Section 4

Citation: Section 4
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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In dissent, Justice Corrigan suggests that our opinion is inconsistent in that we hold that the provision of section 4.56.020(i)(l) authorizing suits based on unfounded notices of eviction is only partially preempted, based on the particular factual circumstances, but hold that the provision of section 4.56.020(i)(l) based on a defendant’s bringing an eviction action is entirely preempted, regardless of whether the elements of malicious prosecution have been met. This argument overlooks the distinction between factual and legal questions. The analysis required to determine whether the litigation privilege applies to a prelitigation communication involves a question of fact. In contrast, the question whether an action under the provision of section 4.56.020(i)(l) based on an eviction action contains the same elements as a malicious prosecution action, and is therefore exempt from the litigation privilege, is a question of law requiring a categorical determination. As explained above, the fact that an eviction action was terminated in the tenant’s favor does not alter that determination. This additional fact does not transform an action under the provision of section 4.56.020(i)(l) based on a defendant bringing an eviction action into one that is “analogous” to malicious prosecution (dis. opn. of Corrigan, J., post, at p. 1255, fn. 2), such that we could recognize a categorical exception to the litigation privilege as a matter of law, because the ordinance does not require all of the elements of a malicious prosecution action.

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