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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The majority also cites the decision in Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281, 97 Cal.Rptr. 650, which, without any analysis or explanation, describes the common law doctrine of retaliatory eviction established in Schweiger v. Superior Court (1970) 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97, as a "substantive defense." The majority further cites three Court of Appeal decisions that quote this language in Aweeka without discussion. From this, the majority infers that "the Legislature relied on contemporaneous judicial classification of the defense as substantive in deciding to preserve only procedural protections in section 7060.7, subdivision (c)." (Maj. opn., ante, 3 Cal.Rptr.3d at p. 218, fn. 5, 73 P.3d at p. 1196.) I disagree. The fact that some courts have described in passing the common law doctrine of retaliatory eviction as "substantive" does not support the majority's conclusion that the Legislature considered the protections set forth in section 1942.5 to be "substantive" rather than "procedural." Subdivision (a) of section 1942.5, for example, provides that a landlord may not retaliate against a tenant by recovering possession of a dwelling in any action or proceeding within 180 days of certain actions by the tenant. This certainly appears to be one of the "procedural protections designed to prevent abuse of the right to evict tenants" to which Government Code section 7060.7, subdivision (c) refers. In my view, the statement in Government Code section 7060.7, subdivision (c), that the Ellis Act was not intended to "[o]verride procedural protections designed to prevent abuse of the right to evict tenants" means that the protections against retaliatory eviction afforded by section 1942.5 apply to landlords proceeding under the Ellis Act.

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