12 August 2011
Adverse legislation never seems to die. Take AB 934 (Feuer) for example. The bill died on the Assembly floor on a vote of 13-49. The author needed a minimum of 41 votes. The bill sought to invalidate two recent appellate court decisions and assure local government that they can enforce laws relating to tenant harassment eviction, termination or anything that relates to a rental contract.
The decisions of the court that would have been reversed:
1. Feldman v. 1100 Park Lane Associates was written by Presiding Justice Anthony Kline. In this decision, the court held that if a landlord is sued for tenant harassment for the service of a 3-day notice to pay, the landlord is allowed to require the tenant to show early on if the tenant has facts to justify a judgment in the tenant's favor.
2. Action Apartment Association v. City of Santa Monica was written by Justice Carlos Moreno. It maintained the core principle of protecting a litigant's access to the courts, known as "litigation privilege."
The Feldman case is significant in its own right because of a growing and demonstrated interest by cities to adopt and enforce tenant harassment ordinances. Tenant harassment ordinances focus on the manner and content of how, when and why a landlord would contact any tenant for just about any reason.
The Action case is extremely important as well. Without it, local governments would be able to prosecute landlords by filing lawsuits against them prior to the filing of any unlawful detainer action or during the unlawful detainer actions. Cities and counties would not need to wait for the landlord to prevail.
Litigation privilege is a term that states that a plaintiff cannot be sued for filing a lawsuit except that the plaintiff can be sued for malicious prosecution and the defendant (city or county) is to show a resolution in the underlying lawsuit favorable to the defendant (like a dismissal or a judgment in the tenant's favor).
The interesting part of the Action case is the City of Santa Monica, in its oral arguments to the Supreme Court, stated that even if the landlord prevailed in the unlawful detainer action the city should still be able to prosecute the landlord because a favorable decision in the action does not negate the fact that at the time the landlords filed the lawsuit, he or she lacked the requisite knowledge or belief of the facts of law. (In other words, there is no litigation privilege and therefore there is no protection from prosecution for filing a lawsuit, even if the landlord wins the UD lawsuit!)
In the end, the City of Santa Monica maintained that there should be no litigation privilege and therefore no constitutional protection for petitioning government.
Now, why do I raise the terms of AB 934 again? Because Feuer recently was made aware of Wallace v. McCubbin, a case before the first appellate district in San Francisco that addresses an anti- SLAPP lawsuit (suits that are designed to "harass" those who wish to initiate a lawsuit where those lawsuits have "minimal merit").
I can assure you, the issues raised in AB 934 will now have a new life as a result of the Wallace case. Feuer may even try to amend the bill before the end of the 2011 legislative session.
3. SB 337 (Kehoe), a bill that provides that landlords may not prohibit any tenant from posting or displaying certain signs, is continuing to move through the Legislation, but not without significant amendments.
As introduced, we would have lost all jurisdiction of where and when a tenant could display or post non-commercial signs. Due to our opposition, joined by the Apartment Association of Orange County, East Bay Rental Housing Association, San Francisco Association of Realtors and the San Joaquin County Rental Property Association, we were successful in obtaining language that does not change the law. The ACLU, sponsors at that time, sought a substantial expansion of the law.
Senator Kehoe's bill proposes to change the law concerning the posting or displaying of any political sign on the rented property. At one time the bill would have permitted the tenant to place the political sign anywhere on the property—even areas that he or she was not renting. The author agreed to amend the bill at our request to limit the placement of the signs on the rented property. Political signs are for an election of a candidate to public office, initiative, recall, public board or referendum. They will only be permitted to be displayed on the window of a multi-family unit or anywhere on a single-family property.
Tenants could not violate the laws governing the posting or display of signs. Objectionable signs that are prohibited by law, the time periods in which the signs could be posted, and size of signs are generally regulated by local zoning ordinances.
However, should a city or county fail to regulate the signs in this regard, the bill preempts local laws as to the size of each sign (six square feet), and states that the signs could not be displayed longer than 30 days prior to the election and 15 days following the election or vote.
Our amendments have assured regulation of the size of each sign, that we may adopt rules concerning placement, approval of location etc. I can assure you that should the bill be signed into law, our rental and lease agreements will devote a separate section on political signs.
Note to sponsors and supporters of SB 337: be careful of what you wish for!