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“‘afford[ing] litigants and witnesses . . . the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort actions.’” (Id. at p. 1243.)
Therefore, the litigation privilege “conflicts with and thus preempts” that portion of
the city ordinance “regarding filing an action to recover possession of a rental unit.”
(Id. at p. 1237.)
The holding in Action Apartment is not controlling here because the conflict in
that case was between a statute and a city ordinance while our case involves a conflict
between two co-equal statutes. Nevertheless, much of the Court’s analysis in Action
Apartment is applicable to the case before us.
The Court began its analysis by noting that it has given the litigation privilege
“a broad interpretation” in order to achieve its “‘principal purpose’” to afford litigants
and witnesses “‘the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions.’” (Action Apartment, supra, 41 Cal.4th
at p. 1241.) Recognizing that invocation of the privilege “has its costs,” the court
observed that “‘avoiding an unending roundelay of litigation [justifies] an occasional
unfair result.’ [Citation.]” (Id. at p. 1244.)
The Court acknowledged, however, that although the litigation privilege has been
described as “absolute” the privilege “is not without limit” and cited the examples of
private actions for malicious prosecution and government actions including criminal
prosecutions and regulatory actions brought pursuant to state statutes. (Action
Apartment, supra, 41 Cal.4th at pp. 1242, 1245; see also Komarova v. National Credit
Acceptance, Inc. (2009) 175 Cal.App.4th 324, 330 [debt collector’s unlawful conduct
under the Rosenthal Fair Debt Collection Practices Act (§§ 1788, et seq.) is not shielded
by the litigation privilege].) “[T]hese exceptions,” the Court pointed out, “have all
involved suits brought under state laws, each of which makes clear that the Legislature
did not intend its enforcement to be barred by the litigation privilege.” (Action
Apartment, at p. 1245.)