California Civil Jury Instructions (CACI) (2017)

4322. Affirmative Defense—Retaliatory Eviction—Engaging in Legally Protected Activity (Civ. Code, § 1942.5(c))

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4322.Affirmative Defense—Retaliatory Eviction—Engaging in
Legally Protected Activity (Civ. Code, § 1942.5(c))
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/it] because [name of plaintiff] filed this lawsuit in retaliation for
[name of defendant]’s having engaged in legally protected activities. To
succeed on this defense, [name of defendant] must prove both of the
1. [Insert one or both of the following options:]
1. [That [name of defendant] lawfully organized or participated in [a
tenants’ association/an organization advocating tenants’ rights];]
1. [That [name of defendant] lawfully and peaceably [insert
description of lawful activity];]
2. That [name of plaintiff] filed this lawsuit because [name of
defendant] engaged in [this activity/these activities].
[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/it] proves that [he/she/it] also filed
the lawsuit in good faith for a reason stated in the [3/30/60]-day notice.]
New August 2007
Directions for Use
In element 1, select the tenant’s conduct that is alleged to be the reason for the
landlord’s retaliation. (Civ. Code, § 1942.5(c).)
Include the last paragraph if the landlord alleges that there was also a lawful cause
for the eviction (see Civ. Code, § 1942.5(d)), and that this cause was both asserted
in good faith and set forth in the notice terminating the tenancy. (See Civ. Code,
§ 1942.5(e); 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(d)
must also establish good faith under 1942.5(e), but need not establish total absence
of retaliatory motive].)
Sources and Authority
• Retaliatory Eviction: Exercise of Tenant Rights. Civil Code section 1942.5(c).
Lawful Acts Permitted; No Tenant Waiver. Civil Code section 1942.5(d).
• Landlord’s Good-Faith Acts. Civil Code section 1942.5(e).
• “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. The question of permissible or impermissible purpose
is one of fact for the court or jury.’ ” (Schweiger v. Superior Court of Alameda
County (1970) 3 Cal.3d 507, 517 [90 Cal.Rptr. 729, 476 P.2d 97], internal
citations omitted.)
• “In an unlawful detainer action, where the defense of retaliatory eviction is
asserted pursuant to Civil Code section 1942.5, the tenant has the overall
burden of proving his landlord’s retaliatory motive by a preponderance of the
evidence. If the landlord takes action for a valid reason not listed in the
unlawful detainer statutes, he must give notice to the tenant of the ground upon
which he proceeds; and if the tenant controverts that ground, the landlord has
the burden of proving its existence by a preponderance of the evidence.”
(Western Land Offıce, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 741 [220
Cal.Rptr. 784].)
• “[T]he burden was on the tenants to establish retaliatory motive by a
preponderance of the evidence.” (Western Land Offıce, Inc., supra, 175
Cal.App.3d at p. 744.)
• “[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.)
• “[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].)
Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2005) Real Property, §§ 706, 709,
1California 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 Ch. 19, Landlord-Tenant, § 19:225 (Thomson