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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The majority suggests that privilege in the prelitigation communications context presents questions of fact, whereas privilege in the context of actions to recover possession presents only a legal question. (Maj. opn., ante, at p. 1252, fn. 6.) However, the majority does not squarely answer the legal question raised by the city regarding actions to recover possession. As noted by the majority, this court has declared that “[t]he policy of encouraging free access to the courts that underlies the absolute’ privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 382 [295 P.2d 405]; see maj. opn., ante, at p. 1242; see also, e.g., Rubin v. Green (1993) 4 Cal.4th 1187, 1203 [17 Cal.Rptr.2d 828, 847 P.2d 1044].) The city contends that when a tenant successfully defends an action to recover possession, these elements are satisfied because malice on the part of the landlord and lack of probable cause are necessary conditions for a suit under the ordinance. (For the relevant terms of the ordinance, see maj. opn., ante, at pp. 1238-1239, fn. 1.)

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