8
In unlawful detainer cases, compliance with a legislative requirement may be considered
an element of the lessor’s prima facie case, an affirmative defense, or neither, depending on the
language used in the ordinance or statute. (Frazier, supra, 86 Cal.App.5th at p. Supp. 7.) In
Frazier, this court assessed an ordinance which stated that a landlord “must comply” with an
obligation to submit any notice of termination to the Department of Housing, but did not
provide a consequence for the lessor’s failure to comply and did not specify whether submittal
of the notice was an element of the lessor’s prima facie case or an affirmative defense. (Id. at p.
Supp. 9.) Recognizing that other provisions of the ordinance set out consequences for a
lessor’s noncompliance and that “[w]hen lawmakers use materially different language in
statutory provisions addressing the same or related subjects, the normal inference is that the
legislative body intended a difference in meaning[,]” we held that “submission of the notice to
the Department [of Housing], while required, was not intended to be an element of a landlord’s
case-in-chief.” (Id. at p. Supp. 10.)
The circumstances in Frazier were distinguishable from Rental Housing, supra, 171
Cal.App.4th 741. In the latter case, a group of landlords challenged a just cause eviction
ordinance which imposed on lessors the burden “to allege and prove” that a dwelling is exempt
from the ordinance as a prerequisite to issuing a notice terminating the tenancy or pursuing an
unlawful detainer action. (Id. at pp. 755-756.) The landlords asserted (1) the ordinance was
preempted by the Evidence Code because it impermissibly conflicted with the statutory
allocation of the burden of proof, and (2) compliance with the ordinance was an affirmative
defense and not part of a lessor’s prima facie case for unlawful detainer. (Ibid.) The Court of
Appeal rejected these contentions, explaining that “[w]e discern no logical contradiction
between [the] section . . . which requires a landlord to allege and prove a unit is exempt from
the Ordinance as part of the landlord’s case-in-chief, and [the] section . . . which allows the
tenant to defend an unlawful detainer action for a landlord’s failure to allege and prove required
facts.” (Id. at p. 756.)
Like the ordinance in Frazier but contrary to Rental Housing, section 1962 and its
legislative history do not state whether compliance with subdivision (c) is an affirmative