I dissent. Prior to today’s decision, a landlord in a month-to-month tenancy could increase the rent or terminate the tenancy for any reason or for no reason at all.1 (See Housing Authority v. Cordova (1955) 130 Cal.App.2d Supp. 883 [279 P.2d 215].) In holding that it shall be a defense to an action for unlawful detainer that the landlord raised the rent or brought the eviction action in retaliation for the exercise of the tenant’s rights under Civil Code section 1942, this court substantially alters this rule. Although I deplore the type of action taken by the landlord in the instant case, I believe that the problems of retaliatory rent increases and evictions should be left to the Legislature since it has been assigned the function of deciding important questions of public policy and is a more appropriate body for considering the respective interests of landlords and tenants.
Moreover, as one commentator has pointed out, “judicial prohibition of *519retaliatory evictions [and rent increases] raises a host of problems which it may be difficult for the courts to resolve consistently.” (82 Harv.L.Rev. 932.) For example, what will a landlord who is found to have raised the rent in retaliation for filing a notice under Civil Code section 1942 be required to show in order to prove that his illegal motive has “dissipated?” If he seeks to raise the rent within a month or two of a finding of retaliation, will a claim that he merely wants to increase his return from the dwelling be sufficient, or will he have to demonstrate that there is some other economic justification, such as higher taxes, for the action?
Finally, and most importantly, the Legislature has provided a statutory solution to the problems of retaliatory evictions and rent increases through the adoption of section 1942.5 of the Civil Code. This section is part of comprehensive legislation defining a lessor’s obligation to provide a tenantable dwelling and a lessee’s remedies if such obligation is not met.2 Although this legislation does not apply to the present case, I am of the opinion that it would be wiser for this court to address itself to the application of this legislation in future cases rather than create by judicial decree a new defense to actions for unlawful detainer. The creation of such a defense is the proper function of the Legislature, and it has seen fit to take appropriate action.
McComb, J., concurred.
As the majority opinion indicates, an exception to this rule was set forth in Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242 [22 Cal.Rptr. 309], where the court held that a tenant could assert as a defense in an unlawful detainer action that he was being evicted solely because of his race.
Section 1941.1 has been added to the Civil Code to specify the conditions under which a dwelling shall be deemed untenantable. Section 1941.2 provides for certain affirmative obligations in relationship to the dwelling which must be met by-the lessee. Section 1942 has been amended to provide that the remedies contained in that section shah not be available to a lessee more than once in any 12-month period and that a lessee shall be presumed to have acted after a reasonable time if he acts to repair and deduct after the thirtieth day following the notice required by the section.
Section 1942.1 has been added to provide that any agreement by a lessee waiving or modifying his rights under sections 1941 and 1942 shall be void as to any condition which renders the dwelling untenantable and that a lessor and lessee may, by an agreement in writing, provide for arbitration of any controversy relating to a condition of the dwelling claimed to make it untenantable.
Section 1942.5 specifies the conditions under which a lessor may not recover possession, cause the lessee to quit involuntarily, increase the rent, or decrease any services in retaliation for the exercise of a lessee’s rights under sections 1941-1942 or because the lessee complained to an appropriate governmental agency concerning the tenant-ability of the dwelling. A lessee may not invoke the provisions of the section more than once in a 12-month period. However, any waiver by a lessee of his rights under the section is declared void as against public policy.