In an unpublished decision, the Second Appellate District explores the litigation privilege in the context of an unusual appellate reversal of an unlawful detainer judgment.
An unlawful detainer judgment has two parts – possession of the property and incidental monetary damages. Generally, the service of a termination notice, the filing of an unlawful detainer action an even the enforcement of the judgment and other post-judgment activities are all protected by the litigation privilege (Cal. Civ., §47) from being the subject of subsequent lawsuits. (You generally cannot sue someone for suing you.)
One basis for terminating a tenancy under California law is that the tenant is engaging in illegal activity. However, the illegal activity must have some connection to the use of the property. (For instance, a tenant probably cannot be evicted for embezzling or robbing a liquor store, but they could be evicted for selling illegal drugs or discharging a firearm from within an apartment.)
In Doll v. Ghaffari, the tenant was subletting her apartment at a profit, in violation of a Santa Monica rent ordinance provision concerning maximum allowable rent for subtenants. However, to terminate a tenancy for illegal use, the Santa Monica rent ordinance adds an additional requirement that a tenant must actually be criminally convicted of the violation before a landlord can bring an unlawful detainer action. (While it is generally understood that cities can monitor the bases for evictions, the court suggested that the “conviction requirement” may be an impermissible prerequisite to an unlawful detainer in violation of Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129.)
The landlord, Ghaffari, prosecuted an unlawful detainer based on illegal short-term rental use and won at the trial level. Ghaffari thereafter enforced the unlawful detainer judgment and recovered possession, eventually auctioning Doll’s personal property that was left behind. Doll appealed and the judgment was reversed, but she was not restored to possession under Cal. Code Civ. Proc., §908, upon a finding of unclean hands.
Doll then sued for, among other things, breach of contract, wrongful eviction/trespass and elder abuse for the selling of her property, prevailing on her claims for breach of contract, wrongful eviction, elder abuse, etc.
On appeal, the court found that the landlord’s activities in terminating the tenancy, recovering possession of the apartment and even in selling the property, post-judgment, were all covered by the litigation privilege, citing to Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, Action Apartment Assn. v. City of Santa Monica (2007) 41 Cal.4th 1232 and Rusheen v. Cohen (2006) 37 Cal.4th 1048. It therefore reversed the verdict as to the claims based on dispossession and the selling of her personal property.
Doll asserted that the case Chacon v. Litke (2010) 181 Cal.App.4th 1234 stood for the proposition that post-trial enforcement activities are not protected. However, the Court of Appeals noted that Chacon merely stood for the proposition that an unlawful detainer judgment did not forfeit a tenant’s right to reoccupy following a non-fault eviction, where a local rent ordinance reserved a right to reoccupancy.
However, in affirming her contract claims, the court relied on Munoz v. MacMillan (2011) 195 Cal.App.4th 648 to conclude that a tenant may sue on contract claims for a terminated lease agreement, where the unlawful detainer action that terminated the lease is later reversed on appeal. (It noted, however, that Munoz did not reference the litigation privilege or Action Apartments.)
Doll v. Ghaffari provides an interesting review of the duality of the unlawful detainer judgment – as consisting of a right to possession and for incidental money damages – and the duality of a leasehold estate – as consisting of a contractual right and an interest in land – while navigating the litigation privilege. Here, the tenant prevailed on the money damage issue in the underlying unlawful detainer action, while asserting her contract rights under the leasehold, but lost on the issue of her interest in land and being restored to possession. That said, this case is currently unpublished, and, as the court noted, Munoz did not address the litigation privilege (relying, instead, on a case from 1917). So California courts may come to a different conclusion the next time it reviews a similar series of lawsuits.
