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increased security deposit amounted to an advance payment of rent amounts to a triable issue of
material fact that should go to the jury.
Foster’s allegation concerning plaintiff’s lack of good faith and retaliation
“The existence or nonexistence of a landlord’s retaliatory motive is ordinarily a question
of fact.” (Western Land Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 731; see also
Schweiger v. Superior Court of Alameda County (1970) 3 Cal.3d 507, 517 [“‘The question of
permissible or impermissible purpose is one of fact for the court or jury”’]; Four Seas Inv.
Corp. v. International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 604, 610 (Four Seas Inv.)
[issue of retaliatory motive “is ordinarily a factual issue to be resolved by the trier of fact” and
can be submitted to a jury when substantial evidence has been presented in support of it];
Department of Transportation v. Kerrigan (1984) 153 Cal.App.3d Supp. 41, 46 [since section
1171 provides parties in an unlawful detainer action are entitled to have all issues of fact
determined by a jury, and the statutory defense of retaliatory eviction under Civil Code section
1942.5 may be pleaded as a defense in an unlawful detainer action, then section 1171
necessarily allows for a jury trial on this issue].)
Foster’s contention plaintiff lacked good faith in evicting him hinges on his claim
plaintiff did so for retaliatory purposes because Foster was unable to pay rent as a consequence
of the financial hardship he faced due to the pandemic, and plaintiff, therefore, violated Civil
Code section 1942.5 (section 1942.5). That statute provides, in relevant part, “it is unlawful for
a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action
to recover possession, or threaten to do any of those acts, for the purpose of retaliating against
the lessee because the lessee has lawfully organized or participated in a lessees’ association or
an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights
under the law.” (Civ. Code, § 1942.5, subd. (d).)
Foster “bear[s] the burden of producing evidence that the lessor’s conduct was, in fact,
retaliatory.” (Civ. Code, § 1942.5, subd. (d).) Foster presented evidence that, on a website
plaintiff’s counsel hosted, counsel posted an article entitled “Evictions Can Now Proceed” in
which counsel offered that landlords could circumvent the legal protections afforded to tenants