Reconsidering Wrongful Eviction After Anti-slapp
| Citation | Vol. 33 No. 2 |
| Publication year | 2015 |
| Author | By Kavita Sharma |
By Kavita Sharma
©2015 All Rights Reserved.
Since the mid-nineteenth century, California has recognized the tort of wrongful eviction. Earlier cases focused on the landlord's physical acts that prevented tenants from entry into the premises (e.g., lock-out or a barrier).1 The landlord could not use "self-help" as a means to remove the tenant who breached his or her lease. Instead, the landlord was obligated to file a lawsuit and obtain a judgment and writ for possession of the premises.2 If the landlord failed to go through legal channels, the tenant would have claims for wrongful eviction, forcible entry and detainer, trespass, and tortious interference with peaceful possession.
Even as early as the 1950s, wrongful eviction claims could include "constructive" eviction—the landlord's violations of the tenant's quiet enjoyment that caused a tenant to involuntarily vacate or the landlord's acts that deprived the tenant use of a substantial portion of the premises.3 One court described constructive eviction:
[W]hen the acts or omissions to act of a landlord, or any disturbance or interference with the tenant's possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or which has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.4
Constructive eviction also includes a landlord's failure to remedy defective and dangerous conditions in the premises that cause a tenant to vacate, i.e., a breach of the warranty of habitability.5 Under common law, a tenant could be entitled to damages for mental anguish, physical injury, and exemplary damages in addition to actual damages for constructive eviction.6
By the 1970s, the courts recognized common law claims for retaliatory eviction when landlords attempted to evict or raise the rents of tenants who complained about habitability problems (or requested repairs).7 In 1971, the California Legislature enacted Civil Code section 1942.5, which prohibited a landlord from evicting a tenant for a period of sixty days after a tenant complained about the conditions or tenantability of the premises.8
In the late 1970s and early 1980s, high-density municipalities instituted rent and eviction control laws (i.e., local rent ordinances). Los Angeles, Santa Monica, Oakland, Berkeley, and San Francisco, to name a few, require landlords to have an enumerated "just" or "good" cause to evict tenants from units (e.g., non-payment of rent, nuisance, or owner move-in).9 Under these local rent ordinances, if a landlord fails to evict a tenant for good cause in violation of the ordinance, damages available to a tenant may include rent-differential damages (i.e., the difference between the rent-controlled rate and the market rate of a comparable unit), as well as treble damages, damages for emotional distress, and punitive damages, plus recovery of the tenant's attorney's fees.10
To illustrate, in 2010, the First District Court of Appeal upheld an award for rent differential damages (net present value) in the amount of $381,825 (based on expert testimony of an expected twenty-year tenancy) in a wrongful eviction action.11 The amount was trebled pursuant to the local rent ordinance to $1,145,475. The court also awarded emotional distress damages in the amount of $25,000.12
Under these local rent ordinances, because tenants receive the benefits of rent control, they often end up paying substantially below-market rate rent.13 As a result, it is not uncommon for a landlord to file an unlawful detainer action based on scant evidence or a defective termination notice in hopes of obtaining a vacant unit that he or she can rent out at market rate.14
Prior to 2007, tenants could sue the landlord for wrongful eviction based on faulty termination notices and/or the prosecution of an unsuccessful unlawful detainer. But the California Supreme Court decision in Action Apartment Assn v. City of Santa Monica15 changed the landscape of landlord-tenant disputes. Action Apartments held that the service of notices to terminate tenancy and the prosecution of unlawful detainers (evictions) were protected acts under the litigation privilege (Civil Code section 47) even if such actions lacked probable cause or were instituted in bad faith.16 The litigation privilege is essentially an affirmative defense that protects a defendant from being sued for filing suit or making statements (including testimony and pleadings) in the course of litigation.17 The privilege is not limited to statements made during trial or other court proceedings, but may extend to steps taken in anticipation of litigation or after litigation.18
Action Apartments made it possible for landlords to file anti-SLAPP motions in wrongful eviction lawsuits because they could rely on the litigation privilege to insulate themselves from liability by serving termination notices and filing unlawful detainer actions.
This article will discuss: (1) the rise of anti-SLAPP motions that have curbed tenants' claims and the struggle by the courts in defining protected activity; (2) the recent trend by the courts in finding ways to deny anti-SLAPP motions; and (3) practical tips for alleging wrongful eviction claims to survive an anti-SLAPP motion.
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California Code of Civil Procedure section 425.16 (the "anti-SLAPP statute"), enacted in 1992, sought to protect free speech and petitioning rights under the constitution by shielding defendants from burdensome litigation for exercising those rights.19 Code of Civil Procedure section 425.16(b)(1) states:
A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.20
The anti-SLAPP statute, however, does not shield a defendant from all speech or petitioning activities. The statute protects statements or writings in connection with (1) pending civil litigation (e.g., pleadings, briefs, testimony, etc.); (2) litigation contemplated in good faith and under serious consideration;21 and (3) pending or anticipated administrative proceedings.22 The anti-SLAPP statute's scope is similar to (but more expansive than)23 the litigation privilege in that it protects a defendant from being prosecuted for statements made in connection with a judicial/administrative proceeding, pre-litigation communications, and filing of a lawsuit (except for malicious prosecution actions).
There are several benefits to filing an anti-SLAPP motion. It is a summary procedure that enables a defendant to dispose of claims based on protected activity at the pleading stage, thus avoiding the cost and delays of lengthy litigation.24 In addition, to defeat the motion, the plaintiff must establish a probability of prevailing with evidence; thus a defendant receives some free initial disclosure prior to formal discovery.25 Most importantly, a court must award a prevailing defendant his or her attorney fees.26 Therefore, though an anti-SLAPP motion may only eliminate a couple of causes of action pled in the complaint (and result in less than a complete dismissal), a plaintiff may be encouraged to settle due to the attorney fees already awarded against him or her. Finally, a successful motion narrows the issues and dismisses certain claims. A court cannot grant plaintiff leave to amend to somehow cure the "protected activity" allegations.27
To rule on an anti-SLAPP motion, a court must perform a two-prong analysis:28 (1) the defendant must make a threshold showing that the plaintiff's cause of action arises from the defendant's free speech or petition activity; and (2) the burden then shifts to the plaintiff to establish a probability of prevailing on the claim.29 For the first prong, the court must determine whether the principal thrust or gravamen of the plaintiff's cause of action arises from defendant's free speech or petitioning activities.30 For the second prong, the term "probability of prevailing" means that the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."31
Though not an anti-SLAPP case, Action Apartments set the stage by holding that eviction notices and unlawful detainer complaints, even if served or filed without probable cause or maliciously, are protected by the litigation privilege.32 Thus, the litigation privilege creates great difficulty for the tenant to show a probability of prevailing on his or her wrongful eviction claim (prong two) if the claim only arose from protected activity (for example, serving a defective termination notice or filing an unsuccessful unlawful detainer action).
Anti-SLAPP motions are a powerful tool for landlords to reduce their exposure to damages based upon an underlying unlawful detainer action.
In Birkner v. Lam, the tenants sued their landlord for wrongful eviction pursuant to the local rent control ordinance33 after the landlord served a sixty-day notice to terminate the tenancy so the landlord's mother could move into the unit.34 The tenants claimed that the landlords knew of their protected tenant status under the local rent ordinance so no eviction could ensue.35 Citing California Code of Civil Procedure section 1161, the court of appeal held that since a termination of tenancy notice is a legal prerequisite for bringing an unlawful...
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