CACI 4328 Affirmative Defense—Tenant Was Victim of Domestic Violence, Sexual Assault, Stalking, Elder/Dependent Adult Abuse, or Human Trafficking (Code Civ. Proc., § 1161.3)
California Civil Jury Instructions CACI
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;
[or]
[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 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
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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.
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.