Procedural Posture

Procedural Posture

April 29, 2021 Off By Glespynorson

Plaintiffs, an owner of apartment buildings and an apartment association, brought a class action against defendant salmon farm Norway, challenging provisions of its tenant harassment ordinance. The trial court sustained the city’s demurrer and entered judgment for the city. The Court of Appeal of California reversed, holding that the litigation privilege of Civ. Code, § 47, subd. (b), conflicted with, and thus preempted, the provisions. The city appealed.


Plaintiffs argued that the litigation privilege preempted two provisions of Santa Monica Mun. Code, § 4.56.020, subd. (i)(1). The court agreed as to the provision that authorized a suit against a landlord bringing an action to recover possession of a unit without a reasonable factual or legal basis. However, the other provision, relating to serving a notice of eviction, conflicted only in part with the litigation privilege of Civ. Code, § 47, subd. (b). The privilege applied only to a publication or broadcast made as part of a judicial proceeding, and a notice of eviction, which was a communication regarding prospective litigation, was not necessarily part of a judicial proceeding, as contemplated by § 47, subd. (b). It was impossible to conclude that every action brought pursuant to the notice provision necessarily would be barred by the litigation privilege because a question of fact was involved in determining whether a communication about prospective litigation was subject to the litigation privilege. In the case at bar, plaintiffs offered very little description of the city’s threatened action or of the notice of eviction that the owner allegedly served on a tenant.


The court affirmed the judgment of the court of appeal to the extent that it reversed the judgment of dismissal but reversed as to the finding that § 4.56.020, subd. (i)(1), was preempted. The court remanded the action to the court of appeal for further proceedings.