Murdock v. Lofton, 107 Cal.Rptr. 551, 31 Cal.App.3d 981 (Cal.App. 1 Dist.
, 1973)
Page 551
107 Cal.Rptr. 551
31 Cal.App.3d 981
J. P. MURDOCK, Plaintiff and Respondent,
v.
Mrs. LOFTON, Defendant and Appellant.
Civ. 32850.
Court of Appeal, First District, Division 2, California.
April 30, 1973.
Hearing Granted June 28, 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.
ROUSE, Associate Justice.
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
Page 552
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.
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 Murdock v. Lofton, 107 Cal.Rptr. 551, 31 Cal.App.3d 981 (Cal.App. 1 Dist., 1973)
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.
Page 553
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
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 Murdock v. Lofton, 107 Cal.Rptr. 551, 31 Cal.App.3d 981 (Cal.App. 1 Dist., 1973)
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
Page 554
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
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 Murdock v. Lofton, 107 Cal.Rptr. 551, 31 Cal.App.3d 981 (Cal.App. 1 Dist., 1973)
to 1881, where it first appeared in Van Every v.
Ogg, 59 Cal. 563, 566. 6
Page 555
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
Page 556
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
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 Murdock v. Lofton, 107 Cal.Rptr. 551, 31 Cal.App.3d 981 (Cal.App. 1 Dist., 1973)
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.
TAYLOR, P. J., and KANE, J., concur.
---------------
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-
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 Murdock v. Lofton, 107 Cal.Rptr. 551, 31 Cal.App.3d 981 (Cal.App. 1 Dist., 1973)
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.
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