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California Retaliatory Eviction (CA Civil Code section 1942.5)

Retaliatory eviction is one of the things that often arises when the relationship between a landlord and a tenant in California sours. As you can perhaps guess from the name, the landlord is evicting the tenant in retaliation for something the tenant did. As you should hopefully also be able to guess, the word “retaliation” implies a timeline — the landlord must evict the tenant for something they have already done. In other words, the tenant must do something first and then the landlord must evict them in retaliation. A tenant cannot claim the landlord is evicting them out of retaliation when the eviction came first and the tenant’s action came second. (True story: I once had a case where the tenant tried to do this.)

The governing statute for residential retaliatory eviction in California is section 1942.5 of the California Civil Code. In this blog post, we’ll go over it.

As usual, this post will just be an overview and will – by no means – be an exhaustive description. Please take a look at the full text of Section 1942.5 yourself or consult an attorney in your area regarding your particular situation. If you are in a commercial landlord-tenant situation, retaliatory eviction under Civil Code 1942.5 does not apply to you, but you may have an equivalent against retaliatory eviction under a 1981 California Supreme Court case called Barela v. Superior Court, 30 Cal.3d 244.

Section 1942.5 of the California Civil Code basically establishes three categories of activity that could qualify as retaliatory eviction. A lot of stuff can qualify as retaliatory eviction, but not everything. In my experience, landlords often overstep their bounds and, for instance, unintentionally put themselves in a position where it appears they evicted a tenant in retaliation. On the flip side, many tenants think that retaliatory eviction includes more than it actually says.

Category 1: Activities under Section 1942.5(a)
The first category consists of the 5 specific acts listed under Section 1942.5(a)(1) to (5). If the landlord evicts the tenant within 180 days of the tenant performing any of these 5 acts and the tenant is not in default of rent, the tenant will have made their prima facie case that the eviction was retaliatory. The burden then shifts to the landlord to produce evidence – if any – showing the eviction was not retaliatory. As always, the ultimate decision is up to the judge.

Other points regarding Category 1 activities under Section 1942.5(a):

  • It is not only evictions that are covered. Section 1942.5(a) also covers rental increases and decreases in services.
  • Per 1942.5(b), a tenant may only invoke 1942.5(a) once during any 12-month period

Category 2: Activities under Section 1942.5(d)
The second category of prohibited acts is under Section 1942.5(d). Prohibited acts under 1942.5(a) were pretty straightforward (i.e. there was a list of 5 specific prohibited acts). The prohibited acts under 1942.5(d), however, are defined much more broadly. The acts of the tenant for which eviction could be retaliatory under 1942.5(d) are: (1) organizing or participating in a tenant’s rights organization or association, or (2) lawfully and peaceably exercising any rights under the law. As you can perhaps guess, the tenant lawfully and peaceably exercising any rights under the law can include quite a bit.

Under 1942.5(a), the tenant only needed to prove three things in order to make their initial or prima facie case: (1) eviction, (2) within 180 days of the exercise of any of the 5 protected activities, and (3) no default in the rent. Under 1942,5(d), however, the tenant must prove the stated elements (e.g. that they were participating in a tenant’s rights organization) as well as prove that the landlord’s motive for the eviction was actually retaliatory. In other words, the tenant merely proving they were participating in a tenant’s rights organization is not enough to, for instance, win the case or shift the burden to the landlord.

Category 3: Immigration protections under Section 1942.5(c) and (3)
It also counts as a violation of 1942.5(a) and (c) for a landlord to actually report — or to threaten to report — the tenant or anyone associated with the tenant to immigration authorities.

I have not had a case involving this issue myself. In the abstract, I can definitely see how it would be improper for a landlord to coerce behavior from a tenant under threat of reporting the tenant to immigration authorities (e.g. “I’m tripling your rent and if you don’t pay it, I’m reporting you to ICE”). However, I think it would be much more gray if the landlord knew or strongly suspected his tenants were undocumented and wanted to report them to ICE and the landlord was sued for retaliatory eviction because of it.

On that last point, retaliatory eviction — in a residential context, at least — is both an affirmative defense as well as a separate cause of action. In other words, a tenant who is being evicted can try to claim retaliatory eviction as a defense and, if the judge agrees, the tenant will win the case. The tenant can also sue in a separate lawsuit for retaliatory eviction under Civil Code section 1942.5(h). Attorney’s fees and costs can be recovered under Civil Code section 1942.5(i).

Again, the above is just meant as a quick overview of how retaliatory eviction works in California residential landlord-tenant situations. This post is, by no means at all ever, a comprehensive discussion of the topic. I absolutely recommend doing your own research in to the topic (e.g. looking at Civil Code section 1942.5) and also consulting with a lawyer in your area about your particular situation.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

8 Comments

  1. Thank you much for a very clear comments related to the CA Civil Code section 1942.5. I found ut very helpful.

    Reply
  2. I have been scouring the internet for information on retaliatory eviction and your information has helped me so much! Thank you!

    Reply
  3. There is no mention of section (f) and section (g). All prohibited acts are only prohibited if they are truly retaliatory. What if tenant did complaint to an agency but landlord is actually giving notice to terminate tenancy so landlord can cleanup/update and sell property on sale right after tenant vacates the property. Does that constitute as retaliatory action?

    Reply
  4. Our landlord threatened us with realiatory eviction while in the Sacramento County Small Claims court and in the presence of a court officer. We were there to recover thousands of dollars we spent in making the place tenantable over the two months prior to becoming tenants. I need a good lawyer right now to help us file a retaliatory eviction case.

    Reply
  5. Thank you very much.

    Reply
    • Called Andy, and he was Extremely helpful, forthcoming and generous with his very professional knowledge and information.

      I highly recommend him to any prospective clients!

      Reply
  6. I am going to send your link to a friend who is in this situation. I am sure there is a lot of info he can get from you that could steer him down the right path.

    Too bad this is not MY situation….I have watched and learned much valuable info from your YouTube videos over the past year.

    Thank you. Resources like yours really DO make a difference when people, like me, find themselves “sinking” in a legal battle trying to fight pro se. there is you and only a handful of others that so generously created videos to help us. Thank you.

    Reply
    • curious what your thoughts are on this issue:
      Do you think that AB1482 will eventually extend the law to cover renters that live in an RV park? Not mobile home owners but full time RVers who rent a space at an RV park…long term.

      My primary residence is in an RV and I rent a spot at an RV park, in the same spot for over 9 years.

      When I was late on rent (due on a Sat) and already had a notice of $45 late fees posted on my door by Monday morning ($15 day) I softly mentioned that I wasn’t even sure that was legal….the manager went off on me ! Threatened to make me “pull out” of the park in 3 days(knowing that my RV does not move). So I just shut up—-found out with research that what she was doing re late fees was in fact legal….then 5 days later she gives me a $95 rent increase ….definitely retaliatory.

      I never had problems like this with her during my entire stay here prior to this.

      Anyways, my 2 cents in the AB1482 issue is that it SHOULD include “renters” like me. If I had to move this home of mine in 3 days I could kiss it all goodbye. Wouldn’t be possible. And wouldn’t be fair. i believe she is trying to hike up the rent for the long term residents before any new rent laws are passed that lock them in at the current rates.

      If the purpose of AB1482 is to fight homelessness then they must include us, too. Landlords at RV parks are just now waking up to the new California rent laws and are going to do whatever they can to make sure they are sitting pretty before the new laws begin to effect them. Meanwhile their tenants have to live in fear and oppression.

      Reply

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