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proceedings, but may extend to steps taken prior thereto, or afterwards.’ [Citation.]”
(Action Apartment, 41 Cal.4th at p. 1241.)
Traditionally, the privilege has been given “a broad interpretation” in order to
achieve its “ ‘principal purpose’ ” to afford litigants and witnesses “ ‘the utmost freedom of
access to the courts without fear of being harassed subsequently by derivative tort
actions.’ ” (Action Apartment, 41 Cal.4th at p. 1241.) “[C]ourts have emphasized the
importance of the litigation privilege’s absolute protection of access to the courts, while
recognizing that this absolute protection has its costs,” since, inevitably, its invocation will
sometimes shield “ ‘ “the shady practitioner” ’ ” along with the honest ones. (Id. at
p. 1244.) “ ‘[I]n immunizing participants from liability for torts arising from
communications made during judicial proceedings, the law places upon litigants the burden
of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing
the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse
than an occasional unfair result.’ ” (Ibid.)
Applying these principles, the high court in Action Apartment held that to the extent
the challenged ordinance covers the filing of an eviction action (“bringing ‘any action to
recover possession of a rental housing unit based upon facts which the landlord had no
reasonable cause to believe to be true or upon a legal theory which is untenable under the
facts known to the landlord’ ”), it conflicts with and is entirely preempted by the litigation
privilege. (Action Apartment, 41 Cal.4th at pp. 1249-1250.) But to the extent the ordinance
covers prelitigation service of an eviction notice (malicious “ ‘service of any notice to quit
or other eviction notice’ ”), it conflicts with the litigation privilege “only in part.” (Id. at
p. 1250.) In this latter respect, the ordinance might, or might not, conflict with the litigation
privilege, depending on whether the notice in question genuinely “relates to litigation that is
contemplated in good faith,” which is a “factual inquiry.” (Id. at pp. 1251-1252.)
The Action Apartment court was careful to note that the Legislature remains free to
create “exceptions to the litigation privilege based on irreconcilable conflicts between the
privilege and other coequal state laws.” (Action Apartment, 41 Cal.4th at p. 1247.) Bearing
in mind that “the distinction between state and local laws” is “[f]undamental to the doctrine