Action Apt. Assn. v. City Santa Monica 10/15/04 CA2/5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B165082A

Case Date: 02/16/2005

Preview:Filed 10/15/04 (opn. on rehearing)

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE ACTION APARTMENT ASSOCIATION, INC. et al., Plaintiffs and Appellants, v. CITY OF SANTA MONICA et al., Defendants and Respondents. B165082 (Los Angeles County Super. Ct. No. SC274036)

APPEAL from a judgment of the Superior Court of Los Angeles County. Ray L. Hart, Judge. Reversed with directions. Law Offices of Rosario Perry and Rosario Perry for Plaintiffs and Appellants. Marsha Jones Moutrie, City Attorney, and Adam Radinsky, Deputy City Attorney, for Defendants and Respondents. _______________

Appellants Action Apartment Association and Doreen Dennis filed a complaint for declaratory relief and writ of mandate, on behalf of themselves and others similarly situated. They sought a declaration that portions of a Santa Monica ordinance on tenant harassment are unconstitutional, and an injunction and order against enforcement of those parts of the ordinance. More specifically, appellants challenged those portions of Santa Monica Municipal Code section 4.56.020, subdivision (i) and Santa Monica Municipal Code section 4.56.040 which address a landlord's efforts to terminate a tenancy through legal proceedings. Appellants contended that those provisions abridged their rights to free speech, to petition the government for redress of grievances, and to due process under the federal Constitution; violated their civil rights under 42 USC 1983; and were pre-empted by Code of Civil Procedure section 128.7 and Civil Code section 47, subdivision (b). We find that the challenged portions of the ordinance are contradictory to Civil Code section 47, subdivision (b), in that they prohibit, and punish, what the litigation privilege protects. Local law is preempted when it is contradictory to state law (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897; Cal. Const., art. XI,

Download Action Apt. Assn. v. City Santa Monica 10/15/04 CA2/5.pdf