Gutierrez

OPINION Plaintiff EDC Associates, Ltd., a California limited partnership (hereafter landlord), filed a complaint for unlawful detainer against defendant Gloria Gutierrez (hereafter tenant) in the Municipal Court of Fresno County. After trial the court issued judgment for tenant, finding that landlord's attempt at eviction was retaliatory in nature and that under the circumstances tenant's late tender of rent was excusable. *Page 169 Landlord filed a notice of appeal to the superior court. The parties filed an "Agreed Statement on Appeal," and the matter came on for hearing before the appellate department of the superior court. The appellate department issued its decision reversing the judgment of the municipal court. Tenant filed an application for certification to the Court of Appeal, the appellate department of the superior court granted same and we ordered the appeal transferred. (Cal. Rules of Court, rule 63; Code Civ. Proc., § 911 ) I. FACTS The following summary is taken from the "Agreed Statement on Appeal" filed in the appellate department of the superior court, and other documents in the superior court file. In May 1981 landlord and tenant entered into a written rental…

The discussion in part II of the majority opinion resolves the litigation, but since the battlelines of the parties have been drawn around the tenant's defense of retaliatory eviction, I feel we should address the matter in order to make an alternative holding. Landlord contends that a tenant in default of rent may not assert any retaliatory eviction defenses to an unlawful detainer action ostensibly based upon said nonpayment of rent. Landlord relies in support of its position on statutory interpretation, other state cases, and its timocratic view of desirable public policy. Civil Code section 1942.5 sets forth the general statutory rules governing assertion of the defense of retaliatory eviction by tenant. 1 Subdivision (a) of that section relates to actions taken by a tenant because the hired premises are dilapidated or otherwise untenantable. It provides a limitation upon a lessor's power to recover possession of the leased premises, raise the rent, decrease services, or cause the tenant to "quit involuntarily" in retaliation for "exercise . . . of his rights under this chapter or . . . his complaint to an appropriate agency as to tenantability of a dwelling . . . if the…

Plaintiff EDC Associates, Ltd., a California limited partnership (hereafter landlord), filed a complaint for unlawful detainer against defendant Gloria Gutierrez (hereafter tenant) in the Municipal Court of Fresno County. After trial the court issued judgment for tenant, finding that landlord’s attempt at eviction was retaliatory in nature and that under the circumstances tenant’s late tender of rent was excusable.

Landlord filed a notice of appeal to the superior court. The parties filed an “Agreed Statement on Appeal,” and the matter came on for hearing before the appellate department of the superior court. The appellate department issued its decision reversing the judgment of the municipal court.

Tenant filed an application for certification to the Court of Appeal, the appellate department of the superior court granted same and we ordered the appeal transferred. (Cal. Rules of Court, rule 63; Code Civ. Proc., § 911.)

I. Facts

The following summary is taken from the “Agreed Statement on Appeal” filed in the appellate department of the superior court, and other documents in the superior court file.

In May 1981 landlord and tenant entered into a written rental…