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Notices to Cure or Quit are Privileged and Cannot Form the Basis of Liability

Updated on August 16, 2017

If you are a landlord for either a residential or commercial property, odds are you have had to issue a 3-day notice to quit or a notice to cure default or quit. Such notices are protected and considered privileged pursuant to California Civil Code § 47(b). What this means is that such notices cannot be the basis for liability against you.

Despite this, there seems to be an uptick in litigation based on exactly such notices.  In an effort to avoid eviction, tenants file lawsuits against their landlords alleging claims such as extortion and interference with business claims based on receipt of such notices. Generally, such claims are the result of inexperienced counsel for the tenants failing to understand that the notices constitute pre-litigation communications protected by § 47(b).

If you are on the receiving end of such a complaint, an aggressive response that may expediently resolve the litigation and allow you to recover your attorney’s fees is to file what is known as an anti-SLAPP.  An anti-SLAPP is a special motion to strike filed pursuant to California Code of Civil Procedure § 425.16 that protects a party’s rights to free speech and petition (e.g. to file a lawsuit). A successful anti-SLAPP will eliminate claims that are based on or arise out of a party’s right to petition (in this case the sending of the notice) and will result in an award of attorney’s fees to the successful moving party.  Additionally, the filing of an anti-SLAPP stays all discovery in the litigation pending the ruling on the motion, thus preventing the plaintiff from unnecessarily running up the defendant’s attorney’s fees by forcing the defendant to respond to frivolous discovery requests. Thus, where applicable, an anti-SLAPP can be an effective and expedient end to frivolous litigation between landlords and tenants.

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If you are a landlord and have questions regarding the above, please feel free to contact us by filling out our Contact Form, sending us an email at [email protected], or by calling us at (310) 954-1877.