5
The court in Komarova v. National Credit Acceptance, Inc., supra,
175 Cal.App.4th at pp. 339-340 applied this same test in determining a debt collector’s
litigation activities that violated the Rosenthal Fair Debt Collection Practices Act
(§§ 1788, et seq.) were not immunized by the litigation privilege.
10
were barred [by the litigation privilege].” (Action Apartment, supra, 41 Cal.4th
at p. 1246.)
The Legislature made the judgment that raising retaliation as a defense to an
unlawful detainer action and a suit for malicious prosecution are not adequate remedies
for retaliatory eviction. Section 1942.5, subdivision (h) states that “[t]he remedies
provided by this section shall be in addition to any other remedies provided by statutory
or decisional law.”
Two court of appeal opinions, purporting to follow Action Apartment, have
held that the litigation privilege bars a tenant from suing a landlord under section1942.5,
subdivisions (c) and (f) for bringing a retaliatory action to recover possession. We
decline to follow them.
In Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467
(Feldman), the landlord brought an unlawful detainer action against the tenants and
the tenants cross-complained for retaliatory eviction under section 1942.5 based on the
landlord’s alleged violation of the city’s rent control ordinances. The Court of Appeal
held that the landlord’s “filing of the unlawful detainer action clearly fell within the
litigation privilege. The Supreme Court in [Action Apartment] held the litigation
privilege of Civil Code section 47 preempted the provision of the Santa Monica tenant
harassment ordinance that authorized civil and criminal penalties against a landlord
bringing any action to recover possession of a rental unit without a reasonable factual or
legal basis.” (Id. at p. 1486.) The appellate court did not discuss the distinction between
a tenant suing under a city ordinance, as in Action Apartment, and a tenant suing under
the authority of a co-equal state statute, nor did it analyze section 1942.5 to determine
whether it “makes clear” that it is not barred by the litigation privilege. (Action
Apartment, supra, 41 Cal.4th at p. 1246.)
In Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1213, the appellate
court held that “as a matter of law” the tenant-plaintiffs had no cause of action under
section 1942.5 “for wrongful eviction based on the unlawful detainer action or three-day