section 11172

Citation: section 11172
Parent Document: P. ex rel. etc. v. Hebb (2017)
Jurisdiction: California (state)
Effective Date: 2017-12-19
Original Source: https://www.courtlistener.com/opinion/4453096/p-ex-rel-etc-v-hebb/ ↗

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12 The Banuelos court declined to follow two decisions of the Court of Appeal
that concluded the litigation privilege barred retaliatory eviction claims under
section 1942.5. (Banuelos, supra, 219 Cal.App.4th at p. 333.) The plaintiff in Feldman
v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 (Feldman) alleged his
landlord filed an unlawful detainer action in violation of a city ordinance. Relying on
Action Apartment, the appellate court concluded the retaliatory eviction claim was barred
by the litigation privilege. (Feldman, at p. 1486.) As Banuelos noted, “the [Feldman]
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 coequal state statute, nor did
it analyze section 1942.5 to determine whether it ‘makes clear’ that it is not barred by the
litigation privilege.” (Banuelos, at p. 333, citing Action Apartment, supra, 41 Cal.4th at
p. 1246.)
The court in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 (Wallace)
similarly held claims for retaliatory eviction under section 1942.5 were barred by the
litigation privilege. (Wallace, at p. 1213, disapproved on another ground in Baral v.
Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.) “Like Feldman, the court [in Wallace] cited
but did not discuss or analyze Action Apartment and the litigation privilege[,] nor did it
distinguish between a city ordinance and a state statute when resolving the conflict
issue.” (Banuelos, supra, 219 Cal.App.4th at p. 333.)
Banuelos also rejected the defendant’s suggestion that the California Supreme
Court’s decisions in Ribas v. Clark (1985) 38 Cal.3d 355 and Rubin v. Green (1993)
4 Cal.4th 1187 mandated application of the litigation privilege. “[B]oth addressed
statutes that cover a broad spectrum of conduct, none of which specifically relates to
litigation. It was only because the facts that gave rise to the causes of action in those
cases happened to involve litigation activities that the privilege was implicated. Neither
statute ‘would be significantly or wholly inoperable if its enforcement were barred when
in conflict with the privilege.’” (Banuelos, supra, 219 Cal.App.4th at p. 335, quoting
Action Apartment, supra, 41 Cal.4th at p. 1246.)

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