SHAMEKA WINSLETT, Plaintiff and Appellant, v TH AVENUE LLC, YUVAL SAGI, et al., Defendants and Respondents.

Transcription

1 Case No. A IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR SHAMEKA WINSLETT, Plaintiff and Appellant, v TH AVENUE LLC, YUVAL SAGI, et al., Defendants and Respondents. Appeal from an order of the Alameda County Superior Court Case No. RG Hon. Stephen Pulido, Judge APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF CENTRO LEGAL DE LA RAZA, EAST BAY COMMUNITY LAW CENTER, WESTERN CENTER ON LAW AND POVERTY, TENANTS TOGETHER, AND NATIONAL HOUSING LAW PROJECT IN SUPPORT OF PLANTIFF AND APPELLANT *Martina I. Cucullu Lim (SBN ) CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA T (510) F (510) mcucullulim@centrolegal.org Ubaldo Fernandez (SBN ) EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA (510) ext. 334 F (510) ufernandez@ebclc.org Attorneys for Amici Curiae Received by First District Court of Appeal

2 TABLE OF CONTENTS TABLE OF CONTENTS... 2 TABLE OF AUTHORITIES... 4 CERTIFICATE OF INTERESTED PARTIES... 6 APPLICATION FOR LEAVE TO FILE AMICUS BRIEF IN SUPPORT OF APPELLANTS:... 7 AMICUS CURIAE BRIEF SUMMARY OF ARGUMENT ARGUMENT I. THE TRIAL COURT S UNREASONABLE INTERPRETATION OF SECTION 47 WOULD BAR TENANTS FROM SEEKING JUSTICE FOR RETALIATORY EVICTION, EFFECTIVELY NULLIFYING SECTION A. The Trial Court s Interpretation of Section 47 Makes Section Meaningless B. The Trial Court s Interpretation Strips Tenants of Their Right to Challenge Retaliatory Eviction C. The Trial Court s Interpretation Penalizes Tenants Who Attempt to Seek Justice D. The Trial Court s Interpretation is Insufficiently Supported by Precedent E. The Trial Court s Interpretation is in Conflict with Commonly Accepted Principles of Statutory Interpretation II. A SUBSTANTIAL PORTION OF CALIFORNIA RESIDENTS WILL BE DENIED LEGAL REDRESS IF BARRED FROM CHALLENGING LANDLORDS WHO EVICT THEM IN RETALIATION FOR ASSERTING THEIR RIGHTS A. Tenants Comprise a Significant Portion of California Residents B. California is in the Midst of a Housing Crisis Putting all Tenants, Particularly Low-Income and Minority Tenants, at Risk of Retaliatory Eviction C. Very Few Tenant-Defendants Have Legal Counsel III. THE TRIAL COURT S DECISION ROBS TENANTS REMEDY UNDER OAKLAND S JUST CAUSE ORDINANCE

3 A. The Trial Court Erroneously Characterizes Defendant s Violations of Oakland Just Cause Ordinance as Litigation Activity B. The Gravamen of Plaintiff s Oakland Just Cause Ordinance Claim is Non-Litigation Activity C. The Remedies Provided by Oakland s Just Cause Ordinance Are of Vital Importance Given Oakland s Housing Crisis D. The Trial Court Granted the Anti-SLAPP Motion on the Oakland Just Cause Ordinance Without Engaging in the Second Prong of the Anti-SLAPP Analysis CONCLUSION CERTIFICATION OF NUMBER OF WORDS IN BRIEF PROOF OF SERVICE

4 TABLE OF AUTHORITIES Cases Action Apartment Ass n, Inc. v. City of Santa Monica (2007) 41 Cal.4th , 15, 18 Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th , 18, 20 Barela v. Superior Court (1981) 30 Cal.3d , 21 Ben-Shahar v. Pickart (2014) 231 Cal.App.4 th , 29, 30 Birkner v. Lam (2007) 156 Cal.App.4th , 18 Clark v. Mazgani (2009) 170 Cal.App.4 th Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal. 3d Jessen v. Mentor Corp. (2008) 158 Cal.App.4th Knowles v. Robinson (1963) 60 Cal.2d Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4 th Moriarty v. Laramar Management Corporation (2014) 224 Cal.App.4 th , 29, 30, 34 Navellier v. Sletten (2002) 29 Cal.4th Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal. App. 4th People v. Pieters (1991) 52 Cal.3d Ulkarim v. Westfield LLC (2014) 227 Cal. App.4 th , 29, 30 Wallace v. McCubbin, (2011) 196 Cal.App.4th Statutes Civ. Code Civ. Code, passim Civ. Code, , subd. (c)... 12, 13, 14 Civ. Code, , subd. (f)... 12, 13 Civ. Code, , subd. (h) Civ. Code, Civ. Code, , 14, 18, 34 Civ. Code, 47, subd. (b)... 10, 11, 18, 21 Code Civ. Proc , subd. (b) Code Civ. Proc Code Civ. Proc , 15 Code Civ. Proc , subd. (a)... 14, 15 Code Civ. Proc , 17 Oakland Muni. Code , 32 Oakland Muni. Code Oakland Muni. Code

5 Other Authorities BondGraham, Oakland Landlord Evicts Tenant, Then Hangs Pro-Trump Billboard on Building, East Bay Express (Dec. 2, 2016) BondGraham, Last Days at Downtown Oakland s Hotel Travelers?, East Bay Express (May 25, 2016) Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012)... 25, 26 Brosseau, Analysis of Unlawful Detainer (Eviction) Lawsuits Filed in San Francisco (Apr. 15, 2014)... 26, 27 Daughrety and Turkowitz, Pushed by Prices Into Illegal and Risky Warehouses, N.Y. Times (Dec. 7, 2016) Drummund, Fremont Hotel residents stand in long lines to use a toilet since owners demolished bathrooms six month ago. Some resort to using pails in their rooms., East Bay Times (Aug. 23, 2016) Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed (2009) 37 Fordham Urb. L.J Johnson, Calming the Waters in Oakland s Tenant Landlord Tiffs, S.F. Chronicle. (Jan. 21, Judicial Council of California Task Force on Self-Represented Litigants, Statewide Action Plan for Serving Self-Represented Litigants (2003) Navarro, Evictions Decrease by 18%; City Cites Increased Legal Services for Tenants, N.Y. Times (Mar. 1, 2016) Policylink, Oakland s Displacement Crisis: As Told by the Numbers, Policylink (2016) Public Policy Institute of California, Just the Facts (2016) Rose and Lin, A Roadmap Toward Equity: Housing Solutions for Oakland, California (2015) City of Oakland Department of Housing & Community Development s Strategic Initiatives Unit and Policy Link Taylor, California s High Housing Costs: Causes and Consequences (Mar. 17, 2015) Legislative Analyst s Office Taylor, Perspectives on Helping Low Income Californians Afford Housing (Feb. 9, 2016) Legislative Analyst s Office Yentel et. al., Out of Reach 2016: No Refuge for Low Income Renters (2016), National Low Income Housing Coalition... 22, 23 5

6 CERTIFICATE OF INTERESTED PARTIES (Cal. Rules of Court, rule 8.208) To the best knowledge of the undersigned, no entity or individual has either (1) an ownership interest of ten percent or more in the party or parties filing this certificate (Cal. Rules of Court, rule 8.208(e)(l)), or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves (Cal. Rules of Court, rule 8.208(e)(2)), excluding an interest in the outcome that arises solely because the case might establish precedent. DATED: December 12, 2016 By: /s/ Martina I. Cucullu Lim Martina I. Cucullu Lim (SBN ) CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA T (510) F (510) mcucullulim@centrolegal.org Ubaldo Fernandez (SBN ) EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA (510) ext. 334 F (510) ufernandez@ebclc.org Attorneys for Amici Curiae 6

7 APPLICATION FOR LEAVE TO FILE AMICUS BRIEF IN SUPPORT OF APPELLANTS: Pursuant to Rule 8.200(c) of the California Rules of Court, Centro Legal de la Raza, East Bay Community Law Center, Western Center on Law and Poverty, Tenants Together, and National Housing Law Project respectfully request leave to submit the within amicus curie brief in support of plaintiff/appellant Shameka Winslett. Amici curiae East Bay Community Law Center, Centro Legal de la Raza, Wester Center on Law and Poverty, Tenants Together, and National Housing Law Project are non-profit legal services organizations and are not publicly held corporations that issue stock. Amici provide legal services and representation to low-income tenants in the Bay Area. Centro Legal de la Raza s Housing Program provides legal representation and consultations to low-income tenants in Oakland and Hayward. Centro Legal advises and/or represents hundreds of low-income tenants annually and provides monthly legal rights presentations. The East Bay Community Law Center, a legal clinic of U.C. Berkeley Law, is the largest provider of free legal services in the East Bay. EBCLC represents hundreds of tenants sued in unlawful detainer each year. In addition, EBCLC provides weekly limited scope representation for unrepresented tenants in unlawful detainer actions at the Superior Court of California for the County of Alameda. The Western Center on Law and Poverty is California s oldest and largest support center for the State s many neighborhood legal services programs. Through co-counseling in complex litigation, statewide task forces, and training, among other activities, Western Center helps these programs provide legal representation to low-income people, including low-income tenants. Western Center and the programs it supports have a 7

8 critical interest in ensuring that vulnerable tenants can enforce protections against retaliatory eviction. Tenants Together is California s statewide renters rights organization and works to improve the lives of California s tenants through education, organizing, impact litigation and advocacy. Among other activities, Tenants Together monitors developments in the courts and legislature that affect the rights of tenants. Tenants Together runs the only statewide hotline for tenants and has tenant-members throughout the state. Through its Tenant Lawyer Network, Tenants Together provides technical assistance to hundreds of attorneys every year. Tenants Together has an interest in protecting tenant's ability to protect against retaliatory evictions. The National Housing Law Project (NHLP) is a nonprofit national housing and legal advocacy center established in 1968, whose mission is to advance housing justice for low-income people by increasing and preserving the supply of decent, affordable housing; preserving, expanding, and enforcing tenants rights in housing; improving existing housing conditions; and minimizing involuntary displacement. NHLP partners with a host of individuals and organizations working in affordable housing, including local and national advocates, tenant and advocacy networks, nonprofit developers, and allied housing organizations. Through policy advocacy and litigation, NHLP has contributed to many critically important changes to policy and programs that have resulted in increased housing opportunities and improved housing conditions for low-income people. Amici have a substantial interest in the Court s resolution of this case because it will have a direct impact on their work and on their clients. Amici share a significant interest in ensuring that low-income tenants have mechanisms to seek legal redress for retaliation, retaliatory eviction, and violations of local just cause for eviction ordinances. 8

9 As a result of their work with low-income tenants, amici curiae are well-positioned to provide information on the practical impact of the trial court s interpretation of the litigation privilege provided by California Civil Code section 47, subdivision (b). In addition, amici can speak to the challenges facing low-income tenants and how standards for claims of retaliation and retaliatory evictions affect them. Amici curiae certify that no party or counsel for a party authored any portion of this brief or made a monetary contribution intended to fund its preparation or submission. See Cal. Rules of Court, rule (c)(3). No person other than amici curiae, their members, or their counsel have made such a monetary contribution. See ibid. Amici curiae represent that Winslett consents to the filing of this brief and Respondents have taken no position. DATED: December 12, 2016 Respectfully submitted, By: /s/ Martina I. Cucullu Lim Martina I. Cucullu Lim (SBN ) CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA T (510) F (510) mcucullulim@centrolegal.org Ubaldo Fernandez (SBN ) EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA T (510) ext. 334 F (510) ufernandez@ebclc.org Attorneys for Amici Curiae 9

10 AMICUS CURIAE BRIEF SUMMARY OF ARGUMENT Amici submit this brief in support of plaintiff/appellant Shameka Winslett to provide information on the way low-income tenants will be impacted by the trial court s unreasonable interpretation of the litigation privilege provided by Civil Code section 47, subdivision (b). 1 The trial court s interpretation, if upheld, would effectively nullify section , subdivisions (c) and (f), which are key to ensuring tenants are protected from retaliation and retaliatory eviction. Without the ability to bring claims under section , a tenant will have no legal redress for a landlord s unlawful and retaliatory pursuit of eviction. Moreover, the trial court s application of the litigation privilege to Oakland s Just Cause for Eviction Ordinance, permits a landlord to shield his unlawful activity by simply filing an unlawful detainer case before the tenant is able to file suit under the Ordinance even when the tenant s cause of action is not based on any allegations of litigation activity. The trial court s dilution of the tenant protections passed by the Oakland voters comes at the worst possible time in the midst of a housing crisis when tenants need protections most. ARGUMENT The trial court granted defendants/respondents motion to strike three of Winslett s claims, reasoning the claims constituted strategic lawsuits against public participation, or SLAPPs. The first two stricken claims were for retaliation and retaliatory eviction under section The third claim addressed defendants violation of Oakland s Just Cause for Eviction Ordinance. (See Oakland Muni. Code et seq.) 1 Unless otherwise noted, statutory references are to the Civil Code. 10

11 To succeed, an anti-slapp motion to strike must meet two conditions, which are described in Winslett s brief opposing the motion to strike. (See Appellant s Opening Brief (AOB) ) To summarize, the contested claim must be (1) based on protected activity, and (2) unlikely to succeed on its merits. (See Code Civ. Proc ) The trial court first found that Winslett s claims were based at least in part on an unlawful detainer action, which the court characterized as protected activity. (3 Clerk s Transcript (CT) 723.) Second, without considering the merits of Winslett s claims, the court held that she had not established a probability of prevailing. In so holding, the trial court reasoned the claims were barred by the litigation privilege described in section 47. Amici contend this interpretation of section 47 is not only erroneous and unreasonable, but also damaging to the rights and welfare of California tenants. In particular, this interpretation of section 47 would effectively nullify section , subdivisions (c) and (f), which were enacted to provide recourse to tenants who face retaliation after exercising their rights. Such tenants would thus be left without adequate remedy. The effects of the trial court s interpretation would be as widespread as they are drastic. I. THE TRIAL COURT S UNREASONABLE INTERPRETATION OF SECTION 47 WOULD BAR TENANTS FROM SEEKING JUSTICE FOR RETALIATORY EVICTION, EFFECTIVELY NULLIFYING SECTION Section provides important protection to tenants whose landlords retaliate against them for exercising their legal rights. However, the trial court interprets section 47, subdivision (b) on litigation privilege to bar Winslett s section claims altogether. 2 This interpretation renders section significantly or wholly inoperable. (See Action 2 In this brief, we analyze Winslett s retaliation and retaliatory eviction claims together, as they are both based on section (See AOB 29.) 11

12 Apartment Ass n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1246 (Action Apartment) (describing exceptions to Section 47: "each of the above mentioned statues is more specific than the litigation privilege and would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege").) In fact, the interpretation put forth by the trial court below wholly deprives tenants of their only meaningful remedy for retaliatory eviction under California law. In conjunction with the likelihood of attorney s fees being awarded to the landlord thereunder, this interpretation penalizes tenants for their efforts to seek justice after retaliation. Civ. Code 47(b). Furthermore, the trial court s interpretation is unreasonable and erroneous. The California Supreme Court has only ruled on the application of the litigation privilege to local ordinances, which is not at issue in this matter. There is no precedent regarding co-equal state statutes. (See Action Apartment, at 1246.) Additionally, the trial court s interpretation conflicts with widely-accepted principles of statutory interpretation, allowing a more general statute to prevail over a more specific one, even when the result is that the more specific statute becomes inoperable. A. The Trial Court s Interpretation of Section 47 Makes Section Meaningless Defendants violated section by using eviction procedures and other means to retaliate against Winslett for exercising her legal rights. Under section , subdivision (f), a landlord who violates section shall be liable to tenants in a civil action. However, in holding that Winslett s section claims are barred by section 47 litigation privilege, the trial court nullifies the remedy section (f) was enacted to provide for her. Defendants violations of section are clear. For example, section , subdivision (c) bars landlords from decreas[ing] services, 12

13 caus[ing] a lessee to quit involuntarily, [or] bring[ing] an action to recover possession for the purpose of retaliating against the lessee because he or she has lawfully and peacefully exercised any rights under the law. 3 Despite Winslett s repeated requests for defendants to make legally necessary repairs in her apartment, defendants refused to make the repairs in an effort to cause [Winslett] to quit involuntarily. (See , subd. (c).) Indeed, the manager of Winslett s building repeatedly told her to leave in response to her complaints, evidencing defendants motives. (See 2 CT 480.) After Winslett exercised her right to complain to county authorities about the uninhabitable conditions in her apartment, defendants harassed and intimidated her, also with the aim of caus[ing] [her] to quit. (See , subd. (c).) Finally, when she lawfully withheld her rent, they brought an action to recover possession. (See ibid.) Striking Winslett s claims makes meaningless the protection section , subdivision (f) is designed to provide by asserting that a landlord who violates section shall be liable. 4 Alternative remedies offered 3 Defendants conflate retaliatory eviction under section with common law retaliatory eviction, arguing Winslett has not stated a claim for retaliatory eviction because she ultimately left her apartment pursuant to a voluntary settlement agreement arrived at during the eviction process. (See Respondents Brief (RB) 26.) However, section , subdivision (c) deals with actions taken by a landlord in order to retaliate against a tenant, including causing the tenant to leave involuntarily. Further, the pressure tenants face to settle unlawful detainer actions in order to avoid consequences to their credit, discussed in greater detail in the next section, should give the court pause when considering whether Winslett s agreement to move out was truly voluntary. 4 Defendants argue that section , subdivision (d) removes liability for the acts described in subdivision (c) when they are done in exercise of a landlord s rights under an agreement. (RB 26.) Disregarding the reality that the acts giving rise to Winslett s section claim took place well before the settlement agreement was reached, defendants suggest (d) permitted Defendants here to recover possession of the Subject Premises pursuant to the voluntary agreement. (RB 27.) This is 13

14 by California law are inadequate, as described in the next section. Section (c) is thus rendered inoperable because there is no viable mechanism through which Winslett can hold her landlords accountable for the actions the statute declares unlawful. In other words, although section (c) states that it is unlawful for a landlord to bring an action to recover possession or otherwise retaliate against a tenant for exercising her rights, interpreting section 47 to bar retaliatory eviction claims effectively legalizes this conduct, because a landlord who retaliates against a tenant by filing an unlawful detainer action faces no adverse consequences for doing so. The trial court s interpretation results in section becoming largely unenforceable. This calls into question the California Legislature s purpose in enacting section It makes little sense to assume the legislature enacted a statute it did not intend to enforce. As the Second District Court of Appeal has observed, [t]he Legislature presumably would not have included these protections in section if it intended that they be nullified by the litigation privilege. We do not believe the legislature intended to do a useless act. (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 333 (Banuelos).) B. The Trial Court s Interpretation Strips Tenants of Their Right to Challenge Retaliatory Eviction In most cases, section is the sole remedy for tenants whose landlords evict them in retaliation for exercising their rights. The unlawful detainer process does not provide an avenue for a tenant to affirmatively hold a landlord liable for retaliatory conduct. (See Code Civ. Proc , (a).) Furthermore, while malicious prosecution claims may be available to some tenants, this claim applies to a much narrower impossible, since the agreement did not exist at the time of Defendants refusal to make repairs, harassment, and intimidation of plaintiff. 14

15 subset of cases. (See generally Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal. App. 4th 97 (Oviedo).) Since unlawful detainer actions are intended to be summary procedures, tenants are generally not allowed to bring cross-complaints. (Knowles v. Robinson (1963) 60 Cal.2d 620, ) While tenants may raise retaliation in defense to unlawful detainer actions, this does not make landlords liable for their retaliatory actions. Additionally, the unlawful detainer process is rapidly moving, with strict deadlines: the tenant has a mere five calendar days to submit an answer upon service of the complaint. (Code Civ. Proc ) If the tenant fails to respond during that time, she loses her opportunity raise any defenses. The process continues to move swiftly after a tenant s response: the case will be heard and decided within 20 days after either party makes a request to set the case for trial. (Code Civ. Proc (a).) This timetable severely constrains tenants opportunity to develop retaliation defenses, a constraint that is compounded by the extremely low rate of tenant representation in unlawful detainer actions. (See generally Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed (2009) 37 Fordham Urb. L.J. 37, 46.) Even though bringing a claim for malicious prosecution may be an avenue for a particular subset of tenants who face retaliatory unlawful detainer actions, the remedy is not a realistic alternative for most tenants. The California Supreme Court has specifically exempted malicious prosecution claims from the litigation privilege. (Action Apartment, supra, 41 Cal.4th at p (citing Albertson v. Raboff (1956) 46 Cal.2d 375, 382). To prevail on a claim for malicious prosecution based on an unlawful detainer action, a tenant must show that the unlawful detainer was (1) terminated in [the tenant s] favor; (2) beg[a]n with malice; and (3) [was] prosecuted without probable cause. (Oviedo, supra, 212 Cal. App. 4th at p. 15

16 111.) This burden is prohibitive for many tenants who are retaliated against through unlawful detainer actions, especially when coupled with potential liability for attorney s fees. Though a tenant may raise retaliatory eviction in defense to an unlawful detainer; this is no guarantee that they will receive a favorable outcome. As described above, the unlawful detainer process is subject to strict time constraints, and tenants are rarely represented by counsel. As a result, an unlawful detainer action could be decided in a landlord s favor simply by virtue of a tenant s incomprehension of her obligations in the process or the availability of retaliation as a defense. Even if represented, tenants may feel pressure to settle. This is particularly so with tenants similarly-situated with Winslett, whose landlords have subjected them to a series of retaliatory actions over time. Additionally, malicious prosecution is not available to tenants seeking to hold their landlords liable for retaliatory actions that do not involve prosecution, such as, in this case, harassment with the intent of causing the tenant to vacate their unit against their will in violation of section Because these barriers prevent tenants from asserting their right to be free from retaliation, [t]he Legislature made the judgment that raising retaliation as a defense to an unlawful detainer action and a suit for malicious prosecution are not adequate remedies for retaliatory eviction. (Banuelos, supra, 219 Cal.App.4th at p. 333) In support for this assertion, the court cited section subdivision (h), which states that [t]he remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law. Amici urge the court to defer to the legislature s evaluation of the need for an affirmative remedy for retaliatory eviction that has a broader reach than malicious prosecution. 16

17 C. The Trial Court s Interpretation Penalizes Tenants Who Attempt to Seek Justice The implications of the trial court s interpretation go beyond merely immunizing retaliatory conduct by denying tenants a mechanism to hold their landlords accountable. The interpretation effectively punishes Winslett, and similarly situated tenants, for her attempts to seek justice. In this case, interpreting the litigation privilege to bar Winslett s claims suggests she does not have a probability for prevailing on their merits. This, combined with the court s characterization of defendants unlawful detainer action as protected activity under Code of Civil Procedure section , would cause defendants anti-slapp motion to succeed and the court to saddle Winslett with attorney s fees. This directly contradicts the legislative intent of section , which the California Supreme Court has described as a remedial statute aimed at protecting tenants from abuse (Barela v. Superior Court (1981) 30 Cal.3d 244, 251 (Barela).) It also undermines the objectives of the anti- SLAPP statute itself. Code of Civil Procedure section was enacted to combat lawsuits brought to chill the valid exercise of constitutional rights. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1046). Ironically, the trial court s interpretation would have exactly the chilling effect the anti- SLAPP statute was concerned with: preventing tenants from seeking legal redress of their grievances. (See ibid.) D. The Trial Court s Interpretation is Insufficiently Supported by Precedent In support of its ruling granting defendants motion to strike, the trial court cites two previous cases from the First District Court of Appeal. These cases are both distinguishable from Winslett s. First, Birkner v. Lam did not involve a coequal state statute (it was limited to questions of local and common law). (See Birkner v. Lam (2007) 156 Cal.App.4th 275, (Birkner).) Moreover, the Court remanded the case for a second-prong 17

18 analysis. Second, the court in Feldman ruled that claims for wrongful eviction based on a local ordinance are barred by section 47. (See Feldman, supra, 160 Cal.App.4th 1467, ) While the court discussed the tenants claims of retaliatory eviction under Section , it ultimately ruled that plaintiffs had failed to establish a prima facie case of retaliation and therefore this discussion is nonbinding dicta. (See ibid.) Similarly, in Action Apartment the California Supreme Court only ruled on the application of such privilege to local ordinances, and not a conflict between the litigation privilege and coequal state statutes. (See Action Apartment, supra, 41 Cal.4th at p (emphasizing the distinction between state and local laws ).) On the other hand, the Second District Court of Appeal has held that section 47, subdivision (b) does not bar retaliation or retaliatory eviction claims under section (Banuelos, supra, 219 Cal.App.4th at p. 335.) The cases cited by the trial court are not applicable to the instant case, as they deal with conflicts between section 47 and local and common laws, not a coequal state law. In Birkner, supra, 156 Cal.App.4th at p , the court held that a tenant s claim for wrongful eviction based on a local rent ordinance was barred by section 47, and therefore subject to an anti-slapp motion to strike. Similarly, in Feldman, supra, 160 Cal.App.4th at p , the court held tenants claims for wrongful eviction based on a local ordinance were precluded by section Both of these cases rely on Action Apartment, supra, 41 Cal.4th at p. 1239, in which the California Supreme Court held the litigation privilege preempted a provision of a local ordinance seeking to penalize landlords for 5 While the Court in Feldman discussed claims under section , it never ruled on the question of preclusion of section claims by section 47 as the plaintiffs had failed to establish a prima facie claim of retaliatory eviction. (Feldman supra, 160 Cal.App.4th at p ) 18

19 bringing any action to recover possession of a rental unit without a reasonable factual or legal basis. The court found section 47 preempted the local ordinance, noting that [f]undamental to the doctrine of preemption is the distinction between state and local laws: local governments lack the authority to craft their own exceptions to general state laws. (Id. at p (citing Cal. Const., art. XI, 7).) By contrast, reconciling coequal state statues is a less clear-cut process, as discussed in the following section. Defendants claim that [t]wice this court has ruled that a Plaintiff s claim under section is barred by the litigation privilege, citing Feldman, supra, 160 Cal.App.4th 1467, and Wallace v. McCubbin, (2011) 196 Cal.App.4th 1169 (Wallace). (RB 27.) This misconstrues Feldman, and fails to address serious deficiencies in Wallace. In particular, while the Feldman court also struck the tenants section claims, it did so on the grounds that it entertain[ed] serious doubts whether the rights asserted by the [tenants] were encompassed by the retaliatory eviction statute, and [c]onsequently, the [tenants] failed to make a prima facie showing that they were likely to succeed on their retaliatory eviction cause of action. (Feldman supra, 160 Cal.App.4th at p ) In other words, the court considered the merits of the retaliatory eviction state law claim before allowing it to be struck, and in contrast to the present case, the tenants claims did not clearly fall under section In Wallace, a First District Court of Appeal case, Division Five failed to distinguish between conflicts with local ordinances as compared with state statutes. Furthermore, the court did not discuss its reasoning nor provide an analysis for allowing section 47 to trump section (Wallace, supra,196 Cal.App.4th at p. 1213). As such, Wallace s precedential value is limited to striking claims of wrongful eviction based on a local ordinance. (Ibid.) 19

20 On the other hand, the Second District Court of Appeal offers a more recent, complete, and applicable analysis in Banuelos, supra, 219 Cal.App.4th 323. In that case, the court declined to follow Wallace. Rather, the court held that an action for retaliatory eviction under section was not barred by section 47. (Ibid. at p ) The court noted that the holding in Action Apartment did not control because the conflict in that case was between a statute and a city ordinance while our case involves a conflict between two coequal statues. (Ibid. at p. 331.) To resolve the conflict between section 47 and section , the Banuelos court considered the legislative intent underlying each statute, and the effect each interpretation would have. The court reasoned that allowing the litigation privilege to trump section would effectively immunize the conduct the statute prohibits, and that section would become significantly or wholly inoperable if its enforcement were barred by the litigation privilege. (Ibid. at p. 332.) Amici urge the court to adopt the reasoning put forth by the Second District in Banuelos, and decline to follow Wallace to the extent it is applicable. 6 The reasoning provided by Action Apartment, Feldman, and Birkner is not applicable here. E. The Trial Court s Interpretation is in Conflict with Commonly Accepted Principles of Statutory Interpretation The broader implication of the trial court s ruling is that when section 47 and section conflict, section 47 prevails. However, as Winslett s brief describes, this interpretation is inconsistent with commonly 6 Ample precedent indicates there is no horizontal stare decisis within Califorina courts of appeal, so this division is not bound by Division Five s interpretation. (See, e.g., Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1489, fn.10 (citing In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409; McCallum v. McCallum (1987) 190 Cal. App. 3d 308, 315, fn. 4 [ One district or division may refuse to follow a prior decision of a different district or division... ]).) 20

21 accepted principles of statutory interpretation. In particular, the foremost rule of statutory construction is to look to the legislative intent. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53). Where two statutes conflict, courts should aim to interpret them in a way that will not make one statute meaningless. (People v. Pieters (1991) 52 Cal.3d 894.) If it is impossible to reconcile the inconsistency, specific statutes should prevail over general statutes. ( 3534.) The California Supreme Court has described section as a remedial statue aimed at protecting tenants from certain types of abuses, and instructed that it be liberally construed to suppress retaliatory conduct. (Barela, supra, 30 Cal.3d at p. 251.) This goal is directly contravened by the trial court s interpretation of the section 47 litigation privilege. Indeed, barring enforcement of section renders it meaningless, as described above. On the other hand, the opposite interpretation would not make section 47 meaningless, as it would still apply in many other situations. Furthermore, precedent for exceptions to section 47 is well-established. The litigation privilege set out in section 47, subdivision (b) aims to afford litigants freedom of access to the courts without fear of being harassed subsequently. (Action Apartment, supra, 41 Cal.4th at p (citing Silberg v. Anderson (1990) 50 Cal.3d 205).) However, the California Supreme Court has recognized that section 47 is not without limit, and upheld exceptions to it based on irreconcilable conflicts between the privilege and other coequal state laws. (Action Apartment, at p ) For example, as discussed above, the California Supreme Court has made an exception for malicious prosecution. (Ibid. at p ) These exceptions show that the legislature did not intend [the] enforcement [of coequal state laws] to be barred by the litigation privilege. (Ibid. at p ) 21

22 II. A SUBSTANTIAL PORTION OF CALIFORNIA RESIDENTS WILL BE DENIED LEGAL REDRESS IF BARRED FROM CHALLENGING LANDLORDS WHO EVICT THEM IN RETALIATION FOR ASSERTING THEIR RIGHTS Upholding the trial court s interpretation would have a detrimental impact not only on Winslett, but on the millions of California residents who are tenants. Tenants with low incomes and/or limited English proficiency are especially vulnerable to retaliatory eviction and other abuses, and would be disproportionately impacted by the trial court s interpretation. In addition, the majority of tenants facing eviction lack legal representation, so it is even more critical that the protection provided by section be preserved. A. Tenants Comprise a Significant Portion of California Residents The trial court s decision to interpret section 47, subdivision (b) as barring claims under section , and the resulting invalidation of section , will impact the rights of nearly half of California s residents. California has the second highest percentage of tenant residents in the country: tenants make up approximately 45 percent of California residents. (Yentel et al., Out of Reach 2016: No Refuge for Low Income Renters (2016), pp , National Low Income Housing Coalition < [as of Oct. 7, 2016].) The majority of these tenants are low-income, making them especially vulnerable to retaliation and other abuses. 7 In 2016, the California Legislative Analyst s Office reported that 3.3 million lowincome households relied on renting for their housing. (Taylor, 7 There are 5.7 million tenant households in California. (Yentel, supra, at p. 14.) Of these, 3.3 million are low-income as defined by the California Legislative Analyst s Office. (Taylor, Perspectives on Helping Low Income Californians Afford Housing (Feb. 9, 2016) Legislative Analyst s Office < ca.gov/ Reports/2016/3345/Low-Income- Housing pdf> [as of Oct. 5, 2016] (Taylor I).) 22

23 Perspectives on Helping Low Income Californians Afford Housing (Feb. 9, 2016) Legislative Analyst s Office < ca.gov/ Reports/2016/3345/Low-Income-Housing pdf> [as of Oct. 5, 2016] (Taylor I).) This represents over a quarter of California households. 8 B. California is in the Midst of a Housing Crisis Putting all Tenants, Particularly Low-Income and Minority Tenants, at Risk of Retaliatory Eviction. California s housing crisis is well-documented. Rental prices are some of the highest in the nation, and demand for housing far exceeds supply. (See Taylor, California s High Housing Costs: Causes and Consequences (Mar. 17, 2015) Legislative Analyst s Office < ca.gov/reports/2015/finance/housing-costs/housingcosts.pdf> [as of Oct. 5, 2016] (Taylor II).) While this crisis has broad effects on the well being of families throughout the state, its impact on lowincome families is especially harsh. For example, research shows that in order to afford a two-bedroom apartment in California, a tenant would need to work on average 114 hours a week at minimum wage, or work full-time at a salary of $28.59 an hour. (Yentel, supra, at p. 31.) Only two other states in the nation require a higher hourly wage in order to afford a modest two-bedroom apartment. (Id. at pp ) Meanwhile, poverty is widespread in California: as of 2015, approximately 40 percent of the state s residents were living at or near the poverty line. (Public Policy Institute of California, Just the Facts (2016) < publication_show.asp?i=261> [as of Oct. 5, 2016].) Moreover, 5.9 percent of California residents live in such deep poverty they have less than half the resources to meet basic needs. (Ibid.) 8 There are 12.6 million households in total in California. (Yentel, supra, at p. 31.) 23

24 Furthermore, given the inherent imbalance built into the landlordtenant relationship, tenants risk retaliation and eviction when seeking to exercise their rights. Low-income tenants are particularly at risk for retaliation and retaliatory eviction when they seek to enforce their rights because the high demand for housing outstrips the stock of affordable housing. In fact, by simply filing an unlawful detainer lawsuit against a tenant, a landlord has already succeeded in retaliating against the tenant. Under current state law, an unlawful detainer will appear on a tenant s credit report unless the tenant succeeds in defeating the case within 60 days of the complaint s filing date, or the landlord chooses to dismiss the complaint within those same 60 days. (Code Civ. Proc ) Many tenants are ultimately forced out of their homes unlawfully because they fear their credit will be ruined and they will be unable to locate new housing if their landlord files an unlawful detainer against them. The enactment of Assembly Bill 2819 will ameliorate this issue somewhat, by amending Code of Civil Procedure section with regards to masking. However, tenants who lack access to legal counsel or have a limited understanding of the applicable laws are still likely to be susceptible to intimidation. Furthermore, given the severely limited amount of time a tenant has to file an answer upon service of the complaint, landlords often obtain default judgments in their favor even where the tenants have strong defenses against eviction. Unrepresented tenantsare likely lose an eviction matter within the 60 days required by AB 2819 in order for the matter to be unmasked and appear on a tenants credit report. Defendants emphasis on the voluntary nature of the move-out agreement they reached with Winslett betrays their lack of recognition of the power imbalance between tenants and landlords. It also ignores the 24

25 pressure the threat of negative credit consequences puts on tenants to settle and move out. (See RB 26.) In recent years, Centro Legal de la Raza has observed a marked increase in the numbers of retaliatory evictions faced by our clients a trend driven by rapidly increasing rents in San Francisco and Oakland. Comparing the fiscal years 2013 and 2014 with fiscal years 2015 and 2016, the number of low-income tenants whose landlords have threatened and/or filed unlawful detainers in retaliation for the tenants exercising their rights increased by almost 300 percent. Furthermore, of those tenants seen at Centro Legal de la Raza from 2014 through July 2016, 43 percent were limited English speakers, 18 percent had a disability, 50 percent were from homes with minor-aged children, and 86 percent were minorities. C. Very Few Tenant-Defendants Have Legal Counsel Tenant-defendants facing eviction proceedings are very rarely represented by legal counsel. Without representation, tenants are less likely to prevail in unlawful detainer actions, and may not be aware of the opportunity to assert retaliation as a defense to eviction. (See, e.g. Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012) < bostonbar.org/docs/default-document-library/bba-crtcfinal pdf> [as of Oct. 5, 2016] (Boston Bar Association).) As a result, the right to later sue for retaliatory eviction is critical to tenant protection. Tenants lack of access to representation in housing actions is a longstanding and nationwide problem. Studies of housing courts across the country consistently reveal that tenants are rarely represented. (See generally Engler, supra, at p. 46.) In California, the Judicial Council has estimated that over 90 percent of tenant-defendants in unlawful detainer cases are self-represented. (Task Force on Self-Represented Litigants, 25

26 Statewide Action Plan for Serving Self-Represented Litigants (2003), at p. 2 < documents/selfreplitsrept.pdf> [as of Oct. 5, 2016].) In 2012 and 2013, only 15 percent of tenants facing eviction in San Francisco were represented by counsel. (Brosseau, Analysis of Unlawful Detainer (Eviction) Lawsuits Filed in San Francisco (Apr. 15, 2014), p. 5, Budget and Legislative Analyst s Office < Documents/ BLA%20Unlawful%20Detainers% pdf> [as of Oct. 5, 2016].) Unfortunately, the fate of a tenant facing eviction is heavily influenced by whether they are able to access representation. Represented tenants are much more likely to have favorable outcomes. For example, a 2012 study on a Boston area pilot project to provide representation in unlawful detainer actions found that tenants who were represented were twice as likely to stay in their homes as tenants who weren t, and received nearly five times the financial benefit. (Boston Bar Association, supra, at p. 15.) Similarly, after allocating additional funds for legal services for tenants, New York City saw the number of evictions decrease by nearly a quarter over a two years period, despite a minimal decrease in the number of cases filed by landlords for nonpayment of rent. (Navarro, Evictions Decrease by 18%; City Cites Increased Legal Services for Tenants, N.Y. Times (Mar. 1, 2016) p. A23.) Many advocates attribute this decline to the increase in availability of representation. Without access to representation, most tenants facing retaliatory eviction are left to fend for themselves in a fast-paced, complicated, and often overwhelming legal process. Tenants may be unaware of the option to raise retaliation as a defense to eviction. Furthermore, the accelerated process combined with its unfamiliarity may cause many tenants to miss their opportunity to answer altogether. For example, in San Francisco in , one or both parties failed to appear in over a third of unlawful 26

27 detainer cases. (Brosseau, supra at p. 5.) As a result, section is critical to ensuring that even if tenants are unable to successfully defend against an unlawful detainer action, they will be able to hold their landlords accountable for retaliatory eviction after the fact. III. THE TRIAL COURT S DECISION ROBS TENANTS REMEDY UNDER OAKLAND S JUST CAUSE ORDINANCE. The trial court s decision strips Oakland tenants right to sue for a landlord s non-litigation activity that violates Oakland s Just Cause Ordinance, so long as the landlord has at some point filed an unlawful detainer action. Folding Defendants violations of Oakland s Just Cause Ordinance into their later filing of an unlawful detainer, and shielding both with an overly broad application of the litigation privilege, will work injustice for tenants. The trial court also fails to engage in the second prong of the anti-slapp analysis: determining whether the claim has a probability of success on the merits. Affirming this decision will leave already vulnerable tenants without the protection of the Oakland Just Cause Ordinance in the midst of a dire housing crisis. A. The Trial Court Erroneously Characterizes Defendant s Violations of Oakland Just Cause Ordinance as Litigation Activity Appellant correctly argues in her Opening Brief that her claim for violation of the Ordinance is not based on litigation activity, but on Plaintiff s wrongfully endeavoring to recover possession of the Subject Premises by failing to make repairs to the subject premises, by serving Plaintiff with misleading notices, attempting to trick Plaintiff into moving out without just cause, and not advising Plaintiff of her right to contact the rent board, or advising her of the Just Cause Ordinance. (CT ) Nothing in these allegations can be considered litigation activity. The filing of an action for unlawful detainer, which is undisputedly protected activity, does not appear in these allegations. (See Feldman v. 27

28 110 Park Lane Associates (2008) 160 Cal.App.4th 1467,1479.) The mere fact that Defendants filed an unlawful detainer before Plaintiff filed her Oakland Just Cause Ordinance claim does not mean the claim arose from the filing of the unlawful detainer action. (See Ulkarim v. Westfield LLC (2014) 227 Cal. App.4 th 1266, 1275.) That Defendants filed an unlawful detainer action should not shield from liability their previous unlawful nonlitigation scheme to displace Plaintiff in violation of Oakland s Just Cause Ordinance. B. The Gravamen of Plaintiff s Oakland Just Cause Ordinance Claim is Non-Litigation Activity. Whether a plaintiff s claim is based on litigation activity does not depend on whether a protected activity took place, but on the thrust or gravamen of the claim. (Moriarty v. Laramar Management Corporation (2014) 224 Cal.App.4 th 125, , quoting See Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4 th 181, 188.) Plaintiff s claim is considered to have arisen from protected activity only if the gravamen of the claim is the protected activity. (See id.) If the protected activity, in this case an unlawful detainer litigation, is the basis or cause of the claim, the claim is based on protected activity. (Clark v. Mazgani (2009) 170 Cal.App.4 th 1281,1289; see also Moriarty v. Laramar Management Corporation (2014) 224 Cal.App.4 th 125, 138.) If the protected activity merely preceded or triggered the ultimate suit, the claim is not protected activity. (See id.) The Court of Appeal for the Second District has even stated that unless the claim is based solely on the filing of an unlawful detainer, the claim will not be protected by the litigation privilege. (Ben- Shahar v. Pickart (2014) 231 Cal.App.4 th 1043, 1051.) In determining whether a claim is based on protected activity, the court reviews the pleadings, and supporting and opposing affidavits stating the facts upon 28