The slow evolution of lawsuits against landlords

One of the most vexing issues in representing tenants is the lack of being able to file an affirmative lawsuit against a landlord. In Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal. 4th 1232, the California Supreme Court held that a tenant could not file an affirmative lawsuit against the landlord after being served with an unlawful detainer. Now the barriers to filing a lawsuit on behalf of the tenant are slowing evolving in the tenant’s favor.

In Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal. App. 4th 97, the landlord served the tenant with a three-day notice to pay or quit based on an unlawful rent increase. When she did not pay the increased rent, the landlord filed an unlawful detainer. After the landlord dismissed the unlawful detainer, the tenant filed sued her landlord for attempting to increase her rent in violation of the local rent ordinance and for malicious prosecution. She was allowed to sue for violation of the local Rent Ordinance and malicious prosecution. The court held that the dismissal of the unlawful detainer was due to the landlord’s realization that it could not prevail at trial.

Similarly, in Clark v. Mazgani (2009) 170 Cal.App. 4th 1281, a tenant sued her landlord on the basis of a fraudulent relative move-in eviction. The landlord filed a motion to dismiss the suit, contending the gist of the tenant’s complaint was the landlord’s privileged communication of filing and serving the eviction notice and unlawful detainer action. The court, however, held the tenant’s suit was not based on defendant’s pre-litigation or litigation communications, but rather on plaintiff’s “allegedly unlawful eviction [by defendant who] fraudulently invoked the RSO [Los Angeles Rent Stabilization Ordinance].” (Id. at p. 1288.)

Hopefully, the courts will continue to realize that being able to file an affirmative lawsuit is a good deterrant to landlords filing unlawful detainers or legal papers in bad faith.

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Mary Catherine Wiederhold

Real Estate Attorney
1458 Sutter Street
San Francisco, CA 94109

Mary Catherine Wiederhold
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