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Court of Appeal, First District, Division 2, California.

J. P. MURDOCK, Plaintiff and Respondent, v. Mrs. LOFTON, Defendant and Appellant.

Civ. 32850.

Decided: April 30, 1973

Thomas W. Pulliam, Jr., San Francisco Neighborhood Legal Assistance Foundation, Western Addition Office, San Francisco, for defendant-appellant. John F. Dethlefsen, San Francisco, for plaintiff-respondent.

Upon certification by the superior court, we ordered transfer of the appeal in this case, pursuant to Code of Civil Procedure, section 911, in order to settle an important question of law, namely, whether a breach of an implied warranty of habitability may be asserted as a defense in an unlawful detainer action. The case arose in the following manner:

Landlord commenced an action in unlawful detainer in the Municipal Court of the City and County of San Francisco, pursuant to Code of Civil Procedure, section 1161, seeking both possession of premises rented to tenant on a month-to-month basis pursuant to an oral agreement and damages for unpaid rent. In her answer, tenant asserted two ‘affirmative defenses': (1) that the landlord breached a promise to repair; and (2) that the landlord breached an implied warranty of habitability in that he permitted to exist upon the premises numerous violations of state housing laws and local housing codes, including (a) infestation by rats and cockroaches, and (b) a leaking roof. Tenant alleged that by reason of the landlord's breach of a promise to repair and his breach of an implied warranty of habitability, she was discharged of her obligation to pay rent. Two days after her answer was filed, tenant directed interrogatories to landlord seeking discovery related to her defenses.

When the case came to trial before the municipal court, the court granted landlord's motion to strike the affirmative defenses, finding them to be ‘in the nature of counterclaims' which could not be pleaded in an unlawful detainer action. The court also concluded that tenant was not entitled to discovery related to these improper defenses, and awarded landlord restitution of the premises and the sum of $591.38 as damages for unpaid rent.

Tenant appealed to the Superior Court of the City and County of San Francisco, which affirmed the judgment of the municipal court. In its order, the superior court distinguished Hinson v. Delis (1972) 26 Cal.App.3d 62, 102 Cal.Rptr. 661, upon which tenant had relied, as a declaratory relief action, noted the availability of Civil Code, section 1942, as a remedy, and, in reliance on Knowles v. Robinson (1963) 60 Cal.2d 620, 36 Cal.Rptr. 33, 387 P.2d 833, held that the ‘so-called affirmative defenses are in effect cross-complaints and may not be asserted in an unlawful detainer action.’

On application of the tenant, the superior court certified the case to this court, pursuant to rule 63 of the California Rules of Court, noting that the Supreme Court had granted a hearing and issued an alternative writ of prohibition in Green v. Superior Court (Sumski) (Court of Appeal 1 Civ. No. 32598; Supreme Court No. SF 22993), a case arising in the same court and involving the same questions.1

With the issues thus framed, we direct ourselves to the resolution of the question of whether or not a breach of the implied warranty of habitability found to exist in Hinson v. Delis, supra, may be asserted as a defense in an unlawful detainer action.

California's Forcible Entry and Detainer Law, contained in Part 3, Title 3, Chapter 4, of the Code of Civil Procedure, makes provision for summary proceedings for obtaining possession of real property in certain cases. The unlawful detainer statutes (Code Civ.Proc. § 1161 et seq.) were enacted to provide an expeditious remedy for obtaining possession of property wrongfully withheld from the owner. (Kassan v. Stout (1973) 9 Cal.3d 39, 106 Cal.Rptr. 783, 507 P.2d 87; Childs v. Eltinge (1973) 29 Cal.App.3d 843, 853, 105 Cal.Rptr. 864; Union Oil Co. v. Chandler (1970) 4 Cal.App.3d 716, 721, 84 Cal.Rptr. 756; Arnold v. Krigbaum (1915) 169 Cal. 143, 146, 146 P. 423.)

‘Section 1161 of the Code of Civil Procedure was enacted to obviate the need for self-help by landlords and thereby to avoid breaches of the peace.’ (Kassan v. Stout, supra, 9 Cal.3d p. 44, 106 Cal.Rptr. p. 785, 507 P.2d p. 89.)

‘The rights and remedies afforded a landlord by the statutory provisions are given in lieu of his common law rights and remedies which included the right to enter and expel the tenant by force. (See Lindsey v. Normet, 405 U.S. 56 [, 71] 92 S.Ct. 862, 31 L.Ed.2d 36, 49; cf. Jordan v. Talbot, 55 Cal.2d 597, 604, 12 Cal.Rptr. 488, 361 P.2d 20 [, 6 A.L.R.3d 161].) The enactment of such statutory procedures is supported by the strong public policy of preserving the peace (see Jordan v. Talbot, supra, 55 Cal.2d at pp. 603 [fn. 2], 607, 12 Cal.Rptr. 488, 361 P.2d 20) as well as the recognition of the unique factual and legal characteristics of the landlord-tenant relationship (Lindsey v. Normet, supra, 405 U.S. at p. 72, 92 S.Ct. at p. 873, 31 L.Ed.2d at p. 50).’ (Childs v. Eltinge, supra, 29 Cal.App.3d p. 853, 105 Cal.Rptr. p. 871.)

Because the sole issue before the court is the right to possession, the rule has been established that where an objection is interposed in an action for unlawful detainer, neither a counterclaim nor a cross-complaint nor affirmative defenses may survive. (Union Oil Co. v. Chandler, supra, 4 Cal.App.3d p. 721, 84 Cal.Rptr. 756; Knowles v. Robinson, supra, 60 Cal.2d p. 625, 36 Cal.Rptr. 33, 387 P.2d 833; Rydell v. Beverly Hills P. & P. Co. (1927) 88 Cal.App. 216, 219–220, 262 P. 818; Arnold v. Krigbaum, supra, 169 Cal. p. 146, 146 P. 423; 3 Witkin, Cal.Procedure (2d ed. 1971), § 979, p. 2557.)

The reason for the rule is that the summary character of the action would be defeated if, by cross-complaint or counterclaim, possession could be introduced. (Knowles v. Robinson, supra, 60 Cal.2d p. 625, 36 Cal.Rptr. 33, 387 P.2d 833.) Accordingly, under the general rule, a tenant is not permitted to interpose a defense usual or permissible in ordinary actions at law. (Union Oil Co. v. Chandler, supra, 4 Cal.App.3d p. 721, 84 Cal.Rptr. 756; Arnold v. Krigbaum, supra, 169 Cal. p. 146, 146 P. 423.)

The statutes containing the procedures for summary possession of real property do not prohibit the assertion either of affirmative defenses or counterclaims in answers to unlawful detainer actions. Instead, the prohibition against counterclaims, cross-complaints and set-offs in unlawful detainer actions has been the result of judicial interpretation. (Cf. Hutcherson v. Lehtin (N.D.Cal.1970) 313 F.Supp. 1324, 1327, vacated and remanded (1970), 400 U.S. 923, 91 S.Ct. 182, 287 L.Ed.2d 182; Poulsen, California Unlawful Detainer Procedure—A Proposed Legislative Change, 21 Hastings L.J. 491, 501 (1970).2

Exceptions to the rule have been recognized. For example, when the issue of possession is removed from the case, such as where the tenant has voluntarily surrendered possession before the issues of fact are joined, the reason for the rule disappears, and the defendant is permitted to seek affirmative relief. (Union Oil Co. v. Chandler, supra, 4 Cal.App.3d p. 722, 84 Cal.Rptr. 756; Knowles v. Robinson, supra, 60 Cal.2d p. 625, 36 Cal.Rptr. 33, 387 P.2d 833; Turem v. Texaco, Inc. (1965) 236 Cal.App.2d 758, 763, 46 Cal.Rptr. 389; Cohen v. Superior Court (1967) 248 Cal.App.2d 551, 554, fn. 5, 56 Cal.Rptr. 813.)

More recently, the courts, noting that the ‘interest in preserving the summary nature of an action cannot outweigh the interest of doing substantial justice’ (Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242, 249, 22 Cal.Rptr. 309, 314, cited with approval in Schweiger v. Superior Court (1970) 3 Cal.3d 507, 514, 90 Cal.Rptr. 729, 476 P.2d 97), have begun to recognize defenses based on ‘broad equitable principles.’ Thus, in Abstract Investment Co. v. Hutchinson, supra, the court recognized a constitutional defense to an unlawful detainer action, i.e., that an eviction was being sought solely because of race and in Schweiger v. Superior Court, supra, at page 515, 90 Cal.Rptr. at page 733, 476 P.2d at page 101, the court recognized a defense based upon the exercise of statutory rights (retaliatory eviction), reasoning as follows: ‘The same interest in ‘substantial justice’ protected in Abstract Investment demands that a landlord be prevented from invoking judicial assistance to punish a tenant by eviction because the tenant sought to exercise rights expressly granted by statute. And the right not to be deprived in court of home and shelter because of the exercise of statutory rights is a ‘broad equitable principle’ as deserving of protection as the right to equal protection under the law. Thus, the sound reasoning of Abstract Investment, which imposes an equitable limitation on the punitive power of landlords to evict their tenants, applies with persuasive force to the instant action to prohibit eviction in retaliation against the exercise of statutory rights.'3

Building upon Schweiger, the court in Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 280–282, 97 Cal.Rptr. 650, held that tenants, faced with the threat of retaliatory eviction by landlord for asserting their statutory right to repairs under Civil Code, sections 1951 and 1942, are entitled to a preliminary injunction to prevent landlord from enforcing a retaliatory rent raise or instituting an action in unlawful detainer, and may seek general and punitive damages for retaliatory eviction and for intentional infliction of emotional distress.

In Hinson v. Delis, supra, plaintiff-tenant brought a declaratory alleging the existence of defects in the demised premises occurring subsequent to the rental agreement. The appellate court found that a lease agreement between landlord and tenant contained an implied warranty of habitability, and that tenant, in possession under a written month-to-month rental agreement, was entitled to a declaration that she was obliged to make rental payments only after the landlord complied with his duty to substantially obey the housing codes and make the premises habitable.4

In Hinson, where the tenant alleged defects in the premises that constituted violations of the Housing Code of the City of Richmond, the court did not discuss the applicability of Civil Code, section 1941.5 Although an independent statutory source of an implied warranty of habitability would appear to exist in section 1941 (see Lindsey v. Normet (1972) 405 U.S. 56, 69, fn. 15, 92 S.Ct. 862, 31 L.Ed.2d 36), section 1942 has been construed to limit a tenant's remedies under section 1941 to the extent that “the only consequence of a breach of the landlord's obligation is that the tenant may either vacate the premises or expend one month's rent for repairs” (see McNally v. Ward (1961) 192 Cal.App.2d 871, 877, 14 Cal.Rptr. 260, 264, citing Gately v. Campbell (1899) 124 Cal. 520, 57 P. 567), a construction dating back to 1881, where it first appeared in Van Every v. Ogg, 59 Cal. 563, 566.6

Tenant in the instant action contends that the implied warranty of habitability found to exist in rental agreements in Hinson v. Delis, supra, may be asserted as an affirmative defense in an unlawful detainer action.

Faced with this question, we first distinguish Hinson as an action for declaratory relief initiated by the tenant, where right to possession was not in issue, from an action in unlawful detainer initiated by the landlord, where right to possession is the sole issue.7

The United States Supreme Court, in upholding the constitutionality of Oregon's Forcible Entry and Wrongful Detainer Statute, recently reaffirmed its position that it is constitutionally ‘permissible to segregate an action for possession of property from other actions arising out of the same factual situation which may assert valid legal or equitable defenses or counterclaims.’ (Lindsey v. Normet, supra, 405 U.S. p. 67, 92 S.Ct. p. 871; see MCA, Inc. v. Universal Diversified Enterprises Corp. (1972) 27 Cal.App.3d 170, 176, fn. 7, 103 Cal.Rptr. 522.)8

Nor do we believe that equitable considerations, under the circumstances of this case, permit the defense. In Union Oil Co. v. Chandler, supra, 4 Cal.App.3d at page 725, 84 Cal.Rptr. at Page 763, the court noted that California cases which have permitted the courts to inquire into equitable considerations in unlawful detainer actions ‘have done so on the basis that if the equitable defense is made out the facts or conditions upon which the right to terminate depends do not exist.’ Such is not the case here. Landlord was entitled to possession in any event since tenant had ceased to pay rent.9 Not has tenant brought herself within the defenses found not to “violate any of the exclusionary rules with regard to unlawful detainer actions . . .” thus far recognized under ‘broad equitable principles.’ (Schweiger v. Superior Court, supra, 3 Cal.3d p. 514, 90 Cal.Rptr. p. 733, 476 P.2d p. 101, citing Abstract Investment Co. v. Hutchinson, supra, 204 Cal.App.2d pp. 248–249, 22 Cal.Rptr. 309.) Landlord did not seek to evict tenant solely because of her race (as in Abstract Investment Co. v. Hutchinson), nor did he seek to retaliate against her for exercising her statutory rights under Civil Code, section 1942 (as in Schweiger v. Superior Court).10

For the foregoing reasons, we decline to expand the Hinson ruling that a tenant is entitled to a declaration of certain rights, made in the context of a declaratory relief action, to permit the assertion of a breach of implied warranty of habitability as a defense in an unlawful detainer action where the dominant purpose of the landlord in instituting the action is to obtain possession for nonpayment of rent.11 The injection of such an issue, extrinsic to the right of possession, would defeat the summary character of the action. (Knowles v. Robinson, supra, 60 Cal.2d p. 625, 36 Cal.Rptr. 33, 387 P.2d 833.)

We note that the New Jersey Supreme Court has permitted such a defense in Marini v. Ireland (1970) 56 N.J. 130, 265 A.2d 526; (Hinson v. Delis, supra, 26 Cal.App.3d, p. 70, 102 Cal.Rptr. 661). In the resolution of this issue, however, we are bound by the exclusionary rules of our own jurisdiction as set down by our own Supreme Court in Knowles v. Robinson, supra. (Auto Equity Sales, Inc. v. Superior Court (1962) 67 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937; 6 Witkin, Cal.Procedure (2d ed. 1971, Pt. I), § 664, p. 4578.)

With respect to tenant's assertion of the defense of breach of a promise to repair, it has long been the law of California that such a defense may not be asserted unless the covenant to repair was made a condition precedent to the payment of rent. The applicable rule is as follows: “A covenant to repair on the part of the lessor and a covenant to pay rent on the part of the lessee are usually considered as independent covenants, and unless the covenant to repair is expressly or impliedly made a condition precedent to the covenant to pay rent, the breach of the former does not justify the refusal on the part of the lessee to perform the latter.” (Hosang v. Minor (1962) 205 Cal.App.2d 269, 272, 22 Cal.Rptr. 794, 796; Arnold v. Krigbaum, supra, 169 Cal. p. 145, 146 P. 423.)

We conclude that the trial court acted properly when it struck the affirmative defenses asserted by the tenant, upon proper objection interposed by the landlord. Since the defenses may not be allowed, the denial of discovery related to these defenses was not error.

The judgment is affirmed.


1.  Our Supreme Court has also granted a hearing and issued an alternative writ of prohibition in Hall v. Municipal Court (McGaskey) (Court of Appeal 1 Civ. No. 32597; Supreme Court No. SF 22992), another case involving the same issues, and the Hall and Green cases have been consolidated for hearing.

2.  Section 1170 of the Code of Civil Procedure provides that in a summary proceeding for the possession of real property ‘the defendant may appear and answer or demur’ (emphasis added). This has been construed as limiting a defendant to those pleading and as excluding the use of a cross-complaint. (Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 824, 279 P.2d 35; Schubert v. Lowe (1924) 193 Cal. 291, 294–295, 223 P. 550.)Section 1177 provides that ‘Except as otherwise provided in this Chapter the provisions of Part 2 of this Code [sections 307 to 1062a] are applicable to, and constitute the rules of practice in the proceedings mentioned in this Chapter.’ At the time answer was filed and judgment was entered in this action in the municipal court, section 437 of the Code of Civil Procedure provided that an answer of a defendant could contain ‘A statement of any new matter constituting a defense or counterclaim’ (emphasis added). (Code Civ.Proc., § 437, was repealed (Stats.1971, ch. 244, § 35, operative July 1, 1972) and superseded by Code Civ.Proc., § 431.30, which permits an answer to contain a statement of any new matter constituting a defense but provides that affirmative relief may not be claimed in the answer.) (Stats.1971, ch. 244, § 29, operative July 1, 1972.) Counterclaims were abolished in the revision of the pleading statutes effective July 1, 1972 (Code Civ.Proc., § 428.80).

3.  Subsequent to the Schweiger decision, further legislation dealing with the landlord-tenant situation became effective. Civil Code, section 1942.5 (added Stats. 1970, ch. 1280, § 5) now provides a statutory remedy for retaliation for exercising rights.

4.  Hinson does not hold that a tenant has a right to refuse to pay rent and remain in possession. Possession was not an issue in Hinson. There, the landlord and tenant stipulated that, during the pendency of the action, landlord would not attempt to evict tenant for nonpayment of the withheld rent of $200 and tenant would resume making her monthly payments. The court pointed out that under the implied warranty cases the tenant ‘is not absolved from all liability for rent, but remains liable for the reasonable rental value of the premises, as determined by the trial court, for such time as the premises were in violation of the housing codes' (26 Cal.App.3d p. 70, 102 Cal.Rptr. p. 666).

5.  The Legislature expressed its intent that buildings intended for the occupation of human beings be fit for such occupation as early as 1872, when it enacted Civil Code, section 1941 and 1942. Section 1941 provides that ‘The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.’ Section 1941.1 (added Stats.1970, ch. 1280, § 1) defines conditions which render a dwelling untenantable. Sections 1941 and 1942 express the policy of this state that landlords in the interest of public health and safety have the duty to maintain leased premises in habitable condition and that tenants have the right, after notice to the landlord, to repair dilapidations and deduct the cost of the repairs from the rent. (Schweiger v. Superior Court, supra, 3 Cal.3d p. 516, 90 Cal.Rptr. 729, 476 P.2d 97.)

6.  Mr. Justice Tobriner, who authored the McNally v. Ward decision, concluded that an Alameda city ordinance created a duty to repair that was independent of Civil Code, sections 1941 and 1942. (McNally v. Ward, supra, 192 Cal.App.2d pp. 877–878, 14 Cal.Rptr. 260.) A similar conclusion was reached in Ewing v. Balan (1959) 168 Cal.App.2d 619, 336 P.2d 561, with respect to a statute contained in the State Housing Act.

7.  Code of Civil Procedure, section 1060, provides: ‘Any person interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action in the superior court or file a crosscomplaint in a pending action in the superior or municipal court for a declaration of his rights a determination of any question of construction or validity arising under such instrument or contract. He may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of such rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in from and effect, and such declaration shall have the force of a final judgment. Such declaration may be had before there has any breach of the obligation in respect to which said declaration is sought.’

8.  In Lindsey v. Normet, the court noted that ‘There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord, continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property. Holding over by the tenant beyond the term of his agreement or holding without payment of rent has proved a virulent source of friction and dispute. We think Oregon was well within its constitutional powers in providing for rapid and peaceful settlement of these disputes.’ (405 U.S. pp. 72–73, 92 S.Ct. pp. 873–874.)

9.  The rent agreed upon was $146.23 per month, commencing October 11, 1971. Tenant paid the sum of $286 prior to taking possession and made no payments thereafter.

10.  The appellate department of the superior court was of the opinion that tenant's only remedy against landlord was pursuant to Civil Code, section 1942, which permits rent to make repairs, or to vacate the premises and be discharged from further payment of rent. It was shown that tenant did not attempt to exercise her statutory right under Civil Code, section 1942. At trial her attorney offered to prove that more than one month's rent would be required to make the premises tenantable. Thus, it would appear that although the legislature has provided a remedy when the ‘defects are trivial’ (Nelson v. Myers (1928) 94 Cal.App. 66, 75, 270 p. 719), the remedy contained in Civil Code, section 1942, does not reach untenantable conditions of the magnitude alleged here, i. e., a leaking roof and infestation by rodents and vermin, and thus, with respect to this tenant, the remedy provided by the section is ‘virtually useless.’ (Loeb, The Low-Income Tenant in California: A Study in Frustration, 21 Hastings L.J. 287, 293 (1970).) The remedy has been further limited by an amendment in 1970 which added a provision that the remedy could not be employed more than once in any 12-month period. (Stats.1970, ch. 1280, § 3, p. 2315.)

11.  But see Childs v. Eltinge, supra, 29 Cal.App.3d at page 854, 105 Cal.Rptr. 864, for problems created when declaratory relief and unlawful detainer actions overlap.

ROUSE, Associate Justice.

TAYLOR, P. J., and KANE, J., concur.

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Docket No: Civ. 32850.

Decided: April 30, 1973

Court: Court of Appeal, First District, Division 2, California.

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