CACI No. 4328. Affirmative Defense - Tenant Was Victim of Domestic Violence, Sexual Assault, Stalking, Elder/Dependent Adult Abuse, or Human Trafficking (Code Civ. Proc., § 1161.3)
Judicial Council of California Civil Jury Instructions (2023 edition)
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4328.Affirmative Defense - Tenant Was Victim of Domestic
Violence, Sexual Assault, Stalking, Elder/Dependent Adult Abuse,
or Human Trafficking (Code Civ. Proc., § 1161.3)
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun] because [name of plaintiff] filed this lawsuit
based on [an] act[s] of [domestic violence/sexual assault/stalking/human
trafficking/ [or] abuse of an elder or dependent adult] against [[name of
defendant]/ [or] a member of [name of defendant]’s household]. To succeed
on this defense, [name of defendant] must prove all of the following:
1. That [[name of defendant]/ [or] a member of [name of defendant]’s
household] was a victim of [domestic violence/sexual
assault/stalking/human trafficking/ [or] abuse of an elder or
dependent adult];
2. That the act[s] of [domestic violence/sexual
assault/stalking/human trafficking/ [or] abuse of an elder or
dependent adult] [was/were] documented in a [court order/law
enforcement report/statement of a third party acting in a
professional capacity];
3. That the person who committed the act[s] of [domestic violence/
sexual assault/stalking/human trafficking/ [or] abuse of an elder
or dependent adult] is not also a tenant of the same living unit as
[name of defendant]; and
4. That [name of plaintiff] filed this lawsuit because of the act[s] of
[domestic violence/sexual assault/stalking/human trafficking/ [or]
abuse of an elder or dependent adult].
Even if [name of defendant] proves all of the above, [name of plaintiff]
may still evict [name of defendant] if [name of plaintiff] proves both of the
following:
1. [Either] [Name of defendant] allowed the person who committed
the act[s] of [domestic violence/sexual assault/stalking/human
trafficking/ [or] abuse of an elder or dependent adult] to visit the
property after [the taking of a police report/issuance of a court
order] against that person;
1. [or]
1. [Name of plaintiff] reasonably believed that the presence of the
person who committed the act[s] of [domestic violence/sexual
assault/stalking/human trafficking/ [or] abuse of an elder or
dependent adult] posed a physical threat to [other persons with a
1189
right to be on the property/[or] another tenant’s right of quiet
possession];
and
2. [Name of plaintiff] previously gave at least three days’ notice to
[name of defendant] to correct this situation.
New December 2011; Revised June 2013, June 2014, January 2019, May 2020
Directions for Use
This instruction is a tenant’s affirmative defense alleging that the tenant is being
evicted because the tenant was the victim of domestic violence, sexual assault,
stalking, human trafficking, or elder or dependent adult abuse. (See Code Civ. Proc.,
§ 1161.3.) If the tenant establishes the elements of the defense, the landlord may
attempt to establish a statutory exception that would allow the eviction. The last part
of the instruction sets forth the exception.
All protected statuses are defined by statute. (See Civ. Code, § 1708.7 [stalking];
Code Civ. Proc., § 1219 [sexual assault]; Fam. Code, § 6211 [domestic violence];
Pen. Code, § 236.1 [human trafficking]; Welf. & Inst. Code, § 15610.07 [abuse of
elder or dependent adult].) Consider an additional instruction defining the protected
status to make the meaning clear to the jury.
The acts of domestic violence, sexual assault, stalking, human trafficking, or elder or
dependent adult abuse must be documented in a court order, law enforcement report,
or tenant and qualified third-party statement (element 2). (Code Civ. Proc.,
§ 1161.3(a)(1)(C), (D).) A “qualified third party” is a health practitioner, domestic
violence counselor, a sexual assault counselor, or a human trafficking caseworker.
(Code Civ. Proc., § 1161.3(d)(3).)
Under the exception the tenant may be evicted if the landlord reasonably believes
that the presence of the perpetrator poses a physical threat to other tenants, guests,
invitees, or licensees, or to a tenant’s right to quiet possession pursuant to section
1927 of the Civil Code. (Code Civ. Proc., § 1161.3(b)(1)(B).) In the second option
for element 1 of the landlord’s response, this group has been expressed as “other
persons with a right to be on the property.” If more specificity is required, use the
appropriate words from the statute.
The tenant must prove that the perpetrator is not a tenant of the same “dwelling
unit” (see Code Civ. Proc., § 1161.3(a)(2)), which is expressed in element 3 as
“living unit.” Presumably, the legislative intent is to permit the perpetrator to be
evicted notwithstanding that the victim will be evicted also. The term “dwelling
unit” is not defined. In a multi-unit building, the policies underlying the statute
would support defining “dwelling unit” to include a single unit or apartment, but not
the entire building. Otherwise, the victim could be evicted if the perpetrator lives in
the same building but not the same apartment.
CACI No. 4328 UNLAWFUL DETAINER
1190
Sources and Authority
• Defense to Termination of Tenancy: Tenant Was Victim of Domestic Violence,
Sexual Assault, Stalking, Elder/Dependent Adult Abuse, or Human Trafficking.
Code of Civil Procedure section 1161.3.
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 714
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 4-D, Other Issues,
¶ 4:240 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction
Controls, ¶ 5:288 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 8-D, Answer To
Unlawful Detainer Complaint, ¶ 8:297 et seq., 8:381.10 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.41 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
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, § 236.76
(Matthew Bender)
1 Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 4,
Termination of Tenancy, 4.20B
1 Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
UNLAWFUL DETAINER CACI No. 4328
1191
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