5
1 affirmative defense based on a breach of the warranty of habitability. While they did not check
2 the particular box on the form that expressly referenced this affirmative defense, there is no
3 authority confining them to checking the box in order to assert the defense, and they
4 unquestionably and sufficiently raised the matter in their answer so as to put it in issue. The
5 same is true of their defense that the eviction was retaliatory for their having exercised their
6 legal rights to report habitability conditions to the local Department of Public Safety and to
7 repair and deduct. Their statement in their answer that they had been receiving “evict[ion]
8 notice[s]” “eve[r] s[i]nce” reporting habitability conditions put Boyd on notice that they were
9 asserting the affirmative defense of retaliatory eviction. To conclude otherwise, as the trial
10 court did, would unfairly elevate form over substance, would hold the Carters to a standard of
11 pleading that is higher than the law requires, and would operate as a forfeiture of these statutory
12 and common law defenses. (Code Civ. Proc. § 452 [allegations of pleading must be liberally
13 construed with a view to substantial justice between the parties].)
14 In an unlawful detainer proceeding, a tenant has the right to raise any defense related to
15 the issue of possession of the premises. It is beyond question that one such defense is a claim
16 that the landlord has breached the warranty of habitability. (Green, supra,10 Cal. 3d at p. 635
17 [“we now conclude that the tenant‟s duty to pay rent is „mutually dependent‟ upon the
18 landlord‟s fulfillment of his implied warranty of habitability”].) Where a tenant can prove a
19 breach of the warranty of habitability, “no rent is in fact „due and owing‟ to the landlord…[and]
20 the landlord would not be entitled to possession of the premises.” (Id.) In addition, Code of
21 Civil Procedure section 1174.2 provides that in an unlawful detainer proceeding for
22 nonpayment of rent, the court “shall deny possession to the landlord and adjudge the tenant to
23 be the prevailing party” whenever the court finds that a “substantial breach” of the warranty of
24 habitability or duties found in Civil Code section 1941 has occurred. Civil Code section 1941
25 further provides that “[t]he lessor of a building intended for the occupation of human beings in
26 the absence of an agreement to the contrary, shall put it into a condition fit for such occupation,
27 and repair all subsequent dilapidations thereof, which render it untenantable,….” Civil Code
28 section 1942.5 further prohibits eviction in retaliation for a tenant exercising legal rights,