Petitioner is a tenant in a 19-unit apartment building owned by real party in interest, John Bonds. He has occupied the apartment for
On June 16, 1969, petitioner sent a letter to Bonds requesting, pursuant to Civil Code sections 1941 and 1942,
On August 1, petitioner paid rent to Bonds of only $60 — $75 rent less $15 estimated for repairing the back door. Petitioner contended that the imposed rent increase was unlawful retaliation against him for asserting his statutory rights under Civil Code sections 1941 and 1942. He subsequently repaired the back door at an actual cost of $35.45.
Bonds' response was predictable and immediate. After serving upon petitioner a three-day notice which demanded payment of an additional $65 rent for the month of August, he commenced an action in unlawful detainer in the Alameda County small claims court. Judgment was rendered to plaintiff for restitution of the premises and $29.55 in cash, representing $125 rent due, less $60 paid and $35.45 for repairs.
Petitioner appealed to the Alameda County Superior Court which held a trial de novo. Judgment was again rendered in favor of the landlord for restitution of the premises and $29.55 plus costs. Although the court expressed agreement with petitioner that the landlord's rent increase and eviction action had been intended as retaliation against petitioner for asserting
Despite the certification, the Court of Appeal refused to transfer the case. Petitioner now seeks a writ of mandate to compel the superior court to hear his defense based on the retaliatory motivation of his landlord. As will be developed, we conclude that the writ should issue.
This case poses a problem of statutory construction necessitating the resolution of an apparent conflict between California Code sections affecting the rights of landlords and tenants. On the one hand, Civil Code section 1942 grants a tenant the right to demand that his landlord repair dilapidations in his apartment unit and, if the landlord neglects to do so, the tenant may make the repairs himself, where the cost does not exceed one month's rent, and deduct the expense of the repairs from the rent. On the other, Code of Civil Procedure section 1161
Nevertheless, some instructive judicial authority exists on the subject of retaliatory eviction. The leading contemporary case is Edwards v. Habib (1968) 397 F.2d 687 [130 App.D.C. 126], cert. den. (1969) 393 U.S. 1016 [21 L.Ed.2d 560, 89 S.Ct. 618]. In that matter, a tenant complained to District of Columbia housing officials about sanitation and housing code violations existing in her apartment, which her landlord had refused to repair, and the landlord responded with a notice to vacate the premises and obtained a default judgment for possession. The tenant then reopened the case and interjected as a defense that the notice to quit was served in retaliation for her complaints to the housing authorities. The defense was rejected as irrelevant at trial and on appeal to the district court. The circuit court reversed, ruling: "But while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant's report of housing code violations to the authorities. As a matter of statutory construction and for reasons of public policy, such an eviction cannot be permitted.
"The housing and sanitary codes ... indicate a strong and pervasive congressional concern to secure for the city's slum dwellers decent, or at least safe and sanitary, places to live. Effective implementation and enforcement of the codes obviously depend in part on private initiative in the reporting of violations.... To permit retaliatory evictions ... would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington.... There can be no doubt that the slum dweller, even though his home be marred by housing code violations, will pause long before he complains of them if he fears eviction as a consequence. Hence an eviction under the circumstances of this case would not only punish appellant for making a complaint which she had a constitutional right to make, ... but also would stand as a warning to others that they dare not be so bold, a result which, from the authorization of the housing code, we think Congress affirmatively sought to avoid.
"The notion that the effectiveness of remedial legislation will be inhibited if those reporting violations of it can legally be intimidated is so fundamental that a presumption against the legality of such intimidation can be inferred as inherent in the legislation even if it is not expressed in the statute itself.... [W]e ... have the task of reconciling and harmonizing
While District of Columbia circuit opinions are not controlling precedent in this court, the compulsion of persuasive reasoning is not circumscribed by jurisdictional boundaries. The Edwards court was faced with the problem of reconciling the apparently unlimited power of landlords to evict with the fundamental public policy underlying the housing and sanitation codes. The court held that landlords could not exercise their rights under the eviction statutes to retaliate against tenants invoking their rights under the housing and sanitation codes. Except for superficial distinctions our problem is identical. If we fail to recognize a reasonable limitation on the punitive power of landlords to increase rents and evict tenants, the salutary purposes sought to be achieved by the Legislature in enacting Civil Code sections 1941 and 1942 will be frustrated. If we deny tenants a defense against retaliatory eviction in unlawful detainer actions, we lend the exercise of the judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights. Thus sound statutory construction here, as Edwards held in comparable circumstances, requires that we reconcile sections 1942 and 1161 by recognizing existence of a defense in unlawful detainer actions when the landlord's motive is retaliation for the exercise of statutory rights under section 1942. Adoption of the alternative course would suggest a devious legislative intent to render section 1942 ineffective as a protective measure.
Real party in interest Bonds urges us to distinguish Edwards on the ground that the policies underlying housing codes and sections 1941 and 1942 are not identical. Even if it be conceded that the protective policies inspiring housing codes are more pervasive than those underlying section 1942, the rationale of Edwards appears singularly appropriate to general statutory self-help remedies like section 1942. Whatever salutary legislative purpose induced the passage of section 1942, it cannot be achieved if tenants exercising the rights granted by the section may be punished with judicial approbation. Furthermore, the frustrating effect of landlord retaliation on the vitality of section 1942 is likely to be greater than it would be on the enforcement of housing codes, since section 1942 depends for its effectiveness exclusively on tenant initiative, as distinguished from governmental action.
In recognizing a defense against retaliatory eviction, we do not pursue a wholly uncharted course. An equitable limitation on the punitive power
"The purpose of the general rule, that neither a counterclaim nor a cross complaint is admissible in an action of unlawful detainer, is to prevent tenants who have violated the covenants of their leases from frustrating the ordinary and summary remedy provided by statute for the restitution of the premises.... However, as the court stated in McCue v. Bradbury, 149 Cal. 108, at p. 113 [84 P. 993], `... equity will refuse to enforce a forfeiture at the instance of one who has obtained the strictly legal right to it by fraud, deceit, or any form of oppressive practice; and, upon the other hand, will relieve the innocent when such a forfeiture so secured is sought to be enforced.'
"`Equitable principles apply in this state also where a forfeiture is sought in an action in unlawful detainer.' [Citation.] The court in Knight v. Black, 19 Cal.App. 518, 525-526 [126 P. 512], speaking of the remedy of unlawful detainer, said, `... although the remedy provided by law ... is summary in principle and process, nevertheless the very nature of the action, involving, as it does, a forfeiture, appeals to the equity side of the court and in turn requires "a full examination of all of the equities involved to the end that exact justice be done."'
"In this case defendant does not raise a cross complaint or counterclaim, nor does he attempt to litigate the question of title. What he seeks does not violate any of the exclusionary rules with regard to unlawful detainer actions. His defense is a constitutional defense based upon a broad equitable principle. Certainly the interest in preserving the summary nature of an action cannot outweigh the interest of doing substantial justice. To hold the preservation of the summary proceeding of paramount importance would be analogous to the `tail wagging the dog.'" (204 Cal. App.2d at pp. 248-249.)
Undeniably, as the real party in interest insists, Abstract Investment is distinguishable on its facts: it recognized a constitutional defense to a summary eviction, rather than a defense based on statutory rights. Nevertheless,
In related areas of jurisprudence, our courts have not hesitated to prohibit retaliatory exercises of broad private powers when they interfere with public policy. In Glenn v. Clearman's Golden Cock Inn (1961) 192 Cal.App.2d 793 [13 Cal.Rptr. 769], an employer discharged his employees because they had applied for union membership. The employees sued for damages. The Court of Appeal held that, although the contracts of employment were at will and generally could be terminated by either party, the rule was "modified by an exception that prevents a contract of employment at will from being terminated where the reason for termination is one which violates established public policy." (Id. at p. 796.) Thus, the court concluded that the broad power of the employer to terminate employment contracts at will under Labor Code section 2922 was limited by the public policy expressed in Labor Code sections 922 and 923, which gave employees an unfettered right to organize. "It would be a hollow protection indeed that would allow employees to organize and would then permit employers to discharge them for that very reason, unless such protection would afford to the employees the right to recover for this wrongful act." (Id. at p. 798.)
In the earlier case of Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [344 P.2d 25], an employee was discharged after he refused to testify falsely before an Assembly committee, and the Court of Appeal reversed a judgment for the employer in the employee's damage action. "It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute.... [I]n order to more fully effectuate the state's declared policy against perjury,
Both Glenn and Petermann persuasively instruct us that one may not exercise normally unrestricted power if his reasons for its exercise contravene public policy.
Further support for recognition of a defense against retaliatory eviction may be found in a growing body of legislative action and critical legal commentary. Most notably, in 1969, a tentative draft of the Model Residential Landlord-Tenant Code was published under the auspices of the American Bar Foundation. Section 2-407 of the Model Code absolutely prohibits rent increases and evictions within six months after a tenant has complained of housing code violations or requested authorized repairs, unless the landlord can establish a nonretaliatory motive. Violation of the section subjects a landlord to a treble damage action. The commentary to the section makes evident that the drafters of the code had in mind considerations similar to those expressed in Edwards, Abstract Investment, Glenn, and Petermann: "Since the express public policy is to enforce building codes and other laws, ... which govern the construction, maintenance, and use of residential dwellings, one must look askance on a majority rule which allows a landlord to deter a tenant from assisting the enforcement by means of complaint. This section represents an attempt to serve this public policy and prevent such landlord interference."
Finally, we must decide whether the petitioner before us is entitled to relief by way of an extraordinary writ.
In Carter v. Superior Court (1956) 142 Cal.App.2d 350, 359 [298 P.2d 598], a writ of mandate was issued to compel the respondent superior court to entertain a crucial defense it had erroneously stricken from the defendant's pleadings. The court found that the excluded plea, if proven,
We recognize that the foregoing authorities dealt primarily with refusal of trial courts to accept pleadings offered by one of the litigants. The effect was to deny one party a full hearing on the merits of his cause. In the instant case, the petitioner was denied a crucial defense by the superior court at the trial rather than at a prior pleading stage, but the result was identical to that which would have followed a pleading rejection: petitioner was deprived of his only opportunity to fully litigate the unlawful detainer action on its merits. This constituted an abuse of discretion.
The stay of proceedings heretofore ordered on May 28, 1970, is terminated. Let a peremptory writ of mandate issue.
Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
I dissent. Prior to today's decision, a landlord in a month-to-month tenancy could increase the rent or terminate the tenancy for any reason or for no reason at all.
Moreover, as one commentator has pointed out, "judicial prohibition of
Finally, and most importantly, the Legislature has provided a statutory solution to the problems of retaliatory evictions and rent increases through the adoption of section 1942.5 of the Civil Code. This section is part of comprehensive legislation defining a lessor's obligation to provide a tenantable dwelling and a lessee's remedies if such obligation is not met.
McComb, J., concurred.
Section 1942 states: "If within a reasonable time after notice to the lessor, of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the cost of such repairs does not require an expenditure greater than one month's rent of the premises, and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other conditions."
Section 1942 was amended and sections 1941.1, 1941.2, 1942.1, and 1942.5 were added to the Civil Code by California Statutes 1970, chapter 1280. However, the amendment and new sections have no application to agreements entered into prior to January 1, 1971.
Legal commentators who have taken a forthright policy position against retaliatory eviction include Loeb, The Low-Income Tenant in California: A Study in Frustration (1970) 21 Hastings L.J. 287; Note, California Unlawful Detainer Procedure — A Proposed Legislative Change (1970) 21 Hastings L.J. 491, 512; Judge J. Skelly Wright. Poverty, Minorities, And Respect For Law (1970) Duke L.J. 425, 429; Note, Landlord And Tenant — Retaliatory Evictions (1967) 3 Harv. Civ. Rights-Civ. Lib. L.Rev. 193; Note, Retaliatory Eviction — Is California Lagging Behind? (1967) 18 Hastings L.J. 700; Schoshinski, Remedies Of The Indigent Tenant: Proposal For Change (1966) 54 Geo. L.J. 519, 541-552.
Code of Civil Procedure section 911 provides in part as follows: "A court of appeal may order any case on appeal within the original jurisdiction of the municipal and justice courts in its district transferred to it for hearing and decision as provided by rules of the Judicial Council when the superior court certifies, or the court of appeal determines, that such transfer appears necessary to secure uniformity of decision or to settle important questions of law."
Section 1942.1 has been added to provide that any agreement by a lessee waiving or modifying his rights under sections 1941 and 1942 shall be void as to any condition which renders the dwelling untenantable and that a lessor and lessee may, by an agreement in writing, provide for arbitration of any controversy relating to a condition of the dwelling claimed to make it untenantable.
Section 1942.5 specifies the conditions under which a lessor may not recover possession, cause the lessee to quit involuntarily, increase the rent, or decrease any services in retaliation for the exercise of a lessee's rights under sections 1941-1942 or because the lessee complained to an appropriate governmental agency concerning the tenantability of the dwelling. A lessee may not invoke the provisions of the section more than once in a 12-month period. However, any waiver by a lessee of his rights under the section is declared void as against public policy.