Saturday, September 14, 2013

Litigation Privilege Does Not Bar Statutory Causes of Action Against Litigation

Banuelos v. LA Investment, LLC, No B239123 (D2d1 Sept. 3, 2013) 

Treading similar ground to a previously covered case, the court holds that an action for retaliatory eviction under Civil Code § 1942.5 cannot be barred by the Civil Code § 47(b) litigation privilege because § 1942.5 contains a specific statutory authorization that is inconsistent with the privilege.

In a long-simmering dispute between a trailer park resident and the owner of his slip, during the course of ultimately unsuccessful unlawful detainer proceedings—aka Banuelos II—plaintiff sued his landlord for, among other things, statutory retaliatory eviction under Civil Code § 1942.5. Plaintiff alleged that defendant instituted the UD case against him in retaliation for plaintiff’s prior litigation—aka Banuelos I—against the landlord. The superior court dismissed the case.

The court of appeal affirmed the dismissal of all of the claims save the retaliatory eviction, which it found to state a claim. The court then addressed whether the Civil Code § 47(b) litigation privilege nonetheless barred the claim because the actionable conduct alleged was the landlord’s filing of the unsuccessful UD case. According to the court Civil Code § 1942.5—the retaliatory eviction statute—specifically created a cause of action based on the filing of a UD case with improper motive. Thus, were the litigation privilege to apply to bar the suit—as it ordinarily would—the statutory cause of action would be rendered nugatory by the privilege. The court thus held that the general/specific canon required the conflict between the two statutes to be resolved in favor of permitting the cause of action.
In coming to its result, the court declined to follow two earlier court of appeal cases—Feldman v. 1100 Park Lane Associates, 160 Cal. App. 4th 1467, 1486 (2008) and Wallace v. McCubbin, 196 Cal. App. 4th 1169, 1213 (2011)—each of which held that retaliatory eviction claims under § 1942.5 were barred by the litigation privilege. The court noted that Wallace and Feldman relied upon the Supreme Court’s decision in Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1247 (2007), which held that a claim under a local retaliatory eviction statute—not § 1942.5—was barred under the litigation privilege. But neither decision addressed the Action Apartment’s state/local conflict, which creates a conflict preemption that isn’t present when there are two inconsistent state statutes. The court further distinguished two cases that holding that certain, more general, statutes—the UCL, Business & Professions Code §17200 and the Privacy Act, Penal Code § 630–637.9—did not create exceptions to the litigation privilege, because they generally regulate “broad spectrums of conduct” and do not specifically authorize causes of action that are inherently inconsistent with the litigation privilege.

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