Case No. A146932

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION FOUR

SHAMEKA WINSLETT, Plaintiff and Appellant,

v. 1811 27TH AVENUE LLC, YUVAL SAGI, et al.,

Defendants and Respondents.

Appeal from an order of the Alameda County Superior Court

Case No. RG15762846 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 262529) CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA 94601 T (510) 274-2410 F (510) 437-9164 mcucullulim@centrolegal.org Ubaldo Fernandez (SBN 296112) EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA 94601 (510) 548-4040 ext. 334 F (510) 548-2566 ufernandez@ebclc.org Attorneys for Amici Curiae

Received by First D

istrict Court of A

ppeal

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 ......................................................................... 10 SUMMARY OF ARGUMENT ................................................................... 10 ARGUMENT .............................................................................................. 10 I. THE TRIAL COURT’S UNREASONABLE INTERPRETATION OF SECTION 47 WOULD BAR TENANTS FROM SEEKING JUSTICE FOR RETALIATORY EVICTION, EFFECTIVELY NULLIFYING SECTION 1942.5 ............................................................... 11 A. The Trial Court’s Interpretation of Section 47 Makes Section 1942.5 Meaningless ..................................................................................... 12 B. The Trial Court’s Interpretation Strips Tenants of Their Right to Challenge Retaliatory Eviction ................................................................... 14 C. The Trial Court’s Interpretation Penalizes Tenants Who Attempt to Seek Justice ............................................................................................. 17 D. The Trial Court’s Interpretation is Insufficiently Supported by Precedent ..................................................................................................... 17 E. The Trial Court’s Interpretation is in Conflict with Commonly Accepted Principles of Statutory Interpretation .......................................... 20 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 .............................. 22 A. Tenants Comprise a Significant Portion of California Residents .... 22 B. California is in the Midst of a Housing Crisis Putting all Tenants, Particularly Low-Income and Minority Tenants, at Risk of Retaliatory Eviction. .................................................................................... 23 C. Very Few Tenant-Defendants Have Legal Counsel ......................... 25 III. THE TRIAL COURT’S DECISION ROBS TENANTS’ REMEDY UNDER OAKLAND’S JUST CAUSE ORDINANCE. ........... 27

3

A. The Trial Court Erroneously Characterizes Defendant’s Violations of Oakland Just Cause Ordinance as Litigation Activity ............................ 27 B. The Gravamen of Plaintiff’s Oakland Just Cause Ordinance Claim is Non-Litigation Activity. .......................................................................... 28 C. The Remedies Provided by Oakland’s Just Cause Ordinance Are of Vital Importance Given Oakland’s Housing Crisis. ............................... 30 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 .................................................................................. 34 CONCLUSION ........................................................................................... 34 CERTIFICATION OF NUMBER OF WORDS IN BRIEF ....................... 37 PROOF OF SERVICE ................................................................................ 38

4

TABLE OF AUTHORITIES

Cases Action Apartment Ass’n, Inc. v. City of Santa Monica (2007) 41 Cal.4th

1232 ............................................................................................. 12, 15, 18 Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323 ....... 14, 18, 20 Barela v. Superior Court (1981) 30 Cal.3d 244 .................................... 17, 21 Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043 ...................... 28, 29, 30 Birkner v. Lam (2007) 156 Cal.App.4th 275 ......................................... 17, 18 Clark v. Mazgani (2009) 170 Cal.App.4th 1281 .......................................... 28 Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 .......... 21 Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal. 3d 512 ......................... 31 Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480 ............................... 20 Knowles v. Robinson (1963) 60 Cal.2d 620 ................................................ 15 Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181 ............ 28 Moriarty v. Laramar Management Corporation (2014) 224 Cal.App.4th 125

............................................................................................... 28, 29, 30, 34 Navellier v. Sletten (2002) 29 Cal.4th 89 .................................................... 29 Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal. App. 4th 97 . 15 People v. Pieters (1991) 52 Cal.3d 894 ....................................................... 21 Ulkarim v. Westfield LLC (2014) 227 Cal. App.4th 1266 ................ 28, 29, 30 Wallace v. McCubbin, (2011) 196 Cal.App.4th 1169 ................................. 19 Statutes Civ. Code § 1954.50 .................................................................................... 30 Civ. Code, § 1942.5 .............................................................................. passim Civ. Code, § 1942.5, subd. (c) ......................................................... 12, 13, 14 Civ. Code, § 1942.5, subd. (f) ............................................................... 12, 13 Civ. Code, § 1942.5, subd. (h) ..................................................................... 16 Civ. Code, § 3534 ........................................................................................ 21 Civ. Code, § 47 .......................................................................... 12, 14, 18, 34 Civ. Code, § 47, subd. (b) .......................................................... 10, 11, 18, 21 Code Civ. Proc 425.16, subd. (b) ................................................................ 29 Code Civ. Proc. § 1161.2............................................................................. 24 Code Civ. Proc. § 1167.3....................................................................... 14, 15 Code Civ. Proc. § 1170.5, subd. (a) ...................................................... 14, 15 Code Civ. Proc. § 425.16....................................................................... 11, 17 Oakland Muni. Code § 8.22.300 ........................................................... 10, 32 Oakland Muni. Code § 8.22.360 ................................................................. 32 Oakland Muni. Code § 8.22.370 ................................................................. 32

5

Other Authorities BondGraham, Oakland Landlord Evicts Tenant, Then Hangs Pro-Trump

Billboard on Building, East Bay Express (Dec. 2, 2016) ........................ 31 BondGraham, Last Days at Downtown Oakland’s Hotel Travelers?, East

Bay Express (May 25, 2016) ................................................................... 32 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) ................................................. 30

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) ........................... 31

Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed (2009) 37 Fordham Urb. L.J. 37 .............................................................................................. 15

Johnson, Calming the Waters in Oakland’s Tenant Landlord Tiffs, S.F. Chronicle. (Jan. 21, 2016. ........................................................................ 31

Judicial Council of California Task Force on Self-Represented Litigants, Statewide Action Plan for Serving Self-Represented Litigants (2003) .... 26

Navarro, Evictions Decrease by 18%; City Cites Increased Legal Services for Tenants, N.Y. Times (Mar. 1, 2016) .................................................. 26

Policylink, Oakland’s Displacement Crisis: As Told by the Numbers, Policylink (2016) ..................................................................................... 30

Public Policy Institute of California, Just the Facts (2016) ........................ 23 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 ...................... 31

Taylor, California’s High Housing Costs: Causes and Consequences (Mar. 17, 2015) Legislative Analyst’s Office .................................................... 23

Taylor, Perspectives on Helping Low Income Californians Afford Housing (Feb. 9, 2016) Legislative Analyst’s Office ............................................ 23

Yentel et. al., Out of Reach 2016: No Refuge for Low Income Renters (2016), National Low Income Housing Coalition ............................. 22, 23

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 262529) CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA 94601 T (510) 274-2410 F (510) 437-9164 mcucullulim@centrolegal.org Ubaldo Fernandez (SBN 296112) EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA 94601 (510) 548-4040 ext. 334 F (510) 548-2566 ufernandez@ebclc.org Attorneys for Amici Curiae

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

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.

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 8.2000(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 262529) CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA 94601 T (510) 274-2410 F (510) 437-9164 mcucullulim@centrolegal.org Ubaldo Fernandez (SBN 296112) EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA 94601 T (510) 548-4040 ext. 334 F (510) 548-2566 ufernandez@ebclc.org Attorneys for Amici Curiae

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 1942.5,

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 1942.5, 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 1942.5.

The third claim addressed defendants’ violation of Oakland’s Just Cause for

Eviction Ordinance. (See Oakland Muni. Code § 8.22.300 et seq.)

1 Unless otherwise noted, statutory references are to the Civil Code.

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) 25-26.) To summarize, the

contested claim must be (1) based on “protected activity,” and (2) unlikely

to succeed on its merits. (See Code Civ. Proc. § 425.16.) 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 1942.5, 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 1942.5 Section 1942.5 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 1942.5 claims altogether.2 This interpretation

renders section 1942.5 “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 1942.5. (See AOB 29.)

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 1942.5 Meaningless Defendants violated section 1942.5 by using eviction procedures and

other means to retaliate against Winslett for exercising her legal rights.

Under section 1942.5, subdivision (f), a landlord who violates section

1942.5 “shall be liable” to tenants in a civil action. However, in holding

that Winslett’s section 1942.5 claims are barred by section 47 litigation

privilege, the trial court nullifies the remedy section 1942.5(f) was enacted

to provide for her.

Defendants’ violations of section 1942.5 are clear. For example,

section 1942.5, subdivision (c) bars landlords from “decreas[ing] services,

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 § 1942.5, 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

§ 1942.5, 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

1942.5, subdivision (f) is designed to provide by asserting that a landlord

who violates section 1942.5 “shall be liable.”4 Alternative remedies offered

3 Defendants conflate retaliatory eviction under section 1942.5 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 1942.5, 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 1942.5, 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 1942.5 claim took place well before the settlement agreement was reached, defendants suggest “1942.5(d) permitted Defendants here to recover possession of the Subject Premises pursuant to the voluntary agreement….” (RB 27.) This is

14

by California law are inadequate, as described in the next section. Section

1942.5(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 1942.5(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 1942.5 becoming

largely unenforceable. This calls into question the California Legislature’s

purpose in enacting section 1942.5. 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 1942.5 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 1942.5 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.

§§ 1167.3, 1170.5(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.

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, 625–627.) 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. § 1167.3.) 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. § 1170.5(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. 1242 (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.

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 1942.5.

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 1942.5 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.

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

425.16, 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 1942.5,

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 425.16 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, 286-

287 (Birkner).) Moreover, the Court remanded the case for a second-prong

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, 1493-1494.) While the court discussed the

tenants’ claims of retaliatory eviction under Section 1942.5, 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. 1247 (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 1942.5.

(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. 286-

287, 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. 1493-1494, the court held tenants’ claims for wrongful

eviction based on a local ordinance were precluded by section 47.5

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 1942.5, it never ruled on the question of preclusion of section 1942.5 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. 1492.)

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. 1247

(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 1942.5 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 1942.5 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. 1492.) 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 1942.5.

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 1942.5.

(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.)

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 1942.5

was not barred by section 47. (Ibid. at p. 335-336.) 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 1942.5, 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 1942.5 would “effectively

immunize the conduct the statute prohibits,” and that section 1942.5 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 1942.5 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...”]).)

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 1942.5 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 1942.5 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. 1241

(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. 1247.) For

example, as discussed above, the California Supreme Court has made an

exception for malicious prosecution. (Ibid. at p. 1242.) 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. 1245.)

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 1942.5 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 1942.5, and the resulting invalidation of

section 1942.5, 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. 14-15, National Low Income Housing Coalition

<http://nlihc.org/sites/default/files/oor/OOR_2016.pdf> [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 low-

income 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 < http://www.lao. ca.gov/ Reports/2016/3345/Low-Income-Housing-020816.pdf> [as of Oct. 5, 2016] (Taylor I).)

23

Perspectives on Helping Low Income Californians Afford Housing (Feb. 9,

2016) Legislative Analyst’s Office < http://www.lao. ca.gov/

Reports/2016/3345/Low-Income-Housing-020816.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 <

http://www.lao. ca.gov/reports/2015/finance/housing-costs/housing-

costs.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 low-

income 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. 14-15.)

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)

<http://www.ppic.org/main/ 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.)

24

Furthermore, given the inherent imbalance built into the landlord-

tenant 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. § 1161.2.) 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 1161.2 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

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) <http://www. bostonbar.org/docs/default-document-library/bba-crtc-

final-3-1-12.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,

26

Statewide Action Plan for Serving Self-Represented Litigants (2003), at p. 2

<http://www.courts.ca.gov/ 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 <

http://sfbos.org/sites/default/files/FileCenter/ Documents/48669-

BLA%20Unlawful%20Detainers%20041514.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

2012-2013, one or both parties failed to appear in over a third of unlawful

27

detainer cases. (Brosseau, supra at p. 5.) As a result, section 1942.5 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 45-46.)

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.

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.4th 1266, 1275.) That Defendants filed an unlawful

detainer action should not shield from liability their previous unlawful non-

litigation 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.4th 125, 133-34, quoting See Martinez v. Metabolife

Internat., Inc. (2003) 113 Cal.App.4th 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.4th 1281,1289; see also Moriarty v. Laramar Management

Corporation (2014) 224 Cal.App.4th 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.4th 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

29

which the liability or defense is based.” (Code Civ. Proc 425.16, subd. (b),;

see also Navellier v. Sletten (2002) 29 Cal.4th 89.)

Plaintiff correctly argues that the gravamen of her Oakland

Just Cause Ordinance claim was not Defendants’ protected litigation

activity, but their wrongful endeavor to recover possession of the unit in

violation of Oakland’s Just Cause Ordinance. AOB at 47-49. Plaintiff relies

on a line of decisions denying landlords’ anti-SLAPP motions, each

reasoning that suits brought against landlords after the filing of an unlawful

detainer action were not automatically barred by anti-SLAPP motions. (See

generally, Moriarty, supra, 224 Cal.App.4th 125; Ulkarim supra, 227 Cal.

App.4th 1266; Ben-Shahar, supra,231 Cal.App.4th 1043.) Instead, the

gravamen of each claim is examined in these cases and determined to be

non-protected activity. (See generally, id.)

Here, Plaintiff’s Oakland Just Cause Ordinance claim was based on

Defendants’ unlawful scheme to force Plaintiff to move in violation of

Oakland’s Just Cause Ordinance: “Defendants have Violated the Just Cause

Ordinance by wrongfully endeavoring to recover possession of 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 45-46)

Plaintiff’s allegations and evidence supporting the Oakland Just

Cause Ordinance claim are targeted at entirely non-litigation activity: the

unlawful scheme by Defendants to recover possession without complying

with the Oakland Just Cause Ordinance. Plaintiff alleges harassment,

failures to make repairs, and warnings against complaining to authorities. (2

CT 480-481). Plaintiff’s allegations and evidence do not even mention the

filing of the unlawful detainer or service of any notice of termination. (1 CT

30

45-46; see also 1 CT 37; 2 CT 477-481.) Defendants’ unlawful detainer

action may have “preceded or triggered” Plaintiff’s Oakland Just Cause

claim, but it is not the “basis or cause” of the claim. Under the rule

articulated by Moriarty, Ulkarim, and Ben-Shahar, the gravamen of

Plaintiff’s complaint is not protected activity, and the claim is not a SLAPP.

The rule stated by Moriarty, Ulkarim, and Ben-Shahar leaves in

place defendants’ protections from SLAPP suits without eroding tenant

protections of the Oakland Just Cause Ordinance enacted by voters. As

discussed below, such protections are especially vital to vulnerable tenants

struggling through Oakland’s current housing crisis.

C. The Remedies Provided by Oakland’s Just Cause Ordinance Are of Vital Importance Given Oakland’s Housing Crisis.

California’s housing crisis is particularly severe in Oakland. Over

the last five years, Oakland rents have increased 70%, making Oakland’s

median rent of $2,899 among the highest in the nation. (Daughrety and

Turkowitz, Pushed by Prices Into Illegal and Risky Warehouses, N.Y.

Times (Dec. 7, 2016) p. A14.) Market rents are unaffordable for even

residents holding traditionally middle-class jobs, such as teachers and

firefighters. (Policylink, Oakland’s Displacement Crisis: As Told by the

Numbers, Policylink (2016),

<http://www.policylink.org/sites/default/files/PolicyLink%20Oakland's%2

0Displacement%20Crisis%20by%20the%20numbers.pdf> as of Dec. 8,

2016.) Rapidly rising rents provide landlords incentives to obtain vacancies

in rent-controlled units so they may raise rents to market rate. (See

generally Civ. Code § 1954.50 (prohibiting municipalities from controlling

rents between vacancies)). These forces have also led to greater landlord-

tenant disputes: the Oakland Housing, Rent, and Relocation Board, which

hears disputes between landlords and tenants, received 739 petitions in the

fiscal year ending June 2015—500 more petitions than just four years

31

earlier. (Johnson, Calming the Waters in Oakland’s Tenant Landlord Tiffs,

S.F. Chronicle. (Jan. 21, 2016.)

<http://www.sfchronicle.com/bayarea/johnson/article/Calming-the-waters-

in-Oakland-s-tenant-landlord-6775442.php> as of Dec. 8, 2016.)

It should be no surprise that tenants, who are already “likely to be in

a poor position to bargain with landlords” (Henrioulle v. Marin Ventures,

Inc. (1978) 20 Cal. 3d 512, 519), are being displaced from Oakland in

droves. Between 2000 and 2010, Oakland’s African American population

declined by 24 percent, and the population of children dropped 16.7

percent. (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

<http://www.policylink.org/sites/default/files/pl-report-oak-housing-

070715.pdf> as of Dec. 8, 2016.) Driven by the profit motive, landlords all

too often resort to unlawful and even cruel tactics to force tenants to move

out of rent controlled units. Landlords refuse to make repairs, unlawfully

lockout tenants, engage in harassment, and go so far as to demolish

common bathrooms or common areas of the property in attempts to force

tenants to move.9

9 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), < http://www.eastbaytimes.com/2016/08/23/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/> as of Dec. 8, 2016.; BondGraham, Oakland Landlord Evicts Tenant, Then Hangs Pro-Trump Billboard on Building, East Bay Express (Dec. 2, 2016), < http://www.eastbayexpress.com/oakland/oakland-landlord-evicts-tenant-then-hangs-pro-trump-billboard-on-building/Content?oid=5049985> as of Dec. 8, 2016.;

32

When landlords’ harassment campaigns are not successful on their

own, the filing of an unlawful detainer case is often the coup de grace. In

these summary proceedings, tenants are mostly unrepresented and face

significant pressure to enter into an agreement to vacate the premise. See

Boston Bar Association Task Force on the Civil Right to Counsel, supra. In

the course of providing limited scope representation to tenants at the

Alameda Superior Court’s weekly settlement conferences for unlawful

detainer actions, the East Bay Community Law Center has observed that

even tenants with meritorious defenses prudently agree to move-out rather

than face a trial without an attorney.

Oakland’s Just Cause Ordinance, passed by ballot measure in 2002,

provides one of the only remedies for a tenant who has suffered a

landlords’ relentless campaign to recover possession. The introductory

clauses of the Oakland Just Cause Ordinance recognize the city’s

“prolonged affordable housing crisis,” landlords’ “added economic

incentive to evict tenants” to obtain vacancy decontrol, the “serious

hardship” tenants experience when they are forced to leave their home, and

that “the right to occupy safe, decent, and sanitary housing is a human

right.” (See Oakland Muni. Code § 8.22.300.) To address these problems,

the Ordinance prohibits landlords from attempting to evict tenants for any

reason other than certain grounds enumerated in the Ordinance. (Oakland

Muni. Code § 8.22.360.) Tenants aggrieved by landlords wrongfully

endeavoring to recover possession of a rental unit may sue for damages.

(Oakland Muni. Code § 8.22.370.)

BondGraham, Last Days at Downtown Oakland’s Hotel Travelers?, East Bay Express (May 25, 2016), < http://www.eastbayexpress.com/oakland/last-days-at-downtown-oaklands-hotel-travelers/Content?oid=4799815> as of Dec. 8, 2016.

33

The trial court’s decision seriously weakens tenants’ remedies for

violations of Oakland’s Just Cause for Eviction Ordinance. If a landlord can

harass, refuse repairs, and attempt to trick a tenant for the purpose of

recovering possession of rental unit, and can shield those actions from

liability by simply filing an unlawful detainer action, the landlord has no

incentive not to violate the Ordinance.

Moreover, permitting the anti-SLAPP dismissal of a claim brought

under the Ordinance merely because an unlawful detainer was previously

filed gives landlords an inherent advantage in the context of unlawful

detainer litigation. Complaints filed in unlawful detainer actions are almost

always filed on Judicial Council forms that require little more than

checking boxes and filling in the names of the parties. Under the trial

court’s ruling, all a landlord must do to shield itself from liability under

Oakland’s Just Cause Ordinance is file an unlawful detainer complaint

before the tenant is able to find an attorney to sue under the Ordinance.

Without the threat of a lawsuit for damages under the Ordinance, the

only consequence for a landlord’s violations is that he may not recover

possession of the property. In fact, a landlord’s position would improve by

the filing an unlawful detainer action, regardless of such action’s merit,

because the litigation privilege will shield their unlawful acts from liability.

Such a result promotes the violation of the Ordinance and frustrates its

purpose.

34

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

After a court has determined that a claim challenged as a SLAPP

arose from protected activity, the court may only strike a claim as a SLAPP

if plaintiff has not demonstrated “a probability of prevailing on the claim.”

(Moriarty, supra, 224 Cal. App.4th at 132.)

Setting aside that Plaintiff’s claims did not arise from protected

activity, the order on appeal did not engage in any meaningful analysis of

whether Plaintiff had demonstrated a probability of prevailing on her

Oakland Just Cause Ordinance claim. The order on appeal does not address

Plaintiff’s allegations and evidence in support of her Oakland Just Cause

Ordinance claim; that Defendants’ harassment, refusal to make repairs, and

warnings not to complain to authorities were unlawful attempts at

recovering possession. (2 CT 480-481.) Plaintiff relies exclusively on

allegations and evidence of non-litigation activity to establish a probability

of prevailing on this claim. Plaintiff’s claim must not be stricken as a

SLAPP without engaging in this second prong of the anti-SLAPP analysis

or without discussion of the non-litigation activity that has been pled.

Because Oakland’s Just Cause Ordinance creates substantive

limitations to a landlord’s right to bring an unlawful detainer action, claims

under the Ordinance will very frequently arise in situations where the

landlord has filed an unlawful detainer action. When anti-SLAPP motions

are brought in such cases, it is of vital importance that the court engages in

both prongs of the anti-SLAPP analysis. Failing to do so will frustrate the

purpose of the ordinance and leave Oakland tenants without its protections.

CONCLUSION Section 1942.5 is key to protecting California tenants from

retaliation and retaliatory eviction, especially in the current climate of

housing scarcity. However, the trial court’s interpretation of the section 47

35

litigation privilege would strip tenants of this protection. By barring

retaliatory eviction claims arising from unlawful detainer lawsuits, the trial

court makes section 1942.5 meaningless and inoperable. Without a

sufficient alternative remedy, the majority of tenants are left without any

mechanism to hold their landlords accountable. Even worse, the trial

court’s interpretation punishes tenants for their attempts to seek justice,

further chilling their right to petition the government for redress of

grievances through the threat of having to pay landlords’ attorney’s fees. In

addition to being harmful to tenants, the trial court’s interpretation is

unreasonable and incorrect: it is insufficiently supported by precedent, and

does not accord with accepted principles of statutory interpretation.

The devastating impacts of the trial court’s unreasonable

interpretation of section 47 litigation privilege will be felt by many

California residents. Tenants, the majority of whom are low-income,

comprise almost half of California households. The current housing crisis

makes these tenants especially vulnerable to retaliatory eviction. This

vulnerability is compounded by the extremely low rates of legal

representation of tenant-defendants facing unlawful detainer actions lack

legal counsel, meaning that section 1942.5’s protections are all the more

crucial.

The dismissal of Plaintiff’s Oakland Just Cause Ordinance claim

mischaracterizes Plaintiff’s allegations as protected activity. While

Defendant’s unlawful detainer complaint preceded Plaintiff’s claim, the

gravamen of the Oakland Just Cause Ordinance claim is Defendant’s

unlawful efforts to obtain possession of the property in violation of the

Ordinance. Moreover, the trial court inappropriately grants the anti-SLAPP

motion on this claim without engaging in the second prong of the analysis:

determining whether Plaintiff is likely to prevail on the claim. Affirming

36

this decision would permit landlords to shield themselves from liability for

their violations of the Ordinance by simply filing an unlawful detainer.

Given the severity of the housing crisis in Oakland, tenants need all of the

protections the city’s voters have afforded them.

DATED: December 12, 2016 Respectfully submitted,

By: /s/ Martina I. Cucullo Lim

Martina I. Cucullo Lim State Bar No. 262529 CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA 94601 T (510) 274-2410 F (510) 437-9164 mcucullulim@centrolegal.org Ubaldo Fernandez State Bar No. 296112 EAST BAY COMMUNITY LAW CENTER 2921 Adeline Street Berkeley, CA 94601 T (510) 548-4040 ext. 334 F (510) 548-2566 ufernandez@ebclc.org Attorneys for Amici Curiae

37

CERTIFICATION OF NUMBER OF WORDS IN BRIEF (Cal. Rules of Court, rule 8.204(c)(1))

The text of the Amicus Curiae Brief contains 9,929 words as

counted by the Microsoft Word word-processing program used to generate

the application.

December 12, 2016

/s/ Ubaldo Fernandez

Ubaldo Fernandez

38

PROOF OF SERVICE

I, Ubaldo Fernandez, declare that I am a citizen of the United States, am over the age of eighteen years, am employed in the City of Berkeley, County of Alameda, and not a party to the within action. My business address is 2921 Adeline Street, Berkeley, California, 94703. On this day I served the following: APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

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

on the Interested Parties by U.S. mail. (CCP §1013(a), 2015.5). I placed true copies thereof in envelopes, sealed, with First Class postage prepaid, and deposited for collection and mailing, following ordinary business practices. Each envelope was addressed as follows. Charles A. Alfonso, Esq. Andrew Wolff, Esq. Michelle D. Jew, Esq. Chris Beatty, Esq. BURNHAM BROWN LAW OFFICES OF ANDREW WOLFF P.O. Box 119 1956 Webster Street, Suite 275 Oakland, CA 94604 Oakland, CA 94612 Counsel for Defs./Resps. Counsel for Plaintiff/Appellant 1811 27th Avenue LLC Shameka Winslett and Yuval Sagi Hon. Stephen Pulido Alameda County Superior Court 1225 Fallon Street, Room G4 Oakland, CA 94612 Trial court judge served by Mail I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 12, 2016 in Berkeley, California. /s/ Ubaldo Fernandez Ubaldo Fernandez