his or her right to do any of the acts described in subdivision (a) or (c) for any lawful
cause. Any waiver by a lessee of his or her rights under this section is void as contrary to
public policy. [¶] (e) Notwithstanding 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, rent increase, or other act, and any pleading or statement of issues in an
arbitration, if any, states the ground upon which the lessor, in good faith, seeks to recover
possession, increase rent, or do any of the other acts described in subdivision (a) or (c).
If the statement is controverted, the lessor shall establish its truth at the trial or other
hearing. [¶] (f) Any lessor or agent of a lessor who violates this section shall be liable to
the lessee in a civil action for all of the following: (1) The actual damages sustained by
the lessee. (2) Punitive damages in an amount of not less than one hundred dollars ($100)
nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or
agent has been guilty of fraud, oppression, or malice with respect to that act. [¶] (g) In
any action brought for damages for retaliatory eviction, the court shall award reasonable
attorney’s fees to the prevailing party if either party requests attorney’s fees upon the
initiation of the action.” (Italics added.)
4
The petitioner in Schweiger was not covered by section 1942.5 because it did
not apply to rental agreements entered into prior to the effective date of the statute,
January 1, 1971. (Schweiger, supra, 3 Cal.3d at p. 510, fn. 1.) For the text of the original
version of section 1942.5, see Note, California’s New Legislation On A Landlord’s Duty
To Repair (1971) 3 U.C. Davis L.Rev. 131, 156.
6
sought to be achieved by the Legislature in enacting Civil Code sections 1941 and 1942
will be frustrated.” (Ibid.)
Less than a year after the Supreme Court’s decision in Schweiger, the same
landlord was before the court in Aweeka v. Bonds (1971) 20 Cal.App.3d 278. Again the
tenants petitioned the landlord to repair unsafe conditions in their apartment and again
the landlord responded by raising the tenant’s rent—this time from $75 a month to $145
a month. Instead of waiting to be sued in an unlawful detainer action, the tenants sued
the landlord for retaliatory eviction claiming that the rent increase constituted an actual
eviction and seeking an injunction to prevent the landlord from enforcing the rent
increase or instituting an action for unlawful detainer. The trial court denied a
preliminary injunction and sustained the landlord’s demurrer to the complaint without
leave to amend. Relying on Schweiger, the Court of Appeal reversed. The court
reasoned: “We can discern no rational basis for allowing . . . a substantive defense while
denying an affirmative cause of action. It would be unfair and unreasonable to require a
tenant, subjected to a retaliatory rent increase by the landlord, to wait and raise the
matter as a defense only, after he is confronted with an unlawful detainer action and a
possible lien on his personal property . . . . Accordingly, we conclude on the authority
of Schweiger that the complaint stated a cause of action for retaliatory eviction.”
(Id. at p. 281.) The Supreme Court denied review.
In 1979 the Legislature affirmed the right of a tenant to sue a landlord
for retaliatory eviction by repealing and reenacting section 1942.5 (Stats. 1979, ch. 652).
As part of that reenactment, the Legislature specifically provided that “[i]t shall be
unlawful for a lessor to . . . bring an action to recover possession . . . for the purpose of
retaliating against the lessee because he or she has . . . lawfully and peaceably exercised
any rights under the law” and that “[a]ny lessor or agent of a lessor who violates this
section shall be liable to the lessee in a civil action[.]” (§ 1942.5, subds. (c) & (f).)
Our Supreme Court has described section 1942.5 as reenacted in 1979 as “a
remedial statute aimed at protecting tenants from certain types of abuses. It is to be