§ 47(b) Displaced by Retaliatory Eviction Statute

Winslett v. 1181 27th Ave., LLC, No. A146932 (D1d4 Aug. 15, 2018)

Tenant sued Landlord for, among other things, retaliation, retaliatory eviction, and for violating an Oakland eviction-control ordinance. Landlord responded with an anti-SLAPP motion, arguing that the claims arise from the service of a 3-day notice to quit and filing of an unlawful detainer case and that the litigation privilege bars liability on the claims. Trial court granted the motion.

Tenant’s claims for retaliation and retaliatory eviction are brought under Civil Code § 1942.5, which bars retaliation in the landlord/tenant context and gives tenants causes of action to enforce those rights. A retaliatory eviction claim arises from being evicted after complaining about something for which a tenant has the right to complain. Because eviction is a judicial process that starts with the service of a notice to quit and culminates with an unlawful detainer case, the case law says that a retaliatory eviction claim generally arises from litigation activity protected by the anti-SLAPP statute. And nobody really disputes that here.

The issue is whether Civil Code § 47(b) the litigation privilege applies to two claims under § 1942.5. If it does, Tenant can’t succeed and the motion should be granted. Of course, if that’s true, § 1942.5 is basically a dead letter; it crates only a cause of action that is barred by § 47(b). To reconcile those kinds of conflict, however, courts have found that the Legislature’s enactment of a specific statute that creates a claim that would be otherwise entirely barred by § 47(b) also enacts an implied exception to the litigation privilege. The case law in this area is a little messy, but the Court holds that § 1942.5 is just such a statute. 

But the same analysis won’t apply to the claim brought under the Oakland ordinance because it’s not legislatively coequal—in the scheme of things, the Oakland city council can’t displace state law. So claims brought under the ordinance will be barred to the extent the conflict with § 47(b). But not every such claim implicates the litigation privilege. For instance, here, the claim is not really based on the filing of a three-day notice or a UD action, but on various unfair and retaliatory tactics engaged in by Landlord prior to those events. So the Court holds that the ordinance claim not barred by § 47(b). Indeed, because it isn’t really addressed to Landlord’s litigation related acts, it doesn’t even arise from protected activity for the purposes of the anti-SLAPP statute.

Reversed.