cover the service of eviction notices and filing of unlawful detainer actions. Relying on
Action Apartments, lower courts have further extended the privilege in the landlord-tenant context. In
so doing, the courts have undermined state and local laws that seek to protect tenants from illegal,
retaliatory and/or discriminatory evictions and related misconduct.
To make matters worse, the expanded litigation privilege when combined with California's Anti-SLAPP
statute chills the exercise of tenants' rights. Tenants who sue over illegal evictions risk not only that
their case will be thrown out under Action Apartments, but also that they will be required to pay the
landlords attorneys' fees as a penalty for bringing the suit.
For decades, tenants have had the right to sue over eviction activity that violates state and local law.
Similarly, local governments have been free to file suit to enforce tenant protections against improper
evictions. The Courts unwarranted expansion of the litigation privilege undermines these basic tenant
protections, shutting the courthouse doors to tenants and emboldening unscrupulous landlords to
engage in abusive conduct.
We strongly support AB 934. Currently the bill applies to "local ordinances." We believe it would
improve the bill to have it apply to all such local laws, thereby including Charter Amendments.
Very truly yours,
Patricia Hoffman and Richard Tahvildaran Jesswein, Co-Chairs
March ~ 2011
The Honorable Mike Feuer, Chair
Assembly Judiciary Committee
1020 N Street, Room 104
Sacramento, CA 95814
Fax: 916.319.2188
Re: Support of AB 934 (Feuer)
Dear Chair Feuer:
I am writing on behalf of to express our support for AB 934, a bill to amend
California's litigation privilege, Civil Code 47(b), to ensure that tenants have access to the courts when
subjected to illegal eviction activity. This is a matter of fundamental fairness for tenants whose rights
have been violated. We appreciate your leadership in authoring this important piece of legislation.
[DESCRIBE YOUR ORGANIZATION, WHOM YOU SERVE, & WHY BILL IS IMPORTANT TO YOUR ORG]
Prior to Action Apartments v. City of Santa Monica (2007) 41 Cal. 4`" 1232, landlords who illegally evicted
tenants could be held accountable by tenants and by government authorities. The Action Apartments
decision and its progeny have changed this by extending the state's litigation privilege to cover the
service of eviction notices and filing of unlawful detainer actions. Relying on Action Apor,~ments, lower
courts have further extended the privilege in the landlord-tenant context. In so doing, the courts have
undermined state and local laws that seek to protect tenants from illegal, retaliatory and/or
discriminatory evictions and related misconduct.
To make matters worse, the expanded litigation privilege when combined with California's Anti-SLAPP
statute, C.C.P. 425.16, chills the exercise of tenants' rights. Tenants who sue over illegal evictions risk
not only that their case will be thrown out under Action Apartments, but also that they will be required
to pay the landlords attorneys' fees as a penalty for bringing the suit.
For decades, tenants have had the right to sue over eviction activity that violates state and local law.
Similarly, local governments have been free to file suit to enforce tenant protections against improper
evictions. The unwarranted judicial expansion of the litigation privilege undermines these basic tenant
protections, shutting the courthouse doors to tenants and emboldening unscrupulous landlords to
engage in abusive conduct.
AB 934 does not create any new obligations for landlords. The bill simply restores the ability of tenants
and local government to hold landlords responsible for conduct that is already illegal.
We strongly support AB 934. Thank you for introducing this important bill
Very truly yours,
.SmATb,
S ,
o~' .'~ AB265-
v~~a arya~
IN BRIEF
Providing tenants in Califomia with a realistic timeframe
to pay their rent to avoid eviction wIll allow families to
remain in their homes and will bring California up to par
with tenants' rights in other states.
THE ISSUE
Tn California, tenants have a three day period in which to
pay their rent or vacate. If the tenant fails to pay or move
the landlord can start the court process for eviction after
the expiration of this three day period. Landlords have
no obligation to accept rent offered after the three day
period so even tenants who are willing and able to pay
their rent can be kicked out of their homes.
THE SOLUTION
AB 265 would extend the current timeframe tenants
have [o pay their rent to avoid eviction from three to 14
days.
BACKGROUND
California has the second highest rents in the nation and
in today's economy layoffs, pay cuts, or unexpected
health care costs can leave tenants scrambling to come
up with rent money. This unfairly harsh statutory three
day period does not provide tenants enough time to
reach out to friends, families, and/or community
organizations to uffiize any available resources. Families
who are unable to scrape together rent must move in
these three days or face an eviction lawsuit. Many
tenants cannot realistically move in three days and are
therefore forced to litigate the eviction, rather than
having a reasonable amount of time to focus on either
coming up with the rent money or finding alternative
housing.
The draconian nature of California's tenant pay or quit
law is aptly shown by comparisons to other states' laws
in this area:
• Tenants in the District of Columbia get a 30 day
notice to pay or quit
Tenants in Tennessee, Vermont and
Massachusetts get a 14 day notice to pay or quit
• Tenants in Kansas, Indiana, and North Carolina
get a 10 day notice to pay or quit
• Tenants in Mississippi have a "right of
redemption" which allows a tenant to pay
overdue rent and stop eviction even after an
eviction lawsuit is filed
In California today, tenants who are late on rent are
punished disproportionately compared with
homeowners. For example, homeowners who default on
mortgages are provided over six months in which to pay
the amount due and prevent foreclosure. Yet, tenants
who are just four days late on rent can be thrown out of
theirhomes, even if they've lived there for decades.
SUPPORT
Tenants Together, Sponsor
FOR MORE INFORMATION
Misa Yokoi-Shelton, Office of Assemblymember Tom
Ammiano
(916) 319-2013 misa yokoi-Shelton@asm.ca.eov
Dean Preston, Tenants Together
(415) 495-8100 dean@tenantstoeether.ore
Updated 02/24/2011
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The Honorable Mike Feuer, Chair
Assembly Judiciary Committee
1020 N Street, Room 104.
Sacramento, CA 95814
Fax. # 916.319.2188
Re: Support of AB 265 (Ammiario)
Dear Chair Feuer:
Serving the Needs of
All Santa Monica Residents
Since 1979
I am writing on behalf of Santa Monicans for Renters' Rights to express our support for AB 265
(Ammiano), a bill to extend California's three day notice to pay or quit.
Santa Monicans for Renters' Rights is a grassroots organization formed to pass the Santa Monica
Rent Control Law in 1979. We provide a Hotline to provide information and support to Santa Monica
tenants. Our hotline has received hundreds of calls over the years where an extra 10 days would
have kept vulnerable seniors, disabled people, and families from eviction, ruined credit, and
homelessness.
In California, tenants have a mere three days in which to pay their rent or vacate. Once the three day
notice has expired, the tenant has no right to pay to stay in her home, even if she can come up with
all the rent on Day 4. This is an unnecessarily punitive statute and is out of step with tenant
protections in other states across the country.
As a practical matter, tenants cannot move in three days. They are forced to litigate eviction cases
rather than having a reasonable amount of time to focus on either coming up with the rent money or
finding alternative housing.
With the second highest rents in the nation, California's tenants are struggling. In today's economy,
layoffs, pay cuts, or unexpected health care costs can leave tenants scrambling to come up with rent
money. In the event that rent money is not available when due, the statutory three day period does
not provide tenants enough time to reach out to friends, families, and/or community organizations
to utilize any available resources to pay the rent.
AB 265 would extend the timeframe tenants have to pay their rent to avoid eviction from 3 to 14
days: We support this bill without reservation.
Verytrultyyouurs,
/ zt-.t-'G".~rC~f ,'3.ZZ-,
Patricia Hoffman
Co-Chair, Santa Monicans for Renters' Rights
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Richard Tahvildaran-Jesswein, Ph.D.
Co-Chair, Santa Monicans for Renters' Rights
1511 Ashland Avenue/Santa Monica, CA 90405/Roger Thornton, Treasurer