11
notice, in light of the litigation privilege of Civil Code section 47, subdivision (b).”
Like Feldman, the court cited but 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.
Defendants cite two Supreme Court opinions in which the court found that the
plaintiffs’ statutory causes of action were barred by the litigation privilege. Both
opinions are distinguishable from our case.
In Rubin v. Green (1993) 4 Cal.4th 1187, residents of a mobile home park sent a
written complaint to the owner listing 23 alleged defects in the operation of the park.
The owner sued the park residents and their attorney for unfair business practices under
the Business and Professions Code. The Supreme Court held the owner’s suit was barred
by the litigation privilege. Rubin involved a conflict between section 47, subdivision (b),
the litigation privilege, which applies to any “publication or broadcast” made as part of a
“judicial proceeding,” and Business and Professions Code section 17200, which defines
“unfair competition” to include “any unlawful, unfair or fraudulent business act or
practice.”6 The Court held that it would violate the principal purpose of the litigation
privilege—to afford litigants utmost freedom of access to the courts—if the park owner
were allowed to “plead around” the privilege by simply relabeling his common law suit
for interference with contractual relations as a statutory suit for unfair competition.
(Id. at pp. 1191, 1201-1203.) Permitting the owner’s claim, the Court explained, “would
upset the carefully constructed balance between ‘the freedom of an individual to seek
redress in the courts and the interest of a potential defendant in being free from
unjustified litigation’ [citation] by effectively destroying the availability of the privilege’”
in any case in which a party to litigation was prompted to claim that his opponent was
engaging in an unfair business practice. (Id. at pp. 1203-1204.) The Court concluded by