Stanford Law School - Robert Crown Law Library

Filed 8/11/03

IN THE SUPREME COURT OF CALIFORNIA

JOEL DROUET,
Petitioner,
S096161
v.
) Ct.App.
A092016
1/1
THE SUPERIOR COURT OF THE CITY )
AND COUNTY OF SAN FRANCISCO,
San
Francisco
County
Respondent;
Super. Ct. No. 5181
)
JIM BROUSTIS et al., )
)
Real Parties in Interest. )

The Ellis Act (Gov. Code, § 7060 et seq.) provides that no statute,
ordinance, regulation, or administrative action “shall . . . compel the owner of any
residential real property to offer, or to continue to offer, accommodations in the
property for rent or lease.” (Gov. Code, § 7060, subd. (a).) A landlord who
complies with the Ellis Act may therefore go out of the residential rental business
by withdrawing the rental property from the market. (Los Angeles Lincoln Place
Investors, Ltd. v. City of Los Angeles (1997) 54 Cal.App.4th 53, 61.) If necessary,
the landlord may institute an action for unlawful detainer to evict the tenants and
recover possession of the property. (Gov. Code, § 7060.6.)
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In unlawful detainer actions, tenants generally may assert legal or equitable
defenses that “directly relate to the issue of possession and which, if established,
would result in the tenant’s retention of the premises.” (Green v. Superior Court
(1974) 10 Cal.3d 616, 633.) The defense of retaliatory eviction, codified at Civil
Code section 1942.5 (section 1942.5), is one such defense. This defense bars a
landlord from recovering possession of the dwelling in an unlawful detainer action
where recovery is “for the purpose of retaliating” against the tenant because of his
or her lawful and peaceable exercise of any rights under the law (§ 1942.5, subd.
(c)) or “because of” his or her complaints regarding tenantability (id., subd. (a)).
In this case, the tenants have asserted the statutory defense of retaliatory
eviction in an unlawful detainer proceeding instituted by the landlord under the
Ellis Act. In their view, section 1942.5 can force a landlord to continue to offer
the property for rent or lease if the landlord’s decision to withdraw the property is
motivated by a desire to retaliate against the tenants in the ways prohibited by
subdivisions (a) and (c). The landlord, on the other hand, counters that he is
entitled to exit the rental business, notwithstanding an allegation of retaliation for
tenant conduct, under section 1942.5, subdivision (d), which provides that
“[n]othing in this section shall be construed as limiting in any way the exercise by
the lessor of his rights under . . . any law pertaining to the hiring of property or his
right to do any of the acts described in subdivision (a) or (c) for any lawful cause.”
We find that the Ellis Act qualifies as a “law pertaining to the hiring of
property” under section 1942.5, subdivision (d), and that a landlord’s withdrawal
of the property from the market is an exercise of “ ‘the right to go out of the rental
business’ ” (First Presbyterian Church v. City of Berkeley (1997) 59 Cal.App.4th
1241, 1253) under that law. We further conclude, in accordance with subdivisions
(d) and (e) of section 1942.5, that a landlord’s bona fide intent to withdraw the
property from the rental market under the Ellis Act will defeat the statutory
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defense of retaliatory eviction. Because the trial court did not consider the
landlord’s motion for summary adjudication under this standard, we reverse the
Court of Appeal, which had issued a writ of mandate directing the superior court
to grant the landlord’s motion for summary adjudication, with directions to
remand the matter to the superior court for further proceedings consistent with this
opinion.
BACKGROUND
Petitioner Joel Drouet (Landlord) owns a two-unit apartment building at
378-380 San Carlos Street in San Francisco. Real parties Jim Broustis and Ivy
McClelland (Tenants) occupy the unit at 378 San Carlos Street on a month-to-
month basis. Broustis has lived in the unit since 1988; McClelland joined him in
early 1999. Over the years, Landlord and Broustis have had several conflicts
involving the tenancy. Tenants have alleged, for example, that Landlord illegally
attempted to raise the rent, overcharged for utilities, refused to pay interest on
security deposits, and violated the lease by refusing to permit Broustis to have a
roommate. In April 1999, when Tenants discovered Landlord had failed to pay his
share of the garbage bill, they informed him they planned to deduct this amount
from their rent. Around the same time, they notified Landlord of a leaking sewage
drain and shower wall.
Landlord did not make the requested repairs. Instead, on August 5, 1999,
Landlord commenced Ellis Act proceedings on the San Carlos Street units by
filing a “Notice of Intent to Withdraw Residential Units from the Rental Market”
with the San Francisco Residential Rent Stabilization and Arbitration Board.
(Gov. Code, § 7060.4; S.F. Admin. Code, § 37.9A, subd. (f).) That same day,
Landlord served Tenants with written notice terminating the tenancy (Civ. Code, §
1946) and requiring them to quit the premises and deliver up possession within 60
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days. The notice of intent and a memorandum regarding withdrawal of the units
from rent were attached to the notice.
The parties do not dispute that Landlord complied with all Ellis Act
procedures. Nonetheless, Tenants did not quit the premises.
Consequently, on October 6, 1999, Landlord filed a complaint for unlawful
detainer in the Superior Court for the City and County of San Francisco. Tenants
answered the complaint and alleged four affirmative defenses, including
retaliatory eviction. Landlord moved for summary adjudication on each of the
defenses. The superior court granted the motion in part but, without considering
whether Landlord’s invocation of the Ellis Act was bona fide, denied it with
respect to the defense of retaliatory eviction.
Landlord sought a writ of mandate in the appellate division of the superior
court to compel the trial court to set aside the denial of summary adjudication,
alleging that the defense of retaliatory eviction is unavailable as a matter of law in
unlawful detainer proceedings under the Ellis Act. After briefing and oral
argument, the appellate division agreed with Landlord and granted the petition for
writ of mandate. It said: “When a landlord has complied with all procedures for
withdrawing his rental units from the rental market, his motive for withdrawing
the units is irrelevant.” The Court of Appeal ordered the case transferred on its
own motion (Cal. Rules of Court, rule 62(a)) and, in a published opinion, agreed
with the appellate division: “[I]n unlawful detainer proceedings properly
commenced under the Ellis Act, a tenant may not raise an affirmative defense of
retaliatory eviction to prevent displacement.”
DISCUSSION
In a writ proceeding challenging the denial of summary adjudication, we
review the trial court’s ruling de novo. (Buss v. Superior Court (2001) 16 Cal.4th
35, 60.) Since there are no disputed issues of fact, we consider only the legal
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effect of Civil Code section 1942.5 in an unlawful detainer proceeding under the
Ellis Act. We examine each statutory scheme in turn.
A. The Ellis Act
The Ellis Act (Act) sets forth the procedure by which a landlord may go out
of business by removing rental units from the market. Its intent is “to supersede
any holding or portion of any holding” in Nash v. City of Santa Monica (1984) 37
Cal.3d 97 (Nash) “to the extent that the holding, or portion of the holding,
conflicts with this chapter, so as to permit landlords to go out of business.” (Gov.
Code, § 7060.7.)
Nash involved a section of the Santa Monica City Charter that prohibited
landlords from withdrawing rental units from the market absent a removal permit
from the Santa Monica Rent Control Board. To obtain a removal permit, a
landlord had to show that removal would not and could not displace low- or
moderate-income persons, that removal would not adversely affect the city’s
supply of housing, and that the landlord could not make a fair return on investment
by retaining the unit. (Nash, supra, 37 Cal.3d at pp. 100-101, fn. 3.) In Nash, we
rejected a due process challenge to this procedure (id. at p. 103), even though (as
the dissent observed) it compelled a landlord “to remain in business against his
will” and gave him “only the alternative of a forced sale.” (Id. at p. 111 (dis. opn.
of Mosk, J.).)
In contrast to Nash, the Act provides that no statute, ordinance, regulation,
or administrative action shall “compel the owner of any residential real property to
offer, or to continue to offer, accommodations in the property for rent or lease”
(Gov. Code, § 7060, subd. (a)), even if the landlord could make a fair return, the
property is habitable, and the landlord lacks approval for future use of the land.
(Los Angeles Lincoln Place Investors, Ltd. v. City of Los Angeles, supra, 54
Cal.App.4th at p. 61.)
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The right articulated in the Act, however, is expressly made subject to
certain other laws. For example, the Act is not intended to interfere with local
authority over land use, including regulation of the conversion to condominiums
or nonresidential use (Gov. Code, § 7060.7, subd. (a)), or to preempt local
environmental or land use regulations governing the demolition or redevelopment
of the property (id., subd. (b)). Nor does the Act permit a landlord to withdraw
from rent or lease less than all of the accommodations in a building. (Id., subd.
(d).)
The Act further states that if the units withdrawn from the market are
subsequently offered again for rent, local governments may require landlords to
offer the units at the lawful rent in effect at the time the notice of intent to
withdraw was filed. (Gov. Code, § 7060.2, subd. (a)(1).) Local governments may
also require landlords who intend to re-rent the units within 10 years after their
withdrawal from the market to offer the units first to the displaced tenants. (Id.,
subd. (c).)
The Act also specifies the means by which local governments may require
landlords to provide notice of their intention to withdraw the units from the rental
market. (Gov. Code, § 7060.4.) The accommodations can be withdrawn from rent
or lease 120 days after delivery in person or by first class mail of the notice to the
appropriate public entity. (Id., subd. (b).)1
If (as here) the tenants do not quit the premises by the date the
accommodations have been withdrawn from the market, the landlord may institute
an action for unlawful detainer. The Act provides that the tenant in such a

1
At the time pertinent to these proceedings, the statute permitted
accommodations to be withdrawn 60 days from the date of notice. (Gov. Code,
§ 7060.4, former subd. (a), added by Stats. 1985, ch. 1509, § 1, p. 5564.)
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proceeding “may assert by way of defense that the owner has not complied with
the applicable provisions of this chapter . . . .” (Gov. Code, § 7060.6.) The Act
also states that it does not supersede “any provision of . . . Title 5 (commencing
with Section 1925) of Part 4 of Division 3 of the Civil Code . . . .” (Gov. Code, §
7060.1, subd. (d).) Title 5 includes Civil Code section 1942.5, which (as stated)
contains a prohibition against retaliatory evictions. And, while permitting the
landlord to go out of business, the Act is not “otherwise” intended to “[o]verride
procedural protections designed to prevent abuse of the right to evict tenants.”
(Gov. Code, § 7060.7, subd. (c).)
B. Civil Code Section 1942.5
Section 1942.5 was added by Statutes of 1970, chapter 1280, section 5,
pages 2316-2317. After its enactment but before its effective date, we recognized
the common law doctrine of retaliatory eviction as a defense in unlawful detainer
proceedings. (Schweiger v. Superior Court (1970) 3 Cal.3d 507 (Schweiger).) At
that time, few appellate courts had considered the availability of the defense. (Id.
at p. 512.) We therefore examined closely the leading authority in the area,
Edwards v. Habib (D.C. Cir. 1968) 397 F.2d 687, in which the tenant’s complaints
of sanitation and housing code violations in her apartment were met by the
landlord’s notice to vacate the premises. Judge Skelly Wright’s opinion in
Edwards observed that “ ‘[e]ffective implementation and enforcement of the codes
obviously depend in part on private initiative in the reporting of violations. . . . To
permit retaliatory evictions . . . would clearly frustrate the effectiveness of the
housing code as a means of upgrading the quality of housing.’ ” (Schweiger,
supra, 3 Cal.3d at p. 512, quoting Edwards v. Habib, supra, 397 F.2d at pp. 700-
701.) An eviction under such circumstances, Judge Wright reasoned, would not
only punish the tenant for a complaint that she had a constitutional right to make
“ ‘but also would stand as a warning to others that they dare not be so bold, a
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result which, from the authorization of the housing code, we think Congress
affirmatively sought to avoid.’ ” (Schweiger, supra, at p. 512, quoting Edwards v.
Habib, supra, 397 F.2d at p. 701.)
Applying this “persuasive reasoning” to our own state (Schweiger, supra, 3
Cal.3d at p. 513), we chose “to recognize in unlawful detainer actions a defense
that the eviction is sought in retaliation for the exercise of statutory rights by the
tenant.” (Id. at p. 517.) We later commented that the substance of this common-
law defense was codified in section 1942.5 (Barela v. Superior Court (1981) 30
Cal.3d 244, 249), which had been enacted prior to Schweiger but did not become
effective until the following year. (Schweiger, supra, 3 Cal.3d at p. 516, fn. 4.)
In 1979, the Legislature repealed section 1942.5 and reenacted it with
provisions that extended the time period during which a tenant is protected from
retaliatory eviction and that enlarged the prohibited forms of retaliation. (Stats.
1979, ch. 652, § 2, p. 2005; Barela v. Superior Court, supra, 30 Cal.3d at p. 250.)
In pertinent part, section 1942.5 now provides: “(a) If the lessor retaliates against
the lessee because of the exercise by the lessee of his rights under this chapter or
because of his complaint to an appropriate agency as to tenantability of a dwelling,
and if the lessee of a dwelling is not in default as to the payment of his rent, the
lessor may not recover possession of a dwelling in any action or proceeding, cause
the lessee to quit involuntarily, increase the rent, or decrease any services within
180 days: (1) After the date upon which the lessee, in good faith, has given notice
pursuant to Section 1942, or has made an oral complaint to the lessor regarding
tenantability; [¶] . . . . [¶] (c) It shall be 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 such acts, for the purpose of retaliating against
the lessee because he or she has . . . lawfully and peaceably exercised any rights
under the law. In an action brought by or against the lessee pursuant to this
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subdivision, the lessee shall bear the burden of producing evidence that the
lessor’s conduct was, in fact, retaliatory. [¶] (d) Nothing in this section shall be
construed as limiting in any way the exercise by the lessor of his rights under any
lease or agreement or any law pertaining to the hiring of property or his right to do
any of the acts described in subdivision (a) or (c) for any lawful cause. . . . [¶] (e)
Notwithstanding the provisions of subdivisions (a) to (d), inclusive, a lessor may
recover possession of a dwelling and do any of the other acts described in
subdivision (a) within the period or periods prescribed therein, or within
subdivision (c), if the notice of termination, rent increase, or other act . . . states
the ground upon which the lessor, in good faith, seeks to recover possession,
increase rent, or do any of the other acts described in subdivision (a) or (c). If
such statement be controverted, the lessor shall establish its truth at the trial or
other hearing.”
C. Harmonizing Landlord’s Right to Withdraw the Property from

the Rental Market Under the Ellis Act with Tenants’ Defense of
Retaliatory
Eviction
Under
Civil Code Section 1942.5
Government Code section 7060.1, subdivision (d), provides that nothing in
the Ellis Act “[s]upersedes any provision of . . . Title 5 (commencing with Section
1925) of Part 4 of Division 3 of the Civil Code . . . .” The Court of Appeal
wrestled with the meaning of this subdivision, deciding ultimately that “[i]n the
Ellis Act context it would be a superficial act of interpretation to conclude that the
use of the term ‘supersede,’ in reference to a broad and detailed statutory scheme
of the Civil Code, necessarily meant that a particular eviction defense—found in a
single statute—remained applicable. The Legislature did not single out section
1942.5, but broadly referenced title 5, which includes sections 1925 through
1997.270 [of the Civil Code].” After weighing the competing policies of the two
statutes, the Court of Appeal deemed it “unreasonable to conclude that in the
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process of making broad references to entire systems of statutes in the Ellis Act,
the Legislature intended the defense of retaliatory eviction to apply to unlawful
detainer proceedings under the Act.” Landlord asks us to embrace this reasoning
and find that the Ellis Act superseded section 1942.5.
To the extent Landlord invites us to ignore the language of Government
Code section 7060.1, subdivision (d), and instead reweigh allegedly competing
public policies as they relate to section 1942.5, we must decline the invitation.
The judicial branch “ ‘ “has no power to rewrite the statute so as to make it
conform to a presumed intention which is not expressed.” ’ ” (Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59.) We therefore apply the plain
language of Government Code section 7060.1, subdivision (d), and conclude the
Act did not supersede section 1942.5.
It does not follow, however, that section 1942.5 should be read to supersede
the Act. When the Legislature provides that one law does not supersede another,
the two are to be construed together. (San Mateo City School Dist. v. Public
Employment Relations Bd. (1983) 33 Cal.3d 850, 864-865 [Education Code
section 3540, which says that “[n]othing contained herein shall be deemed to
supersede other provisions of the Education Code,” should be construed “in
harmony with . . . existing sections of the Education Code”]; Taylor v. Albion
Lumber Co. (1917) 176 Cal. 347, 350-351 [“ ‘Section 1970 of the Civil Code is to
be construed with [Code of Civil Procedure] section 377, not as superseding it’ ”];
Masonite Corp. v. County of Mendocino Air Quality Management Dist. (1996) 42
Cal.App.4th 436, 451, fn. 11.) The parties therefore agree that our task is to
harmonize the two schemes, provided that in doing so section 1942.5 is not
“ ‘replaced, set aside or anulled by’ ” the Ellis Act. (San Mateo City School Dist.
v. Public Employment Relations Bd., supra, 33 Cal.3d at p. 864; accord, Black’s
Law Dict. (7th ed. 1999) p. 1452 [defining “supersede” as “annul, make void, or
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repeal by taking the place of”].) For the reasons set forth below, we do not find
that permitting a landlord to invoke in good faith his or her right to withdraw the
property from the rental market would replace, set aside, or annul section 1942.5.
Our analysis must begin with the language of section 1942.5 itself.
Tenants claim they are protected under section 1942.5, subdivision (a)(1),
which bars a landlord from retaliating against a tenant within 180 days of the
tenant’s oral complaint regarding tenantability, as well as subdivision (c), which
bars a landlord from retaliating against a tenant for the lawful and peaceable
exercise of any rights under the law. In this proceeding, Landlord does not dispute
that Tenants made an oral complaint or otherwise lawfully and peaceably
exercised their rights under the law—nor does Landlord deny that he seeks to
recover possession “because of” the oral complaint (§ 1942.5, subd. (a)) or “for
the purpose of retaliating” against Tenants’ exercise of their rights (id., subd. (c)).
Landlord claims instead that the defense of retaliatory eviction can be defeated by
proof that he has in good faith invoked his rights under the Ellis Act to withdraw
the subject property from the rental market. His claim is based not on the theory
that the Act has replaced, set aside, or annulled section 1942.5, but on the
language of section 1942.5 itself and, in particular, on subdivision (d), which
states in relevant part that “[n]othing in this section shall be construed as limiting
in any way the exercise by the lessor of his rights under any lease or agreement or
any law pertaining to the hiring of property or his right to do any of the acts
described in subdivision (a) or (c) for any lawful cause.” Landlord reasons that
subdivision (d) constitutes an exception to the prohibitions set forth in subdivision
(a) and (c).
Landlord’s interpretation is consistent with the language of the statute.
Section 1942.5, subdivision (d), provides that, in specified circumstances, a
landlord may “do any of the acts described in subdivision (a) or (c)” and that, in
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those circumstances, “[n]othing” in section 1942.5 “shall be construed” as limiting
the landlord “in any way.” Subdivision (d) then describes these circumstances:
when the landlord exercises his or her rights “under any lease or agreement or any
law pertaining to the hiring of property” or acts “for any lawful cause.”
Landlord’s interpretation is also consistent with the case law. “Subdivision
(c) of the statute [now reenacted with only conforming changes as subd. (d)]
provided that the landlord, even if he had retaliation in mind, could nevertheless
prevail if the tenant violated ‘any lease or agreement or any law pertaining to the
hiring of property . . . .’ For example, if the tenant was in default in payment of
the agreed rent, or if he violated a covenant in a lease, or if he committed waste or
maintained a nuisance, the landlord could move to evict him even though the
tenant had complained about the habitability of the premises.” (Western Land
Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 733 (Cervantes), italics
added.) We therefore agree with Landlord that section 1942.5, subdivision (d),
constitutes an exception to the limitations on landlord conduct set forth in
subdivisions (a) and (c). (Cervantes, supra, 175 Cal.App.3d at p. 733.)
But does a landlord’s withdrawal of property from the rental market under
the Ellis Act constitute an exercise of rights under a law pertaining to the hiring of
property? Both Landlord and Tenants agree that the Act, which is designed “to
permit landlords to go out of business” (Gov. Code, § 7060.7), is such a law. We
therefore conclude that a landlord’s withdrawal of rental property from the market
under the Act constitutes the exercise of a right under a law pertaining to the
hiring of property under section 1942.5, subdivision (d).
The parties disagree vigorously over the significance of this conclusion.
Landlord and some of his amici curiae contend that this is the end of the
analysis—i.e., that once the landlord has complied with the Act’s procedural
requirements, the exception set forth in section 1942.5, subdivision (d), has been
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satisfied, and the statutory defense of retaliatory eviction has been overcome.
Tenants and their amici curiae, on the other hand, contend that even those
landlords who seek refuge under subdivision (d) must nonetheless demonstrate an
absence of retaliatory motive in order to prevail in the unlawful detainer action.
Neither party’s construction is consistent with the statute. We instead find
guidance in section 1942.5, subdivision (e), which states that “[n]otwithstanding
the provisions of subdivisions (a) to (d), inclusive, a lessor may recover possession
of a dwelling and do any of the other acts described in subdivision (a) within the
period or periods prescribed therein, or within subdivision (c), . . . if the notice of
termination . . . states the ground upon which the lessor, in good faith, seeks to
recover possession . . . . If such statement be controverted, the lessor shall
establish its truth at the trial or other hearing.” (Italics added.) Landlord thus errs
in terminating the analysis at subdivision (d), since subdivision (e) expressly
applies notwithstanding the provisions of subdivisions (a) to (d) inclusive.
Accordingly, landlords must assert their invocation of the Ellis Act “in good
faith.” (§ 1942.5, subd. (e).) Tenants, on the other hand, err in assuming that a
landlord who has invoked the Ellis Act, a law pertaining to the hiring of property
under subdivision (d), must prove not only that the Act has been invoked in good
faith but also that the Act has not been invoked for a retaliatory purpose. Such a
requirement would nullify the language in subdivision (d) that “[n]othing in this
section shall be construed as limiting in any way the exercise by the lessor of his
rights under . . . any law pertaining to the hiring of property.” In our view, the
proper way to construe the statute when a landlord seeks to evict a tenant under
the Ellis Act, and the tenant answers by invoking the retaliatory eviction defense
under section 1942.5, is to hold that the landlord may nonetheless prevail by
asserting a good faith—i.e., a bona fide—intent to withdraw the property from the
rental market. If the tenant controverts the landlord’s good faith, the landlord
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must establish the existence of the bona fide intent at a trial or hearing by a
preponderance of the evidence. (See Cervantes, supra, 175 Cal.App.3d at p.
742.)2 This construction best harmonizes the Act with the text of the retaliatory
eviction statute.
We therefore find no statutory basis for Tenants’ contention that Landlord
should be compelled to prove not merely that he has a bona fide intent to go out of
business but also that this bona fide intent was not motivated by the tenant’s
exercise of rights under subdivisions (a) and (c) of section 1942.5. Indeed, neither
Tenants nor the dissent has identified a single jurisdiction in this country that has
sustained a retaliatory eviction defense—or what might more accurately be termed
a retaliatory withdrawal defense—where a landlord seeks to take a building off the
market. (Cf. California Livestock Production Credit Assn. v. Sutfin (1985) 165
Cal.App.3d 136, 143 [claim of retaliation is not a defense in unlawful detainer
action based on foreclosure of property]; Carol Rickert & Associates v. Law
(N.M.Ct.App. 2002) 54 P.3d 91, 97-98 [claim of retaliation is not a defense in
unlawful detainer action based on landlord’s decision not to remain in the federal
government’s former Section 8 housing program]; see generally Robinson v.
Diamond Housing Corporation (D.C. Cir. 1972) 463 F.2d 853, 867.) Although
we have at times analogized a tenant’s defense of retaliatory eviction to an
employee’s defense of retaliatory termination (e.g., Barela v. Superior Court,
supra, 30 Cal.3d at pp. 253-254, fn. 8; Schweiger, supra, 3 Cal.3d at pp. 515-516),
neither Tenants nor the dissent has identified a single jurisdiction that has

2
The dissent cites Cervantes for the proposition that proof of a bona fide
intent may not necessarily establish good faith when the landlord seeks to evict the
tenant for a reason not specified in section 1942.5, subdivision (d). (See dis. opn.,
post, at p. 10.) Since this case does involve subdivision (d), the dissent’s analysis
is not pertinent here.
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sustained a retaliatory termination defense where the employer was going out of
business. (Cf. Textile Workers v. Darlington Co. (1965) 380 U.S. 263, 271 [“ ‘But
none of this can be taken to mean that an employer does not have the absolute
right, at all times, to permanently close and go out of business . . . for whatever
reason he may choose, whether union animosity or anything else’ ”].) In sum,
neither Tenants nor the dissent has identified anything in the Act or in section
1942.5 to suggest the Legislature intended California to be the first to endorse a
“retaliatory withdrawal defense” when a landlord seeks to go out of business.
The mere fact the statutory defense is defeated when the landlord, in
conformance with section 1942.5, subdivisions (d) and (e), establishes a bona fide
intent to go out of business does not mean that section 1942.5 has been superseded
by the Act. To supersede section 1942.5, the Ellis Act would have to replace, set
aside, or annul section 1942.5. As demonstrated above, our analysis relies on a
close reading and application of the precise provisions Tenants fear have been
superseded. Far from allowing the Act to supersede section 1942.5, our
construction has given effect to the plain language of that provision, including
subdivisions (d) and (e), which permit a landlord to go out of business and evict
the tenants—even if the landlord has a retaliatory motive—so long as the landlord
also has the bona fide intent to go out of business. This is what the Cervantes
court understood those provisions to mean when it construed subdivision (d) to
allow a landlord to evict the tenant “even if he had retaliation in mind . . . .”
(Cervantes, supra, 175 Cal.App.3d at p. 733.) If, on the other hand, the landlord
cannot establish a bona fide intent to go out of business, the tenants may rely on
subdivisions (a) and (c) to resist the eviction.3

3
The dissent’s fear that landlords will threaten to invoke the Ellis Act in
order to deter tenants from exercising their legal rights is unfounded. A “threat” to

(footnote continued on next page)
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Tenants respond that the retaliatory eviction defense is “the only method
available to protect one’s home from an alleged phony Ellis [Act] eviction.” We
disagree. As explained above, a tenant who believes the landlord’s invocation of
the Act is phony and that the landlord actually intends to offer the vacated units to
new tenants may controvert the landlord’s statement of intent. The landlord will
then have the burden to establish his or her bona fide intent to withdraw the
property from the market by a preponderance of the evidence. It is that
requirement, and not the retaliatory eviction defense itself, that will prevent or
deter phony evictions. Moreover, a defense of retaliatory eviction is of no help
where the landlord’s intention to withdraw units from the market is a sham but the
tenant has not engaged in conduct protected under subdivision (a) or (c) of section
1942.5. (Cf. Civ. Code, § 1942.4, subd. (f).)
Tenants worry next that a landlord may invoke the Act but secretly intend
to re-rent the units once the existing tenants have been displaced. This fear, of
course, presupposes that although the tenant controverted the landlord’s intent, the
landlord committed perjury at the hearing, the tenant was unable to uncover the
perjury by cross-examination or by other evidence, and the factfinder was unable
to detect the perjury. The likelihood of an erroneous outcome is further
diminished by the landlord’s awareness that an Ellis Act eviction followed closely
in time by a re-renting of the premises to new tenants would be persuasive
evidence of the landlord’s bad faith in any future Ellis Act proceeding. (Civ.

(footnote continued from previous page)

remove the building from the rental market is not a right granted by the Ellis Act,
which addresses only actual and full withdrawals of the property from the rental
market. Hence, nothing in our decision limits the protections available to a tenant
in such a situation. (See § 1942.5, subd. (c) [prohibiting threats of retaliation].)
16

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Code, § 1942.5, subd. (e); Evid. Code, § 1101, subd. (b).) Finally, we note that
perjury concerns do not arise in this case, inasmuch as San Francisco has
eliminated the incentive for sham Ellis Act evictions by adopting ordinances
strictly limiting the landlord’s right to re-rent the withdrawn property to others, to
raise the rent, or to sell the property unencumbered by these limitations. (S.F.
Admin. Code, § 37.9A, subds. (a), (c), (d), (g); see Gov. Code, §§ 7060.2, 7060.3.)
Unable to find support in the statutory text, Tenants urge us instead to rely
on isolated fragments of the Act’s legislative history. They point us in particular
to a single paragraph in a Senate committee analysis discussing proposed
Government Code section 7060.1. The paragraph reads: “This provision would
limit a landlord’s right to go out of business if the exercise of that right would
jeopardize a tenant’s rights under state law. For example, this provision would
probably prohibit a landlord from going out of business if the tenant had requested
repairs or reported housing code violations. An eviction of the tenant under such
circumstances could be deemed a prohibited retaliatory eviction.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 505 (1985-1986 Reg.
Sess.) as amended Sept. 10, 1985, p. 3.) Yet the use of the words “probably” and
“could” are sufficiently tentative and equivocal to caution us against relying too
heavily on this snippet. (See Folsom v. Butte County (1982) 32 Cal.3d 668, 682;
In re Ramon A. (1995) 40 Cal.App.4th 935, 939.)4

4
Tenants also relied below on a letter by the bill’s author to Governor
Deukmejian in which Senator Ellis recalled the “large number of amendments,”
which dealt with situations such as when “a landlord were to go temporarily out of
business and then again offered his units for rental” and which declared “that the
bill only extended to the right to go out of business and not any further right which
the owner did not already possess (in other words—the bill does not convey a right
to rezoning, to condominium conversion, etc.). [¶] Despite the many
amendments,” Senator Ellis explained, “the original thrust has been maintained:

(footnote continued on next page)
17

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A contrary holding would also be inconsistent with other laws and lead to
absurd results. The Legislature has made it clear that a landlord who seeks to
withdraw rental property under the Ellis Act has no obligation to maintain the
tenantability or habitability of the premises. (Civ. Code, § 1942.4, subd. (f); Code
Civ. Proc., § 1174.2, subd. (d).) If the substandard conditions themselves cannot
be used by tenants to resist an unlawful detainer action when the landlord invokes
the Ellis Act, it would be bizarre to say that tenants could nonetheless force the
landlord to remain in business by complaining about those same conditions. In
such a scenario, the landlord would either be forced to make repairs, in violation
of the above provisions, or would be compelled to continue to offer the property
for rent, in violation of the Ellis Act.
In addition, a contrary holding could permit tenants to force the landlord to
remain in business indefinitely when, as here, the tenants have invoked section
1942.5, subdivision (c). This provision, which we have “denominated a
‘boilerplate’ provision because of its broad prohibition against retaliation by a
landlord when a tenant has exercised valid legal rights” (Barela v. Superior Court,
supra, 30 Cal.3d at p. 251), is “ongoing and not subject to the 180 day grace
period or the limitation that it may only be invoked once a year, as are the other

(footnote continued from previous page)

the good faith right to make a personal decision to go out of business for whatever
reason, including potential liability, frustration with a personal service aspect of
this business, psychological demands, or investment decisions.” (Sen. Ellis,
sponsor of Sen. Bill 505 (1985-1986 Reg. Sess.), letter to Governor, Sept. 13,
1985, italics added.) Although this letter is of “very little value” to the extent it
merely recounts the views of the bill’s author (Bermudez v. Municipal Court
(1992) 1 Cal.4th 855, 863, fn. 6), we nonetheless note that it in no way bolsters
Tenants’ interpretation of the statute.
18

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sanctions.” (Review of Selected 1979 California Legislation (1979) 11 Pacific L.J.
601, 602.) As the dissent concedes, the landlord could thus be compelled to
remain in business indefinitely or, at the least, until a trier of fact determined that
the retaliatory motive had dissipated. We are not persuaded the Legislature
envisioned such a cribbed interpretation of the Ellis Act.5
We therefore hold that where a landlord has complied with the Ellis Act
and has instituted an action for unlawful detainer, and the tenant has asserted the
statutory defense of retaliatory eviction, the landlord may overcome the defense by
demonstrating a bona fide intent to withdraw the property from the market. If the
tenant controverts the landlord’s bona fide intent to withdraw the property, the
landlord has the burden to establish its truth at the hearing by a preponderance of
the evidence. (§ 1942.5, subd. (e).)
In this case, the superior court denied Landlord’s motion for summary
adjudication without first considering whether Landlord had asserted a bona fide
intent to withdraw the property and, if so, whether Tenants had controverted that
intent. The Court of Appeal granted the writ of mandate and directed the superior

5
Unlike Tenants, the dissent argues that the retaliatory eviction defense is
preserved by Government Code section 7060.7, subdivision (c), which states that
the Ellis Act is not intended to “[o]verride procedural protections designed to
prevent abuse of the right to evict tenants.” (Italics added.) The defense of
retaliatory eviction, however, 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 (1976) 17 Cal.3d 129, 149,
italics added; id. at p. 151, fn. 22.) Indeed, numerous courts have characterized
the retaliatory eviction defense as substantive. (E.g., Rich v. Schwab (1998) 63
Cal.App.4th 803, 810; Cervantes, supra, 175 Cal.App.3d at p. 737; Glaser v.
Meyers (1982) 137 Cal.App.3d 770, 775; Aweeka v. Bonds (1971) 20 Cal.App.3d
278, 281.) We may therefore infer that the Legislature relied on contemporaneous
judicial classification of the defense as substantive in deciding to preserve only
procedural protections in section 7060.7, subdivision (c). (Bailey v. Superior
Court (1977) 19 Cal.3d 970, 977-978, fn. 10.)
19

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court to enter an order granting Landlord’s motion for summary adjudication,
again without considering those facts. Under the circumstances, we will reverse
the Court of Appeal with directions to remand the matter for the superior court to
analyze the motion for summary adjudication under the proper standard.
In the future, courts in similar circumstances may find it useful to consider
first whether the landlord’s intent to withdraw the property is bona fide. If it is,
the statutory defense of retaliatory eviction has been overcome. If the landlord’s
intent is contested, the landlord has the burden to establish its truth. (§ 1942.5,
subd. (e).) Only when the landlord has been unable to establish a bona fide intent
need the factfinder proceed to determine whether the eviction is for the purpose of
retaliating against the tenant under subdivisions (a) or (c) of section 1942.5.
Accordingly, evidence that the landlord has, in good faith, exited the rental
business because of tenant conduct specified in subdivisions (a) or (c) of section
1942.5 does not itself constitute an affirmative defense in an unlawful detainer
proceeding under the Ellis Act.
20

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DISPOSITION
The judgment of the Court of Appeal is reversed with directions to remand
the matter to the superior court for further proceedings consistent with this
opinion.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
CHIN, J.
BROWN, J.
21

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CONCURRING OPINION BY BROWN, J.

I concur in the judgment and opinion of the court. I write separately in
order to express my understanding on three points the superior court will, upon
remand, have to consider in ruling upon the landlord’s motion for summary
judgment: (1) The landlord’s filing of a notice of intent to withdraw his property
from the rental market, as required by the San Francisco Municipal Code (S.F.
Admin. Code, § 37.9A, subd. (f)), creates a nonstatutory rebuttable presumption
that the landlord’s intent is bona fide.1 (2) The tenant will, therefore, bear the
burden of producing evidence sufficient to overcome this presumption, i.e.,
sufficient to establish that the landlord intends to re-rent the property. (3) The
landlord’s motive in withdrawing his property from the rental market is irrelevant.
Under the Ellis Act (Gov. Code, § 7060 et seq.), a local government with
rent control may require a landlord to provide notice to the local government of
the landlord’s intention to withdraw a property from the rental market, and the
local government may require that the notice contain statements, made under
penalty of perjury, relating to the number and address of the accommodations, the

1
The power of California appellate courts to create presumptions is
expressly recognized by the Evidence Code. (In re Daniel Z. (1992) 10
Cal.App.4th 1009, 1019; 1 Witkin, Cal. Evid. (4th ed. 2000) Burden of Proof and
Presumptions, § 103, p. 235.) That the Evidence Code recognizes the power of
appellate courts to create presumptions becomes clear when sections 600 and 160
are read together. Evidence Code section 600 provides that a presumption is an
assumption of fact “the law requires” to be made from another fact or group of
facts established in the action, and Evidence Code section 160 provides that “law”
includes “decisional law.”
1

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rent charged for the residential units, and the names of the tenants or lessees.
(Gov. Code, § 7060.4, subd. (a).) San Francisco has enacted such a notice
requirement (S.F. Admin. Code, § 37.9A, subd. (f)), and it is undisputed that the
landlord here complied with it.
Under the Ellis Act, a local government with rent control may also provide
significant disincentives for re-renting a property once a notice of withdrawal has
been filed. Subject to certain conditions, including the length of time that has
passed since the notice of withdrawal was filed, the disincentives include:
permitting the displaced tenants to rent the property again for no more than the
rent in effect at the time of withdrawal, plus allowable annual increases;
permitting the displaced tenants to sue the landlord for actual and exemplary
damages; and permitting the local government to sue the landlord for exemplary
damages. (Gov. Code, § 7060.2, subds. (a)(1), (b).) San Francisco has enacted
these disincentives for re-renting withdrawn properties. (S.F. Admin. Code,
§ 37.9A, subds. (a), (c), (d).)
Because San Francisco’s disincentives for re-renting withdrawn properties
are so significant, a landlord who, like the landlord here, has given notice of his
intent to withdraw his property from the rental market is entitled to a presumption
that he has a bona fide intent to do so. He should not, in the absence of any
contrary evidence, be saddled with proving a negative, i.e., that he does not intend
to re-rent the property in the future.
To overcome the presumption that the landlord has a bona fide intent to
withdraw his property from the rental market, the tenant will have to produce
admissible evidence, evidence sufficient to justify a judgment for the tenant, that
the landlord intends to re-rent the property. (Cf. Texas Dept. of Community Affairs
v. Burdine (1981) 450 U.S. 248, 254-255 [Once a prima facie showing of
discrimination has been made, the burden shifts to the defendant to rebut the
presumption by producing admissible evidence, sufficient to justify a judgment for
2

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the defendant, that its action was taken for a legitimate, nondiscriminatory
reason].)
Finally, the landlord’s motive in withdrawing his property from the rental
market is, as the majority opinion points out, irrelevant. (Maj. opn., ante, at pp.
13-14.)
BROWN, J.
I CONCUR:
BAXTER,
J.
3

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CONCURRING AND DISSENTING OPINION BY MORENO, J.

I agree with the majority that the judgment of the Court of Appeal must be
reversed. The Court of Appeal erroneously held that “in unlawful detainer
proceedings properly commenced under the Ellis Act, a tenant may not raise an
affirmative defense of retaliatory eviction.” The Ellis Act (Gov. Code, § 7060 et
seq.) expressly provides that it does not supersede Civil Code section 1942.5,
which offers tenants protection against retaliatory eviction. The Ellis Act
underscores this point by further stating that it is not intended to “[o]verride
procedural protections designed to prevent abuse of the right to evict tenants.”
(Gov. Code, § 7060.7, subd. (c).) It is clear, as the majority recognizes, that a
tenant may raise the defense of retaliatory eviction in unlawful detainer
proceedings brought under the Ellis Act.
I disagree, however, with the majority’s holding that, on remand, the trial
court should reconsider the landlord’s motion for summary adjudication under the
standard that “a landlord’s bona fide intent to withdraw the property from the
rental market under the Ellis Act will defeat the statutory defense of retaliatory
eviction.” (Maj. opn., ante, at p. 2.) As I will explain, I find nothing in the
language of the Ellis Act or the statutes governing the defense of retaliatory
eviction that permits a landlord to evict tenants under the Ellis Act for a retaliatory
purpose.
1

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The Ellis Act was intended to supercede our decision in Nash v. City of
Santa Monica (1984) 37 Cal.3d 97, which upheld a city charter provision that
prohibited removal of rental units from the housing market absent a permit from
the city rent control board. (First Presbyterian Church v. City of Berkeley (1997)
59 Cal.App.4th 1241, 1249.) The Ellis Acts begins by stating: “No public entity
. . . shall . . . compel the owner of any residential real property to offer, or to
continue to offer, accommodations in the property for rent or lease.” (Gov. Code,
§ 7060, subd. (a).)
The Legislature thus prohibited municipalities from preventing a landlord
from removing an entire residential building from the rental market, but the
Legislature took considerable pains to limit the reach of the Ellis Act. As
particularly relevant here, Government Code section 7060.1, subdivision (d),
provides that nothing in the Ellis Act supersedes numerous provisions of several
codes, including “Title 5 (commencing with Section 1925) of Part 4 of Division 3
of the Civil Code.” Title 5 includes Civil Code section 1942.5 (hereafter section
1942.5), which protects tenants against retaliatory evictions.
Underscoring the limitations placed on the scope of the Ellis Act,
Government Code section 7060.7 states: “It is the intent of the Legislature in
enacting this chapter to supersede any holding or portion of any holding in Nash v.
City of Santa Monica, 37 Cal.3d 97 to the extent that the holding, or portion of the
holding, conflicts with this chapter, so as to permit landlords to go out of business.
However, this act is not otherwise intended to do any of the following: [¶] . . . [¶]
(c) Override procedural protections designed to prevent abuse of the right to evict
tenants.”
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
2

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eviction is “ ‘substantive.’ ” (Maj. opn., ante, at p. 19, fn. 5, italics omitted.) In
support of this contention, the majority quotes Birkenfeld v. City of Berkeley
(1976) 17 Cal.3d 129, 149, 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, italics added.)
The majority also cites the decision in Aweeka v. Bonds (1971) 20
Cal.App.3d 278, 281, which, without any analysis or explanation, describes the
common law doctrine of retaliatory eviction established in Schweiger v. Superior
Court (1970) 3 Cal.3d 507, as a “substantive defense.” The majority further cites
three Court of Appeal decisions that quote this language in Aweeka without
discussion. From this, the majority infers that “the Legislature relied on
contemporaneous judicial classification of the defense as substantive in deciding
to preserve only procedural protections in section 7060.7, subdivision (c).” (Maj.
opn., ante, at p. 19, fn. 5.) I disagree. The fact that some courts have described in
passing the common law doctrine of retaliatory eviction as “substantive” does not
3

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support the majority’s conclusion that the Legislature considered the protections
set forth in section 1942.5 to be “substantive” rather than “procedural.”
Subdivision (a) of section 1942.5, for example, provides that a landlord may not
retaliate against a tenant by recovering possession of a dwelling in any action or
proceeding within 180 days of certain actions by the tenant. This certainly appears
to be one of the “procedural protections designed to prevent abuse of the right to
evict tenants” to which Government Code section 7060.7, subdivision (c) refers.
In my view, the statement in Government Code section 7060.7, subdivision (c),
that the Ellis Act was not intended to “[o]verride procedural protections designed
to prevent abuse of the right to evict tenants” means that the protections against
retaliatory eviction afforded by section 1942.5 apply to landlords proceeding
under the Ellis Act.
In the present case, the landlord of a two-unit apartment building in San
Francisco filed a complaint for unlawful detainer against the tenants in one of the
units, alleging that he had filed with the rent control board a notice of intention to
withdraw the building from the rental market under the Ellis Act and had served
the tenants with notice to quit the premises, but the tenants had failed to do so.
The tenants answered, raising several affirmative defenses, including retaliatory
eviction.
The landlord moved for summary adjudication arguing, in part, that
retaliatory eviction may not be raised as a defense to an unlawful detainer action
based upon the Ellis Act. The Superior Court granted the motion for summary
adjudication in part, but denied summary adjudication of the defense of retaliatory
eviction.
The Court of Appeal reversed, holding that “in unlawful detainer
proceedings properly commenced under the Ellis Act, a tenant may not raise an
4

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affirmative defense of retaliatory eviction to prevent displacement, but retains the
right to an independent action for damages under the retaliatory eviction statute.”
As the majority recognizes, the Court of Appeal erred in concluding that
the defense of retaliatory eviction under section 1942.5 may not be raised in
unlawful detainer proceedings based upon the Ellis Act. As noted above, the Ellis
Act clearly states that it does not supersede section 1942.5 and was not intended to
“[o]verride procedural protections designed to prevent abuse of the right to evict
tenants.” (Gov. Code, § 7060.7, subd. (c); see id., § 7060.1, subd. (d).) The
language of the Ellis Act clearly permits a tenant to raise the defense of retaliatory
eviction in an unlawful detainer action.
The majority goes on to hold, however, that a landlord will defeat the
defense of retaliatory eviction under section 1942.5 if the landlord can
demonstrate “a bona fide intent to withdraw the property from the [rental] market”
(maj. opn., ante, at p. 19), even if the landlord’s purpose is to retaliate against the
tenant for the tenant’s exercise of rights protected by section 1942.5. I am not
convinced by the majority’s reasoning.
The majority bases its holding that a landlord may invoke the Ellis Act to
evict a tenant for a retaliatory purpose not upon the language of the Ellis Act, but
upon the language of the statute that provides protection against retaliatory
evictions. Section 1942.5, subdivision (a), provides that a landlord may not
recover possession of a leased dwelling within 180 days of the tenant’s exercise of
certain rights, including making a complaint about the tenantability of the
premises, if the tenant is not in default as to payment of rent and the landlord is
“retaliat[ing] against the lessee because of the exercise by the lessee of his rights
under this chapter or because of his complaint to an appropriate agency as to
tenantability of a dwelling.” The tenant may not invoke the protection of
subdivision (a) “more than once in any 12-month period.” (Id., subd. (b).)
5

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Subdivision (c) of section 1942.5 prohibits a landlord from bringing an action to
recover possession of a dwelling “for the purpose of retaliating against the lessee
because he or she 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.”1

1
Section 1942.5 provides, in pertinent part: “(a) If the lessor retaliates
against the lessee because of the exercise by the lessee of his rights under this
chapter or because of his complaint to an appropriate agency as to tenantability of
a dwelling, and if the lessee of a dwelling is not in default as to the payment of his
rent, the lessor may not recover possession of a dwelling in any action or
proceeding . . . within 180 days: [¶] (1) After the date upon which the lessee, in
good faith, has given notice pursuant to Section 1942, or has made an oral
complaint to the lessor regarding tenantability; or [¶] (2) After the date upon
which the lessee, in good faith, has filed a written complaint, or an oral complaint
which is registered or otherwise recorded in writing, with an appropriate agency,
of which the lessor has notice, for the purpose of obtaining correction of a
condition relating to tenantability . . . . [¶] . . . [¶] (b) A lessee may not invoke the
provisions of subdivision (a) more than once in any 12-month period. [¶] (c) It
shall be unlawful for a lessor to . . . bring an action to recover possession . . . for
the purpose of retaliating against the lessee because he or she 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.
In an action brought by or against the lessee pursuant to this subdivision, the
lessee shall bear the burden of producing evidence that the lessor’s conduct was, in
fact, retaliatory. [¶] (d) Nothing in this section shall be construed as limiting in
any way the exercise by the lessor of his rights under any lease or agreement or
any law pertaining to the hiring of property or his right to do any of the acts
described in subdivision (a) or (c) for any lawful cause. . . . [¶] (e)
Notwithstanding the provisions of subdivisions (a) to (d), inclusive, a lessor may
recover possession of a dwelling and do any of the other acts described in
subdivision (a) within the period or periods prescribed therein, or within
subdivision (c), if the notice of termination, rent increase, or other act, and any
pleading or statement of issues in an arbitration, if any, states the ground upon
which the lessor, in good faith, seeks to recover possession, increase rent, or do
any of the other acts described in subdivision (a) or (c). If such statement be
controverted, the lessor shall establish its truth at the trial or other hearing.”
6

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In concluding that, despite this language, a landlord may recover possession
of a dwelling under the Ellis Act even if the landlord acts for a retaliatory purpose,
the majority relies upon subdivision (d) of section 1942.5, which states: “Nothing
in this section shall be construed as limiting in any way the exercise by the lessor
of his rights under any lease or agreement or any law pertaining to the hiring of
property or his right to do any of the acts described in subdivision (a) or (c) for
any lawful cause.” The majority reasons that a landlord’s withdrawal of a
dwelling from the rental market falls under section 1942.5, subdivision (d)’s
exception to the proscription against retaliatory eviction because it constitutes “an
exercise of rights under a law pertaining to the hiring of property[.]” (Maj. opn.,
ante, at p. 12.)
The majority’s reasoning fails because even assuming that withdrawing a
property from the rental market under the Ellis Act constitutes “an exercise of
rights under a law pertaining to the hiring of property” (maj. opn., ante, at p. 12)
permitting a tenant to raise a defense of retaliatory eviction does not “limit[] in any
way” the landlord’s exercise of rights under the Ellis Act. (§ 1942.5, subd. (d).)
The Ellis Act expressly states that it is subject to the proscription against
retaliatory eviction set forth in section 1942.5. As noted above, Government Code
section 7060.1, subdivision (d), states that nothing in the Ellis Act supersedes
numerous statutory provisions, including section 1942.5’s proscription against
retaliatory eviction. Government Code section 7060.7 declares the Legislature’s
intent that the Ellis Act not “[o]verride procedural protection designed to prevent
abuse of the right to evict tenants.” The procedures for removing a dwelling from
the rental market provided by the Ellis Act, therefore, are subject to the
proscription against retaliatory eviction set forth in section 1942.5. The Ellis Act
does not give landlords the right to evict tenants for a retaliatory purpose.
Prohibiting a landlord from evicting a tenant under the Ellis Act for a retaliatory
7

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purpose, therefore, does not limit the landlord’s exercise of rights under the Ellis
Act. The majority mistakenly limits its analysis to whether “a landlord’s
withdrawal of property from the rental market under the Ellis Act constitute[s] an
exercise of rights under a law pertaining to the hiring of property” (maj. opn., ante,
at p. 12), without further considering whether a tenant’s assertion of the defense of
retaliatory eviction limits the landlord’s exercise of rights under the Ellis Act.
It is difficult to imagine why the Legislature would have specifically stated
in the Ellis Act that it did not supersede the protections against retaliatory eviction
in section 1942.5 if it simply intended, as the majority holds, that a landlord may
evict a tenant for a retaliatory purpose under the Ellis Act as long as the landlord
actually intends to withdraw the building from the rental market.
The legislative history of Government Code section 7060.1, subdivision
(d), supports the conclusion that a landlord may not evict a tenant under the Ellis
Act for a retaliatory purpose. As the majority recognizes, a Senate committee
analysis of the legislation that enacted Government Code section 7060.1,
subdivision (d), states that “ ‘this provision would probably prohibit a landlord
from going out of business if the tenant had requested repairs or reported housing
code violations. An eviction of the tenant under such circumstances could be
deemed a prohibited retaliatory eviction.’ ” (Maj. opn., ante, at p. 17.) The
majority dismisses this compelling evidence of the intent of the Legislature, citing
our decision in Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d
668, to support its conclusion that “the use of the words ‘probably’ and ‘could’ are
sufficiently tentative and equivocal to caution us against relying too heavily on
this snippet.” (Maj. opn., ante, at p. 17.) Our decision in Folsom v. Butte County
Assn. of Governments does not support the majority’s conclusion.
Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d 668, 681-
682, concluded that legislative history showing that the word “private” had been
8

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included in the original version of a bill, deleted by the Assembly, and then
reinserted by the Senate was “at best equivocal.” By contrast, the committee
analysis relied upon by tenants in the present case could hardly be more clear. It
demonstrates that the Legislature specifically contemplated that the Ellis Act
would not allow a landlord to go out of business for a retaliatory purpose. The use
of the words “probably” and “could” do not affect this conclusion. Those words
acknowledge that a notice to quit under the Ellis Act that followed a tenant’s
report of housing code violations “would probably” or “could” be deemed
retaliatory, but would not necessarily be deemed so. The committee analysis is
clear and unequivocal, however, that a “retaliatory eviction,” if established, would
be “prohibited.” (Sen. Rules com., Off. of Sen. Floor Analyses, analysis of Sen.
Bill No. 505 (1985-1986 Reg. Sess.) as amended Sept. 10, 1985, p. 3.) This is
compelling evidence that the Legislature did not intend the Ellis Act to empower a
landlord to evict a tenant for a retaliatory purpose.
The majority states that, notwithstanding subdivision (d) of section 1942.5,
“landlords must assert their invocation of the Ellis Act ‘in good faith’ ” under
subdivision (e) of section 1942.5. (Maj. opn., ante, at p. 13.)2 The majority
interprets the term “good faith” in this context to mean a bona fide intent to
withdraw the property from the rental market. (Maj. opn., ante, at p. 13.) I do not
agree that a bona fide intent to withdraw a dwelling from the rental market
necessarily establishes that a landlord acts in good faith in attempting to evict a
tenant.

2
I question the majority’s premise that subdivision (e) of section 1942.5
imposes additional requirements to those set forth in subdivision (d) of the statute.
Rather, it appears that subdivision (e) provides a separate and distinct exception to
the proscription against retaliatory eviction. (See Western Land Office, Inc. v.
Cervantes (1985) 175 Cal.App.3d 724, 733-734.)
9

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In Western Land Office, Inc. v. Cervantes, supra, 175 Cal.App.3d 724, 733,
the Court of Appeal examined the predecessor to subdivision (e) of section 1942.5
and observed that it “covered the situation where the complaining tenant was not
in violation of any law or agreement, but the landlord nevertheless wished to take
action in good faith for a valid reason.” (Italics added.) The court offered
examples of such valid reasons: “[A] landlord might have wanted (1) to raise the
tenant’s rent because taxes on the property had increased; (2) to recover
possession of the tenant’s dwelling for the purpose of remodeling or demolishing;
or (3) to sell the premises to someone who had another tenant in mind.” (Ibid.)
Contrary to the majority’s holding, the Court of Appeal in Cervantes made
clear that a landlord who was acting for a retaliatory purpose was not acting in
good faith: “Proof of a valid ground may undermine evidence of a retaliatory
motive. But proof of a valid ground is not equivalent to proof of good faith. In a
given instance, a valid ground might exist but the landlord might nevertheless act
with a retaliatory motive. A property tax increase of five dollars does not
necessarily justify an increase in rent of one hundred dollars. Therefore, under
subdivision (a) of the statute, a trier of fact confronted with substantial evidence of
a valid ground nevertheless had to decide whether the landlord’s ‘dominant
purpose’ was retaliation.” (Western Land Office, Inc. v. Cervantes, supra, 175
Cal.App.3d 724, 734.)3 In my view, therefore, a landlord who is acting for a
retaliatory purpose is not acting in “good faith” within the meaning of subdivision
(e) of section 1942.5.

3
The requirement in section 1942.5, subdivision (a) as originally enacted,
that the landlord “ ‘has as his dominant purpose retaliation against the lessee’ ”
(Western Land Office, Inc. v. Cervantes, supra, 175 Cal.App.3d 724, 732, fn. 5) is
replaced in the current statute with the requirement that the landlord “retaliates
against the lessee.” (§ 1942.5, subd. (a).)
10

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The majority observes that neither the tenants nor the author of this opinion
“has identified a single jurisdiction in this country that has sustained a retaliatory
eviction defense — or what might more accurately be termed a retaliatory
withdrawal defense — where a landlord seeks to take a building off the market.”
(Maj. opn., ante, at p. 14.) The significance of this fact escapes me. It is equally
true that the majority has not identified any jurisdiction that has upheld a
retaliatory eviction on the grounds that the landlord intends to remove the dwelling
from the rental market.
In support of its observation that no jurisdiction has sustained a “retaliatory
withdrawal defense,” the majority relies upon two opinions that are inapposite.
(Maj. opn., ante, at p. 14.) The majority cites the decision in California Livestock
Production Credit Assn. v. Sutfin (1985) 165 Cal.App.3d 136, for the proposition
that a “claim of retaliation is not a defense in [an] unlawful detainer action based
on foreclosure of property.” (Maj. opn., ante, at p. 14.) The decision in California
Livestock held that retaliatory eviction is not a defense to eviction following a
valid foreclosure sale because “there is no antecedent landlord-tenant relationship
between the trustor and the purchaser. There is no lease or rental agreement
entitling the trustor to remain in possession of the premises; the trustor’s only right
to possession is based on his title to the premises, which has been lost at a valid
foreclosure sale. Thus, even if the purchaser were precluded from using an
‘invalid reason’ for eviction, the trustor would still have no lawful claim to
continued possession.” (California Livestock Production Credit Assn. v. Sutfin,
supra, 165 Cal.App.3d at p. 143.) This reasoning has no application in the present
case.
The majority also cites Carol Rickert & Associates v. Law (N.M.Ct.App.
2002) 54 P.3d 91, for the proposition that a “claim of retaliation is not a defense in
[an] unlawful detainer action based on [a] landlord’s decision not to remain in the
11

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federal government’s Section 8 housing program.” (Maj. opn., ante, at p. 14.)
The decision in Carol Rickert clearly is distinguishable. The New Mexico statute
at issue in Carol Rickert prohibited retaliatory eviction, but included an exception
that permitted a landlord to increase rent or alter services “if the owner can
establish that the increased rent or changes in services are consistent with those
imposed on other residents of similar rental units and are not directed at the
particular resident, but are uniform.” (Carol Rickert & Associates v. Law, supra,
54 P.3d at p. 98.) Carol Rickert held that the tenant’s claim of retaliatory eviction
was prohibited by this statutory language because the landlord’s action was
uniform: “[T]he parties do not dispute that Owner’s decision to discontinue
participation in the Section 8 housing program was to be uniformly applied to all
Section 8 tenants as their leases expired. Accordingly, Tenant cannot base her
retaliation defense on Owner’s decision to discontinue the Section 8 program.”
(Ibid.) Carol Rickert thus has no bearing on the issues in the present case.
The majority states that prohibiting landlords from engaging in retaliatory
evictions under the Ellis Act would be inconsistent with other laws and lead to
absurd results. (Maj. opn., ante, at p. 18.) The majority cites Civil Code section
1942.4, which prohibits a landlord from collecting rent for a dwelling that is
deemed untenantable, but expressly provides that a landlord who is withdrawing
the building from the rental market under the Ellis Act need not comply with this
statute. The majority also cites Code of Civil Procedure section 1174.2,
subdivision (d), which permits a tenant to assert that the premises are
uninhabitable as a defense in an unlawful detainer action following default in the
payment of rent, but expressly provides that nothing in the statute “shall limit or
supersede any provision” of the Ellis Act. Neither of these statutes is inconsistent
with prohibiting a landlord from evicting a tenant under the Ellis Act for a
retaliatory purpose. Further, these statutes demonstrate that the Legislature knew
12

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how to exempt landlords who are proceeding under the Ellis Act from the
requirements of certain statutes. The Legislature chose not to exempt landlords
from the prohibition against retaliatory evictions set forth in section 1942.5. “
‘We must assume that the Legislature knew how to create an exception if it wished
to do so . . . .’ [Citation.]” (California Fed. Savings & Loan Assn. v. City of Los
Angeles (1995) 11 Cal.4th 342, 349; see County of San Diego v. State of
California (1997) 15 Cal.4th 68, 94-95; City of Santa Cruz v. Municipal Court
(1989) 49 Cal.3d 74, 88.)
The majority also observes that a contrary holding “could permit tenants to
force the landlord to remain in business indefinitely” “or, at the least, until a trier
of fact determined that the retaliatory motive had dissipated.” (Maj. opn., ante, at
pp. 18-19.) As the majority recognizes, however, this concern does not apply if
the tenant proceeds under subdivision (a) of section 1942.5, which only prohibits
the landlord from evicting the tenant within 180 days of the tenant’s exercise of
the specified rights and which can be invoked by the tenant only once in any 12-
month period. The majority’s concern applies only if the tenant proceeds under
subdivision (c) of section 1942.5 and is able to prove that the landlord is acting
“for the purpose of retaliating against the lessee because he or she 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.”
We confronted the same concern in recognizing the common law doctrine
of retaliatory eviction, stating: “Of course, we do not imply that a tenant who
proves a retaliatory purpose is entitled to remain in possession in perpetuity. As
the court stated in Edwards: ‘If this illegal purpose is dissipated, the landlord can
. . . evict his tenants or raise their rents for economic or other legitimate reasons, or
even for no reason at all. The question of permissible or impermissible purpose is
one of fact for the court or jury. . . .’ (Fns. omitted.) [Citation.]” (Schweiger v.
13

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Superior Court, supra, 3 Cal.3d 507, 517.) Even when a tenant proceeds under
subdivision (c) of section 1942.5, a landlord is prohibited from removing a
building from the rental market only as long as the landlord is acting for a
retaliatory purpose. This means only that landlords may not wrongfully use the
Ellis Act to engage in retaliatory evictions. Nothing in section 1942.5 prevents a
landlord who is not acting for a retaliatory purpose from withdrawing a dwelling
from the rental market.
“Section 1942.5 is a remedial statute aimed at protecting tenants from
certain types of abuses. It is to be ‘liberally construed to effect its objectives and
to suppress, not encourage, the mischief at which it was directed. [Citation.]’
[Citation.]” (Barela v. Superior Court (1981) 30 Cal.3d 244, 251.) In Schweiger
v. Superior Court, supra, 3 Cal.3d 507, 513, we quoted at length the “persuasive
reasoning” in Edwards v. Habib (D.C. Cir., 1968) 397 F.2d 687, that “ ‘while the
landlord may evict for any legal reason or for no reason at all, he is not, we hold,
free to evict in retaliation for his tenant’s report of housing code violations to the
authorities. As a matter of statutory construction and for reasons of public policy,
such an eviction cannot be permitted.’ ” (Schweiger v. Superior Court, supra, 3
Cal.3d at p. 512.) We recognized that protection against retaliatory eviction was
necessary to protect a tenant’s ability to demand clean and safe housing: “ ‘The
housing and sanitary codes . . . indicate a strong and pervasive congressional
concern to secure for the city’s slum dwellers decent, or at least safe and sanitary,
places to live. Effective implementation and enforcement of the codes obviously
depend in part on private initiative in the reporting of violations. . . . To permit
retaliatory evictions . . . would clearly frustrate the effectiveness of the housing
code as a means of upgrading the quality of housing in Washington. . . . There can
be no doubt that the slum dweller, even though his home be marred by housing
code violations, will pause long before he complains of them if he fears eviction as
14

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a consequence. Hence an eviction under the circumstances of this case would not
only punish appellant for making a complaint which she had a constitutional right
to make, . . . but also would stand as a warning to others that they dare not be so
bold . . . .’ ” (Ibid.)
As one commentator observed: “In large measure, the scope and effectiveness
of tenant remedies for substandard housing will be determined by the degree of
protection given tenants against retaliatory actions by landlords. If a landlord is free
to evict or otherwise harass a tenant who exercises his right to secure better housing
conditions, few tenants will use the remedies for fear of being put out on the street.”
(Daniels, Judicial and Legislative Remedies for Substandard Housing: Landlord-
Tenant Law Reform in the District of Columbia (1971) 59 Geo.L.J. 909, 943.)
The majority’s holding will permit landlords to threaten tenants that if they
complain about the condition of their residence or exercise their rights under Civil
Code section 1942 to make necessary repairs and deduct the cost from their rent,
the landlord may remove the building from the rental market under the Ellis Act
and evict them. Such a threat might be especially effective in discouraging the
formation of tenant associations, which are specifically protected under section
1942.5, subdivision (c). The majority opinion thus violates the public policy of
this state by encouraging retaliatory eviction.
Like the majority, I would reverse the judgment of the Court of Appeal, but
I would not hold, as does the majority, “that a landlord’s bona fide intent to
withdraw the property from the rental market under the Ellis Act will defeat the
statutory defense of retaliatory eviction.” (Maj. opn., ante, at p. 2.) In my view,
the Ellis Act was not intended to permit a landlord to evict a tenant for a
retaliatory purpose.
MORENO, J.
WE CONCUR: KENNARD, J.
WERDEGAR,
J.
15

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Drouet v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 86 Cal.App.4th 1237
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S096161
Date Filed: August 11, 2003
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Ronald Evans Quidachay
__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Andrew M. Zacks, Andrew M. Zacks and James B. Kraus for Petitioner.

Brad Seligman and Jennifer Cynn for The Impact Fund, Protection and Advocacy, Inc., Legal Aid
Foundation of Los Angeles, Public Interest Law Project, East Bay Community Law Center, Lawyers’
Committee for Civil Rights of the San Francisco Bay Area and the American Civil Liberties Union of
Northern California as Amici Curiae on behalf of Petitioner.

R. S. Radford for Pacific Legal Foundation as Amicus Curiae on behalf of Petitioner.

Law Offices of Paul F. Utrecht and Paul F. Utrecht for Small Property Owners of San Francisco as Amicus
Curiae on behalf of Petitioner.

Wiegel & Fried and Clifford E. Fried for San Francisco Apartment Association as Amicus Curiae on behalf
of Petitioner.

Law Offices of Rosario Perry and Rosario Perry for Action Apartment Association as Amicus Curiae on
behalf of Petitioner.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Law Offices of William M. Simpich, William M. Simpich; Law Offices of Philip D. Rapier, Philip D.
Rapier; Law Offices of Marc S. Janowitz and Marc S. Janowitz for Real Parties in Interest.

Gen Fujioka; Tom Weathered, Robert Capistrano; Roderick T. Field; and Dara Schur for Asian Law
Caucus, Bay Area Legal Aid, The Los Angeles Housing Law Project and The Western Center on Law &
Poverty as Amici Curiae on behalf of Real Parties in Interest.

Daniel Berko as Amicus Curiae on behalf of Real Parties in Interest.
1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrew M. Zachs
Law Offices of Andrew M. Zachs
235 Montgomery Street, Suite 1130
San Francisco, CA 94104
(415) 956-8100

Brad Seligman
The Impact Fund
125 University Avenue
Berkeley, CA 94710
(510) 845-3473

William M. Simpich
Law Offices of William M. Simpich
1736 Franklin Street, 10th Floor
Oakland, CA 94612
(510) 444-0226

2

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Opinion Information

Date:	Docket Number:
Mon, 08/11/2003	S096161

Disposition
Aug 11 2003	Opinion: Reversed

Dockets
Mar 20 2001	Petition for review filed   petnr [ BROUSTIS et al.] 40 n
Mar 21 2001	Record requested   via e mail
Mar 21 2001	Received Court of Appeal record   1 manilla accordion file (A092016) and 2 legal size file folders from Superior Court (#5181).
Apr 9 2001	Request for Depublication (petition/rev. pending)   by non-parties. (Bay Area Legal Aid, Western Center on Law & Poverty and Asian Law Caucus)
Apr 9 2001	Request for Depublication (petition/rev. pending)   by non party. (Legal Aid Foundation of Los Angeles Housing Improvement Project)
Apr 9 2001	Answer to petition for review filed   By Petitioner, Joel Drouet. No service on CA 1. Left voice mail message for Atty James Krause to submit an amended POS to reflect service of answer on CA.
Apr 10 2001	Received document entitled:   Amended POS from Atty Zacks re: service of answer to petition for review on CA
Apr 11 2001	Received document entitled:   Untimely Request for Depublication from Atty Glover obo The East Palo Alto Community Law Project
Apr 19 2001	Reply to answer to petition filed   by counsel for RPIs
Apr 19 2001	Received:   response of (non-party) Small Property Owners of S.F. to depub requests
May 11 2001	Time Extended to grant or deny Petition for Review   to June 18, 2001
May 23 2001	Petition for Review Granted (civil case)
Jun 19 2001	Application for Extension of Time filed   Atty Simpich obo petitioners requesting to July 22 to file opening brief on the merits
Jun 29 2001	Extension of Time application Granted   to July 22, 2001, to file petitioner's opening brief on the merits
Jul 23 2001	Opening brief on the merits filed   Atty Simpich obo Jim Broustis & Ivy McClelland
Jul 23 2001	Received document entitled:   Exhibits to Petitioner's Opening Brief on the Merits
Aug 9 2001	Application for Extension of Time filed   by Atty Andrew Zacks on behalf of petitioner requesting to September 19, 2001 to file respondents brief.
Aug 21 2001	Extension of Time application Granted   to and including September 19, 2001 to serve and file answer brief on merits
Sep 19 2001	Answer brief on the merits filed   by counsel for petitioner (Joel Drouet).
Sep 19 2001	Request for Judicial Notice filed   by counsel for petitioner (Joel Drouet)
Oct 1 2001	Application for Extension of Time filed   by counsel for Real Parties in Interest requesting extension to November 1, 2001 to file Reply Brief. ***granted*** order being prepared.
Oct 9 2001	Extension of Time application Granted   Real Parties in Interest time to file Reply Brief is extended to and including November 1, 2001.
Nov 1 2001	Received:   oversized Reply Brief
Nov 5 2001	Reply brief filed (case fully briefed)   by counsel for (RPI) with permission
Nov 19 2001	Request for extension of time filed   Legal Assistance to the Elderly requests extension of time to January 7, 2002 to file amicus curiae brief.
Nov 21 2001	Received:   Opposition letter to extension of time to amicus curiae Legal Assistance to the Elderly by counsel for petitioner (Drouet)
Nov 28 2001	Application to file amicus curiae brief denied   without prejudice.
Nov 28 2001	Received application to file Amicus Curiae Brief   by The Impact Fund et al., (with brief)
Nov 29 2001	Permission to file amicus curiae brief granted   The Impact Fund et al., in support of Respondent/RPI (Broustis)
Nov 29 2001	Amicus Curiae Brief filed by:   The Impact Fund et al., in support of Respondent/RPI (Broustis)
Dec 4 2001	Received application to file amicus curiae brief; with brief   by Asian Law Caucus, et al
Dec 5 2001	Amicus Curiae Brief filed by:   Asian Law Caucus in support of (RPI) Jim Broustis and Ivy Mcclelland
Dec 5 2001	Permission to file amicus curiae brief granted
Dec 5 2001	Received application to file amicus curiae brief; with brief   by Pacific Legal Foundation
Dec 5 2001	Received application to file amicus curiae brief; with brief   Small Property Owners of San Francisco
Dec 5 2001	Received application to file amicus curiae brief; with brief   by amicus curiae Daniel Berko (non-party)
Dec 5 2001	Permission to file amicus curiae brief granted   Pacific Legal Foundation
Dec 5 2001	Permission to file amicus curiae brief granted   to Small Property Owners of San Francisco
Dec 5 2001	Received application to file amicus curiae brief; with brief   San Francisco Apartment Association (non-party)
Dec 6 2001	Received application to file Amicus Curiae Brief   from: Action Apartment Association supporting petitioner Joel Drouet app/brf are separate
Dec 6 2001	Permission to file amicus curiae brief granted   San Francisco Apartment Assoc.
Dec 6 2001	Permission to file amicus curiae brief granted   amicus curiae Daniel Berko (non-party)
Dec 7 2001	Received:   opposition to (amicus curiae Daniel Berko's) request for permission to file amicus curiae brief from counsel for petitioner (J. Drouet).,
Dec 10 2001	Amicus Curiae Brief filed by:   San Francisco Apartment Association in support of Joel Drouet
Dec 10 2001	Amicus Curiae Brief filed by:   The Small Property Owners of San Francisco in support of petitioner Joel Drouet
Dec 10 2001	Amicus Curiae Brief filed by:   (non-party) Daniel Berko in support of Jim Broustis and Ivy McClelland
Dec 10 2001	Amicus Curiae Brief filed by:   Pacific Legal Foundation in support of petitioner Joel Drouet
Dec 11 2001	Permission to file amicus curiae brief granted   Action Apartmemt Association
Dec 12 2001	Amicus Curiae Brief filed by:   (non-party) Action Apartment Association in support of Joel Drouet
Dec 14 2001	Request for extension of time filed   by counsel for petitioner (J. Drouet) requesting extension to January 7, 2002, to file one consolidated answer to amicus briefs.
Dec 20 2001	Extension of time granted   petitioner time to serve and file (Consolidated answer ) to amicus curiae briefs is extended to and including January 7, 2002.
Dec 24 2001	Note: Mail returned (unable to forward)   (forwarding order expired) Gen Fujioka (amicus curiae)
Dec 24 2001	Request for extension of time filed   counsel for (RPI) Broustis and McClelland requests extension to January 7, 2002 to file the answer to amicus curiae briefs.
Dec 27 2001	Extension of time granted   Real Parties in Interest time to serve and file the answer to amicus briefs is extended to and including January 7, 2002.
Jan 7 2002	Response to amicus curiae brief filed   by counsel for petnr Drouet. (consolidated ans to A/C briefs)
Jan 7 2002	Response to amicus curiae brief filed   by counsel for RPIs. (consolidated ans to A/C briefs)
Jun 28 2002	Filed:   Notice of Change of Counsel for Amici Western Center for Law & Poverty, Inc.
Feb 6 2003	Change of Address filed for:   counsel for petitioner (Drouet)
Mar 28 2003	Filed letter from:   atty Andrew M. Zacks re unavailability for oral argument (May 2-9)
Apr 15 2003	Request for judicial notice granted   to Petitioner in support of Answer Brief on the Merits.
Apr 30 2003	Case ordered on calendar   5-28-03, 9am, S.F.
May 15 2003	Filed:   RPI's request to allocate oral argument time to A/C the Impact Fund.
May 16 2003	Received:   Supplemental Brief from counsel for petitioner (Drouet)
May 19 2003	Order filed   The request of counsel for RPIs to allow two counsel to argue on behalf of RPIs at or argument is granted.
May 19 2003	Order filed   The request of RPIs to allocate to A/C The Impact Fund 10 min of RPIs' 30-min allotted oral argument time is granted.
May 20 2003	Filed:   with permission Supplemental Brief by counsel for petitioner (J. Drouet)
May 28 2003	Cause argued and submitted
Jun 18 2003	Request for judicial notice granted   Joel Drouet's Supplemental Brief is deemed to be a request for judicial notice and, as such, granted.
Aug 11 2003	Opinion filed: Judgment reversed   and remanded. OPINION BY: Baxter, J. --- joined by : George, C.J., Chin, Brown, JJ. CONCURRING OPINION BY: Brown, J. --- joined by: Baxter, J. CONCURRING AND DISSENTING OPINION BY: Moreno, J. --- joined by: Kennard, Werdegar, JJ.
Sep 11 2003	Remittitur issued (civil case)
Oct 6 2003	Received:   Receipt for remittitur from CA 1/1

Briefs
Jul 23 2001	Opening brief on the merits filed
Sep 19 2001	Answer brief on the merits filed
Nov 5 2001	Reply brief filed (case fully briefed)
Nov 29 2001	Amicus Curiae Brief filed by:
Dec 5 2001	Amicus Curiae Brief filed by:
Dec 10 2001	Amicus Curiae Brief filed by:
Dec 10 2001	Amicus Curiae Brief filed by:
Dec 10 2001	Amicus Curiae Brief filed by:
Dec 10 2001	Amicus Curiae Brief filed by:
Dec 12 2001	Amicus Curiae Brief filed by:
Jan 7 2002	Response to amicus curiae brief filed
Jan 7 2002	Response to amicus curiae brief filed

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