Retaliatory Actions, Evictions and Discrimination

Retaliatory actions and eviction

A landlord may try to evict a tenant because the tenant has exercised a legal right (for example, using the repair and deduct remedy, see Having Repairs Made) or has complained about a problem in the rental unit. Or, the landlord may raise the tenant's rent or otherwise seek to punish the tenant for complaining or lawfully exercising a tenant right.

In either situation, the landlord's action is said to be retaliatory because the landlord is punishing the tenant for the tenant's exercise of a legal right. The law offers tenants protection from retaliatory eviction and other retaliatory acts.²⁹⁴

The law infers (assumes) that the landlord has a retaliatory motive if the landlord seeks to evict the tenant(or takes other retaliatory action) within six months after the tenant has exercised any of the following tenant rights:²⁹⁵

• Using the repair and deduct remedy, or telling the landlord that the tenant will use the repair and deduct remedy.
• Complaining about the condition of the rental unit to the landlord, or to an appropriate public agency after giving the landlord notice.
• Filing a lawsuit or beginning arbitration based on the condition of the rental unit.
• Causing an appropriate public agency to inspect the rental unit or to issue a citation to the landlord.

In order for the tenant to defend against eviction on the basis of retaliation, the tenant must prove that he or she exercised one or more of these rights within the six-month period, that the tenant's rent is current, and that the tenant has not used the defense of retaliation more than once in the past 12 months. If the tenant produces all of this evidence, then the landlord must produce evidence that he or she did not have a retaliatory motive.²⁹⁶ Even if the landlord proves that he or she has a valid reason for the eviction, the tenant can prove retaliation by showing that the landlord's effort to evict the tenant is not in good faith.²⁹⁷ If both sides produce the necessary evidence, the judge or jury then must decide whether the landlord's action was retaliatory or was based on a valid reason.

A tenant can also assert retaliation as a defense to eviction if the tenant has lawfully organized or participated in a tenants' organization or protest, or has lawfully exercised any other legal right. In these circumstances, the tenant must prove that he or she engaged in the protected activity, and that the landlord's conduct was retaliatory.²⁹⁸

If you feel that your landlord has retaliated against you because of an action that you've properly taken against your landlord, talk with an attorney or legal aid organization. An attorney also may be able to advise you about other defenses.

Retaliatory discrimination

A landlord, managing agent, real estate broker, or salesperson violates California's Fair Employment and Housing Act by harassing, evicting, or otherwise discriminating against a person in the sale or renting of housing when the "dominant purpose" is to retaliate against a person who has done any of the following:²⁹⁹

• Opposed practices that are unlawful under the Act;
• Informed law enforcement officials of practices that the person believes are unlawful under the Act; or
• Aided or encouraged a person to exercise rights protected by the Act.

A tenant who can prove that the landlord's eviction action is based on a discriminatory motive has a defense to the unlawful detainer action. A tenant who is the victim of retaliatory discrimination also has a cause of action for damages under the Fair Employment and Housing Act.³⁰⁰

²⁹⁴ Civil Code Section 1942.5.
²⁹⁵ Civil Code Section 1942.5.
²⁹⁶ Civil Code Sections 1945.2 (a),(b); see California Practice Guide, Landlord-Tenant, Paragraphs 7:368-7:380 (Rutter Group 1999).
²⁹⁷ Moskovitz et al., California Landlord-Tenant Practice, Section 12.38 (Cal. Cont. Ed. Bar, 2004).
²⁹⁸ Civil Code Section 1942.5(c).
²⁹⁹ Government Code Sections 12955(f), 12955.7.
³⁰⁰ California Practice Guide, Landlord-Tenant, Paragraphs 7:205, 7:391-7:394 (Rutter Group 2005).

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.  He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.

Aaron Morris attended Southwestern University School of Law, where he was Editor-in-Chief of the Law Review and graduated cum laude in 1987. His practice areas include Free Speech, Defamation and SLAPP Law, as well as employment law (wrongful termination, discrimination, etc.) business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.). He received national attention after prevailing against Bank of America for banking violations. A recognized expert on Internet law, he recently prevailed in two major Internet cases on behalf of clients that were fighting spammers. Every year since 2008, Mr. Morris has been rated “Best Orange County Attorney” by Tustin Magazine. He is the author of California SLAPP Law and How to Start Your Own Law Firm. He has lectured as an Adjunct Professor at both Whittier Law School and National University, teaching “Litigation Skills & Strategies”. He is the current President of the California Defamation Lawyers Association. Mr. Morris is a writer and lecturer on the subjects of law and law office efficiency, and has been a featured speaker at such functions as the American Bar Association TechShow.