Division Four of First District Court of Appeal Harmonizes Litigation Privilege with Tenant Anti-Retaliation Statute in Winslett v. 1811 27th Avenue, LLC

“The litigation privilege is ‘not without limit’, as the Action Apartment court took pains to point out. (Action Apartment, supra, 41 Cal.4th at p. 1242.) Because recognition of the privilege here would neuter section 1942.5 by removing eviction from the statutory remedy of retaliatory eviction, we view the clash between section 47, subdivision (b), on the one hand, and section 1942.5, subdivisions (d) and (h), on the other, as irreconcilable. To be consistent with the high court’s guidance that we give section 1942.5 a liberal construction designed to achieve the legislative purpose, we conclude that the litigation privilege must yield to it.”

In Winslett v. 1811 27th Avenue, LLC (2018), a former tenant filed a complaint against a landlord for retaliation and retaliatory eviction, under Section 1942.5 of the Civil Code, as well as violations of Oakland’s just cause for eviction ordinance. The trial court granted the landlord’s anti-SLAPP motion to strike. The tenant appealed the trial court’s ruling that the litigation privilege barred the retaliation claims and that her claims under the eviction control ordinance were based on protected activity under the anti-SLAPP statute. The Court of Appeal agreed and reversed.

The tenant had repeatedly complained to her landlord and the county about uninhabitable conditions at her building. Ultimately, she informed her landlord she’d be withholding rent if he did not remedy the problems. The landlord served a three day notice to pay or quit and filed an unlawful detainer action. The case settled for rent waivers in exchange for the tenant vacating. The tenant then filed her lawsuit for damages.

In evaluating whether the litigation privilege barred the retaliation claims, the Court of Appeal analyzed the legislative history of Section 1942.5. It found that Section 1942.5 did not eliminate common law retaliation. This was an important distinction, given the voluntary vacate agreement in the unlawful detainer action: case law has found that an actual eviction is required for common law retaliation. However, Section 1942.5 was meant to be cumulative to that remedy, where a tenant could vindicate rights provided by the statute outside of the limitations of a summary eviction proceeding.

Addressing the scope of the litigation privilege, the Court of Appeal distinguished the Supreme Court decision Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal. 4th 1232, which found a Santa Monica tenant harassment ordinance preempted to the extend it created a remedy similar to “malicious prosecution” at the local level without requiring termination of the underlying action in the tenant’s favor (a requirement for this exception to the litigation privilege). The Court of Appeal interpreted Action Apartments as finding an exception where the remedy rooted in petitioning activity arises from a coequal state law (as opposed to an exception to the litigation privilege crafted by a local government). It concluded that the litigation privilege must yield to Section 1942.5. To interpret otherwise would be to read Section 1942.5 as inoperable.

The tenant also alleged liability for “wrongfully endeavoring to recover possession of her apartment, failing to make repairs, serving her with ‘misleading notices’, attempting to trick her into moving out without just cause, and not advising her of her right to contact the rent board”. The Court found that the tenant’s claims for violations of the ordinance did not arise from service of the three day notice and filing of the unlawful detainer lawsuit simply because they followed or were triggered by it. After all, “The Just Cause Ordinance “permits a tenant to recover damages for . . . a range of conduct that does not necessarily include filing a lawsuit to recover possession” and “here Winslett chose to avoid basing her claim on the eviction itself”. While the Section 1942.5 claims were based on allegations concerning the initiation of the unlawful detainer, this cause of action specifically omitted that allegation.

That said, the Court may have reached the correct conclusion on the wrong reasoning. Because the allegations did not point to privileged activity, the litigation privilege is not implicated: the Court found that “the gravamen of Winslett’s tenth cause of action is not rooted in the unlawful detainer action, in the notice to quit, or in any other protected free speech or petitioning activity, but rather lies in the broader circumstances surrounding the eviction”. However, the Supreme Court decision Baral v. Schnitt (2016) 1 Cal.5th 376 moved away from the murky “gravamen” standard, directing lower courts to evaluate anti-SLAPP motions this way:

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” Baral v. Schnitt (2016) 1 Cal.5th 376, 396