Common Defenses to a California Eviction Action

A tenant facing eviction can and usually does assert a long list of affirmative defenses to the lawsuit.  Here is an overview of some of the most commonly asserted defenses to a California eviction case.

Landlord Did Not Follow Proper Procedure

A landlord must strictly comply with all rules and regulations governing evictions set forth in the California Civil Code and the Code of Civil Procedure. Otherwise, the eviction case may be rejected by the Court.  For example, a landlord is required to give a tenant a three-day notice to pay rent or quit before filing the eviction lawsuit. If the landlord fails to provide such notice and instead proceeds directly to court, the case would be dismissed by the judge.

A dismissal would also likely follow if the landlord used a three day notice that does not comply with California law governing the required content of the notice or manner of service. The judge would likely dismiss the eviction case, and the landlord would have to start all over again, beginning with service of a valid three-day notice on the tenant. If the tenant failed to pay full rent during the three-day period, the landlord would then proceed to court, and the eviction case would be decided in the normal course of the court’s business.

Tenant Complied with the Three-Day Notice

In non-payment of rent cases, another common defense is the tenant’s compliance with the condition of paying full amount of rent due before expiration of the three-day period set stated in the notice.  If the tenant pays rent during the three-day period, the landlord cannot proceed with the eviction (see Cal. Code of Civ. Proc. § 1161(2)). For this defense to apply the tenant must pay the full amount stated in the notice.  Partial payment would not suffice. 

A defense is also available in lease violation-based evictions, where the tenant fixes the problem within the three-day notice period.  With some exceptions, if the tenant fixes the lease violation within the three-day notice period, the landlord must not proceed with the eviction (see Cal. Code of Civ. Proc. § 1161(3)). If the landlord proceeds with the eviction despite the tenant’s compliance with the conditions set forth in the notice, the tenant can use proof that the violation was corrected within the appropriate time frame as a defense to the eviction.

Landlord’s Failure to Maintain the Rental Unit

A California landlord must maintain a rental unit good condition, according to the minimum standards outlined in the California Civil Code (see Cal. Civ. Code § § 1941, 1941.1, and 1941.3) A tenant’s remedies for a landlord’s breach of this obligation are delineated in see Cal. Civ. Code § 1942 and California case law.  If a tenant complies with the law in withholding rent, and the landlord chooses to evict the tenant for nonpayment of rent, the tenant can use the landlord’s failure to maintain the rental unit as an affirmative defense to the eviction (see Cal. Code of Civ. Proc. § 1174.2).

To invoke this defense, the tenant must give the landlord advance notice of his or her intention to exercise the option, within a “reasonable time” before exercising the option.  Under the statute, 30 days is presumed to be a reasonable time, but it could be shorter.  The “repair and deduct” remedy is not available where the tenant is at fault or otherwise responsible for the dilapidated condition of the property. 

Landlord Evicts Tenant Utilizing Self Help Measures

A landlord can only evict a tenant by going to court and prevailing in an eviction lawsuit. It is illegal for a landlord to attempt to force a tenant to move out of a rental property through any other way, such as shutting off the utilities to the rental unit or changing the locks. This type of action is often referred to as a “self-help” eviction. If a landlord attempts a “self-help” eviction. (see Cal. Civ. Code § 789.3).  A tenant who is illegally evicted can either sue the landlord in civil court or assert the illegal eviction as a defense or counterclaim in an eviction lawsuit.

Landlord Discriminates against the Tenant

The federal Fair Housing Act makes it unlawful for landlords discriminating against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition, California has enacted the Fair Employment and Housing Act, which protects tenants from discrimination based on gender identity, gender expression, sexual orientation, marital status, medical condition, and age. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as an affirmative defense to the eviction case.

Please contact Lynx Legal Service with any questions regarding the above or if you need eviction-related services.  We can be reached at 888-441-2355 or  Our experienced professionals are standing by to assist in any way we can. 

Create your free account to access our informative library of articles

or just give us a call

to start your case


Please login or create a free account to access our library or helpful articles.