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

California Civil Jury Instructions CACI

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:]

[That [name of defendant] lawfully organized or participated in [a tenants’ association/an organization advocating tenants’ rights];] [or]

[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.]

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 Office, 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 Office, 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.)

“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 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 4th, § 34:206 (Thomson Reuters)