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Affirmative defense of retaliatory eviction in California

The affirmative defense of retaliatory eviction in California is the topic of this blog post. Retaliatory eviction is a powerful affirmative defense that a California tenant can assert to an unlawful detainer (eviction) complaint.

The California Supreme Court has held that if a tenant proves retaliation by a preponderance of the evidence, he or she is entitled to a judgment of possession. And a California tenant who successfully defends an eviction complaint on the ground of retaliatory eviction is entitled to recover both actual and punitive damages as well as retaining possession of the property pursuant to Civil Code § 1942.5.

The law in California states that a residential landlord cannot take certain actions in retaliation for the tenant’s exercising his or her legal rights. Actions that can be considered retaliatory include increasing rent, decreasing services or causing a tenant to quit the rental property involuntarily.

The statutory provisions regarding retaliatory eviction in California are found in Civil Code §1942.5. A California tenant cannot waive his or her rights under Civil Code §1942.5.

A California 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.

The claimed retaliatory action must have occurred within 180 days of the tenant’s lawful exercise of rights and the statutory defense may be used only once in a 12-month period pursuant to Civil Code § 1942.5.

The California Supreme Court has held that both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord.  See Barela v Superior Court (Valdez) (1981) 30 Cal. 3d 244, 251.

However it is not retaliatory eviction if a landlord in good faith communicates his or her belief that the tenant is violating a term of the lease. See Morrison v Vineyard Creek (2011) 193 Cal.App 4th 1254, 1268–1271, in that case tenant exercised their legal right to conduct a family child-care home on premises.

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

Attorneys or parties in California who would like more information on an eviction document collection with over 30 sample documents for tenant defense including a sample answer to an eviction complaint in California sold by the author of this blog post can use the link shown below.

California eviction document collection

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it.  You can subscribe to the author’s FREE weekly newsletter for California and Federal litigation by visiting: http://freeweeklylegalnewsletter.gr8.com/

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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