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Hawkins who described himself as a “ ‘trouble shooter’ ” for the landlord, the Feldmans
were served with a notice to quit and then named in an unlawful detainer action. (Id. at
pp. 1474-1475.) Rather than fight the case, they moved elsewhere, mooting the unlawful
detainer complaint. (Id. at p. 1475.)
The appeal in Feldman involved the Feldmans’ cross-complaint for damages in the
unlawful detainer action, by which they asserted seven claims, including a retaliatory
eviction claim under section 1942.5, former subdivision (c). (Feldman, supra,
160 Cal.App.4th at pp. 1475-1476, 1492-1494.) On the landlord’s anti-SLAPP motion, the
trial court struck this claim, and on appeal, our Division Two colleagues affirmed. (Id. at
pp. 1473, 1476, 1498.) The panel held, first, in step one of the anti-SLAPP analysis, that
the gravamen of the Feldmans’ claims was protected conduct (Feldman, at pp. 1478-1484),
and second, in step two, that none of the claims was likely to succeed, in part because the
“Park Lane cross-defendants have produced evidence that Hawkins’s statements, the service
of the notice to quit and the unlawful detainer action were shielded by the litigation
privilege.” (Id. at p. 1491.) Although section 47, subdivision (b) was one of the grounds
cited for the court’s holding on likelihood of success (Feldman, at pp. 1485, 1491), nowhere
in its opinion is any consideration given to whether section 1942.5, former subdivision (c)
should be recognized as an exception to the litigation privilege.
Wallace, another anti-SLAPP case involving a statutory retaliatory eviction claim,
adopts the same holding without independent analysis. (Wallace, supra, 196 Cal.App.4th at
pp. 1214-1215.) Of Wallace, the Banuelos court observes that, “[l]ike Feldman, . . . [it] did
not discuss or analyze Action Apartment and the litigation privilege nor did it distinguish
between a city ordinance and a state statute when resolving the conflict issue.” (Banuelos,
supra, 219 Cal.App.4th at p. 333.) Although it is probably an overstatement to say that
neither case discusses or analyzes Action Apartment—that is true of Wallace, but Feldman
does address Action Apartment at some length (Feldman, supra, 160 Cal.App.4th at
pp. 1486-1487)—the problem with Feldman is that its analysis is incomplete. It discusses
Action Apartment but never considers the issue of conflict with a coequal statute, a key
limiting principle to the Action Apartment holding. The reasoning in Wallace is even more