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of preemption,” the court explained that “local governments lack the authority to craft their
own exceptions to general state laws.” (Ibid.) By contrast, the court cited a list of
illustrative cases where it found statutory exceptions to the litigation privilege. (Id. at
p. 1246.) “[O]ur recognition of . . . [such] exceptions,” the court said, “has been guided by
the ‘rule of statutory construction that particular provisions will prevail over general
provisions.’ ” (Ibid.) In each case, the statute involved was “more specific than the
litigation privilege and would be significantly or wholly inoperable if its enforcement were
barred when in conflict with the privilege.” (Ibid.)
3. Litigation Privilege Must Yield to Section 1942.5
Because the scheme of retaliatory eviction remedies in section 1942.5 meets the test
of specificity set out in Action Apartment and would be rendered significantly inoperative if
the litigation privilege were to apply, we agree with our Second District, Division One
colleagues in Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323 (Banuelos) that
section 1942.5, subdivisions (d) and (h)—in Banuelos, former subdivisions (c) and (f)—
create an exception to the litigation privilege. “The statute’s reference to a landlord’s
liability ‘in a civil action’ for bringing ‘an action to recover possession’ in retaliation for a
tenant’s exercise of rights coupled with the provision recognizing a good faith defense ‘at
the trial or other hearing’ demonstrates that the Legislature intended to create a cause of
action for retaliatory eviction that is not barred by the litigation privilege. If the litigation
privilege trumped a suit for retaliatory eviction under section 1942.5 the privilege would
‘ “effectively immunize conduct that the [statute] prohibits” ’ [citation], thereby
encouraging, rather than suppressing, ‘ “the mischief at which it was directed.
[Citation.]” ’ ” (Banuelos, supra, at p. 332.)
Section 1942.5, subdivisions (d) and (h) are not only more specific than section 47,
subdivision (b), they are also later enacted. Section 47 was enacted in 1872 (and was
amended in 1873-1874 to specify a privileged publication is one made “ ‘in any legislative
or judicial proceeding, or in any other official proceeding authorized by law’ ”) (see
Historical and Statutory Notes, 6 West’s Ann. Civ. Code (2007 ed.) foll. § 47, p. 303),
predating the statutory retaliatory eviction cause of action in section 1942.5 by more than a