*1 Aug. S096161. [No. 2003.] DROUET, Petitioner,
JOEL THE SUPERIOR COURT OF THE CITY COUNTY OF SAN AND FRANCISCO, Respondent; al.,
JIM et Parties in BROUSTIS Real Interest.
Counsel Zacks, James B. Kraus for Andrew M. Zacks and Law Offices of Andrew M. Petitioner and Appellant. on behalf of as Amicus Curiae S. for Pacific Foundation Legal
R. Radford Petitioner. F. Utrecht for Small Property Paul F. and Paul
Law Offices of Utrecht Curiae on behalf of Petitioner. of San Francisco as Amicus Owners Associa- and E. Fried for San Francisco Apartment & Fried Clifford Wiegel on of Petitioner. as Amicus Curiae behalf tion Action and for Perry Apartment Rosario Rosario Perry Law Offices of Petitioner. Curiae on behalf of Association as Amicus Respondent. No appearance M. Law Offices William Simpich; William M. Simpich,
Law Offices of and S. Janowitz Law Offices of Marc D. D. Philip Rapier; Philip Rapier, for Real Parties Interest. Marc S. Janowitz Fund, Protection and
Brad and Jennifer for The Seligman Cynn Impact Inc., Law Aid Foundation of Los Public Interest Advocacy, Legal Angeles, Center, Committee for Civil Lawyers’ East Law Project, Bay Community Union of the San Francisco Area and the American Civil Liberties Rights Bay in Interest. of Northern California as Amici Curiae on behalf of Real Parties Weathered; Field; Gen Tom Robert Roderick T. Fujioka; Capistrano; Aid, Caucus, Dara Schur for Asian Law Area The Los Bay Legal Angeles & Amici Poverty Law The Western Center on Law Housing Project Curiae on behalf of Real Parties in Interest.
Daniel Berko as Amicus Curiae on behalf of Real Parties in Interest. Opinion Code,
BAXTER, (Gov. The EllisAct et that no seq.) provides § J. statute, ordinance, or administrative action . . . regulation, “shall compel offer, offer, owner of any residential real or to continue to property Code, accommodations in the (Gov. for rent or lease.” § (a).) A landlord who with the Ellis Act therefore out complies may go residential rental business the rental by withdrawing (Los Investors, market. Angeles Lincoln Place Ltd. v. Los City Angeles (1997) 54 600].) If the landlord Cal.App.4th Cal.Rptr.2d necessary, institute an action for unlawful detainer to evict the tenants and recover (Gov. 7060.6.) property. actions,
In unlawful detainer tenants *5 generally may legal assert which, that defenses relate to the issue of and equitable “directly if established, would result in the tenant’s (Green retention of the premises.” Court Superior 10 Cal.3d
1168].) eviction, The defense of codified at Civil Code section (section 1942.5), is one such defense. This defense bars a landlord in an recovering possession dwelling unlawful detainer action where is “for the of recovery tenant because purpose retaliating” against of his or her lawful and exercise of under the law any rights peaceable (§ (c)) subd. or “because of’ his or her tenant- regarding complaints (id., (a)). ability case,
In this the tenants have asserted the defense of statutory an unlawful detainer instituted landlord under proceeding by viеw, the Ellis Act. In their section 1942.5 can force a landlord to continue to offer the for rent or lease if the landlord’s decision withdraw the property is aby motivated desire to retaliate the tenants in the property ways hand, landlord, (a) (c). The on the other by subdivisions and prohibited business, an notwithstanding that he entitled to exit the rental counters conduct, 1942.5, subdivi- of retaliation for tenant under section allegation (d), in this shall be construed as sion section “[njothing provides the exercise the lessor of his under . . . law any any limiting way to the of or his to do of acts described hiring right any property pertaining for lawful cause.” in subdivision hiring We find that the Ellis Act “law to the qualifies pertaining (d), and a landlord’s under section property” “ from market is an exercise of ‘the go withdrawal ” (First Presbyterian City Berkeley Church v. out of rental business’ 710]) law. under that 59 Cal.App.4th Cal.Rptr.2d conclude, (e) (d) further in accordance with and We subdivisions fide withdraw the that a landlord’s bona intent to will from the rental market under Ellis Act defeat defense Because the trial court did not consider the landlord’s retaliatory eviction. standard, for under this we reverse the Court motion summary adjudication court to which had issued writ of mandate directing superior Appeal, the landlord’s motion for with directions summary adjudication, grant the matter to the court for further consistent superior remand proceedings with opinion.
BACKGROUND (Landlоrd) building owns two-unit apartment Petitioner Joel Drouet Jim and in San Francisco. Real Broustis 378-380 San Carlos Street parties unit at on a (Tenants) McClelland 378 San Carlos Street Ivy occupy 1988; in the McClelland basis. Broustis has lived unit since month-to-month and have had him in Over the Landlord Broustis joined early years, 1999. conflicts have for involving tenancy. alleged, example, several Tenants utilities, rent, overcharged Landlord to raise attempted illegally the lease refusing refused to interest on violated pay security deposits, Tenants to have roommate. when Broustis April permit bill, they had failed to his share of garbage discovered Landlord pay their rent. Around the him to deduct this amount from informed they planned time, wall. drain shower they leaking sewage notified Landlord of same *6 5, 1999, Instead, on did make the repairs. August Landlord requested Act on Carlos Street units commenced Ellis the San Landlord proceedings Units the Rental a “Notice Intent to Withdraw Residential filing and Arbitration with Francisco Residential Rent Stabilization Market” the San 37.9A, 7060.4; Code, Code, (f).) That Admin. (Gov. S.F. § Board. § the tenancy Tenants with written notice terminating Landlord served day, same them and deliver (Civ. 1946) up and requiring quit premises and a memorandum regarding within 60 The notice of intent days. notice. of the from rent were attached to the withdrawal units that Landlord with all Ellis do not parties complied dispute Nonetheless, Tenants did not premises. рrocedures. quit 6, 1999, on October Landlord filed a for unlawful Consequently, complaint detainer in the Court for the of San Francisco. City County Superior defenses, four affirmative includ- alleged Tenants answered the complaint eviction. Landlord moved for on each of ing retaliatory summary adjudication but, the defenses. The court the motion in without granted superior part fide, whether Landlord’s invocation of the Ellis Act was bona considering denied it with eviction. defense of respect
Landlord a writ mandate in the sought division appellate superior court to the trial court to the denial of set aside compel summary adjudica- tion, that the defense of a matter alleging eviction is unavailable as law in unlawful detainer under the Ellis Act. After briefing proceedings and oral argument, division with Landlord and appellate agreed granted for writ of mandate. It said: “When a landlord has with petition complied market, all his rental units from the rental his procedures withdrawing motive for the units is irrelevant.” The Court of ordered withdrawing Appeal Court, and, the case transferred (Cal. 62(a)) on its own motion Rules of rule in a with the division: unlawful published opinion, agreed appellate “[I]n detainer commenced under the Ellis a tenant proceedings properly not raise an affirmative defense of eviction to displace- prevent ment.”
DISCUSSION In a writ the deniаl of proceeding challenging summary adjudication, (Buss we review the trial de ruling court’s novo. Court Superior Cal.4th 766].) P.2d Since there are no Cal.Rptr.2d fact, issues of we consider effect Civil Code section disputed only legal in an detainer under the Ellis Act. We examine unlawful proceeding each scheme in turn.
A. The Ellis Act (Act) The Ellis Act sets forth the which a landlord may go procedure out of business rental units from the market. Its intent is “to by removing City in Nash v. Santa supersede any holding any holding” portion (Nash) Monica 37 Cal.3d P.2d “to the 894] *7 of the conflicts with this holding, chapter, extent that holding, portion (Gov. 7060.7.) so landlords to out of go as to business.” permit § involved section of the Santa Monica Charter that City prohibited Nash rental the market absent a removal landlords from units from withdrawing Monica Rent Board. To obtain a removal Santa Control permit not and not a landlord had to show that removal would could permit, displace low- would affect adversely or moderate-income removal persons, and that the landlord could not make a fair city’s supply housing, (Nash, 37 Cal.3d at retaining return on investment the unit. supra, 100-101, Nash, 3.) fn. we due to rejected challenge pp. process (id. 103), (as observed) at the dissent it though compelled even procedure p. and gave “to remain business his will” him “only landlord Mosk, J.).) (Id. (dis. alternative of a forced sale.” opn. statute, ordinance, Nash, thе Act that no In contrast to provides action the owner of residential regulation, or administrative shall “compel offer, offer, continue to in the real or to accommodations property property Code, 7060, (Gov. even if could (a)), for rent or lease” the landlord subd. § return, habitable, is and the lacks approval make a fair Investors, Place Ltd. v. (Los City for future use of land. Lincoln Angeles Los Angeles, Cal.App.4th Act, however, subject The articulated in the is made expressly laws. the Act not intended to interfere with local certain other For example, use, land of the conversion to condomini- including regulation over authority Code, 7060.7, (Gov. (a)), subd. preempt ums or nonresidential use § land use the demolition or regulations governing local environmental or (id., (b)). subd. Nor does the permit redevelopment rent or lease than all of the accommodations landlord to withdraw from less (Id., (d).) in a subd. building. market are further that if the units withdrawn from the The Act states offered, rent, local landlords governments may again require
subsequently time the of intent to the units at the lawful rent effect at the notice offer Code, 7060.2, (a)(1).) filed. Local (Gov. governments withdraw was subd. § within 10 years landlords who intend to re-rent units also require units the displaced the market offer the first to after their withdrawal from (Id., (c).) tenants. local governments may require Act also the means which spеcifies units from the their intention to withdraw the
landlords to notice of provide Code, 7060.4.) can be withdrawn (Gov. The accommodations rental market.
591 rent or after first class mail days delivery by from lease 120 person (Id., (b).)1 subd. entity. notice to appropriate public (as here) If do the date the accommo- by tenants not quit premises market, dations have been withdrawn from the the landlord institute an The Act that the tenant in such a action for unlawful detainer. provides assert of defense that the owner has not proceeding “may by way complied Code, (Gov. 7060.6.) with the of this . . . .” applicable provisions chapter § . . . Title 5 also states that it does not “any provision supersede 1925) with Section of Part 4 of Division 3 of the Civil Code (commencing Code, 7060.1, (Gov. (d).) . . . .” 5 Code section subd. Title includes Civil § (as stated) contains a evictions. against retaliatory prohibition And, business, while the landlord to out of the Act is not permitting go “otherwise” intended to designed procedural protections pre- “[o]verride Code, 7060.7, (Gov. vent abuse of the to evict right (c).) tenants.” § B. Civil Code Section 1942.5 1970, 1280, 5,
Section added 1942.5 was Statutes of chapter date, 2316-2317. After its enactment but pages before its effective we law recognized common doctrine of eviction as a defense in unlawful detainer (Schweiger v. Court 3 Cal.3d proceedings. Superior 729, time, At that few (Schweiger).) appellate 97] (Id. had courts considered the 512.) of the defense. at We availability p. area, therefore examined closely in the Edwards v. leading authority (D.C. 1968) 687], Habib Cir. F.2d in which the U.S.App.D.C. tenant’s of sanitation and code complaints violations in her housing apartment were met by the landlord’s notice to vacate the premises. Judge Skelly “ Wright’s opinion Edwards observed that implementation ‘[e]ffective enforcement of the codes on initiative in the obviously depend part private of violations. ... To reporting evictions . . . would permit retaliatory clearly frustrate the effectiveness of the code housing as means of upgrading ” 512, 3 Cal.3d quality housing.’ (Schweiger, supra, at p. quoting Habib, 700-701.) Edwards v. F.2d at supra, 397 An eviction under such pp. circumstances, reasoned, Judge would not the tenant for a Wright only punish “ she had constitutional to make ‘but also would stand complaint bold, which, as a warning others that dare not be so a result from the they code, authorization of the we think housing Congress affirmatively sought ” 512, Habib, avoid.’ at (Schweiger, Edwards v. p. supra, 397 quoting 701.) F.2d at p. pertinent proceedings, At the time these permitted the statute accommodations to be (Gov. (a), days
withdrawn 60 the date of notice. former subd. added § 1985, 5564.) Stats. ch. p. state reasoning” (Schweiger, supra, to our own “persuasive Applying 513), we chose “to in unlawful detainer actions recognize Cal.3d for the sought dеfense eviction is retaliation exercise (Id. the tenant.” We later commented that the substance rights by (Barela of this common defense was codified in section law 582]), *9 Court 30 Cal.3d 249 Superior had been to but did not effective until which enacted become prior Schweiger 4.) year. the Cal.3d fn. following (Schweiger, supra, p. 1979, the and it with Legislature
In section 1942.5 reenacted repealed the time which a tenant is during extended provisions period protected enlarged eviction and that the forms of retaliation. from prohibited 2005; 652, 2, Court, (Stats. ch. 30 Cal.3d Superior Barela v. “(a) now If the lessor 1942.5 pertinent part, provides: the because of exercise the of his against rights retaliates lessee the lessee to or of his to an as agency under this because chapter appropriate complaint as of a and if the of a not in default tenantability dwelling lessee dwelling, rent, the to the his lessor recover payment may possession the lessee to involuntarily, in action or cause dwelling any proceeding, quit rent, date the or After the any days: increase decrease services within lessee, faith, which the notice to Section good given pursuant has upon or has made an oral complaint the lessor regarding tenantability; [1] services, rent, . It increase . . shall be unlawful for lessor to decrease [‘ID or causе a lessee to an action recover quit involuntarily, bring possession, acts, the to do of such for the any retaliating against threaten purpose any rights because he or has . . . and exercised lawfully lessee she peaceably the to this the law. In an action or lessee brought by pursuant subdivision, the the lessee shall bear burden of evidence producing fact, was, (d) section shall retaliatory, Nothing lessor’s conduct in this [f] exercise the of his any way be construed lessor limiting to the lease or or law any hiring under any agreement pertaining (c) for (a) any to do of the acts described in subdivision or or his right any lawful cause. ... [1] (e) Notwithstanding provisions subdivisions (a) inclusive, do any of a (d), dwelling lessor recover (a) within or periods the other acts described in subdivision period termination, therein, rent if the notice of (c), or within subdivision prescribed lessor, increase, which in good other . ground act . . states upon rent, other acts faith, or do of the any seeks to recover increase possession, controverted, the (c). If statement be in subdivision such described hearing.” establish its truth at trial or other lessor shall Landlord’s Harmonizing Right Property Withdraw C. Act Tenants’ Rental Market Under with Defense of Eviction Under Civil Code Section 1942.5 Retaliatory (d), nothing Government Code section provides . . with (commencing the Ellis of . Title “[supersedes provision . . . .” The Court of 1925) Section of Pаrt of Division 3 of the Civil Code subdivision, ultimately wrestled with of this Appeal meaning deciding the Ellis Act context it would be a act of superficial interpretation “[i]n conclude that the use of the term in reference to broad ‘supersede,’ detailed scheme of the Civil meant that a necessarily particu- lar eviction defense—found in a statute—remained single applicable. did not out section but referenced title Legislature single broadly sections includes Civil After through [of Code].” statutes, weighing two Court of competing policies Appeal *10 deemed it “unreasonable to conclude that in the making broad process references to entire in the Ellis systems statutes Legislature intended the defense of eviction to to unlawful detainer apply under the Act.” proceedings Landlord asks us to embrace this reasoning find that the Ellis Act section 1942.5. superseded
To the extent Landlord invites us to of Government ignore language 7060.1, (d), Code section subdivision and instead reweigh allegedly compet 1942.5, ing as relate to section public policies they we must decline “ ‘ invitation. The branch judicial “has no to rewrite the statute as to so power ’ ” make it conform to a intention which is not presumed expressed.” Cause, 53, (Equilon v. Consumer Inc. Enterprises (2002) Cal.4th 59 [124 507, 685].) 52 P.3d Cal.Rptr.2d We therefore language apply plain 7060.1, of Government Code section (d), subdivision and conclude the Act did not section supersede 1942.5. follow, however,
It does not that section should be read to the Act. When the that one law does supersede Legislature provides another, (San together. City Mateo the two are to be supersede construed School Dist. v. Public Bd. 850, Employment Relations (1983) Cal.3d 864-865 Code section [191 523] [Education which that says contained herein shall be deemed to “[n]othing supersede Code,” other of the Education be provisions should construed “in harmony v. Albion Lumber Code”]; with . . . Taylor sections of the Education existing Co. Cal. 350-351 P. ‘Section 1970 of the Civil 348] [“ Code is to be construed with of Civil section not as [Code Procedure] ”]; Quality Masonite v. Mendocino Air it’ Corp. County of superseding 436, 451, Dist. Management fn. 11 Cal.App.4th Cal.Rptr.2d 639].) harmonize therefore that our task the two agree is parties “ schemes, that in section 1942.5 is not set aside doing ‘replaced, so provided ” (San Mateo School Public City Dist. by’ or annulled the Ellis Act. Bd., accord, 864; Relations Law 33 Cal.3d Black’s Employment “annul, void, or (7th 1999) ed. make [defining “supersede” Dict. below, do not of’].) For reasons set forth we by taking repeal place his good a landlord to invoke faith or her right find permitting aside, from the rental market would set or withdraw replace, annul section 1942.5. with the itself. analysis begin language
Our must section 1942.5 (a)(1), Tenants claim are under section they protected bars a landlord frоm tenant within 180 retaliating against days (c), tenantability, tenant’s oral as well as subdivision regarding complaint a tenant for the lawful and retaliating against which bars under the law. Landlord any rights exercise of proceeding, peaceable Tenants an oral lawfully does not made otherwise dispute complaint their does deny exercised under law—nor Landlord rights peaceably (§ he “because of’ the oral complaint seeks recover possession their (a)) or Tenants’ exercise of retaliating” against subd. “for purpose (id., (c)). Landlord claims instead that the defense of retaliatory rights can be defeated that he has faith invoked his good proof the Ellis withdraw the from the rental market. subject Act to aside, on the that the Act has set His claim based not theory replaced, and, but on the section 1942.5 language annulled itself *11 that in (d), on states in “[n]othing subdivision which relevant part particular, in the limiting way this section shall be construed as exercise any to the of his under lease or or law rights any agreement any pertaining lessor of acts described in subdivi right any of or his to do hiring property (a) or lawful cause.” reasons that subdivision any sion Landlord set forth in subdivision (d) constitutes an exception prohibitions (a) (c). and is with the of the statute. language
Landlord’s consistent interpretation 1942.5, that, circumstances, a (d), subdivision in specified Section prоvides that, (a) (c)” or and may of acts described subdivision any landlord “do circumstances, section “shall be construed” as those “[n]othing” (d) then these “in Subdivision describes any limiting way.” his lease rights any the landlord exercises or her “under circumstances: when or “for any or to the acts hiring law agreement any pertaining property” cause.” lawful the case law. “Subdivision
Landlord’s is also consistent with interpretation (d)] as subd. only conforming changes the statute reenacted with (c) of [now mind, he had retaliation in landlord, could neverthe even that the provided if law any violated lease or ‘any agreement less if tenant prevail if the tenant was in to the . . . .’ For hiring example, pertaining property lease, rent, a covenant in a default in or if he violated agreed payment nuisance, the landlord could move or if he committed waste or maintained had about the habitability to evict him even the tenant though complained (Western Land Inc. v. Cervantes (1985) Office, Cal.App.3d premises.” (Cervantes), added.) We therefore italics 784] 1942.5, (d), an with Landlord that section subdivision constitutes agree (a) to the limitations on landlord conduct set forth subdivisions exception (c). (Cervantes, Cal.App.3d But under does landlord’s withdrawal of rental market property the Ellis Act constitute an exercise of under law pertaining Both hiring Landlord and Tenants which is property? agree (Gоv. 7060.7), “to landlords to out designed go of business” permit such law. We therefore conclude that a withdrawal of landlord’s rental from the market under the Act constitutes the exercise of a under a law under section pertaining hiring (d). subdivision over the parties disagree vigorously of this conclusion. significance
Landlord and some of his amici curiae contend that this is the end of the analysis—i.e., once the landlord has with the Act’s complied procedural set forth in requirements, (d), subdivision has exception satisfied, been and the statutory defense of eviction has been curiae, hand, overcome. Tenants and their amici on the other contend even those (d) landlords who seek refuge subdivision must nonetheless demonstrate an absence of motive in order to in the prevail unlawful detainer action.
Neither construction is consistent with the statute. We instead find party’s (e), in section guidance states inclusive, “[n]otwithstanding (d), subdivisions provisions of a lessor recover of a dwelling do other acts described *12 therein, (a) in subdivision within the or within period periods prescribed (c), subdivision ... if the notice of termination . . . states the ground upon lessor, faith, which the in seeks to recover .... If such good controverted, statement be the lessor shall establish its truth at the trial or (Italics added.) other hearing.” Landlord thus errs in the terminating analysis (d), (e) at subdivision since the expressly applies notwithstanding subdivision inclusive. (a) (d) of subdivisions landlords must provisions Accordingly, (§ their the (e).) assert invocation of Ellis Act “in faith.” good Tenants, hand, on the err other in that a landlord who has invoked assuming 596 Act, (d), a law to the
the Ellis under subdivision hiring pertaining that not the Act has been in but also only good must invoked faith prove the Act has not been invoked for a Such a retaliatory purpose. requirement (d) the in this section nullify would subdivision language “[n]othing be construed the exercise the lessor of his limiting any way shall In our under . . . law to the rights hiring property.” pertaining view, a evict a to construe statute when landlord seeks to proper way retaliatory tenant under and tenant answers invoking defense to hold that landlord may under section faith—i.e., a a bona fide—intent asserting good nonetheless prevail by the rental If the controverts the withdraw market. tenant faith, of the bona good landlord’s must establish existence (See intent at a of the evidence. hearing by fide trial or preponderance Cervantes, 742.)2 at harmo supra, 175 This construction best Cal.App.3d nizes the Act with the text of the eviction statute. retaliatory
We therefore find no basis Tenants’ contention that Landlord for to go be not that he has bona fide intent should compelled prove merely also of business but that this bona fide intent was not motivated by out tenant’s exercise under subdivisions and of section 1942.5. Indeed, has identi- dissenting nеither Tenants nor the and concurring opinion in this that has a retaliatory fied a sustained single jurisdiction country be a retaliatory eviction defense—or what more termed might accurately take a off the withdrawal defense—where a landlord seeks to building Assn. v. Livestock Production Credit (1985) 165 (Cf. market. California Sutfin a defense 143 of retaliation is not Cal.App.3d [211 152] [claim Rickert Carol unlawful action based on foreclosure of property]; detainer Associates v. N.M. & Law 2002 NMCA 96 [132 unlawful action based of retaliation is not defense in detainer 97-98] [claim remain former government’s on landlord’s decision not in the federal v. Housing Robinson Diamond Section 8 see housing generally program]; 853, 867].) (D.C. 1972) 150 F.2d Corporation Cir. U.S.App.D.C. we have times a tenant’s defense of analogized Although Barela an defense of termination (e.g., eviction to employee’s Court, 8; 253-254, supra, Schweiger, Cal.3d at fn. Superior pp. dissenting 515-516), concurring Cal.3d at neither Tenants nor pp. termina- that has sustained identifies single jurisdiction opinion Textile (Cf. out of defense where the was business. going tion employer 827, 85 Co. L.Ed.2d Darlington Workers v. U.S. cites Cervantes dissenting proposition concurring opinion Moreno’s Justice necessarily good seeks to fide not establish faith when the landlord proof of a bona intent (d). (See conc. & dis. specified for a evict the tenant reason (d), does analysis is not post, dissеnt’s Since this case involve subdivision opn., here. pertinent *13 taken mean that an does ‘But none of this can be employer
S.Ct. 994] [“ times, all close and out of go not have the absolute right, permanently choose, whether union animosity business ... for whatever reason he may sum, has identified ”].) else’ neither Tenants nor Justice Moreno anything intended Legislature in the Act or in section anything suggest 1942.5 a withdrawal defense” when “retaliatory California to be first to endorse landlord seeks to out of business. go landlord,
The mere fact defense is defeated when 1942.5, (d) (e), and establishes bona conformance with section subdivisions mean that section has been fide intent to out of business does not go 1942.5, the have the Act. To section Ellis would superseded by supersede above, aside, our set or annul section As demonstrated 1942.5. replace, relies on a close and analysis reading application precise provisions Tenants fear have been Far from the Act to allowing superseded. supersede of that our construction has effect to the given plain language (d) (e), and a landlord to including go subdivisions provision, permit out of and business evict tenants—even if landlord has retaliatory as the landlord also has the bona fide intent to motive—so out of long go Cervantes court understood those provisions business. what This is (d) mean when it construed subdivision to аllow a landlord to evict the tenant (Cervantes, “even if he had retaliation in mind . . . .” Cal.App.3d If, hand, on the other the landlord cannot establish a bona fide business, intent to go (a) (c) out of the tenants on subdivisions may rely to resist eviction.3
Tenants eviction defense is “the method respond only available to one’s home from an Ellis eviction.” protect alleged phony [Act] above, We disagree. As a tenant who believes the land explained Act, Code, lord’s invocation of the Ellis Government section 7060 et seq., and that the landlord intends to offer the vacated units to new phony actually tenants controvert the landlord’s statement of intent. The landlord will then have the burden to establish his or her bona fide intent to withdraw It is from the market of the evidence. preponderance itself, not eviction defense will requirement, prevent Moreover, or deter is of no evictions. defense of phony where the is a landlord’s intention to withdraw units from market help sham but the tenant engaged has conduct protected (c) (Cf. (f).) of section Civ. subd. 1942.5. § Moreno’s Act in order to deter Justice fear landlords will threaten to invoke exercising legal rights building tenants from their is unfounded. A “threat” to remove the from actual and full right granted by only the rental market is not a the Ellis which addresses Hence, nothing the rental limits the withdrawals market. our decision (See protections [prohibiting available to a tenant in such a situation. retaliation].) threats of *14 secretly Tenants that a invoke the Act but intend next worry fear, the the have to re-rent units once tenants been This existing displaced. course, the tenant landlord’s controverted although presupposes intent, the at the the tenant was unable to hearing, landlord committed perjury evidence, fact by uncover cross-examination or other and the perjury by detect The finder was unable to likelihood an erroneous perjury. landlord’s Act outcome further diminished awareness an Ellis by eviction to new closely followed time by re-renting premises tenants would be evidence of the landlord’s bad faith in future any persuasive Code, Code, 1101, (Civ. (e); subd. Evid. proceeding. § § case, concerns do not arise in this (b).) we note that Finally, perjury eliminated inasmuch as Francisco the incentive for sham Ellis Act San has evictions ordinances the landlord’s to by strictly limiting right adopting others, rent, to or re-rent withdrawn to raise the to sell property 37.9A, Code, (S.F. unencumbered these limitations. Admin. (a), (c), (d), 7060.3.) subds. see Gov. (g); §§ text, Unable to in the us instead to urge rely find Tenants support on isolated of the Act’s us in fragments legislative history. They point analysis discussing to a in a Senate committee single paragraph particular Code 7060.1. The “This Government reads: proposed paragraph if would limit landlord’s to out of business the exercise right go provision law. right would a tenant’s under state For jeopardize example, out this would a landlord from of business going provision probably prohibit tenant code An if the had violations. reported housing requested repairs be deemed a the tenant such circumstances could prohibited Com., (Sen. Off. of Floor Analyses, analysis eviction.” Rules Sen. 10, 1985, (1985-1986 Sess.) Sept. of Sen. Bill No. 505 as amended Reg. are sufficiently Yet the use of words and “could” “probably” too on this tentative to caution us relying heavily equivocal 668, v. Butte (1982) County Folsom (See 32 Cal.3d snippet. A. 437]; In re Ramon Cal.App.4th 59].)4 Cal.Rptr.2d which Deukmejian Tenants also below on letter the bill’s author to Governor relied amendments,” “large dealt with such as Senator Ellis recalled the number of which situations go again business offered his units for temporarily when “a landlord were to out of and then only right go “that the out of business rental” and which declared bill extended (in already does possess did not other words—the bill right not further owner conversion, etc.). many rezoning, convey Despite to condominium [][] amendments,” good original thrust been maintained: faith explained, Senator Ellis “the has reason, whatever go including potential
right make a decision to out of business personal business, demands, psychological liability, personal aspect service frustration with Ellis, (1985-1986 Sess.), (Sen. Reg. letter sponsor of Sen. Bill No. 505 investment decisions.” Governor, added.) Although “very little to the italics this letter is of value” Sept. (Bermudez Municipal Court merely author extent it recounts the views of the bill’s be with other laws and lead to
A would also inconsistent contrary holding has made it clear that a landlord who seeks to absurd results. Legislature withdraw rental under the Ellis Act has no to maintain obligation *15 1942.4, (f); (Civ. subd. tenantability habitability premises. § Proc., 1174.2, the conditions them- (d).) Code Civ. subd. If substandard an unlawful detainer action when selves cannot be used tenants to resist by that tenants the landlord invokes the Ellis it would be bizarre to say could nonetheless force the landlord to remain in business by complaining scenario, about those In the landlord would either be same conditions. such be forced to make in violation of the above or would repairs, provisions, rent, to continue to offer the for in violation of the Ellis compelled property Act. addition, the to could tenants to force contrary holding permit when, here,
remain in business as the tenants have invoked indefinitely 1942.5, (c). subdivision This have we “denominated provision, because of its broad retaliation ‘boilerplate’ provision prohibition (Barela v. landlord when a tenant has exercised valid Superior rights” legal Court, supra, 251), 30 Cal.3d at the 180 p. “ongoing subject day or the grace limitation that it be invoked once a as are period may only year, (Review Selected the other Legislation 1979 (1979) sanctions.” California 601, concedes, 602.) 11 Pacific L.J. As Justice Moreno the landlord could or, least, be thus to remain in business at the until a compelled indefinitely trier of fact determined that the had motive We are not retaliatory dissipated. persuaded Legislature envisioned such a cribbed of the Ellis interpretation 5Act. We therefore hold that where a landlord has with complied detainer, and has instituted an action for and the unlawful tenant has asserted 855, 863, 609, 1210]), 1 Cal.4th Cal.Rptr.2d fn. 6 823 P.2d we that nonetheless note it no [4 way interpretation bolsters Tenants’ statute. 5 Tenants, argues retaliatory Unlike Justice Moreno preserved eviction defense is (c), Government Code section which states that the Ellis Act is not procedural protections designed intended to prevent abuse of the to evict “[o]verride eviction, however, (Italics added.) tenants.” upon The defense of is “a limitation substantive property rights police giving ground landlord’s power, rise to City (Birkenfeld Berkeley (1976) proceedings.” defense unlawful detainer Cal.3d v. 17 129, 465, added; 151, Indeed, 1001], id. Cal.Rptr. 149 550 P.2d italics fn. [130 (E.g., numerous courts have characterized eviction defense as substantive. 170]; Cervantes, (1998) Rich v. Schwab Cal.App.4th 63 Cal.Rptr.2d 175 [75 737; Meyers (1982) 242]; Glaser v. Cal.App.3d Cal.App.3d Cal.Rptr. 775 [187 Aweeka 650].) v. Bonds Cal.App.3d Cal.Rptr. may We therefore infer Legislature contemporaneous judicial relied on classification of the defense deciding only preserve procedural protections substantive in in section subdivi 970, 977-978, (Bailey (c). Superior Court sion Cal.3d fn. 10 394].) eviction, defense of the landlord overcome the fide defense a bona intent to withdraw the by demonstrating fide the market. If the tenant controverts the landlord’s bona intent the landlord has the burden to establish its truth at the withdraw property, (§ (e).) hearing by a evidence. preponderance case, In this court motion for superior summary denied Landlord’s without first whether Landlord had asserted a bona adjudication considering and, so, intent Tenants contro- fide to withdraw the if whether had intent. The the writ of mandate granted verted Court .and Appeal enter an directed the court to order Landlord’s motion superior granting facts. summary considering without those Under adjudication, again circumstances, we will the Court of with directions remand reverse Appeal *16 matter the to the motion analyze summary the for court for superior adjudica- tion under the standard. proper future,
In the to may courts similar circumstances find it useful consider first whether the intent to withdraw the is bona fide. If it landlord’s property is, has If the defense of been overcome. contested, landlord’s intent is has the to establish its burden (§ (e).) truth. subd. when the landlord has been unable Only establish bona fide intent need fact finder tо determine whether proceed the eviction is for the tenant under retaliating against purpose (c) of (a) section 1942.5. evidence Accordingly, has, faith, exited the rental business because the landlord tenant good conduct in subdivision of section does not itself specified an constitute an affirmative defense in unlawful detainer under proceeding Ellis Act.
DISPOSITION directions Court of is reversed with to remand judgment Appeal for consistent the matter to the court further with superior proceedings opinion. J., Chin, J., Brown, J., and concurred.
George, C. BROWN, J., Concurring. I concur in the and judgment opinion on three understanding I in order to express my points court. write separately will, remand, ruling court have consider upon superior upon notice (1) filing The landlord’s of a judgment: landlord’s motion summary market, as his from the rental required of intent withdraw property Code, 37.9A, (f)), Admin. creates (S.F. subd. San Francisco Code Municipal § is the landlord’s intent rebuttable nonstatutory presumption will, therefore, the burden bona fide. The tenant bear of producing i.e., sufficient to establish evidence sufficient to overcome this presumption, that the to re-rent the The landlord’s motive landlord intends property. from the rental market is irrelevant. withdrawing his property Code, with (Gov. Under the 7060 et a local government seq.), § rent control a landlord to notice to the local may government requirе provide market, of the landlord’s intention to withdraw a from the rental statements, made the local that the notice contain government may require to the number and address of the accommo- penalty perjury, relating dations, units, the rent for the residential and the names of the charged (Gov. (a).) tenants or lessees. subd. San Francisco has § Code, 37.9A, enacted (S.F. (f)), such notice Admin. requirement it landlord here with it. undisputed complied
Under the Ellis a local with rent control also government provide disincentives for significant once notice of withdrawal re-renting property conditions, has been filed. to certain of time that Subject including length filed, has since the notice of withdrawal was the disincentives include: passed permitting tenants rent the for no more than displaced again withdrawal, increases; the rent in effect at the time of allowable annual plus permitting tenants sue the landlord for actual and displaced exemplary *17 and damages; the local the to sue landlord for permitting government Code, 7060.2, (Gov. (a)(1), (b).) exemplary damages. subds. San Francisco § enacted has these disincentives (S.F. for withdrawn re-renting properties. Code, 37.9A, Admin. (a), (c), (d).) subds. §
Because San Francisco’s disincentives for withdrawn re-renting properties who, here, are so a significant, like the landlord has notice of given intent his to withdraw his from the rental market is еntitled to a property not, that he has a bona fide He the presumption intent to do so. should evidence, i.e., absence of any be saddled with contrary proving negative, that he does not intend to re-rent the in the future. property
To overcome the fide landlord has bona intent to presumption market, withdraw his from the rental the tenant have to will property produce power recognized by The of California appellate presumptions expressly courts to create is (In 139]; the Cal.App.4th Cal.Rptr.2d Evidence Code. re Daniel Z. 1019 Witkin, (4th 2000) 235.) Cal. Evid. ed. Burden Presumptions, of Proof and That § recognizes Evidence Code power appellate presumptions courts to create becomes clear together. when provides sections 600 and 160 are read Evidence Code section 600 that a presumption assumption requires” is an of fact “the law be fact group to made from another action, of facts in the provides established Evidence Code section 160 that “law” includes “decisional law.” evidence, tenant, for admissible evidence sufficient to justify judgment (Cf. re-rent Texas landlord intends to the property. Dept. of U.S. 254-255 L.Ed.2d Community v. Burdine Affairs 207, 101 has been showing S.Ct. facie discrimination prima 1089] [once made, the shifts to rebut the burden defendant presumption evidence, for the judgment admissible sufficient justify producing defendant, that its action was taken for a legitimate, nondiscriminatory reason].) the landlord’s his from the rental
Finally, withdrawing motive is, out, ante, at market as the irrelevant. majority opinion points (Maj. opn., 595-596.) pp.
Baxter, J., concurred. MORENO, J., I agreewith Concurring Dissenting. majority be reversed. The Court Court of must judgment Appeal Appeal that “in erroneously held unlawful detainer commenced proceedings properly under the a tenant raise an affirmative may Ellis not defense Code, (Gov. The et retaliatory eviction.” Ellis seq.) expressly § that it does Civil Code section which offers provides supersede tenants Act underscores this against retaliatory eviction. Ellis protection “[ojverride stating that it is not intended to by further point procedural (Gov. abuse of the to evict tenants.” designed prevent protections clear, (c).) It that a tenant majority recognizes, as the raise the defense of detainer proceedings unlawful under the Act. brought however, that, remand, on the trial disagree, holding
I with majority’s should under summary adjudication court reconsider landlord’s motion the standard that “a bona fide intent to withdraw landlord’s Ellis Act defeat the rental market will defense ante, I find eviction.” As I will (Maj. explain, opn., *18 Ellis the defense of the Act or statutes nothing language governing to evict tenants under the Ellis of eviction that permits for a retaliatory Act purpose. City The Ellis Act was intended to our decision Nash v. supersede of 285, 894], 37 688 P.2d which (1984)
Santa Monica Cal.3d 97 Cal.Rptr. [207 rental from charter removal of units prohibited city provision upheld (First control city market absent a from the rent board. housing permit 1241, 1249 (1997) v. 59 Presbyterian City Berkeley Cal.App.4th Church of . . . 710].) entity The Act “No by stating: public Ellis Cal.Rptr.2d begins [69 offer, to or to . of real any shall . . owner residential property compel offer, (Gov. or to in the for rent lease.” continue accommodations property Code, 7060, (a).) a landlord from
The thus Legislature municipalities preventing prohibited market, from the rental but building from an entire residential removing Act. As to limit the reach of took considerable Legislature pains here, (d), section relevant Government Code particularly of numerous provisions in the Ellis nothing supersedes provides codes, 1925) of Part 4 “Title 5 with Section including (commencing several Title 5 Civil Code section 1942.5 of Division 3 of the Civil Code.” includes evictions. (hereafter 1942.5), tenants against retaliatory protects on the of the Ellis Govern- limitations Underscoring placed scope ment Code section states: “It is the intent of the Legislature of holding to or enacting any holding portion any chapter supersede Monica, 285, City Nash v. Santa P.2d 37 Cal.3d Cal.Rptr. 894] [207 to the extent of the conflicts with this holding, holding, portion However, so as to this act is landlords out business. chapter, permit gо not otherwise intended to do following: Override [][]... [][] abuse of the to evict procedural designed protections prevent tenants.” The reasons that Government Code section majority subdivi- “ ” (c),
sion
does
because it refers to
apply
‘procedural’
protections
tenants,
abuse of the
evict
and the
designed
right to
prevent
prohibition
“
”
ante,
599,
eviction is
‘substantive.’
(Maj. opn.,
contention,
omitted.)
fn.
italics
of this
support
majority quotes
v. City Berkeley
17 Cal.3d
Cal.Rptr.
Birkenfeld
1001],
for the
that the defense of
eviction is
proposition
“a limitation
the landlord’s
under the
upon
property rights
police power,
substantive
rise
giving
of defense in unlawful detainer
ground
proceed-
(Italics added.) But
ings.”
does not refer to
quoted portion
Birkenfeld
eviction,
the defense of retaliatory
or to section
but to the Berkeley
rent control law that
landlords to obtain a certificate of
required
city
recover
of a rent-controlled unit. This is clear when the
possession
relied
partial
is considered in context: “The
quotation
upon by
majority
of the unlawful detainer statutes is
The statutes
purpose
procedural.
imple-
ment the landlord’s
rights
him to recover
by permitting
once the consensual basis for the tenant’s
is at an end. In contrast
occupancy
the charter amendment’s elimination
for eviction is
grounds
particular
limitation
thе landlord’s
under the
upon
police power, giving
rise to
substantive
of defense in unlawful detainer
ground
proceedings.”
(Birkenfeld City Berkeley,
added.)
17 Cal.3d at
italics
p.149,
decision in Aweeka v. Bonds
also cites
majority
which,
650],
without
Cal.App.3d
any analysis
*19
the common law
estab-
explanation,
retaliatory
describes
doctrine
eviction
Court
Schweiger
Superior
lished in
In the the landlord of a two-unit in San building present apartment for Francisco filed a unlawful detainer tenants in one complaint units, had board that he filed with rent control a notice alleging intention to withdraw the from rental market the Ellis building had the tenants notice to but the tenants served with quit premises, answered, failed several de- had to do so. tenants affirmative raising fenses, retaliatory eviction. including for adjudication arguing,
The landlord moved summary part, not as a defense an unlawful detainer eviction be raised retaliatory may based the Ellis Act. The Court motion Superior granted action upon adjudication but denied summary part, summary adjudication defense of eviction. retaliatory reversed,
The Court “in unlawful detainer holding proceed- of Appeal raise an may commenced under the Ellis a tenant not ings properly retains affirmative defense of eviction but prevent displacement, under the eviction damages to an action for indеpendent statute.” erred in concluding
As the the Court recognizes, Appeal majority under section be raised the defense of above, As noted Ellis Act. unlawful detainer based proceedings upon *20 Ellis Act states that it does not section 1942.5 and was not clearly supersede “[ojverride intended to abuse of designed procedural protections prevent id., (Gov. (c); to evict see tenants.” subd. § (d).) subd. The of the Ellis Act a tenant to raise the language clearly permits defense of eviction in an unlawful detainer action. hold, however, on to that a landlord will defeat majority goes
defense of eviction under if the landlord can section 1942.5 demonstrate “a bona fide intent to withdraw the from the [rental] ante, 600), market” even if the landlord’s is to (maj. opn., purpose retaliate the tenant for the against tenant’s exercise of rights by protected I am not convinced 1942.5. by majority’s reasoning.
The majority bases its that a landlord invoke the Ellis Act to holding may evict a tenant for a retaliatory not of the Ellis purpose upon language but of the statute that language retalia- upon provides against protection evictions. Section tory (a), that a landlord may provides not recover of a leased possession within 180 of the tenant’s dwelling days exercise of certain about the tenantabil- rights, including making complaint if the ity tenаnt is not in default as to of rent and premises, payment the landlord is “retaliating] against lessee because of the exercise lessee of his under this or rights because of his to an chapter complaint agency as of a The tenant appropriate tenantability dwelling.” may invoke the (a) of subdivision “more than in protection once 12-month any (Id., (b).) (c) period.” Subdivision of section 1942.5 a landlord prohibits an bringing action to recover of a “for the dwelling possession purpose the lessee he retaliating against because or she has or lawfully organized a in lessees’ association or an participated lessees’ organization advocating or rights has under the lawfully exercised law.”1 peaceably any rights “(a) provides, pertinent part: against Section 1942.5 in If the lessor retaliates the lessee because of the exercise rights chapter lessee of his or because of his complaint appropriate agency tenantability dwelling, to an as to of a and if the lessee of a rent, dwelling is not in payment may default as to the of his the lessor not recover possession dwelling any of a proceeding days: in action or . . . upon within 180 After the date [][] lessee, faith, good given has notice pursuant to Section or has made an oral lessee, [fj (2) complaint regarding tenantability; to the upon lessor or After the date which the faith, good complaint, registered has filed a written complaint or an oral which is or notice, writing, agency, otherwise recorded in with an appropriate of which the lessor has (b) purpose obtaining tenantability relating correction of a condition ffl A lessee provisions not invoke the of subdivision more than once in 12-month period. bring It shall be unlawful for a lessor to . . . an action to recover . . . [][] purpose retaliating against lawfully organized for the the lessee because he or she has participated organization advocating in a lessees’ association or an lessees’ or has lawfully peaceably any rights brought by exercised under the law. In an action subdivision, pursuant producing lessee to this the lessee shall bear the burden of evidence was, fact, (d) retaliatory, Nothing the lessor’s conduct be this section shall [f] *21 that, a landlord recover concluding language, may despite posses- a Ellis if for a sion of under the Act even the landlord acts dwelling 1942.5, (d) the relies subdivision of section retaliatory purpose, majority upon which states: in this section shall be construed as in “Nothing limiting any the the of his under or or agreement exercise lessor lease way by rights any the law to of or his to do of the acts any pertaining hiring property right any (a) (c) described in subdivision or fоr lawful cause.” The any majority reasons that a landlord’s withdrawal of a from the rental market falls dwelling 1942.5, (d)’s to under section subdivision the exception proscription against eviction because it constitutes “an exercise of under a law retaliatory rights ante, the at hiring to of pertaining property.” (Maj. opn., p. a
The fails because even majority’s reasoning assuming withdrawing the rental under Act “an of from market the Ellis constitutes exercise property ante, under a law to the of (maj. rights pertaining hiring property” opn., 595), a tenant to raise a of eviction does not permitting retaliatory defense in the of under the Act. rights landlord’s exercise Ellis any way” “limit[] (§ (d).) The Ellis Act states that it is to the subject expressly in noted set forth section 1942.5. As proscription against retaliatory above, Code (d), nothing Government section subdivision states that in the Ellis numerous statutory Act supersedes provisions, including eviction. Government Code section against retaliatory 1942.5’s proscription “[ojverride the the Act not Legislature’s 7060.7 declares intent Ellis abuse of the to evict tenants.” procedural protection designed prevent right The for a market from rental procedures removing dwelling provided therefore, the Ellis are to the subject against retaliatory proscription eviction set in section The Ellis Act does not landlords the give forth 1942.5. for a to eviсt tenants a landlord right Prohibiting purpose. therefore, under the Ellis Act for a does evicting tenant purpose, limit of under the Ellis Act. The rights majority not the landlord’s exercise limits its to whether “a withdrawal of mistakenly analysis landlord’s an rights from the rental market under the exercise of constitute^] ante, 595), a law of hiring under property” (maj. opn., pertaining whether tenant’s assertion of defense of without further considering limits landlord’s exercise of under Ellis Act. retaliatory eviction rights or limiting any any exercise the lessor of his lease way construed as hiring do the acts agreement any pertaining any or or his law (a) (e) any Notwithstanding ... lawful cause. described subdivision or inclusive, (a) dwelling (d), may a lessor recover provisions subdivisions (a) period periods or any and do the other described within acts termination, increase, therein, (c), if rent or other prescribed or within subdivision the notice arbitration, act, any any, ground upon states the pleading or statement of issues in an if rent, lessor, faith, or good possession, to recover increase do seeks controverted, (c). shall If statement be the lessor other acts described in subdivision such hearing.” its truth at the trial other establish have stated It is difficult to would imagine why Legislature specifically in the Ellis Act that it did not supersede protections holds, intended, that a eviction in section if it as the majority simply under the Ellis Act as evict tеnant for may retaliatory purpose from the rental as the landlord intends to withdraw the long actually building market. of Government Code section subdivi legislative history (d),
sion
that a landlord
a tenant under
conclusion
evict
supports
*22
the Ellis Act for a
a Senate
retaliatory
majority recognizes,
As
purpose.
committee
analysis
legislation that enacted Government Code section
“
(d),
subdivision
states
‘this
would
provision
probably prohibit
landlord from going out of business if the tenant had
or
requested repairs
code
housing
violations. An eviction of the tenant under such
reported
”
could
circumstances
be deemed a
eviction.’
(Maj.
prohibited
ante,
598.)
at
The
evidence
opn.,
p.
majority dismisses this
of
compelling
intent of the
our decision in Folsom v. Butte
Assn.
Legislature, citing
County
(1982)
437],
Governments
“landlords must their assert invocation of the Ellis Act ‘in faith’ under good ante, 595.)2 (e) majority of section (Maj. 1942.5. opn., mean intent the term faith” in context to a bona fide interprets “good ante, the rental I (Maj. withdraw from market. opn., bona fide intent withdraw rental agree dwelling do not that a acts in necessarily good market establishes landlord faith attempting a tenant. to evict Cervantes, Land Inc. v. Western Office, Cal.App.3d (e)
the Court of examined to subdivision Appeal predecessor “covered where the observed that it the situation complaining tenant was not law or but the landlord agreement, violation nevertheless wished to take action valid reason.” (Italics good faith for added.) The court of such valid reasons: examples offered “[A] (1) have wanted to raise the tenant’s rent because taxes on might increased; had recover of the tenant’s for the dwelling to sell to someone demolishing; premises purpose remodeling mind.” (Ibid.) another who had tenant in in Cervantes made to the the Court of
Contrary holding, Appeal majority’s acting clear that a landlord who was for a was acting purpose *23 of in faith: of a valid undermine evidence a ground may “Proof good motive. But of a valid is not of retaliatory ground equivalent proof proof instance, faith. In a a valid exist but landlord good given ground might A tax increase nevertheless act with a motive. of might retaliatory in one hundred five dollars does not an increase rent of necessarily justify Therefore, statute, trier of fact under subdivision dollars. had with evidence a valid nevertheless ground confronted substantial (Western was retaliation.” decide whether landlord’s ‘dominant purpose’ Cervantes, view, Inc. v. 734.)3 In my Office, supra, Land 175 Cal.App.3d therefore, acting for a is not acting retaliatory landlord who is purpose (e) within of section meaning faith” subdivision 1942.5. “good that the tenants nor the author The observes neither majority in this that has sustained jurisdiction country “has identified a single opinion more be termed a accurately eviction defense—or what retaliatory might withdrawal defense—where a landlord seeks to take a off building 2 (e) imposes section 1942.5 additional majority’s premise that subdivision question I Rather, (d) appears the statute. it to those forth in subdivision requirements set against retaliatory (e) proscription provides separate exception and distinct subdivision Office, (1985) 733-734 Western Land Inc. v. Cervantes (See Cal.App.3d 175 eviction. 784].) Cal.Rptr. [220 3 enacted, (a), originally that the landlord requirement The ” “ (Western Office, Inc. Land against the lessee’ purpose ‘has as his dominant retaliation Cervantes, 724, 732, supra, 5) in the statute with the replaced fn. current Cal.App.3d (a).) (§ “retaliates the lessee.” requirement ante, 596.) the market.” at The of this fact significance escapes (Maj. opn., p. me. It is true that the has not identified majority any jurisdiction equally that the landlord intends to has eviction on grounds upheld remove the the rental market. dwelling from a “retaliatory of its observation that no has sustained jurisdiction support defense,”
withdrawal relies two that are majority upon opinions inappo- ante, 596.) site. at The cites the decision in (Maj. majority opn., p. California Livestock Productiоn Credit Assn. v. Cal.App.3d Sutfin 152], “claim for the that a of retaliation is not a defense proposition unlawful detainer action based on foreclosure of (Maj. opn., property.” [an] ante, 596.) at The decision in Livestock held that retaliatory p. California eviction is not a defense to eviction a valid foreclosure sale following because “there is no antecedent landlord-tenant between the relationship trustor and the There is no lease or rental agreement entitling purchaser. trustor to remain in the trustor’s possession premises; only right is based on his title to the at has been lost a valid premises, Thus, foreclosure sale. even if the were an purchaser using precluded eviction, ‘invalid reason’ for would trustor still have no lawful claim to continued Livestock possession.” (California Production Credit Assn. v. Sutfin, 143.) This has no Cal.App.3d reasoning application case. present
The also cites Carol Rickert & majority Associates v. Law 132 N.M. 91], P.3d for the that a “claim of retaliation is not a proposition defense in unlawful detainer action based on landlord’s decision not [an] [a] to remain in the federal former Section 8 government’s housing program.” ante, The (Maj. opn., decision in Carol Rickert clearly is distinguishable. New Mexico statute at issue in Carol Rickert prohibited eviction, but included an a landlord to exception permitted *24 increasе rent or alter services “if the owner can establish that the increased rent or in changes services are consistent with those on other imposed resident, residents of similar rental units and are not directed at the particular Law, (Carol but are uniform.” Rickert & Associates v. at 54 P.3d 98.) Carol Rickert held that p. the tenant’s claim of eviction was retaliatory this prohibited by because the landlord’s action was language uniform: do not that Owner’s decision to discontinue parties dispute “[T]he in the Section participation housing 8 was to be to program uniformly applied all Section 8 tenants as their leases Tenant Accordingly, cannot base expired. her retaliation defense on Owner’s decision to discontinue the Section 8 (Ibid.) program.” Carol Rickert thus has no on the issues in the bearing case. present
The states that majority landlords from prohibiting engaging retaliatory evictions under the Ellis Act would be inconsistent with other laws and lead 610 ante, 599.) absurd results. The Civil Code (Maj. majority cites opn.,
section which a landlord from rent a collecting dwelling prohibits untenantable, deemed that a is that is but landlord who expressly provides from need not withdrawing building the rental market under Ellis Act The with this statute. also cites Code of Civil Procedure majority comply (d), section subdivision which a tenant assert permits are defense in unlawful action uninhabitable a an detainer premises rent, nothing default in the of but following payment expressly provides in the statute “shall limit or of the Ellis Act. Neither supersede any provision” of these statutes inconsistent evicting is with from prohibiting Further, under Act for retaliatory tenant the Ellis these statutes purpose. demonstrate that knew how to who are Legislature landlords exempt The under the Ellis from the of certain statutes. proceeding requirements landlords chose not Legislature exempt prohibition “ evictions set forth in ‘We must that the retaliatory section 1942.5. assume knew how to create an if it wished do so ... .’ Legislature exception City Fed. & Loan Assn. v. Los (California Savings Angeles [Citation.]” of 342, 279, 297]; County (1995) P.2d 11 Cal.4th see Cal.Rptr.2d San v. State Diego 15 Cal.4th Cal.Rptr.2d 94-95 [61 California City Santa Court 312]; P.2d Cal.3d Municipal Cruz 222].) The also observes that a “could tenants majority contrary holding permit “or, least, the landlord to remain in at the until force business indefinitely” trier of fact determined motive had dissipated.” (Maj. opn., ante, however, As the concern does majority recognizes, which if tenant under subdivision proceeds apply within the landlord from tenant only evicting days prohibits can be tenant’s exercise of the invoked specified rights once only tenant 12-month concern only period. majority’s applies is able to if the tenant of section 1942.5 and proceeds that the landlord is “for the acting retaliating against prove purpose a lessees’ because he or she has lawfully organized participated lessee advocating lawfully or an lessees’ has organization association under the law.” any rights exercised peaceably doctrine confronted the same concern in the common law recognizing We eviction, course, who we do not that a tenant stating: “Of imply to remain in entitled proves perpetuity. purpose *25 is Edwards: court in ‘If this illegal dissipated, As the stated purpose for or other can . . evict his tenants or raise their rents economic . reasons, for reason at all. The of or even no legitimate question permissible omitted.) (Fns. . . .’ is one of fact for court or jury. purpose impermissible Court, Even supra, v. 3 517.) Cal.3d (Schweiger Superior [Citation.]” is a landlord tenant under subdivision of section when a proceeds
611 from a from the rental market as prohibited removing building only long the landlord for a that acting only This means landlords retaliatory purpose. not use the to may Ellis Act evictions. wrongfully engage Nothing section 1942.5 a landlord who is not for a acting prevents a from the rental market. withdrawing dwelling purpose “Section is a remedial statute aimed at tenants from protecting certain It is ‘liberally of abuses. to be construed to effect its types objectives and to it directed. encourage, mischief which wаs suppress, (Barela Court Cal.3d v. Superior [Citation.]’ [Citation.]” Court, 582].) Schweiger v. Superior supra, 507, 513, Cal.3d we quoted length “persuasive reasoning” (D.C. 687], Edwards v. 1968) Habib Cir. F.2d U.S.App.D.C. “ ‘while the landlord evict for reason for no reason at any legal all, not, hold, he is free to we evict in retaliation for his tenant’s of report housing code violations to the authorities. As matter of construc ” tion and for reasons such an eviction be public policy, cannot permitted.’ Court, (Schweiger 512.) 3 Cal.3d at Superior recognized We protection against eviction was to tenant’s necessary protect “ and ability demand clean safe ‘The housing: and codes housing sanitary . . . indicate a strong congressional concern to secure for the pervasive decent, city’s slum dwellers or at safe and least to live. sanitary, places Effective and enforcement of the codes implementation obviously depend in on initiative in the part ... To private violations. reporting permit . . . retaliatory evictions would frustrate the clearly effectiveness of the code housing as means of upgrading quality housing Washington. dweller, . . . There can doubt be no though slum even his home be violations, marred code by will he housing pause before long complains them if he fears eviction as a Hence an under consequence. circumstances case оf this would not only for punish appellant making make, had a . complaint she constitutional . . but also would right stand as a (Ibid.) others that dare not be warning they so bold ....’”
As measure, one commentator observed: “In large effective scope ness of tenant remedies for substandard will be determined housing degree of given tenants protection against retaliatory actions landlords. If a landlord is free evict or otherwise harass tenant who his exercises conditions, secure better housing few tenants will for fear use remedies (Daniels, out street.” being put on the Judicial and Legislative Remedies Substandard Housing: Landlord-Tenant Law in the District Reform Columbia (1971) Geo. L.J. will landlords to majority’s holding threaten tenants if permit they about the condition of complain their residence or exercise their *26 cost and deduct the from make necessary repairs Civil Code section 1942 to rent, the rental market under building from their the landlord remove be effective might especially evict them. Such threat Ellis associations, which are specifically the formation of tenant discouraging (c). The thus majority opinion under section protected eviction. this state by encouraging retaliatory violates the public policy but I of the Court of Appeal, Like the would reverse the majority, judgment hold, fide intent to does “that landlord’s bona I the majority, would will defeat market under the Ellis Act withdraw the rental ante, eviction.” (Maj. opn., defense view, a landlord to evict tenant Act was not intended my permit for a retaliatory purpose. J., J.,
Kennard, concurred. Werdegar,