• Archives

  • Blog Stats

    • 620,856 hits
  • Categories

  • Facebook page

  • Enter your email address to follow this blog and receive notifications of new posts by email.

    Join 7,699 other followers

Affirmative defenses to California unlawful detainers (evictions) , part one

Affirmative defenses available to California tenants who have been served with a California unlawful detainer (eviction or UD) lawsuit are the topic of this blog post.

There are numerous affirmative defenses available to a tenant in an unlawful detainer (eviction) proceeding in California.  But one of the first things that any tenant served with a three (3) day notice to pay rent or quit should do is closely examine the notice.  The notice must contain the following information:

1.  The exact amount of rent due.  If the amount is overstated the notice is fatally defective and will not support an eviction proceeding.  .

2.  It must not be served until after the stated amount of rent becomes due.  In other words it cannot be served on the date the rent is due.

3.  It must have the entire street address of the premises, must have the name, address and phone number of the person to pay the rent to, as well as the days of the week and hours in which the rent may be paid.  If it does not state these items the notice is defective.

If the three day notice is defective the best course of action is probably to wait until an eviction proceeding is filed and then either use the defective notice as an affirmative defense in the answer, or file a demurrer to the complaint.

The landlord must wait the entire three days to allow the tenant to comply with the notice.  If the last day to comply is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to comply with the notice.

Once the tenant has been served with the Summons and Complaint they have five (5) calendar days to respond.  Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to file a response with the Court.

The tenant may file the following pleadings in response to the eviction Complaint.

1.  An Answer.  The Judicial Council form Answer may be used, and must be verified as well;

2.  A Demurrer;

3. A motion to strike, and

4.  A Motion to quash service of the summons, or to stay or dismiss the action.

If an Answer is used several affirmative defenses may be asserted.

Every residential rental agreement has an implied warranty of habitability that is independent of the tenant’s obligation to pay rent as stated by the California Supreme Court.

A landlord of residential premises must put the premises in a condition fit for human occupancy and must repair all subsequent dilapidations that render the premises untenantable.  The landlord’s duty to the tenant to provide habitable premises is nonwaivable.

A breach of the warranty of habitability is available as an affirmative defense for a tenant in a UD action for nonpayment of rent.  But it is not available in a UD action based on a 30-day notice to quit as stated by the California Supreme Court.

 If the landlord waived, changed, or canceled a notice to quit, the tenant has an affirmative defense to a subsequent UD action.  For example, if the landlord accepts a partial payment of back rent after serving the tenant with a 3-day notice to quit, he or she may have waived the original notice.
Residential landlords must not take any of the following actions in retaliation for the tenant’s exercising his or her legal rights:
A. Increasing rent,

B. Decreasing services, or

C. Causing a tenant to quit the rental property involuntarily.

A tenant may not waive his or her rights under the law.

A tenant has a valid affirmative defense if he or she can show that the landlord retaliated against him or her in violation of Civil Code § 1942.5.

In addition, both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord, and, if the tenant proves retaliation by a preponderance of the evidence, he or she is entitled to a judgment of possession as stated by the California Supreme Court.

The claimed retaliatory action must have occurred within 180 days of the tenant’s lawful exercise of rights.  Furthermore, the statutory defense may be used only once in a 12-month period.  No limit applies to the common-law defense of retaliatory eviction.

A tenant who successfully defends a UD action on the ground of retaliatory eviction is entitled to recover both actual and punitive damages in addition to retaining possession of the property.

 If the landlord materially breaches an express covenant in the rental agreement, the tenant has a valid defense to an unlawful detainer based on nonpayment of rent.  The tenant’s obligation to pay rent and the landlord’s obligations under the agreement are dependent covenants.

When local licensing requirements are intended primarily for public protection, contracts within their purview that are executed between unlicensed persons are unenforceable as a matter of public policy.  What this means is that if a landlord fails to obtain a certificate of occupancy for his or her rental units before entering into a rental agreement with a tenant, the rental agreement is unenforceable.  The tenant thus has a defense to an eviction based upon nonpayment of rent.  But this does not mean the tenant is entitled a judgment for possession, the defense only operates to bar the landlord’s recovery of rent based on the unenforceable agreement.

If the landlord has discriminated against the tenant in violation of the laws or of the federal or state Constitutions, the tenant may assert discrimination as an affirmative defense against a UD action. This has been stated by numerous decisions of the California Supreme Court.
The use of affirmative defenses by a tenant in their answer to an eviction lawsuit is crucial as it is the only way that the tenant can have the Court hear their side of the story.


Attorneys or parties in California who would like to view a portion of a sample answer to an unlawful detainer complaint that contains 15 affirmative defenses that is sold by the author can see below.

Attorneys or parties in California that would like more information on a California eviction litigation document package containing over 25 sample documents including a sample answer to an eviction complaint with over 15 affirmative defenses can use the link shown below.

California eviction litigation document package

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.  If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to my weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

9 Responses

  1. Your blog is very informative. Helped me a great deal with a situation I am experiencing. There is limited help in my area and I have found it a great task at finding answers to my questions. I have been retaliated against and harassed for a year now for speaking up about inappropriate billing of utilities by a 3rd party. My Sec8 housing payment was taken twice in 2010, applied to the utility bill and in return I was served a 3day notice for default of rent. Full rent was paid by housing. I was asked to make payment arrangements which were not agreeable. I have been approached at 9pm, while dumping trash and asked by mngmt. When I would have money. Other forms of retaliation and harrasment. Currently rcvd 90day notice to vacate and denied the right to have proposed lease reviewed by housing before signing. Ms. Burrell

  2. There are only two or three paralegals in SoCal that are better than me and this guy is one of them. I love doing answers to UD complaints and just did my own blog on affirmative defenses,

  3. Thank you for all of this information!
    I have court in a few hours and I am going to use this the retaliation defense. I received a 3 day notice, I paid the rent within the 3 days and had the check returned. I do believe the manager is retaliating because I put in too many work orders regarding roach infestation.

    Hopefully I will win and be able to get actual and punitive damages and continue living there until I find a new place to live.

    Wish me luck!

  4. Excellent article. It is very informative. Here is a question for you. Does a three-day notice require 10 days wait if you post and mail it like the summon?

What is your opinion?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


Get every new post delivered to your Inbox.

Join 7,699 other followers

%d bloggers like this: