EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)

Citation: EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)
Parent Document: EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)
Jurisdiction: California (state)
Effective Date: 1984-03-16
Original Source: https://www.courtlistener.com/opinion/2116822/edc-associates-ltd-v-gutierrez/ ↗

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As was the situation regarding interpretation of section1942.5, no reported California case has directly confronted the issue of whether the common law defense of retaliatory eviction is available to a tenant who is in default in rent. Some small implication can be derived from the fact that in Barela, supra,
in which the tenant asserted the retaliatory eviction defense (she reported that her landlord had molested her daughter) to a notice of termination of tenancy not based on nonpayment of rent, the tenant was apparently in arrears by the time the unlawful detainer action reached trial, because the landlord, who prevailed at trial, was awarded "back rent." *Page 175 
(Barela, supra, 30 Cal.3d at pp. 247-248.)4 More telling on this point however, is Schweiger v. Superior Court (1970)3 Cal.3d 507 [90 Cal.Rptr. 729, 476 P.2d 97], the case which authoritatively established the common law defense of retaliatory eviction. In Schweiger, the tenant complained of dilapidated premises, after which the landlord raised his rent from $75 to $125 per month. (Id., at p. 510.) The tenant deducted $15 from the monthly amount for repairs, and refused to pay at all the additional $50 (thus paying $60), and the landlord served a three-day quit or pay rent notice, then successfully prosecuted an unlawful detainer action. (Ibid.)

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