Schweiger v. Superior Court

• Decision Date: 10 November 1970
• Docket Number: S.F. 22754
• Citation: 90 Cal.Rptr. 729,3 Cal.3d 507,476 P.2d 97
• Court: California Supreme Court
• Parties: , 476 P.2d 97 John SCHWEIGER, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; John B. BONDS, Real Party in Interest.

Page 729

90 Cal.Rptr. 729

3 Cal.3d 507, 476 P.2d 97

John SCHWEIGER, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

John B. BONDS, Real Party in Interest.

S.F. 22754.

Supreme Court of California,

In Bank.

Nov. 10, 1970.

Thomas L. Fike, Robert Goldstein, Allan David Heskin, Oakland, Henry Hewitt and Myron Moskovitz, Berkeley, for petitioner.

Terry J. Hatter, Jr., Paul F. Cohen, Los Angeles, Paul L. McKaskle, Ventura, William T. Rintala, W. Los Angeles, Michael Henry Shapiro and Abby Soven, Los Angeles, as amici curiae on behalf of petitioner.

No appearance for respondent.

Koford, McLeod & Koford and George M. McLeod, Oakland, for real party in interest.

MOSK, Justice.

Petitioner is a tenant in a 19-unit apartment building owned by real party in interest, John Bonds. He has occupied the apartment for four years by virtue of a month-to-month oral agreement with Bonds. Initially, the rent paid by petitioner was $60 per month, but by February 1969 it had been gradually increased to $75 per month.

On June 16, 1969, petitioner sent a letter to Bonds requesting, pursuant to Civil Code, sections 1941 and 1942, ¹ that Bonds repair two longstanding dilapidations of petitioner's apartment--two broken windows and a broken back door that could not be locked. Bonds responded with a letter on July 1, 1969, informing petitioner that his rent would be increased from $75 per month to $125 per month as of August 1. At the time petitioner received this letter, the average rental for a unit in Bonds' apartment building was between $70 and $75 per month, and no apartment in the building rented for more than $90 per month. Sometime during July, Bonds replaced the two broken windows, but the back door remained unrepaired.

On August 1, petitioner paid rent to Bonds of only $60--$75 rent less $15 estimated for repairing the back door. Petitioner contended that the imposed rent increase was unlawful retaliation against him for asserting his statutory rights under Civil Code, sections 1941 and 1942. He subsequently repaired the back door at an actual cost of $35.45.

Bonds' response was predictable and immediate. After serving upon petitioner a three-day notice which demanded payment of an additional $65 rent for the month of August, he commenced an action in unlawful detainer in the Alameda County small claims court. Judgment was rendered to plaintiff for restitution of the premises and $29.55 in cash, representing $125 rent due, less $60 paid and $35.45 for repairs.

Petitioner appealed to the Alameda County Superior Court which held a trial de novo. Judgment was again rendered in favor of the landlord for restitution of the premises and $29.55 plus costs. Although the court expressed agreement with petitioner that the landlord's rent increase and eviction action had been intended as retaliation against petitioner for asserting his statutory rights, the court rejected, as a matter of law, petitioner's defense that such retaliatory evictions violated public policy. In essence, the court concluded that Civil Code, sections 1941 and 1942 impose no limit on the power of landlords to raise rents and evict tenants in retaliation for the exercise by the tenants of their rights under those sections. Nonetheless, the court certified the case to the Court of Appeal to determine a question of law of statewide importance: may a tenant defend an unlawful detainer action on the ground that his landlord increased the rents and commenced the eviction action in retaliation against him because he made a demand for repairs pursuant to Civil Code, sections 1941 and 1942?

Despite the certification, the Court of Appeal refused to transfer the case. Petitioner now seeks a writ of mandate to compel the superior court to hear his defense based on the retaliatory motivation of his landlord. As will be developed, we conclude that the writ should issue.

This case poses a problem of statutory construction necessitating the resolution of an apparent conflict between California Code sections affecting the rights of landlords and tenants. On the one hand, Civil Code, section 1942 grants a tenant the right to demand that his landlord repair dilapidations in his apartment unit and, if the landlord neglects to do so, the tenant may make the repairs himself, where the cost does not exceed one month's rent, and deduct the expense of the repairs from the rent. On the other, Code of Civil Procedure, section 1161 ² implies the unrestricted power of a landlord under a month-to-month tenancy to raise the rent for his property to any level, however exorbitant, and to evict tenants unable or unwilling to pay. The two sections become incompatible when it is alleged, as petitioner alleges here, that the landlord raised the tenant's rent and instituted unlawful detainer proceedings for his failure to pay solely because he asserted his rights under section 1942. ³ We must decide whether such an allegation constitutes a defense to an unlawful detainer action and, if so, whether the superior court abused its discretion in refusing to hear the defense.

Few appellate courts in the United States have considered the availability of a defense against retaliatory eviction. As in many aspects of landlord-tenant law, appellate precedent is sparse because of the economic factor: the tenants involved are often unable to afford appeals or are without direct appellate access in the cases arising in small claims courts.

Nevertheless, some instructive judicial authority exists on the subject of retaliatory eviction. The leading contemporary case is Edwards v. Habib (1968) 130 U.S.App.D.C. 126, 397 F.2d 687, cert. den. (1969) 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560. In that matter, a tenant complained to District of Columbia housing officials about sanitation and housing code violations existing in her apartment, which her landlord had refused to repair, and the landlord responded with a notice to vacate the premises and obtained a default judgment for possession. The tenant then reopened the case and interjected as a defense that the notice to quit was served in retaliation for her complaints to the housing authorities. The defense was rejected as irrelevant at trial and on appeal to the district court. The circuit court reversed, ruling: 'But while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant's report of housing code violations to the authorities. As a matter of statutory construction and for reasons of public policy, such an eviction cannot be permitted.

'The housing and sanitary codes * * * indicate a strong and pervasive congressional concern to secure for the city's slum dwellers decent, or at least safe and sanitary, places to live. Effective implementation and enforcement of the codes obviously depend in part on private initiative in the reporting of violations. * * * To permit retaliatory evictions * * * would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington. * * * There can be no doubt that the slum dweller, even though his home be marred by housing code violations, will pause long before he complains of them if he fears eviction as a consequence. Hence an eviction under the circumstances of this case would not only punish appellant for making a complaint which she had a constitutional right to make, * * * but also would stand as a warning to others that they dare not be so bold, a result which, from the authorization of the housing code, we think Congress affirmatively sought to avoid.

'The notion that the effectiveness of remedial legislation will be inhibited if those reporting violations of it can legally be intimidated is so fundamental that a presumption against the legality of such intimidation can be inferred as inherent in the legislation even if it is not expressed in the statute itself. * * * (W)e * * * have the task of reconciling and harmonizing two federal statutes so as to best effectuate the purposes of each. The proper balance can only be struck by interpreting (the District of Columbia eviction statutes) as inapplicable where the court's aid is invoked to effect an eviction in retaliation for reporting housing code violations.' (Fns. omitted.) (Id. at pp. 699--702.)

While District of Columbia circuit opinions are not controlling precedent in this court, the compulsion of persuasive reasoning is not circumscribed by jurisdictional boundaries. The Edwards court was faced with the problem of reconciling the apparently unlimited power of landlords to evict with the fundamental public policy underlying the housing and sanitation codes. The court held that landlords could not exercise their rights under the eviction statutes to retaliate against tenants invoking their rights under the housing and sanitation codes. Except for superficial distinctions our problem is identical. If we fail to recognize a reasonable limitation on the punitive power of landlords to increase rents and evict tenants, the salutary purposes sought to be achieved by the Legislature in enacting Civil Code, sections 1941 and 1942 will be frustrated. If we deny tenants a defense against retaliatory eviction in unlawful detainer actions, we lend the exercise of the judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights. Thus sound statutory construction here, as Edwards held in comparable circumstances, requires that we reconcile sections 1942 and 1161 by recognizing existence of a defense in unlawful detainer actions when the landlord's motive is retaliation for the exercise of statutory rights under section 1942. Adoption of the alternative course would suggest a devious legislative intent to render section 1942 ineffective as a protective measure.

Real party in interest Bonds urges us to distinguish Edwards on the ground that the policies...