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We first address whether the trial court was correct to rule that the litigation privilege
applies to claims brought under section 1942.5, subdivision (d), a topic that, according to
Winslett, presents “[t]he most important question in this case.”
1. Statutory History
We begin by tracing the origins of the statute. The statutory cause of action now
embodied in section 1942.5, subdivisions (d) and (h), was not always included in section
1942.5. As originally enacted in 1970, section 1942.5 was “part of comprehensive landlord-
tenant reform legislation. Assembly Bill No. 2033, 1970 Regular Session (Stats. 1970,
ch. 1280) [AB 2033] amended section 1942 and added sections 1941.1, 1941.2, 1942.1 and
1942.5. [AB 2033] established the statutory retaliatory eviction defense (§ 1942.5) . . .
specified the conditions which rendered a dwelling ‘untenantable’ (§ 1941.1), enunciated
tenants’ responsibilities (§ 1941.2), clarified tenants’ rights to make repairs themselves and
deduct the cost from their rent (§ 1942), and prohibited the waiver of tenants’ statutory
rights (§§ 1942.1; 1942.5, subd. (c)).” (Kriz v. Taylor (1979) 92 Cal.App.3d 302, 310-311.)
What eventually became the current statutory cause of action for retaliatory eviction, which
was added to this scheme by amendment in 1979, had its genesis in common law
developments independent of section 1942.5.
These common law developments began nearly simultaneously with the enactment of
section 1942.5, in Schweiger v. Superior Court (1970) 3 Cal.3d 507, 513 (Schweiger), a
case involving an eviction predating enactment of the statute. There, a tenant who paid $75
per month in rent complained to his landlord about dilapidated conditions, and in response,
the landlord increased his rent to $125 per month and then evicted him. (Id. at p. 510.) Our
Supreme Court held that a retaliatory eviction defense was available in the eviction
proceedings, independent of section 1942.5. Borrowing heavily from Edwards v. Habib
(D.C. Cir. 1968) 397 F.2d 687 (Edwards), the Schweiger court grafted the holding in
Edwards onto California law: “ ‘[W]hile 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