CACI No. 4322. Affirmative Defense - Retaliatory Eviction - Engaging in Legally Protected Activity (Civ. Code, § 1942.5(d))

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
4322.Affirmative Defense - Retaliatory Eviction - Engaging in
Legally Protected Activity (Civ. Code, § 1942.5(d))
[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 engaged in legally
protected activities. To succeed on this defense, [name of defendant] must
prove both of the following:
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/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.]
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(d).)
Include the last paragraph if the landlord alleges that there was also a lawful cause
for the eviction (see Civ. Code, § 1942.5(f)), 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: Exercise of Tenant Rights. Civil Code section 1942.5(d).
Lawful Acts Permitted; No Tenant Waiver. Civil Code section 1942.5(f).
Landlord’s Good-Faith Acts. Civil Code section 1942.5(g).
“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.
“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.)
Drouets 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
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,
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 4th, § 34:206 (Thomson Reuters)

© Judicial Council of California.