Action Apartment Ass'n v. City of Santa Monica, 41 Cal. 4th 1232 (2007)

Citation: Action Apartment Ass'n v. City of Santa Monica, 41 Cal. 4th 1232 (2007)
Parent Document: Action Apartment Ass'n v. City of Santa Monica, 41 Cal. 4th 1232 (2007)
Jurisdiction: California (state)
Effective Date: 2007-08-02
Original Source: https://www.courtlistener.com/opinion/5608052/action-apartment-assn-v-city-of... ↗

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Fourth, the City contends that the litigation privilege does not apply to an action brought under the ordinance because eviction notices and actions are noncommunicative conduct. A threshold issue in determining if the litigation privilege applies is whether the alleged injury arises from a communicative act or noncommunicative conduct. (Kimmel v. Goland (1990) 51 Cal.3d 202, 211 [271 Cal.Rptr. 191, 793 P.2d 524].) “The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature. [Citations.] The following acts have been deemed communicative and thus protected by the litigation privilege: attorney prelitigation solicitations of potential clients and subsequent filing of pleadings in the litigation [citation], and testimonial use of the contents of illegally overheard conversation [citation]. The following acts have been deemed noncommunicative and thus unprivileged: prelitigation illegal recording of confidential telephone conversations [citation]; eavesdropping on a telephone conversation [citation]; and physician’s negligent examination of patient causing physical injury [citation].” (Rusheen, supra, 37 Cal.4th at p. 1058, italics added.)

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