CACI No. 4321. Affirmative Defense - Retaliatory Eviction - Tenant’s Complaint (Civ. Code, § 1942.5)

Judicial Council of California Civil Jury Instructions (2020 edition)

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4321.Affirmative Defense - Retaliatory Eviction - Tenant’s
Complaint (Civ. Code, § 1942.5)
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun/it] because [name of plaintiff] filed this lawsuit
in retaliation for [name of defendant]’s having exercised [his/her/nonbinary
pronoun/its] rights as a tenant. To succeed on this defense, [name of
defendant] must prove all of the following:
[1. That [name of defendant] was not in default in the payment of
[his/her/nonbinary pronoun/its] rent;]
2. That [name of plaintiff] filed this lawsuit in retaliation because
[name of defendant] had complained about the condition of the
property to [[name of plaintiff]/[name of appropriate agency]]; and
3. That [name of plaintiff] filed this lawsuit within 180 days after
3. [Select the applicable date(s) or event(s):]
3. [the date on which [name of defendant], in good faith, gave notice
to [name of plaintiff] or made an oral complaint to [name of
plaintiff] regarding the conditions of the property][./; or]
3. [the date on which [name of defendant], in good faith, filed a
written complaint, or an oral complaint that was registered or
otherwise recorded in writing, with [name of appropriate agency],
of which [name of plaintiff] had notice, for the purpose of
obtaining correction of a condition of the property][./; or]
3. [the date of an inspection or a citation, resulting from a
complaint to [name of appropriate agency] of which [name of
plaintiff] did not have notice][./; or]
3. [the filing of appropriate documents to begin a judicial or an
arbitration proceeding involving the conditions of the property][./;
or]
3. [entry of judgment or the signing of an arbitration award that
determined the issue of the conditions of the property against
[name of plaintiff]].
[Even if [name of defendant] has proved that [name of plaintiff] filed this
lawsuit with a retaliatory motive, [name of plaintiff] is still entitled to
possession of the premises if [he/she/nonbinary pronoun/it] proves that
[he/she/nonbinary pronoun/it] also filed the lawsuit in good faith for a
reason stated in the [3/30/60]-day notice.]
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New August 2007; Revised June 2010, May 2020
Directions for Use
This instruction is based solely on Civil Code section 1942.5(a), which has the 180-
day limitation. The remedies provided by this statute are in addition to any other
remedies provided by statutory or decisional law. (Civ. Code, § 1942.5(j).) Thus,
there are two parallel and independent sources for the doctrine of retaliatory
eviction: the statute and the common law. (Barela v. Superior Court (1981) 30
Cal.3d 244, 251 [178 Cal.Rptr. 618, 636 P.2d 582].) Whether the common law
provides additional protection against retaliation beyond the 180-day period has not
been decided. (See Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776 [187 Cal.Rptr.
242] [statute not a limit in tort action for wrongful eviction; availability of the
common law retaliatory eviction defense, unlike that authorized by section 1942.5,
is apparently not subject to time limitations].)
Include element 1 only if the landlord’s asserted ground for eviction is something
other than nonpayment of rent. If nonpayment is the ground, the landlord has the
burden to prove that the tenant is in default. (See CACI No. 4302, Termination for
Failure to Pay Rent - Essential Factual Elements.)
If element 1 is included, there may be additional issues of fact that the jury must
resolve in order to decide whether the tenant is in default in the payment of rent. If
necessary, instruct that the tenant is not in default if the tenant has exercised any
legally protected right not to pay the contractual amount of rent, such as a
habitability defense, a “repair and deduct” remedy, or a rent increase that is alleged
to be retaliatory.
For element 3, select the appropriate date or event that triggered the 180-day period
within which a landlord may not file an unlawful detainer. (Civ. Code, § 1942.5(a).)
Include the last paragraph if the landlord alleges that there was also a lawful cause
for the eviction (see Civ. Code, § 1942.5(f) [landlord may proceed “for any lawful
cause”]), and that this cause was both asserted in good faith and set forth in the
notice terminating the tenancy. (See Civ. Code, § 1942.5(g); Drouet v. Superior
Court (2003) 31 Cal.4th 583, 595-596 [3 Cal.Rptr.3d 205, 73 P.3d 1185] [landlord
asserting lawful cause under 1942.5(f) must also establish good faith under
1942.5(g), but need not establish total absence of retaliatory motive].)
Sources and Authority
• Retaliatory Eviction: Tenant Complaints. Civil Code section 1942.5(a).
• Lawful Acts Permitted; No Tenant Waiver. Civil Code section 1942.5(f).
• Landlord’s Good Faith Acts. Civil Code section 1942.5(g).
• “The defense of ‘retaliatory eviction’ has been firmly ensconced in this state’s
statutory law and judicial decisions for many years. ‘It is settled that a landlord
may be precluded from evicting a tenant in retaliation for certain kinds of lawful
activities of the tenant. As a landlord has no right to possession when he seeks it
for such an invalid reason, a tenant may raise the defense of retaliatory eviction
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in an unlawful detainer proceeding.’ The retaliatory eviction doctrine is founded
on the premise that ‘[a] landlord may normally evict a tenant for any reason or
for no reason at all, but he may not evict for an improper reason . . . .’ ”
(Barela, supra, 30 Cal.3d at p. 249, internal citations omitted.)
• “Thus, California has two parallel and independent sources for the doctrine of
retaliatory eviction. This court must decide whether petitioner raised a legally
cognizable defense of retaliatory eviction under the statutory scheme and/or the
common law doctrine.” (Barela, supra, 30 Cal.3d at p. 251.)
• “Retaliatory eviction occurs, as Witkin observes, ‘[When] a landlord exercises
his legal right to terminate a residential tenancy in an authorized manner, but
with the motive of retaliating against a tenant who is not in default but has
exercised his legal right to obtain compliance with requirements of habitability.’
It is recognized as an affirmative defense in California; and as appellant correctly
argues, it extends beyond warranties of habitability into the area of First
Amendment rights.” (Four Seas Inv. Corp. v. International Hotel Tenants’ Assn.
(1978) 81 Cal.App.3d 604, 610 [146 Cal.Rptr. 531], internal citations omitted.)
• “If a tenant factually establishes the retaliatory motive of his landlord in
instituting a rent increase and/or eviction action, such proof should bar eviction.
Of course, we do not imply that a tenant who proves a retaliatory purpose is
entitled to remain in possession in perpetuity. . . . ‘If this illegal purpose is
dissipated, the landlord can, in the absence of legislation or a binding contract,
evict his tenants or raise their rents for economic or other legitimate reasons, or
even for no reason at all.’ ” (Schweiger v. Superior Court of Alameda County
(1970) 3 Cal.3d 507, 517 [90 Cal.Rptr. 729, 476 P.2d 97], internal citations
omitted.)
• “The existence or nonexistence of a landlord’s retaliatory motive is ordinarily a
question of fact.” (W. Land Offıce v. Cervantes (1985) 175 Cal.App.3d 724, 731
[220 Cal.Rptr. 784].)
• “[T]he proper way to construe the statute when a landlord seeks to evict a tenant
under the Ellis Act, and the tenant answers by invoking the retaliatory eviction
defense under section 1942.5, is to hold that the landlord may nonetheless
prevail by asserting a good faith - i.e., a bona fide - intent to withdraw the
property from the rental market. If the tenant controverts the landlord’s good
faith, the landlord must establish the existence of the bona fide intent at a trial or
hearing by a preponderance of the evidence.” (Drouet, supra, 31 Cal.4th at p.
596.)
• “Only when the landlord has been unable to establish a bona fide intent need the
fact finder proceed to determine whether the eviction is for the purpose of
retaliating against the tenant under subdivision (a) or (c) of section 1942.5.”
(Drouet, supra, 31 Cal.4th at p. 600.)
•“Drouet’s interpretation ‘give[s] effect to the plain language of [Civil Code
section 1942.5], including [former] subdivisions (d) and (e), which permit a
landlord to go out of business and evict the tenants - even if the landlord has a
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retaliatory motive - so long as the landlord also has the bona fide intent to go
out of business. . . . If, on the other hand, the landlord cannot establish a bona
fide intent to go out of business, the tenants may rely on [former] subdivisions
(a) and (c) to resist the eviction.’ ” (Coyne v. De Leo (2018) 26 Cal.App.5th 801,
806 [237 Cal.Rptr.3d 359], original italics.)
• “[T]he cause of action for retaliation recognized by section 1942.5 applies to
tenants of a mobilehome park. . . . ‘By their terms, subdivisions (c) and (f) of
section 1942.5 give a right of action to any lessee who has been subjected to an
act of unlawful retaliation. Thus, on its face the statute provides protection to
mobilehome park tenants who own their own dwellings and merely rent space
from their landlord.’ ” (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th
323, 330 [161 Cal.Rptr.3d 772].)
• “[T]he Legislature intended to create a cause of action for retaliatory eviction
that is not barred by the litigation privilege. If the litigation privilege trumped a
suit for retaliatory eviction under section 1942.5 the privilege would
“ ‘effectively immunize conduct that the [statute] prohibits’ ” [citation], thereby
encouraging, rather than suppressing, “ ‘the mischief at which it was directed.
[Citation.]’ ” ’ ” (Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239,
254 [237 Cal.Rptr.3d 25].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 739, 742,
745
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.113-8.117
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.65, 12.38
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 16
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.62
(Matthew Bender)
Miller & Starr, California Real Estate, Landlord-Tenant, § 34.206 (Thomson
Reuters)
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