Balassy

This proceeding in mandate presents the question whether a trial court in an unlawful detainer action has jurisdiction to condition entry of judgment for lessee’s possession upon his immediate payment of pendente lite rents, when the lessor has failed to prove unlawful detainer.

As we explain in the following discussion, a trial court has no such jurisdiction.

The facts are simple and not in material dispute. 1 After service of a 30-day statutory notice of termination of tenancy, landlord commenced an unlawful detainer action in municipal court based exclusively on the theory that tenant was guilty of unlawful detainer by creating a nuisance interfering with other tenants’ quiet enjoyment of the apartment premises. No three-day statutory notice to pay delinquent rent or quit the premises was served nor was delinquent rent a ground alleged in the complaint. Tenant, in pro. per., denied the unlawful detainer and asserted the affirmative defense of retaliatory eviction. Tenant refused to vacate the premises upon landlord’s statutory notice and remained in possession at all times thereafter. Tenant ceased payment of rents after the action commenced.

After trial, the jury…