From the January 2008 Newsletter:

Small property owners build on 2007 successes in California courts
By Andrew M. Zacks

Small property owners and landlords won another major victory recently when the California Court of Appeal agreed with SPOSF that the decision in Birkner v. Lam should be certified for publication, making it a precedent for similar cases.

In the Birkner decision, the appellate court reversed a San Francisco trial judge and concluded that the property owner’s service of a relative move-in eviction notice and other pre-litigation activities were “protected” activities that triggered the right to scrutiny under California’s Anti-SLAPP statute. (SLAPP is an acronym for “strategic lawsuit against public participation”—a lawsuit intended to intimidate by running up the defendent’s expenses.) Applying and extending the California Supreme Court’s recent decision in Action Apartment Association v. Santa Monica, the Birkner court soundly rejected a tenant’s claim that a wrongful eviction lawsuit arising from the owner’s service of a relative move-in eviction notice might be dismissed as a SLAPP. Instead, the appelate court sent the case back to the trial court for further hearing, with the instruction that the trial court must scrutinize the tenant’s lawsuit as a SLAPP. If the suit is determined to be a SLAPP, the owners will be entitled to recover all of the legal fees they have incurred.

Two of the most important rights small property owners have are the right to speak out on a public issue, and the right to use the legal system to protect one’s property—including collecting debts and recovering possession of an apartment. In order to ensure that citizens do not have to defend frivolous lawsuits arising from the exercise of the right to speak on a public issue or use the legal process, California’s SLAPP statute forces plaintiffs to prove at the beginning of the case that they have a legitimate case that they can win, both on the law and facts. In Birkner, the landlord wanted to move his elderly mother into a building that he owned. He began the eviction process by following the statutory requirements of a 60-day notice to quit. After the notice was served, but before an eviction lawsuit was filed, the landlord’s mother died and therefore could not move in. A lawsuit was then filed by the tenants against the owner alleging a “wrongful endeavor” to evict under San Francisco’s Rent Control Ordinance.

The Birkner appeals court determined the suit was a SLAPP. The tenants have to prove (not just allege) they have a legitimate case in the very beginning of the lawsuit. Tenants can no longer just sue and demand money to settle, as has been the case for years in San Francisco. Birkner holds that the entire eviction process is protected by what is known as the “litigation privilege,” including activities leading up to an actual eviction lawsuit. With the SLAPP statute available, the property owner now has a powerful tool that requires the Court to scrutinize the law and the specific facts of the case within 30 days of the owner’s being served with the lawsuit, not months or years down the road after the agonizing expense of litigation. And if the owner wins after a SLAPP motion, the tenant must pay all of the legal fees incurred by the owner in defending the suit.

SPOSF filed a brief in support of the publication of Birkner, suggesting that the case deserved publication because it was an important precedent. The Court agreed, and ordered the case to be published, thus allowing future litigants to rely on the case and binding all trial courts to its analysis. This is an important victory for small property owners. To read the case, go to www.zulpc.com/cases.

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