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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: 99 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. 99 - 3 - AB 934 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 (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. 99 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 99 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 SAI~'PA MONICA~S Fop ~ pa! Fi 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 jr r # 1 f F '~ r Sq t ?d~ff~ Y r d ~ L . r' Richard Tahvildaran-Jesswein, Ph.D. Co-Chair, Santa Monicans for Renters' Rights 1511 Ashland Avenue/Santa Monica, CA 90405/Roger Thornton, Treasurer