Stanford Law School - Robert Crown Law Library

Filed 8/2/07

IN THE SUPREME COURT OF CALIFORNIA

ACTION APARTMENT ASSOCIATION, )
INC., et al.,
Plaintiffs
and
Appellants,
S129448
v.
Ct.App. 2/5 B165082
CITY OF SANTA MONICA,
Los Angeles County
Defendant and Respondent.
Super. Ct. No. SC274023

In this case, we determine whether and to what extent the litigation
privilege of Civil Code section 47, subdivision (b), conflicts with and thus
preempts a section of the City of Santa Monica’s “Tenant Harassment” ordinance.
In relevant part, the ordinance authorizes civil and criminal penalties against a
landlord who maliciously serves a notice of eviction or brings any action to
recover possession of a rental unit without a reasonable factual or legal basis. The
Court of Appeal held that the litigation privilege conflicts with and thus preempts
the entirety of this section of the City of Santa Monica’s Tenant Harassment
ordinance. We conclude, however, that while the litigation privilege preempts
entirely the second provision of this section regarding filing an action to recover
possession of a rental unit, it preempts only partially the first provision regarding
serving a notice of eviction.
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I. THE CITY’S TENANT HARASSMENT ORDINANCE
In 1979, the City of Santa Monica (City) adopted a rent control charter
amendment, which established a rent control board to regulate rentals “so that
rents will not be increased unreasonably and so that landlords will receive no more
than a fair return.” (Santa Monica City Charter, art. XVIII, § 1800.) Pursuant to
this charter amendment, the rent control board adopted regulations that established
a maximum percentage by which rental rates could increase each year. (Kavanau
v. Santa Monica Rent Control Bd. (1993) 19 Cal.App.4th 730, 732.)
In August 1995, California enacted the Costa-Hawkins Rental Housing Act
(Costa-Hawkins), which established “what is known among landlord-tenant
specialists as ‘vacancy decontrol,’ declaring that ‘[n]otwithstanding any other
provision of law,’ all residential landlords may, except in specified situations,
‘establish the initial rental rate for a dwelling or unit.’ (Civ. Code, § 1954.53,
subd. (a).)” (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 41.) The effect of this
provision was to permit landlords “to impose whatever rent they choose at the
commencement of a tenancy.” (Cobb v. San Francisco Residential Rent
Stabilization and Arbitration Bd. (2002) 98 Cal.App.4th 345, 351.) The
Legislature was well aware, however, that such vacancy decontrol gave landlords
an incentive to evict tenants that were paying rents below market rates. (Bullard v.
San Francisco Residential Rent Stabilization Bd. (2003) 106 Cal.App.4th 488, 492
(Bullard).) Accordingly, the statute expressly preserves the authority of local
governments “to regulate or monitor the grounds for eviction.” (Civ. Code,
§ 1954.53, subd. (e).)
A month later, in October 1995, the City enacted its Tenant Harassment
ordinance. (Santa Monica Mun. Code, § 4.56.) When the Santa Monica City
Council amended the ordinance in 1996, residents testified “that instances of
tenant harassment [had] been increasing in the City since the passage of [Costa-
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Hawkins]—the statewide vacancy decontrol measure.” (Santa Monica Ord. No.
1859ccs, § 1, subd. (a).) In addition, “[s]tatistical information supplied by the
Rent Control Board staff show[ed] that since the passage of [Costa-Hawkins],
controlled rental units [were] being vacated at substantially higher rates.” (Santa
Monica Ord. No. 1859ccs, § 1, subd. (b).)
The City’s Tenant Harassment ordinance prohibits a variety of malicious
acts by landlords directed at tenants in rental housing units, including prohibiting a
landlord from, for example, abusing a tenant with offensive words, threatening a
tenant with physical harm, or interfering with a tenant’s right to quiet use and
enjoyment of a rental housing unit. (Santa Monica Mun. Code, § 4.56.020.)1 At

1
Section 4.56.020 of the Santa Monica Municipal Code provides:
“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
contract or 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;
“(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;

(footnote continued on next page)
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issue in the instant case is Santa Monica Municipal Code section 4.56.020,
subdivision (i)(1) (hereafter section 4.56.020(i)(1)), which prohibits a landlord
from maliciously serving a notice of eviction or bringing any action to recover
possession of a rental unit without a reasonable factual or legal basis.
The
ordinance
provides
for both criminal and civil penalties. Any person
convicted of violating the ordinance is guilty of a misdemeanor and may be fined
in an amount not exceeding one thousand dollars, imprisoned for not more than six
months, or both. (Santa Monica Mun. Code, § 4.56.040, subd. (a).) A civil
enforcement action may be brought under the ordinance by “[a]ny person,
including the City.” (Id., subd. (b).) Civil penalties may include the greater of
statutory damages in the amount of $1,000 or actual damages, attorney fees and
costs, and punitive damages. (Id., subd. (d).) The ordinance also provides that a
court may enjoin “[a]ny person who commits an act, proposes to commit an act, or
engages in any pattern and practice which violates Section 4.56.020.” (Id., subd.
(c).)

(footnote continued from previous page)

“(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 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, [¶] (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 tenant[’]s 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;
“(l) Interfere with a tenant’s right to privacy.”
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II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
In October 2002, plaintiffs Action Apartment Association, Inc., and Doreen
Dennis, an owner and manager of multiunit apartment buildings in Santa Monica,
filed an amended class action complaint against the City, challenging section
4.56.020(i)(1), which, as noted above, provides: “No landlord shall . . . do any of
the following with malice: [¶] . . . [¶] (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 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.”
Plaintiffs alleged that the City had “engaged in a custom and practice of
threatening housing provider class members with criminal and civil prosecution
. . . for simply talking to their tenants, and/or serving their tenants or having their
attorneys serve their tenants with a Notice to Cure or Quit or Notice to Terminate
Tenancy; and/or filing an unlawful detainer complaint or having their attorneys
file an unlawful detainer complaint against their tenants.” They further alleged
that the City had threatened Dennis with criminal and civil prosecution for
“speaking to her tenant,” and for directing her attorney to serve her tenant with a
notice to quit and to file an unlawful detainer lawsuit for the purpose of allowing
the owner to retake possession of the rental unit. Plaintiffs contended that section
4.56.020(i)(1) abridges a landlord’s rights to free speech, to petition the
government for redress of grievances, and to due process under the federal
Constitution; violates a landlord’s civil rights under title 42 United States Code
section 1983; and is preempted by Code of Civil Procedure section 128.7 and the
litigation privilege of Civil Code section 47, subdivision (b). With respect to their
claim that the litigation privilege preempts section 4.56.020(i)(1), plaintiffs sought
a writ of mandate directing the City to “vacate and annul section 4.56.020(i)(1)” as
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preempted by the litigation privilege. The City demurred as to each cause of
action, contending that plaintiffs lacked standing and failed to state a cause of
action. The trial court sustained the demurrer without leave to amend and entered
judgment for the City.
The Court of Appeal reversed. Without reaching any of plaintiffs’
alternative claims, it held that the entirety of section 4.56.020(i)(1) is preempted
because it conflicts with the litigation privilege.2 It reasoned that “under the
litigation privilege, a landlord serving an eviction notice or filing an unlawful
detainer is immune from suit based on those notices or filings, and cannot be
enjoined from that conduct, even if the motivation is malicious, the factual
allegations known to be untrue, and the legal theory untenable under the true facts.
Under the ordinance, that same landlord, with that same lawsuit, is subject to
criminal penalties, a civil lawsuit, and an injunction. The ordinance thus punishes
what the Civil Code protects, is contradictory to state law, and is preempted.”
The Court of Appeal concluded that the litigation privilege would bar every

2
The Court of Appeal did not reach the issue of standing, noting that the
City’s demurrer did not challenge plaintiffs’ standing to raise the argument that the
ordinance is preempted by state law. It appears from the record, however, that the
City may have challenged plaintiffs’ standing with respect to all causes of action.
Because neither party has raised the issue of standing in this court, we do not reach
it. Under article VI, section 12, subdivision (b) (article VI, section 12(b)), of the
California Constitution, this court has jurisdiction to “review the decision of a
court of appeal in any cause.” We granted review in this case to address the sole
issue considered by the Court of Appeal, whether the litigation privilege conflicts
with and thus preempts section 4.56.020(i)(1). We may review this issue without
first reaching the issue of standing. (See also Dix v. Superior Court (1991) 53
Cal.3d 442, 454, fn. 8 [“Nothing in article VI, section 12(b) suggests that, having
rejected the Court of Appeal’s conclusion on the preliminary issue of standing, we
are foreclosed from ‘review[ing]’ the second subject addressed and resolved in its
decision.”].)
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application of section 4.56.020(i)(1). It concluded also that the litigation privilege
bars criminal prosecutions brought to enforce section 4.56.020(i)(1), reasoning
that “the fact that the Legislature may create exemptions to a statutory privilege
does not mean that the City may also do so.” Additionally, the Court of Appeal
directed the trial court to enter a judgment declaring that “Santa Monica Municipal
Code section 4.56.020, subdivision (i) is preempted by state law.”
We granted the City’s petition for review to determine whether and to what
extent section 4.56.020(i)(1) conflicts with and is preempted by the litigation
privilege. The Court of Appeal’s decision that the litigation preempts section
4.56.020(i)(1) was correct only in part. The litigation privilege preempts entirely
the second provision of section 4.56.020(i)(1), but preempts only partially the first
provision of this section.
III. DISCUSSION
The litigation privilege, codified at Civil Code section 47, subdivision (b),
provides that a “publication or broadcast” made as part of a “judicial proceeding”
is privileged. This privilege is absolute in nature, applying “to all publications,
irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d 205,
216 (Silberg).) “The usual formulation is that the privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the litigation;
and (4) that have some connection or logical relation to the action.” (Id. at p. 212.)
The privilege “is not limited to statements made during a trial or other
proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1057 (Rusheen).)
“The principal purpose of [the litigation privilege] is to afford litigants and
witnesses [citation] the utmost freedom of access to the courts without fear of
being harassed subsequently by derivative tort actions. [Citations.]” (Silberg,
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supra, 50 Cal.3d at p. 213.) In order to achieve this purpose of curtailing
derivative lawsuits, we have given the litigation privilege a broad interpretation.
The litigation privilege “derives from common law principles establishing a
defense to the tort of defamation.” (Oren Royal Oaks Venture v. Greenberg,
Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1163.) “Its placement in
the Civil Code immediately following the statutory provisions defining the
elements of the twin defamation torts of libel and slander [citations] makes clear
that, at least historically, the section was primarily designed to limit an
individual’s potential liability for defamation.” (Ibid.) Beginning with Albertson
v. Raboff, which involved an action for defamation of title, we first extended the
litigation privilege to apply to torts other than defamation. (Albertson v. Raboff
(1956) 46 Cal.2d 375 (Albertson).) As we observed in Silberg, the litigation
privilege has since “been held to immunize defendants from tort liability based on
theories of abuse of process [citations], intentional infliction of emotional distress
[citations], intentional inducement of breach of contract [citations], intentional
interference with prospective economic advantage [citation], negligent
misrepresentation [citation], invasion of privacy [citation], negligence [citation]
and fraud [citations].” (Silberg, supra, 50 Cal.3d at p. 215.)
The litigation privilege, however, is not without limit. For example, in
Albertson, we did not extend the privilege to actions for malicious prosecution,
explaining that “[t]he policy of encouraging free access to the courts that underlies
the absolute privilege applicable in defamation actions is outweighed by the policy
of affording redress for individual wrongs when the requirements of favorable
termination, lack of probable cause, and malice are satisfied.” (Albertson, supra,
46 Cal.2d at p. 382.)
We review the Court of Appeal’s determination that the litigation privilege
preempts the entirety of section 4.56.020(i)(1). “ ‘If otherwise valid local
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legislation conflicts with state law, it is preempted by such law and is void.’ ”
(Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-
Williams), quoting Candid Enterprises, Inc. v. Grossmont Union High School
Dist. (1985) 39 Cal.3d 878, 885 (Candid Enterprises, Inc.).) “[A]bsent a clear
indication of preemptive intent from the Legislature,” we presume that local
regulation “in an area over which [the local government] traditionally has
exercised control” is not preempted by state law. (Big Creek Lumber Co. v.
County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.) “The party claiming that
general state law preempts a local ordinance has the burden of demonstrating
preemption.” (Ibid.)
State preemption of local legislation is established by article XI, section 7
of the California Constitution, which provides that “[a] county or city may make
and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws.” In Sherwin-Williams, this court
identified three types of conflict that cause preemption: “ ‘A conflict exists if the
local legislation “ ‘duplicates, contradicts, or enters an area fully occupied by
general law, either expressly or by legislative implication.’ ” ’ ” (Sherwin-
Williams, supra, 4 Cal.4th at pp. 897-898, quoting Candid Enterprises, Inc., supra,
39 Cal.3d at p. 885.) Local legislation “is ‘contradictory’ to general law when it is
inimical thereto.” (Sherwin-Williams, at p. 898; Ex parte Daniels (1920) 183 Cal.
636, 641-648 [a city ordinance that set a lower maximum speed than the maximum
speed permitted by state law was preempted].) A local ordinance is preempted by
a state statute only to the extent that the two conflict. (Cohen v. Board of
Supervisors (1985) 40 Cal.3d 277, 304 (Cohen); see also Peatros v. Bank of Am.
(2000) 22 Cal.4th 147, 173, fn. 6 (Peatros).)
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Plaintiffs argue that the litigation privilege is inimical to and thus preempts
(1) the provision of section 4.56.020(i)(1) authorizing a suit based on a defendant
bringing “an action to recover possession of a rental housing unit based upon facts
which the landlord had no reasonable cause to believe to be true or upon a legal
theory which is untenable under the facts known to the landlord” and (2) the
provision of this section authorizing a suit based on “serving any notice to quit or
other eviction notice” without a reasonable factual or legal basis.
A.
An Action to Recover Possession of a Rental Unit

Plaintiffs allege that the City has threatened action against Dennis pursuant
to section 4.56.020(i)(1) based on her direction to her attorney to file an unlawful
detainer lawsuit for the purpose of allowing her to retake possession of a rental
unit. This alleged threatened action would arise under the second provision of
section 4.56.020(i)(1), which provides: “No landlord shall . . . do any of the
following with malice: [¶] . . . [¶] (i)(1) Take action to terminate any tenancy
including . . . bring any action to recover possession of a rental housing 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.”
(Italics added.) When considering whether this provision of section 4.56.020(i)(1)
is preempted, we ask whether it conflicts with the litigation privilege. (Sherwin-
Williams, supra, 4 Cal.4th at pp. 897-898.)
This provision of section 4.56.020(i)(1) is inimical to the important
purposes of the litigation privilege. First among these is “afford[ing] litigants and
witnesses [citation] the utmost freedom of access to the courts without fear of
being harassed subsequently by derivative tort actions. [Citations.]” (Silberg,
supra, 50 Cal.3d at p. 213.) Whether actions pursuant to this provision of section
4.56.020(i)(1) are brought by the City, a third party, or a tenant, such actions
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alleging that a landlord had improperly filed an action to recover possession of
rental housing would severely restrict landlords’ freedom of access to the courts.
We recognize that the City enacted its Tenant Harassment ordinance for the
legitimate government purpose of protecting the City’s residents from abuse by
landlords. As described above, the City was motivated by then recently enacted
Costa-Hawkins, which provided an incentive for landlords improperly to cause
tenants to vacate rental units, and evidence that, after the passage of Costa-
Hawkins, instances of tenant harassment increased and rent-controlled units were
vacated at higher rates. (Santa Monica Ord. No. 1859ccs, § 1, subds. (a) and (b).)
However, that the City was motivated by a legitimate government purpose does
not justify its enforcement of a law that discourages all landlords, including those
motivated by honest intentions, from initiating unlawful detainer actions. The
City’s enforcement of the provision of section 4.56.020(i)(1) that creates a civil
and criminal cause of action based on the act of initiating litigation would cut
against the litigation privilege’s “core policy” of protecting access to the courts.
(Rubin v. Green (1993) 4 Cal.4th 1187, 1198 (Rubin).) Knowing that the City or
any other person could bring an action under section 4.56.020(i)(1), even against a
landlord who prevailed in an unlawful detainer action, would have a chilling effect
on landlords pursuing evictions through the courts.
This and other courts have emphasized the importance of the litigation
privilege’s absolute protection of access to the courts, while recognizing that this
absolute protection has its costs. “ ‘[It] is desirable to create an absolute privilege
. . . not because we desire to protect the shady practitioner, but because we do not
want the honest one to have to be concerned with [subsequent derivative] actions
. . . .’ ” (Silberg, supra, 50 Cal.3d at p. 214, quoting Thornton v. Rhoden (1966)
245 Cal.App.2d 80, 99.) “ ‘[W]hen there is a good faith intention to bring a suit,
even malicious publications “are protected as part of the price paid for affording
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litigants the utmost freedom of access to the courts.” ’ ” (Mattco Forge, Inc. v.
Arthur Young & Co. (1992) 5 Cal.App.4th 392, 405.) Additionally, “in
immunizing participants from liability for torts arising from communications made
during judicial proceedings, the law places upon litigants the burden of exposing
during trial the bias of witnesses and the falsity of evidence, thereby enhancing the
finality of judgments and avoiding an unending roundelay of litigation, an evil far
worse than an occasional unfair result.” (Silberg, supra, 50 Cal.3d at p. 214.)
In arguing that section 4.56.020(i)(1) is not preempted by the litigation
privilege, the City first would have us evaluate section 4.56.020(i)(1) as if it had
been enacted by the Legislature, noting that landlord-tenant relations is an area of
the law in which the Legislature expressly allows local governments to act. The
City is correct only insofar as it observes that this and other courts have held that
state law allows municipal governments the authority to enact and enforce
particular local laws governing landlord-tenant relations, including those related to
evictions and rent control. (See, e.g., Santa Monica Beach, Ltd. v. Superior Court
(1999) 19 Cal.4th 952; Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 707-708;
Birkenfeld v. Berkeley (1976) 17 Cal.3d 129, 148-149; Bullard, supra, 106
Cal.App.4th 488.) That state legislation allows local governments to adopt laws
regulating evictions, however, does not give those local laws the force of state law.
The Legislature also has included savings clauses in rental housing
legislation, preserving the authority of local governments to regulate in this area.
These clauses are not intended to give local ordinances additional force or to
expand the authority of local governments, but instead are intended only to
preserve their existing authority. Costa-Hawkins provides that “[n]othing in this
section shall be construed to affect any authority of a public entity that may
otherwise exist to regulate or monitor the grounds for eviction.” (Civ. Code,
§ 1954.53, subd. (e), italics added.) This section “is a strong statement that the
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state law establishing vacancy decontrol is not meant to affect the authority of
local governments to monitor and regulate the grounds for eviction, in order to
prevent pretextual evictions.” (Bullard, supra, 106 Cal.App.4th at p. 492, italics
added.) Legislation enacted in 2003 that prohibits a landlord from engaging in
specified conduct in order to encourage a tenant to vacate a dwelling includes a
similar savings clause. (Civ. Code, § 1940.2, subd. (d).) However, we see nothing
in these narrowly focused savings clauses that is designed to give local
governments the new and additional authority to adopt ordinances limiting state
laws of general application, including the litigation privilege.
Second, the City contends that the privilege does not apply to criminal
prosecutions, whether brought pursuant to state statute or local ordinance. We
disagree. The City correctly notes that on more than one occasion we have treated
it as obvious that the litigation privilege does not bar certain government actions,
including criminal prosecutions and regulatory actions brought pursuant to state
statutes. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361
(Hagberg); Rubin, supra, 4 Cal.4th at p. 1198; Silberg, supra, 50 Cal.3d at
pp. 218-219.) However, these exceptions to the privilege have all involved suits
brought under state laws, each of which makes clear that the Legislature did not
intend its enforcement to be barred by the litigation privilege. Local governments
do not have the same authority to create exceptions to the litigation privilege.
We have observed that the litigation privilege does not apply to the
following crimes: perjury (Pen. Code, § 118 et seq.); subornation of perjury (id.,
§ 127); criminal prosecution under Business and Professions Code section 6128;
false report of a criminal offense (Pen. Code, § 148.5); and “attorney solicitation
through the use of ‘runners’ or ‘cappers’ ” (Rubin, supra, 4 Cal.4th at p. 1098,
quoting Bus. & Prof. Code, §§ 6152-6153). (Silberg, supra, 50 Cal.3d at pp. 218-
219; Hagberg, supra, 32 Cal.4th at p. 361.) State Bar discipline of attorneys who
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engage in solicitation and enforcement of the antisolicitation statute is also
excepted from the litigation privilege. (Rubin, supra, 4 Cal.4th at p. 1198.) Our
recognition that prosecutions of these crimes and specified State Bar actions are
not barred by the litigation privilege does not reflect that an exception for criminal
prosecutions is inherent in the litigation privilege itself. Instead, our recognition
of these exceptions to the litigation privilege has been guided by the “rule of
statutory construction that particular provisions will prevail over general
provisions.” (In re James M. (1973) 9 Cal.3d 517, 522; Code Civ. Proc., § 1859.)
Each of the above mentioned statutes is more specific than the litigation
privilege and would be significantly or wholly inoperable if its enforcement were
barred when in conflict with the privilege. The crimes of perjury3 and subornation
of perjury4 would be almost without meaning if statements made during the course
of litigation were protected from prosecution for perjury by the litigation privilege.
The misdemeanors established by Business and Professions Code section 6128
evince a legislative intent that certain attorney conduct not be protected from
prosecution by the litigation privilege: “Every attorney is guilty of a misdemeanor

3
“Every person who, having taken an oath that he or she will testify, declare,
depose, or certify truly before any competent tribunal, officer, or person, in any of
the cases in which the oath may by law of the State of California be administered,
willfully and contrary to the oath, states as true any material matter which he or
she knows to be false, and every person who testifies, declares, deposes, or
certifies under penalty of perjury in any of the cases in which the testimony,
declarations, depositions, or certification is permitted by law of the State of
California under penalty of perjury and willfully states as true any material matter
which he or she knows to be false, is guilty of perjury.” (Pen. Code, § 118,
subd. (a).)
4
“Every person who willfully procures another person to commit perjury is
guilty of subornation of perjury, and is punishable in the same manner as he would
be if personally guilty of the perjury so procured.” (Pen. Code, § 127.)
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who either: [¶] (a) Is guilty of any deceit or collusion, or consents to any deceit or
collusion, with intent to deceive the court or any party. [¶] (b) Willfully delays
his client’s suit with a view to his own gain. [¶] (c) Willfully receives any money
or allowance for or on account of any money which he has not laid out or become
answerable for.” Although tort liability may not be imposed when a person
contacts law enforcement to report suspected criminal activity, the Legislature has
provided that a person may be prosecuted for a misdemeanor for reporting to a
peace officer, deputy attorney general, district attorney, or other specified official
“that a felony or misdemeanor has been committed, knowing the report to be
false.” (Pen. Code, § 148.5, subd. (a); Hagberg, supra, 32 Cal.4th at p. 361.)
Similarly, while attorney solicitation may not be the basis for tort liability, the
Legislature has specified that certain attorney solicitation in or near prisons,
hospitals, courts and other designated locations is a crime. (Bus. & Prof. Code,
§§ 6152- 6153; Rubin, supra, 4 Cal.4th at p. 1198.) As we observed in Rubin, the
Legislature has also charged the State Bar with disciplining attorneys who engage
in solicitation and enforcement of the antisolicitation statute. (Rubin, supra, 4
Cal.4th at p. 1198.)
In all of the above examples, we found exceptions to the litigation privilege
based on irreconcilable conflicts between the privilege and other co-equal state
laws. Fundamental to the doctrine of preemption is the distinction between state
and local laws: local governments lack the authority to craft their own exceptions
to general state laws. (Cal. Const., art. XI, § 7.)
Third, the City suggests that any claims brought by parties not involved in
the underlying litigation, including government entities, are not barred by the
privilege. The City relies on Rubin, supra, 4 Cal.4th 1187, in which we held that
claims brought by a co-owner of a mobilehome park against a park resident and
her attorney for soliciting other residents as clients in anticipated litigation against
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the co-owner regarding park conditions were barred by the litigation privilege,
including a claim for injunctive relief under the unfair competition law (Bus. &
Prof. Code, § 17200, et seq.). (Rubin, supra, 4 Cal.4th at pp. 1198, 1204.) We
stated in dictum “that the policy underlying the unfair competition statute can be
vindicated by multiple parties other than plaintiff,” including the Attorney
General, district attorneys, certain city attorneys, and “members of the public who,
unlike plaintiff, are not adversaries in collateral litigation involving the same
attorneys.” (Id. at p. 1204.) This dictum does not support the City’s argument that
parties not involved in the underlying litigation are not barred by the litigation
privilege from bringing actions pursuant to section 4.56.020(i)(1). In Rubin, we
considered the application of the litigation privilege to actions brought pursuant to
the unfair competition law, a state statute, whereas here we consider its application
to actions brought pursuant to a local ordinance. As stated above, local
governments may not create their own exceptions to the litigation privilege.
While the Legislature remains free to create exceptions to the litigation
privilege, for parties to the underlying litigation and others, we decline to
recognize a broad exception to the litigation privilege for any party who did not
participate in the underlying litigation. An exception to the litigation privilege for
all suits brought by parties who were not involved in the underlying litigation
would be antithetical to the privilege’s purposes. The litigation privilege “has
been referred to as ‘the backbone to an effective and smoothly operating judicial
system.’ ” (Silberg, supra, 50 Cal.3d at pp. 214-215, quoting McClatchy
Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 970.) It
“promotes the effectiveness of judicial proceedings by encouraging ‘open
channels of communication and the presentation of evidence’ in judicial
proceedings.” (Silberg, supra, 50 Cal.3d at p. 213.) We have observed that an
“ ‘external threat of liability is destructive of [the] fundamental right [of access to
16

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judicial and quasi-judicial proceedings] and inconsistent with the effective
administration of justice.’ ” (Ibid.) The litigation privilege is meant to protect
more than the parties to a lawsuit from derivative suits that they might later bring
against each other. Derivative litigation brought by parties who did not participate
in the underlying litigation, like litigation brought by parties who did participate,
would pose an external threat of liability that would deter potential litigants,
witnesses, and others from participating in judicial proceedings.
Fourth, the City contends that the litigation privilege does not apply to an
action brought under the ordinance because eviction notices and actions are
noncommunicative conduct. A threshold issue in determining if the litigation
privilege applies is whether the alleged injury arises from a communicative act or
noncommunicative conduct. (Kimmel v. Goland (1990) 51 Cal.3d 202, 211.)
“The distinction between communicative and noncommunicative conduct hinges
on the gravamen of the action. [Citations.] That is, the key in determining
whether the privilege applies is whether the injury allegedly resulted from an act
that was communicative in its essential nature. [Citations.] The following acts
have been deemed communicative and thus protected by the litigation privilege:
attorney prelitigation solicitations of potential clients and subsequent filing of
pleadings in the litigation [citation], and testimonial use of the contents of illegally
overheard conversation [citation]. The following acts have been deemed
noncommunicative and thus unprivileged: prelitigation illegal recording of
confidential telephone conversations [citation]; eavesdropping on a telephone
conversation [citation]; and physician’s negligent examination of patient causing
physical injury [citation].” (Rusheen, supra, 37 Cal.4th at p. 1058, italics added.)
17

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The City argues that the gravamen of initiating an eviction action is
improperly terminating a tenancy because such initiations, without more,
frequently cause tenants to terminate their tenancies. It argues that a landlord who
violates section 4.56.020(i)(1) engages in a “course of conduct designed to wrest a
tenant from his or her home without complying with legal requirements.” We
have drawn “a careful distinction between a cause of action based squarely on a
privileged communication, such as an action for defamation, and one based upon
an underlying course of conduct evidenced by the communication.” (White v.
Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.) “As a general rule, the
privilege ‘ “applies only to communicative acts and does not privilege tortious
courses of conduct.” ’ ” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 830,
quoting LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 345.) For example, in
LiMandri, the Court of Appeal held that the litigation privilege did not bar
plaintiff’s “cause of action for intentional interference with contractual relations
because it [was] based upon an alleged tortious course of conduct,” including the
preparation and execution of documents creating a security interest in a portion of
settlement proceeds and the “refusal to concede the superiority of [plaintiff’s]
contractual lien.” (LiMandri, supra, 52 Cal.App.4th at p. 345.)
The gravamen of the City’s alleged action arising under the provision of
section 4.56.020(i)(1) that prohibits a landlord from bringing an action to recover
possession of a rental unit, is not a course of conduct. An action brought pursuant
to this provision of the ordinance is necessarily based on the filing of a legal
action, which by its very nature is a communicative act. The filing of a legal
action is not “an independent, noncommunicative, wrongful act.” (Rusheen,
supra, 37 Cal.4th at p. 1065.) We contemplate no communication that is more
clearly protected by the litigation privilege than the filing of a legal action.
18

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Finally, the City suggests that “in cases brought under [section
4.56.020(i)(1)] where the tenant has already prevailed in a groundless and
malicious unlawful detainer lawsuit, the three conditions required to bring a
malicious prosecution action are satisfied” and thus the litigation privilege does
not apply. As noted above, we have recognized an exception to the litigation
privilege for the tort of malicious prosecution because “the requirements of
favorable termination, lack of probable cause, and malice are satisfied.”
(Albertson, supra, 46 Cal.2d at p. 382.) However, section 4.56.020(i)(1) does not
require that all three of the conditions of malicious prosecution be met. Favorable
termination is not an element of a cause of action under section 4.56.020(i)(1), and
we need not address whether a similar ordinance that included this element would
be excepted from the litigation privilege. A tenant who has successfully defended
against an eviction action may, of course, bring an action for malicious
prosecution.
For the foregoing reasons, we conclude that the litigation privilege conflicts
with and, thus, preempts the provision of section 4.56.020(i)(1) authorizing a suit
based on a defendant bringing “an action to recover possession of a rental housing
unit based upon facts which the landlord had no reasonable cause to believe to be
true or upon a legal theory which is untenable under the facts known to the
landlord.”5

5
In dissent, Justice Corrigan agrees with our conclusion “that the policies
underlying the privilege tend to support its application in this context.” (Dis. opn.
of Corrigan, J., post, at p. 2.) She disagrees, however, with our conclusion that the
litigation privilege preempts this provision of the City’s Tenant Harassment
ordinance. She suggests that the Legislature did not enact the litigation privilege
“to invalidate any particular causes of action.” (Id., at pp. 2-3.) On this point, the
dissent misconstrues both the role of declaratory relief and the nature of
preemption.

(footnote continued on next page)
19

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B.
Notice of Eviction in Order to Recover Possession of a Rental Unit
Plaintiffs also allege that the City has threatened action against Dennis
pursuant to section 4.56.020(i)(1) for directing her attorney to serve her tenant
with a notice to quit for the purpose of allowing the owner to retake possession of
the rental unit. This alleged threatened action is authorized by the first provision
of section 4.56.020(i)(1), which provides: “No landlord shall . . . do any of the
following with malice: [¶] . . . [¶] (i)(1) Take action to terminate any tenancy
including service of any notice to quit or other eviction notice . . . 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.” (Italics added.)
When considering whether this provision of section 4.56.020(i)(1) also is
preempted, we ask whether it, too, conflicts with the litigation privilege.
(Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898.)

(footnote continued from previous page)

In this case, plaintiffs did not wait until the City brought an action under the
relevant provisions of the Tenant Harassment ordinance to raise the defense of the
litigation privilege, but instead sought prospective relief declaring that the
litigation privilege would be a successful defense to such an action. It is well
established that parties may seek declaratory relief with respect to the
interpretation and application of local ordinances. (See, e.g., Walker v. County of
Los Angeles (1961) 55 Cal.2d 626, 637 [“The interpretation of ordinances and
statutes are proper matters for declaratory relief.”]; California Water & Tel. Co. v.
County of Los Angeles (1967) 253 Cal.App.2d 16, 24 [“A person need not violate
or plan to violate a penal ordinance before he can obtain a declaration construing it
and deciding its application to him.”].) It is also well established that preemption,
like other affirmative defenses, may be raised in a complaint seeking declaratory
or other prospective relief. (Malish v. City of San Diego (2000) 84 Cal.App.4th
725; Morales v. Trans World Airlines, Inc. (1992) 504 U.S. 374.) Thus, we do not
convert the litigation privilege from a “shield” into a “sword,” as Justice Corrigan
contends, but instead clarify when the use of the litigation privilege as a “shield” is
effective. (Dis. opn. of Corrigan, J., post, at p. 1.)
20

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This provision of section 4.56.020(i)(1) conflicts only in part with the
litigation privilege. The privilege applies only to a “publication or broadcast”
made as part of a “judicial proceeding.” (Civ. Code, § 47, subd. (b).) A notice of
eviction is a communication regarding prospective litigation, and, as such, it is not
necessarily part of a judicial proceeding. (See, e.g., Edwards v. Centex Real
Estate Corp. (1997) 53 Cal.App.4th 15, 30 (Edwards).) As described below,
courts have developed a test for determining when a communication regarding
prospective litigation is subject to the litigation privilege. Because this test
involves a question of fact, it is impossible to conclude, as the Court of Appeal
did, that every action brought pursuant to the notice provision necessarily would
be barred by the litigation privilege.
To be protected by the litigation privilege, a communication must be “in
furtherance of the objects of the litigation.” (Silberg, supra, 50 Cal.3d at p. 219.)
This is “part of the requirement that the communication be connected with, or
have some logical relation to, the action, i.e., that it not be extraneous to the
action.” (Id. at pp. 219-220.) A prelitigation communication is privileged only
when it relates to litigation that is contemplated in good faith and under serious
consideration. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th
1359, 1381 (Eisenberg); Edwards, supra, 53 Cal.App.4th at p. 36; Laffer v.
Levinson (1995) 34 Cal.App.4th 117, 124 (Laffer); Fuhrman v. California Satellite
Systems (1986) 179 Cal.App.3d 408, 421 (Fuhrman), disapproved on other
grounds in Silberg, supra, 50 Cal.3d at p. 219; Rest.2d Torts, § 586, com. e,
p. 248.)
The policy supporting the litigation privilege is furthered only if litigation
is seriously considered: “It is important to distinguish between the lack of a good
faith intention to bring a suit and publications which are made without a good faith
belief in their truth, i.e., malicious publications. The latter, when made in good
21

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faith anticipation of litigation, are protected as part of the price paid for affording
litigants the utmost freedom of access to the courts. This policy consideration is
not advanced, however, when the person publishing an injurious falsehood is not
seriously considering litigation. In such a case, the publication has no ‘connection
or logical relation’ to an action and is not made ‘to achieve the objects’ of any
litigation [citation]. No public policy supports extending a privilege to persons
who attempt to profit from hollow threats of litigation.” (Fuhrman, supra, 179
Cal.App.3d at p. 422, fn. 5; accord, Edwards, supra, 53 Cal.App.4th at p. 36;
Laffer, supra, 34 Cal.App.4th at p. 124.)
Whether a prelitigation communication relates to litigation that is
contemplated in good faith and under serious consideration is an issue of fact. For
example, in Eisenberg, the Court of Appeal held that the trial court erred in
granting summary judgment on the basis of the litigation privilege because “[i]t
remain[ed] a triable issue of fact whether . . . imminent litigation was seriously
proposed and actually contemplated in good faith as a means of resolving the
dispute between [the parties].” (Eisenberg, supra, 74 Cal.App.4th at p. 1381; see
also Edwards, supra, 53 Cal.App.4th at p. 35 fn. 10; Fuhrman, supra, 179
Cal.App.3d at p. 422.) Because a factual inquiry is required in order to determine
whether a particular eviction notice is privileged, it is impossible to conclude that
the litigation privilege would bar every action arising under the provision of
section 4.56.020(i)(1) authorizing suits based on unfounded notices of eviction.
Here, plaintiffs’ complaint offers very little description of the City’s threatened
action or the notice of eviction that Dennis allegedly served on her tenant.
Because a factual inquiry is required in order to determine whether a
particular eviction notice is privileged, the Court of Appeal erred in its holding
that this provision of section 4.56.020(i)(1) is entirely preempted by the litigation
privilege. This provision is preempted only to the extent that it actually conflicts
22

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with the litigation privilege. (Cohen, supra, 40 Cal.3d at p. 304; Peatros, supra,
22 Cal.4th at p.173, fn. 6.) That is, this provision of section 4.56.020(i)(1)
conflicts with, and is preempted by, the litigation privilege to the extent it
prohibits, criminalizes, and establishes civil penalties for eviction notices where
litigation is contemplated in good faith and under serious consideration.6
Accordingly, we reverse the Court of Appeal’s judgment to the extent that it
directs the superior court to enter a judgment declaring that section 4.56.020(i)(1)
is preempted by the litigation privilege.

6
In dissent, Justice Corrigan suggests that our opinion is inconsistent in that
we hold that the provision of section 4.56.020(i)(1) authorizing suits based on
unfounded notices of eviction is only partially preempted, based on the particular
factual circumstances, but hold that the provision of section 4.56.020(i)(1) based
on a defendant bringing an eviction action is entirely preempted, regardless of
whether the elements of malicious prosecution have been met. This argument
overlooks the distinction between factual and legal questions. The analysis
required to determine whether the litigation privilege applies to a prelitigation
communication involves a question of fact. In contrast, the question whether an
action under the provision of section 4.56.020(i)(1) based on an eviction action
contains the same elements as a malicious prosecution action, and is therefore
exempt from the litigation privilege, is a question of law requiring a categorical
determination. As explained above, the fact that an eviction action was terminated
in the tenant’s favor does not alter that determination. This additional fact does
not transform an action under the provision of section 4.56.020(i)(1) based on a
defendant bringing an eviction action into one that is “analogous” to malicious
prosecution (dis. opn. of Corrigan, J., post, at p. 4, fn. 2), such that we could
recognize a categorical exception to the litigation privilege as a matter of law,
because the ordinance does not require all of the elements of a malicious
prosecution action.
23

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IV. DISPOSITION
We affirm the judgment of the Court of Appeal to the extent that it reverses
the superior court’s order sustaining the demurrer without leave to amend and
reverses the resulting judgment of dismissal, but reverse the Court of Appeal’s
judgment to the extent that it directs the superior court to enter a judgment
declaring that section 4.56.020(i)(1) is preempted by the litigation privilege. We
remand the matter to the Court of Appeal for further proceedings consistent with
the views expressed in this opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
CHIN,
J.
24

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DISSENTING OPINION BY CORRIGAN, J.
I respectfully dissent from the opinion of my colleagues. There is no
conflict between the litigation privilege and the City of Santa Monica’s “Tenant
Harassment” ordinance. Had the city attempted to create some version of a
privilege at odds with Civil Code section 47, subdivision (b), that law would have
been preempted. But the ordinance before us does not interfere with the operation
of the litigation privilege. It is not “inimical” to the privilege in the relevant sense;
it “does not prohibit what the statute commands or command what it prohibits.”
(Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 902.)
Landlords are free to raise the litigation privilege in actions brought under the
ordinance, and in such cases the scope of the defense could properly be explored
and established. The majority, however, wields the defense not as the shield it
was intended to be but as a sword against the legislative authority of local
government. Doing so, it distorts both the doctrine of preemption and the
privilege itself.
The majority states the rule we recently reaffirmed in Big Creek Lumber
Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139: “[A]bsent a clear indication
of preemptive intent from the Legislature,” we presume that local regulation “in an
area over which [the local government] traditionally has exercised control” is not
preempted by state law. (Id. at p. 1149; maj. opn., ante, at p. 9.) However, the
majority does not follow this rule. By no stretch of logic or language can it be said
that when the Legislature enacted the litigation privilege, it intended to invalidate
1

---

local regulations penalizing landlords for bad faith conduct in legal disputes with
their tenants. (Compare Cacho v. Boudreau (2007) 40 Cal.4th 341, 349-355.)
As the majority explains, the privilege was enacted as a limitation on
defamation liability, and has been expanded by judicial decision to apply to a wide
range of tort actions other than malicious prosecution. (Maj. opn., ante, at p. 8.)
Now, the majority further extends the privilege to apply to causes of action
brought under Santa Monica’s Tenant Harassment ordinance. I would be
sympathetic to such an extension were the privilege raised as a defense in an
appropriate case. I agree with the majority that the policies underlying the
privilege tend to support its application in this context. However, the privilege
merely provides immunity from liability. It does not operate to abolish the
underlying cause of action; it simply limits the availability of the remedy in
particular circumstances. (See, e.g., Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1063 [“the litigation privilege . . . narrows the scope of the tort of abuse of process
in the judgment enforcement context”].)
Thus, there are two separate reasons why it cannot logically be said that the
litigation privilege was intended by the Legislature to preempt local legislation.
First, the privilege was enacted as a defense to defamation claims, and while its
scope has been enlarged by the courts, it has thus far not been applied beyond the
tort liability context. The Legislature’s failure to limit the reach of Civil Code
section 47, subdivision (b) may be taken as an indication that it approves a broad
application of the privilege in tort cases (see Hagberg v. California Federal Bank
(2004) 32 Cal.4th 350, 369), but no such implication may be indulged, as yet, with
regard to causes of action arising under local ordinances.
Second, the Legislature plainly intended to provide immunity for
communications made in connection with judicial proceedings, not to invalidate
any particular causes of action. The majority cites no case in which a statute
2

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providing a defense has been held to preempt an ordinance providing a remedy.
There is no reason for such a holding; the defense may simply be raised in an
enforcement action and given its appropriate application, without violating the
presumption favoring the validity of the ordinance against an attack of state
preemption. (See Big Creek Lumber Co. v. County of Santa Cruz, supra, 38
Cal.4th at p. 1149; for a discussion of the analogous federal preemption doctrine,
see Viva! International Voice for Animals v. Adidas Promotional Retail
Operations (July 23, 2007, S140064) __ Cal.4th __ [pp. 4-5, 7.)1
The majority opinion is not only inconsistent with the principles of
preemption and privilege; it is also internally inconsistent. Insofar as the
ordinance applies to actions to recover possession, the majority holds it is flatly
preempted. In response to the city’s argument that the privilege would not apply
to actions that meet the requirements for a malicious prosecution claim, the
majority notes that (1) the ordinance is not limited to the circumstances in which a
malicious prosecution action would lie, and (2) the tenant is free to bring a
malicious prosecution action if the requisite elements are satisfied. (Maj. opn.,
ante, at p. 19.) However, insofar as the ordinance applies to eviction notices, the
majority takes a different tack. Because the courts have limited the scope of the
litigation privilege in tort actions arising from prelitigation communications, the
majority reasons that the privilege is similarly limited in actions brought under the
ordinance, resulting in only partial preemption.

1 The majority responds that declaratory relief may be sought to test the
interpretation of local ordinances, and that preemption is itself a defense that may
be raised in such a proceeding. (Maj. opn., ante, at pp. 19-20, fn. 5.) I have no
quarrel with these observations. I note only that the majority refers to no instance
in which a statutory defense has been applied preemptively to an entire category of
actions.
3

---

If the policy considerations supporting the maintenance of some tort claims
based on prelitigation communications are sufficient to permit some claims under
the ordinance to go forward, would not the policy considerations supporting the
maintenance of malicious prosecution actions also justify permitting claims under
the ordinance by tenants who can establish the elements of malicious prosecution?
Or conversely, would not all claims based on prelitigation notices be preempted,
because (1) the ordinance is not limited to circumstances in which the privilege
would not apply, and (2) tenants are free to bring tort actions (for instance, abuse
of process or infliction of emotional distress) if a landlord’s eviction notices are
not privileged?2

2 The majority suggests that privilege in the prelitigation communications
context presents questions of fact, whereas privilege in the context of actions to
recover possession presents only a legal question. (Maj. opn., ante, at p. 23, fn. 5.)
However, the majority does not squarely answer the legal question raised by the
city regarding actions to recover possession. As noted by the majority, this court
has declared that “[t]he policy of encouraging free access to the courts that
underlies the absolute privilege applicable in defamation actions is outweighed by
the policy of affording redress for individual wrongs when the requirements of
favorable termination, lack of probable cause, and malice are satisfied.”
(Albertson v. Raboff (1956) 46 Cal.2d 375, 382; maj. opn., ante, at p. 8; see also,
e.g., Rubin v. Green (1993) 4 Cal.4th 1187, 1203.) The city contends that when a
tenant successfully defends an action to recover possession, these elements are
satisfied because malice on the part of the landlord and lack of probable cause are
necessary conditions for a suit under the ordinance. (For the relevant terms of the
ordinance, see maj. opn., ante, at pp. 3-4, fn. 1.)

This is certainly a colorable argument; it deserves considerably more
analysis than is provided by the majority. I would prefer that we leave the
question for a case in which a plaintiff actually brings such a claim. If the city’s
position were accepted, each case would of course turn on its own facts. My
point here is only that the majority does not consider whether the justification for
an exception to the privilege in malicious prosecution actions would support an
exception for analogous actions under the ordinance, while it accepts without
question the policy justifications developed in tort cases arising from prelitigation
communications.
4

---

If this inconsistency were reconciled in favor of preserving some causes of
action under the ordinance, there would in a sense be little practical difference
between my position and the majority’s. The availability of a defense to an action
brought under the ordinance would be litigated on a case-by-case basis, either as a
matter of privilege or as a matter of preemption. However, I would still dissent. It
is a bad idea for courts to loosely employ preemption doctrine to explore whether
a local ordinance is “inimical” to state law. (See Viva! International Voice for
Animals v. Adidas Promotional Retail Operations, supra, __ Cal.4th at p. __ [p.
9].) The constitutional prerogative of local lawmakers is entitled to more respect
than that. (Cal. Const., art. XI, § 7.)
I would not hold the drafters of ordinances to the standard of framing their
provisions to avoid conflict with any conceivable defense available under state
law. To take only the examples nearest at hand, Civil Code section 47,
subdivision (b) provides a privilege for publications made in official proceedings,
in addition to the litigation privilege. Civil Code section 47, subdivision (a)
provides a privilege for statements made “[i]n the proper discharge of an official
duty.” Under the court’s decision today, these provisions stand as limitations on
the scope of local legislative power, rather than as the sources of individual
privilege they were meant to be.
CORRIGAN,
J.
I
CONCUR
WERDEGAR,
J.

5

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Action Apartment Association v. City of Santa Monica
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 123 Cal.App.4th 47
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S129448
Date Filed: August 2, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Ray L. Hart
__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Rosario Perry, Rosario Perry, Robert J. Franklin and Dionne Marucchi for Plaintiffs and
Appellants.
Heidi Palutke for California Apartment Association as Amicus Curiae on behalf of Plaintiffs and
Appellants.

Nielsen, Merksamer, Parrinello, Mueller & Naylor, John E. Mueller and James R. Parrinello for San
Francisco Apartment Association, San Francisco Association of Realtors and Coalition for Better Housing
as Amici Curiae on behalf of Plaintiffs and Appellants.
_________________________________________________________________________________

Attorneys for Respondent:
Marsha Jones Moutrie, City Attorney, Joseph L. Lawrence, Assistant City Attorney, Barry Rosenbaum,
Adam Radinsky, Cara Silver and Eda Suh, Deputy City Attorneys, for Defendants and Respondents.

Stephen L. Collier for Tenderloin Housing Clinic, Inc., as Amicus Curiae on behalf of Defendants and
Respondents.

Michael Jenkins, City Attorney (West Hollywood), J. Stephen Lewis, Alison Regan; Dennis J. Herrera,
City Attorney (San Francisco), Burke E. Delventhal, Wayne K. Snodgrass and Marie Crolett Blits, Deputy
City Attorneys, for League of California Cities as Amicus Curiae on behalf of Defendants and
Respondents.

Jones Day, Scott Bertzyk, Erik K. Swanholt, Michelle Vizurraga, Rasha Gerges; Wendy Marantz Levine,
Elissa D. Barrett; and Denise McGranahan for Bet Tzedek Legal Services and Legal Aid Foundation of Los
Angeles as Amici Curiae on behalf of Defendants and Respondents.

Wartelle, Weaver & Schreiber, Paul Wartelle and J. Scott Weaver for San Francisco Tenants’ Union, San
Francisco Housing Rights Committee, St. Peter’s Housing Committee and Oakland Just Cause as Amici
Curiae on behalf of Defendants and Respondents.
David R. LaBahn; Michael J. Aguirre, City Attorney (San Diego) and Cindy D. Davis, Head Deputy City
Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Defendants and
Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Rosario Perry
Law Offices of Rosario Perry
312 Pico Boulevard
Santa Monica, CA 90405
9310) 394-9831

Adam Radinsky
Deputy City Attorney
1685 Main Street, Room 310
Santa Monica, CA 90401
(310) 458-8336

Rasha Gerges
Jones Day
555 South Flower Street, Fiftieth Floor
Los Angeles, CA 90071
(213) 489-3939

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Opinion Information

Date:	Docket Number:
Thu, 08/02/2007	S129448

Disposition
Aug 2 2007	Opinion: Affirmed in part/reversed in part

Dockets
Nov 23 2004	Request for depublication filed (initial case event)   San Francisco Housing Rights Committee, et al.( non party).
Nov 29 2004	Petition for review filed   Respondent (City of Santa Monica).
Nov 29 2004	Record requested
Nov 30 2004	Received Court of Appeal record
Dec 13 2004	Request for depublication (petition for review pending)   Tenderloin Housing Clinic.( non party).
Dec 14 2004	Request for publication filed (petition for review pending)   AIDS Legal Referral , et al. (non party).
Dec 14 2004	Request for depublication filed (another request pending)   on behalf of BET TZEDEK LEGAL SERVICES & LEGAL AID FOUNDATION OF LOS ANGELES
Dec 14 2004	Request for depublication filed (another request pending)   by Mosbrucker & Foran, et al. (non-parties)
Jan 5 2005	Request for extension of time filed   aplts' appln for relief from default/request for ext of time for filing of an answer to the petn for review. Ext requested to 1-24-05.
Jan 13 2005	Extension of time granted   to 1-14-05 for aplts to file the answer to the petn. for review.
Jan 14 2005	Answer to petition for review filed   counsel for appellants ACTION APARTMENT ASSOCIATION, INC.
Jan 19 2005	Time extended to grant or deny review   to 2-25-05
Feb 16 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Feb 28 2005	Certification of interested entities or persons filed   by aplts
Mar 1 2005	Request for extension of time filed   for resp to file the opening brief on the merits, to 5-17-05.
Mar 11 2005	Extension of time granted   to May 17, 2005 for respondent to file the opening brief on the merits.
May 17 2005	Opening brief on the merits filed   counsel for respondent CITY OF SANTA MONICA
May 17 2005	Request for judicial notice filed (granted case)   counsel for respondent CITY OF SANTA MONICA
Jun 1 2005	Opposition filed   by appellants ACTION APARTMENT ASSOC., INC., et al., to request for judicial notice
Jun 2 2005	Request for extension of time filed   to file answer brief on the meritis. appellants Action Apartment Assoc. asking to July 15, 05.
Jun 8 2005	Extension of time granted   to 7-15-05 for for aplts to file the answer brief on the merits.
Jul 7 2005	Request for extension of time filed   by counsel for appellants ACTION APARTMENT ASSOCIATION, INC., et al. to file answer brief on the merits
Jul 12 2005	Extension of time granted   to 8-15-05 for appellants to file the answer brief on the merits. No further extensions of time are contemplated.
Aug 15 2005	Answer brief on the merits filed   appellants Action Apartment Association, Inc. and Doreen Dennis
Aug 16 2005	Request for extension of time filed   on behalf of respondent CITY OF SANTA MONICA by counsel
Aug 23 2005	Extension of time granted   to 10-6-05 for resp City of Santa Monica to file the reply brief on the merits.
Oct 5 2005	Received application to file Amicus Curiae Brief   & brief of League Of California Cities supporting respondent City of Santa Monica
Oct 6 2005	Reply brief filed (case fully briefed)   respondent CITY OF SANTA MONICA
Oct 14 2005	Permission to file amicus curiae brief granted   League of California Cities in support of respondents.
Oct 14 2005	Amicus curiae brief filed   League of California Cities in support of respondents. Answer is due within twenty days.
Nov 3 2005	Received:   Letter w/case citation from counsel for resp
Nov 4 2005	Response to amicus curiae brief filed   by appellants ACTION APARTMENT ASSOCIATION, INC. et al., to a/c brief of LEAGUE OF CALIFORNIA CITIES
Nov 4 2005	Received application to file Amicus Curiae Brief   from San Francisco Apartment Assn., S.F. Assn. of Realtors and Coalition for Better Housing in support of aplts. with brief.
Nov 4 2005	Received application to file Amicus Curiae Brief   by the S.F. Tenants' Union, Oakland Just Cause, St. Peter's Housing Committee and Housing Rights San Francisco, and request for judicial notice in support of respondent.
Nov 7 2005	Received application to file Amicus Curiae Brief   CALIFORNIA APARTMENT ASSOC. in support of Appellant ( Action Apartment).
Nov 7 2005	Received application to file Amicus Curiae Brief   Bet Tzedek Legal Services & Legal Aid Foundation of Los Angeles supporting respondent (City of Santa Monica)
Nov 7 2005	Request for judicial notice filed (granted case)   by amici curiae Bet Tzedek Legal Services & Legal Aid Foundation of Los Angeles
Nov 8 2005	Received application to file Amicus Curiae Brief   by the Calif District Attys Assn in support of resp. (40.1b)
Nov 10 2005	Permission to file amicus curiae brief granted   CALIFORNIA APARTMENT ASSOCIATION, INC in supoort of appellants. Answer due within 20 days
Nov 10 2005	Amicus curiae brief filed   California Apartment Association in support of appellants
Nov 14 2005	Permission to file amicus curiae brief granted   by the San Francisco Apartment Association et al in support of appellants. Answers may be filed w/in 20 days.
Nov 14 2005	Amicus curiae brief filed   by the S.F. Apartment Assn. in support of appellants.
Nov 14 2005	Permission to file amicus curiae brief granted   by the Calif. District Attorneys Assn. in support of respondents. Answers may be filed w/in 20 days.
Nov 14 2005	Amicus curiae brief filed   By the Calif. D.A.'s Assn. in support of resps.
Nov 14 2005	Permission to file amicus curiae brief granted   by the San Francisco Tenants' Union et al in support of resps. Answers may be filed w/in 20 days.
Nov 14 2005	Amicus curiae brief filed   by the S.F. Tenants' Union et al in support of resps.
Nov 14 2005	Permission to file amicus curiae brief granted   by Bet Tzedek Legal Services and Legal Aid Foundation of Los Angeles in support of respondents. Answers may be filed w/in 20 days.
Nov 14 2005	Amicus curiae brief filed   by Bet Tzedek Legal Services and Legal Aid Foundation of L.A. in support of resps.
Nov 14 2005	Request for judicial notice filed (granted case)   by A/C S.F. Tenants' Union, et al
Dec 6 2005	Response to amicus curiae brief filed   by Action Apartment Association, Inc., et al. to a/c brief of California District Attorneys (40.1)
Dec 6 2005	Response to amicus curiae brief filed   by Action Apartment Association, Inc., et al. to a/c brief of San Francisco Tenants' Union, San Francisco Housing Rights Committee, St. Peter's Housing Committee & Oakland Just Cause (40.1)
Dec 6 2005	Response to amicus curiae brief filed   on behalf of Action Apartment Association, Inc., et al. to a/c brief of Bet TzedekLegal Servces (40.1)
Dec 19 2005	Filed:   notice of errata by amicus curiae California Apartment Association
Dec 27 2005	Received:   letter from respondent dated December 22, 2005, re: recent decision (American Products Co. Inc. v. Law Offices of Geller, Stewart & Foley, LLP (Dec. 16, 2005) Cal.App.4th Dist. 2005 WL 3445632.
Jul 31 2006	Received application to file Amicus Curiae Brief   of Emmett and Company and Douglas Emett Realty Fund 1998 , in support of appellants by Roy G. Weatherup.
Aug 3 2006	Application to file amicus curiae brief denied   for Douglas, Emmett and Company and douglas Emmett Realty fund 1998, in support of appellants.
Sep 11 2006	Received:   letter dated September 8, 2006 from Adam Radinksy, counsel for respondent's City of Santa Monica requesting that the oral argument in the above matter not be set during the following period November 20, 2006 through December 1, 2006 when he is out of state on a pre-planned trip and unavailable.
Oct 19 2006	Received:   supplemental Letter of New Authorities dated October 17, 2006 by Robert J. Franklin, counsel for appellant
Dec 29 2006	Supplemental brief filed   respondents City of Santa Monica
Jan 16 2007	Supplemental brief filed   Action Apartment Association, Inc., appellant by Rosario Perry, counsel
Jan 18 2007	Received:   Copy of the Ordinance of the City Council of the City of Santa Monica Amending Chapter 4.56 of the Santa Monica Municipal Code. City of Santa Monica, Respondent by Adam Radinsky, counsel Note: The copy of the ordinance is found at pages 41-48 of the Joint Appendix.
Apr 2 2007	Received:   Letter from Adam Radinsky, counsel for respondent City of Santa Monica, requesting that oral argument not be set between May 21 and June 6, 2007.
May 2 2007	Case ordered on calendar   to be argued on Wednesday, June 6, at 9:00 a.m., in Los Angeles
May 15 2007	Application filed to:   share oral argument Respondent City of Santa Monica Deputy City Attorney Adam Radinsky
May 16 2007	Order filed   The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae Bet Tzedek Legal Services 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
May 17 2007	Order filed   Respondent filed a request for judicial notice on May 17, 2005. The request that we take judicial notice of Exhbitis B, E, F, G, and I is granted. The request that we take judicial notice of Exhibit A, C, D, and H is denied. Amici curiae Bet Tzedek Legal Services et al. filed a request for judicial notice on November 7, 2005. The request that we take judicial notice of Exhibits I and 5-9 is denied. Amici curiae San Francisco Tenants' Union et al.'s request for judicial notice, is filed on November 14, 2005, is denied.
May 24 2007	Supplemental brief filed   Addition Authorities Appellants Action Apartment Association, etal Attorney Rosario Perry
Jun 6 2007	Cause argued and submitted
Aug 1 2007	Notice of forthcoming opinion posted
Aug 2 2007	Opinion filed: Affirmed in part, reversed in part   and the matter remanded to the Court of Appeal for further proceedings consistent with the views expressed in this opinion. OPINION BY: Moreno, J. -----joined by George, C.J., Kennard, J., Baxter, J., Chin, JJ. DISSENTING OPINION BY: Corrigan, J. -----joined by: Werdegar, J.
Sep 6 2007	Remittitur issued (civil case)
Sep 13 2007	Received:   receipt for remittitur

Briefs
May 17 2005	Opening brief on the merits filed
Aug 15 2005	Answer brief on the merits filed
Oct 6 2005	Reply brief filed (case fully briefed)
Oct 14 2005	Amicus curiae brief filed
Nov 4 2005	Response to amicus curiae brief filed
Nov 10 2005	Amicus curiae brief filed
Nov 14 2005	Amicus curiae brief filed
Nov 14 2005	Amicus curiae brief filed
Nov 14 2005	Amicus curiae brief filed
Nov 14 2005	Amicus curiae brief filed
Dec 6 2005	Response to amicus curiae brief filed
Dec 6 2005	Response to amicus curiae brief filed
Dec 6 2005	Response to amicus curiae brief filed

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