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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We therefore find no statutory basis for Tenants' contention that Landlord should be compelled to prove not merely that he has a bona fide intent to go out of business but also that this bona fide intent was not motivated by the tenant's exercise of rights under subdivisions (a) and (c) of section 1942.5. Indeed, neither Tenants nor the dissent has identified a single jurisdiction in this country that has sustained a retaliatory eviction defenseor what might more accurately be termed a retaliatory withdrawal defensewhere a landlord seeks to take a building off the market. (Cf. California Livestock Production Credit Assn. v. Sutfin (1985) 165 Cal.App.3d 136, 143, 211 Cal.Rptr. 152 [claim of retaliation is not a defense in unlawful detainer action based on foreclosure of property]; Carol Rickert & Associates v. Law (App.2002) 132 N.M. 687, 54 P.3d 91, 97-98 [claim of retaliation is not a defense in unlawful detainer action based on landlord's decision not to remain in the federal government's former Section 8 housing program]; see generally Robinson v. Diamond Housing Corporation (D.C.Cir.1972) 463 F.2d 853, 867.) Although we have at times analogized a tenant's defense of retaliatory eviction to an employee's defense of retaliatory termination (e.g., Barela v. Superior Court, supra, 30 Cal.3d at pp. 253-254, fn. 8, 178 Cal.Rptr. 618, 636 P.2d 582; Schweiger, supra, 3 Cal.3d at pp. 515-516, 90 Cal. Rptr. 729, 476 P.2d 97), neither Tenants nor the concurring and dissenting opinion identifies a single jurisdiction that has sustained a retaliatory termination defense where the employer was going out of business. (Cf. Textile Workers v. Darlington Co. (1965) 380 U.S. 263, 271, 85 S.Ct. 994, 13 L.Ed.2d 827 ["`But none of this can be taken to mean that an employer does not have the absolute right, at all times, to permanently close and go out of business ... for whatever reason he may choose, whether union animosity or anything else'"].) In sum, neither Tenants nor Justice Moreno has identified anything in the Act or in section 1942.5 to suggest the Legislature intended California to be the first to endorse a "retaliatory withdrawal defense" when a landlord seeks to go out of business.

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