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shall be a defense to any unlawful detainer action.’” (Id. at p. 755.) The Court of Appeal
upheld the ordinance as a valid regulation on the grounds for eviction. (Id. at pp. 755-756.)
In rejecting assertions the ordinance impermissibly shifted the burden of proof, because
establishing a just cause for eviction and inapplicability of the ordinance are not elements of
a landlord’s case-in-chief, the court “discern[ed] 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.)
In the case sub judice, plaintiffs alleged a for-cause termination of tenancy by claiming
defendants failed to pay rent in violation of the lease agreement, and defendants were served
with a written notice setting the amount of rent to be paid within three days.4 (§ 8.52.090, subd.
(D)(1).) As relevant here, subdivision (B)(4) of section 8.52.090 provides: “When terminating
a Tenancy either For Cause or No-Fault, a Landlord must comply with all of the following: . . .
[¶] . . . 4. The Landlord has submitted to the Department, within five (5) days after service of
the notice of termination on the Tenant, a true and accurate copy of the Landlord’s written
notice of termination, and proof of such service, signed under penalty of perjury, on the Tenant.
The Landlord shall maintain proof of service to the Department as evidence that the Landlord
has complied with this Section.”
The Ordinance does not specify whether submittal of the notice to the Department is
an element of a landlord’s prima facie cause of action for unlawful detainer, an affirmative
defense, or neither. This contrasts with the ordinance in Rental Housing Assn., which expressly
required a landlord to allege and prove the unit is exempt from the rent control ordinance as
part of its case-in-chief and declared that a landlord’s failure to comply served as a defense to
an action for possession. (Rental Housing Assn., supra, 171 Cal.App.4th at p. 756.) A review
of other provisions of section 8.52.090 and the legislative history of the Ordinance confirms
this was not an oversight by the Board.