Opinion
BAXTER, J. 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 [62 Cal.Rptr.2d 600].) 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.)
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 [111 Cal.Rptr. 704, 517 P.2d 1168].) 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 tenant-ability (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 [588]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 “[njothing 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 [69 Cal.Rptr.2d 710]) 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 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 [589](Civ. Code, § 1946) and requiring them to quit the premises and deliver up possession within 60 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 [65 Cal.Rptr.2d 366, 939 P.2d 766].) Since there are no disputed issues of fact, we consider only the legal 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 [207 Cal.Rptr. 285, 688 P.2d 894] (Nash) “to the [590]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.)
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 [591]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 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 [90 Cal.Rptr. 729, 476 P.2d 97] (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) 130 U.S.App.D.C. 126 [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 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.)
[592]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 [178 Cal.Rptr. 618, 636 P.2d 582]), 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; [1] . . . [‘ID (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 subdivision, the lessee shall bear the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory, [f] (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. ... [1] (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.”
[593]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 “[supersedes 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 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 [124 Cal.Rptr.2d 507, 52 P.3d 685].) 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 [191 Cal.Rptr. 800, 663 P.2d 523] [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 [168 P. 348] [“ ‘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 [49 Cal.Rptr.2d 639].) The parties therefore agree that our task is to harmonize the two [594]schemes, provided that in doing so section 1942.5 is not “ ‘replaced, set aside or annulled 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 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 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)] [595]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 [220 Cal.Rptr. 784] (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 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 [596]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 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 concurring and dissenting 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. (Cf. California Livestock Production Credit Assn. v. Sutfin (1985) 165 Cal.App.3d 136, 143 [211 Cal.Rptr. 152] [claim of retaliation is not a defense in unlawful detainer action based on foreclosure of property]; Carol Rickert & Associates v. Law (2002) 2002 NMCA 96 [132 N.M. 687, 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) 150 U.S.App.D.C. 17 [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 concurring and dissenting opinion identifies a single jurisdiction that has 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 [13 L.Ed.2d 827, 85 [597]S.Ct. 994] [“ ‘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 Justice Moreno 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
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 Ellis Act, Government Code, section 7060 et seq., 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).)
[598]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 fact finder 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. 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 [186 Cal.Rptr. 589, 652 P.2d 437]; In re Ramon A. (1995) 40 Cal.App.4th 935, 939 [47 Cal.Rptr.2d 59].)4
[599]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 sanctions.” (Review of Selected 1979 California Legislation (1979) 11 Pacific L.J. 601, 602.) As Justice Moreno 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 [600]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 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 fact finder proceed to determine whether the eviction is for the purpose of retaliating against the tenant under subdivision (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 subdivision (a) or (c) of section 1942.5 does not itself constitute an affirmative defense in an unlawful detainer proceeding under the Ellis Act.
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.
George, C. J., Chin, J., and Brown, J., concurred.
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.)
Justice Moreno’s concurring and dissenting opinion 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 conc. & dis. opn., post, at p. 608.) Since this case does involve subdivision (d), the dissent’s analysis is not pertinent here.
Justice Moreno’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 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].)
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: 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 No. 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) [5991] Cal.4th 855, 863, fn. 6 [4 Cal.Rptr.2d 609, 823 P.2d 1210]), we nonetheless note that it in no way bolsters Tenants’ interpretation of the statute.
Unlike Tenants, Justice Moreno 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 [130 Cal.Rptr. 465, 550 P.2d 1001], 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 [75 Cal.Rptr.2d 170]; Cervantes, supra, 175 Cal.App.3d at p. 737; Glaser v. Meyers (1982) 137 Cal.App.3d 770, 775 [187 Cal.Rptr. 242]; Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281 [97 Cal.Rptr. 650].) 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 [140 Cal.Rptr. 669, 568 P.2d 394].)