9
The Legislature “makes clear” that it does not intend the enforcement of a statute
to be barred by the litigation privilege when the statute “is more specific than the
litigation privilege and would be significantly or wholly inoperable if its enforcement
were barred when in conflict with the privilege.” (Action Apartment, supra, 41 Cal.4th
at p. 1246.) The cause of action for retaliatory eviction authorized by section 1942.5,
subdivisions (c) and (f) meets both prongs of this test.5
Subdivision (c) of section 1942.5 specifically makes it “unlawful” for a lessor to
“bring an action to recover possession” in retaliation for a tenant’s exercise of “rights
under the law.” Subdivision (f) of the statute states that “[a]ny lessor or agent of a
lessor who violates this section shall be liable to the lessee in a civil action[.]”
Additionally, subdivision (e) gives the landlord a defense of “good faith” to an action
under subdivision (c), which, if controverted by the lessee, “the lessor shall establish . . .
at the trial or other hearing.” The statute’s reference to a landlord’s liability “in a civil
action” for bringing “an action to recover possession” in retaliation for a tenant’s exercise
of rights coupled with the provision recognizing a good faith defense “at the trial or
other hearing” demonstrates that the Legislature intended to create a cause of action for
retaliatory eviction that is not barred by the litigation privilege. If the litigation privilege
trumped a suit for retaliatory eviction under section 1942.5 the privilege would
“effectively immunize conduct that the [statute] prohibits” (Komarova v. National Credit
Acceptance, Inc., supra, 175 Cal.App.4th at p. 338) thereby encouraging, rather than
suppressing, “‘the mischief at which it was directed. [Citation.]’” (Barela v. Superior
Court, supra, 30 Cal.3d at p. 251.)
Moreover, the right of tenants to be free from eviction actions brought by their
landlords because the tenants “lawfully and peaceably exercised [their] rights under the
law” (§ 1942.5, subd. (c)) would be “significantly or wholly inoperable if its enforcement