On this appeal by the tenants from a judgment of dismissal entered after the court sustained without leave to amend the landlords' demurrer to their amended complaint, the questions are whether causes of action were stated for retaliatory eviction, for intentional infliction of mental distress, and the propriety of the trial court's denial of the tenants' request for a preliminary injunction.
On numerous occasions after appellants entered into possession of Apartment A, they informed Bonds that the shower on the floor above leaked into their bedroom, also causing the loose plaster surrounding the leak to fall, and that the back door was defective and in need of repair. Prior to July 1, 1969, Bonds continually and repeatedly refused and neglected to repair any of these conditions. On July 1, 1969, appellants, pursuant to Civil Code sections 1941 and 1942, wrote to Bonds that if the requested repairs were not made, they would have them repaired and deduct the cost of the repairs from the August rent. On August 2, 1969, Bonds served notice on appellants indicating their rent would be increased from $75 per month to $145 per month, effective September 1, 1969. The reasonable value of the apartments on the premises was $75 per month and $145 was unfair, unreasonable and uneconomical, in view of the condition of the premises. As the Bonds were aware of appellants' inability to pay the increased rental, their action in raising the rent constituted an actual eviction. After denial of a preliminary injunction to prevent the
The complaint sought general and punitive damages for the eviction and for the intentional infliction of emotional distress.
The question of whether the complaint states a cause of action for retaliatory eviction pursuant to Civil Code sections 1941 and 1942 prior to the 1970 amendments is controlled by Schweiger v. Superior Court, 3 Cal.3d 507 [90 Cal.Rptr. 729, 476 P.2d 97], decided in November 1970, after the filing of the briefs in the instant case. In Schweiger, on substantially identical facts, our Supreme Court held that a tenant has a defense to an unlawful detainer action when the landlord's motive is retaliation for the exercise of statutory rights under Civil Code section 1942. We can discern no rational basis for allowing such a substantive defense while denying an affirmative cause of action. It would be unfair and unreasonable to require a tenant, subjected to a retaliatory rent increase by the landlord, to wait and raise the matter as a defense only, after he is confronted with an unlawful detainer action and a possible lien on his personal property (Civ. Code, § 1861a). Accordingly, we conclude on the authority of Schweiger that the complaint stated a cause of action for retaliatory eviction.
The judgment is reversed.
Shoemaker, P.J., concurred.
I dissent. The majority, in my opinion, has adopted an unwarranted proliferation of Schweiger v. Superior Court, 3 Cal.3d 507 [90 Cal.Rptr. 729, 476 P.2d 97]. The potential results of today's decision are far-reaching and unfairly place a California landlord in a very precarious position.
If the majority opinion stands as the law of this state, any landlord who rejects a demand to repair and who thereafter seeks to either raise the rent or evict a month-to-month tenant will be exposing himself to the jeopardy of a lawsuit by the tenant with the potential consequences of (1) an injunction against the rent increase and/or eviction; (2) general damages; (3) punitive damages for "intentional infliction of emotional distress."
Schweiger in no way suggests that a tenant has any affirmative cause of action. On the contrary, the court repeatedly refers to the "defense" of retaliatory eviction; and, indeed, the court posed the precise question before it as: "... may a tenant defend an unlawful detainer action on the ground that his landlord increased the rents and commenced the eviction action in retaliation against him because he made a demand for repairs pursuant to Civil Code sections 1941 and 1942?" (3 Cal.3d 507, 511; italics added.)
In its review of existing law on this subject the majority court in Schweiger observed: "Few appellate courts in the United States have considered the availability of a defense against retaliatory eviction." (Id., p. 512; italics added.)
Likewise, in every case cited by Schweiger, the issue was one of defense; and, in one, Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242 [22 Cal.Rptr. 309], the court pointed out that affirmative causes of action by a tenant are not admissible in unlawful detainer actions because such would allow a tenant to frustrate the landlord's statutory remedy of restitution of the premises.
The entire scheme of rights and remedies vis-a-vis landlord and tenant with respect to eviction has been outlined by the Legislature. (See fn. 2 to the dissenting opinion of Chief Justice Wright in Schweiger, supra, 3 Cal.3d at p. 519.) Any cause of action such as suggested by the majority here should, if at all, be created by the Legislature.
I would affirm the judgment.
Respondents' petition for a hearing by the Supreme Court was denied November 24, 1971.