Landlords win a round in Santa Monica: harassment definition oversteps state's law.

When Herb Baiter sent an eviction notice to a tenant in the Santa Monica apartment building he and his wife own earlier this year, the response came not from the renter but the city attorney.

"The letter said, "Don't do it again,' and listed all kinds of penalties," said Baiter. "It's enough to make your blood boil. They put you in a position where you're afraid to speak to the tenant. In a sense, they have intimidated me."

Whether or not it is intimidation, a three-judge panel in 2nd Appellate District last month ruled unanimously that a section of the city's Tenant Harassment Ordinance violates the state constitution.

In a case brought by Action Apartment Association Inc., a group of about 1,000 Santa Monica landlords, the ruling voids a section of the ordinance the court said punishes an action protected under the state's civil code.

It also took from the city's arsenal one of its main weapons in what it said was an ongoing effort to prevent "unscrupulous landlords" from harassing tenants out of rent-controlled units in order to raise rents.

The ruling prompted tenants" rights activists to warn that it limits the ability to complain about landlords and may encourage abuse.

"It's a little concerning," said Denise McGranahan, staff attorney at the Legal Aid Foundation of L.A. "It might give landlords more sense of empowerment that they can do whatever they want to tenants."

Landlords, however, said the result would be fewer notices from the Santa Monica City Attorney's Office accusing them of issuing unsupported notices of eviction.

In the past two years, the City Attorney's Office has sent nearly 200 notifications to landlords, said Rosario Perry, the Santa Monica lawyer representing Action Apartment Association Inc.

The appellate ruling, said Carl Grumer, a partner at Manatt Phelps & Phillips LLP representing major Santa Monica landlord Donald Sterling, means "a landlord can go ahead in good faith without looking over his shoulder as to what collateral effects it may have every time a landlord commences a legal action."

Efforts at resolution

Originally passed in 1995, the ordinance provides for both civil and misdemeanor penalties for landlords found to have harassed a tenant.

Adam Radinsky, a Santa Monica deputy city attorney, said about half the 100 complaints filed each year are followed up by a letter to the landlord "if it appears there's a potential for a violation of the law."

If the city attorney is satisfied with a landlord's response to the letter, the dispute may be resolved outside of court. No response from the landlord may result in further investigation or, as was the case with Baiter, no further action.

The city unit that enforces the ordinance has one full-time attorney, one part-time attorney and two investigators. Tenant harassment is the most common complaint; the unit receives about 100 complaints a year. The city has filed only 15 lawsuits, however, because many complaints lack enough evidence to pursue legal action.

The appellate ruling leaves intact 11 of the prohibited actions under the ordinance, including failing to make repairs, interrupting services, physical and verbal abuse of tenants, forcing a tenant to vacate a unit through fraud or coercion or refusing to acknowledge receipt of a renter's payment.

But the subsection that says a landlord cannot issue an eviction notice "based upon facts which the landlord has no reasonable cause to believe to be true" conflicted with rights granted in the state constitution, particularly since the city often relied solely on the word of the tenant in determining that the notice was unjust.

Perry said the ruling would affect as many as 90 percent of the cases in which the City Attorney's Office issued letters to landlords. Most of those notices were for valid violations such as not paying rent, creating loud noises at night, parking in the wrong place, putting trash in the front lawn or hallway, subletting or allowing pets in the building, he said.

"We wanted to declare (it) unenforceable and unconstitutional, and that's what the Court of Appeal did," Perry said. "Now, when the owner goes before the judge, a tenant will have to convince a judge he's correct, and the tenant has the right to sue for malicious prosecution. And the city attorney is now out of the business of managing apartment buildings."

McGranahan, of the Legal Aid Foundation, said the section the court struck down was essential, because it gave tenants an opportunity to present written proof in making their case. Otherwise, she said, arguments often come down to a "he said, she said."

Radinsky said the city is still considering whether to appeal the ruling to the California Supreme Court.