Section 1942

Citation: Section 1942
Parent Document: Drouet v. Superior Court, 73 P.3d 1185 (2003)
Jurisdiction: California (state)
Effective Date: 2003-08-11
Original Source: https://www.courtlistener.com/opinion/2585536/drouet-v-superior-court/ ↗

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The majority reasons that Government Code section 7060.7, subdivision (c), does not apply because it refers to "`procedural' " protections designed to prevent abuse of the right to evict tenants, and the prohibition against retaliatory eviction is "`substantive.' " (Maj. opn., ante, 3 Cal.Rptr.3d at p. 218, fn. 5, 73 P.3d at p. 1196, fn. 5, italics omitted.) In support of this contention, the majority quotes Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 149, 130 Cal.Rptr. 465, 550 P.2d 1001, for the proposition that the defense of retaliatory eviction is "a limitation upon the landlord's property rights under the police power, giving rise to a substantive ground of defense in unlawful detainer proceedings." (Italics added.) But the quoted portion of Birkenfeld does not refer to the defense of retaliatory eviction, or to section 1942.5, but to the Berkeley rent control law that required landlords to obtain a certificate of eviction from the city to recover possession of a rent-controlled unit. This is clear when the partial quotation relied upon by the majority is considered in context: "The purpose of the unlawful detainer statutes is procedural. The statutes implement the landlord's property rights by permitting him to recover possession once the consensual basis for the tenant's occupancy is at an end. In contrast the charter amendment's elimination of particular grounds for eviction is a limitation upon the landlord's property rights under the police power, giving rise to a substantive ground of defense in unlawful detainer proceedings." (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 149, 130 Cal.Rptr. 465, 550 P.2d 1001, italics added.)

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