20
§ 1942.5, former subd. (d).)10 He argues that, given the proviso insulating landlord actions
undertaken by “agreement,” Winslett cannot make out a statutory retaliatory eviction claim
because she agreed to abandon her tenancy. The argument is mistaken. Only lawful
eviction proceedings are protected by former subdivision (d), while retaliatory eviction is
not. Both section 1942.5, former subdivision (f) and its current embodiment in section
1942.5, subdivision (h) state that “[a]ny lessor or agent of a lessor who violates this section
shall be liable to the lessee in a civil action.”
Drouet does not compel a contrary conclusion. In that case, a landlord filed an Ellis
Act unlawful detainer action in what he claimed was an effort to withdraw his rental unit
from the market, and his tenants raised a defense of retaliatory eviction. In writ of mandate
proceedings posing the question whether tenants facing eviction pursuant to the Ellis Act
may raise such a defense, the high court answered, yes, they may, but the landlord may
rebut such a defense upon proof of a bona fide intent to withdraw the rental unit from the
market as an action undertaken “for any lawful cause” under section 1942.5, former
subdivision (d). (Drouet, supra, 31 Cal.4th at pp. 594, 599-600.) Here, unlike the situation
in Drouet, where the landlord contended he filed an unlawful detainer action because he
believed it was lawful to do so under the Ellis Act, all of the retaliatory conduct at issue
took place before the settlement of the unlawful detainer action. Whatever explanations
Sagi may have for his claimed retaliatory conduct, he cannot justify it by pointing to an
agreement he had yet to make. Nor could Winslett’s agreement to move out somehow
retroactively cloak Sagi’s prior actions with “lawful cause,” at least not in the absence of a
release extinguishing claims for prior conduct. When the unlawful detainer action at issue
in this case settled, Sagi had the ability to seek such a release if he wished to avoid further
controversy, but for whatever reason he failed to do so.