Section 1942

Citation: Section 1942
Parent Document: Drouet v. Superior Court, 73 P.3d 1185 (2003)
Jurisdiction: California (state)
Effective Date: 2003-08-11
Original Source: https://www.courtlistener.com/opinion/2585536/drouet-v-superior-court/ ↗

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Neither party's construction is consistent with the statute. We instead find guidance in section 1942.5, subdivision (e), which states that "[notwithstanding the provisions of subdivisions (a) to (d), inclusive, a lessor may recover possession of a dwelling and do any of the other acts described in subdivision (a) within the period or periods prescribed therein, or within subdivision (c), ... if the notice of termination ... states the ground upon which the lessor, in good faith, seeks to recover possession.... If such statement be controverted, the lessor shall establish its truth at the trial or other hearing." (Italics added.) Landlord thus errs in terminating the analysis at subdivision (d), since subdivision (e) expressly applies notwithstanding the provisions of subdivisions (a) to (d) inclusive. Accordingly, landlords must assert their invocation of the Ellis Act "in good faith." (§ 1942.5, subd. (e).) Tenants, on the other hand, err in assuming that a landlord who has invoked the Ellis Act, a law pertaining to the hiring of property under subdivision (d), must prove not only that the Act has been invoked in good faith but also that the Act has not been invoked for a retaliatory purpose. Such a requirement would nullify the language in subdivision (d) that "[n]othing in this section shall be construed as limiting in any way the exercise by the lessor of his *215 rights under ... any law pertaining to the hiring of property." In our view, the proper way to construe the statute when a landlord seeks to evict a tenant under the Ellis Act, and the tenant answers by invoking the retaliatory eviction defense under section 1942.5, is to hold that the landlord may nonetheless prevail by asserting a good faithi.e., a bona fideintent to withdraw the property from the rental market. If the tenant controverts the landlord's good faith, the landlord must establish the existence of the bona fide intent at a trial or hearing by a preponderance of the evidence. (See Cervantes, supra, 175 Cal.App.3d at p. 742, 220 Cal. Rptr. 784.)[2] This construction best harmonizes the Act with the text of the retaliatory eviction statute.

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