1 remove defendant from the property. She believed that she could do so on an expedited basis
using the 3-day notice. The Court ruling proved her wrong. She simply acted in accordance with
landlord-tenant law and served the requisite 60-day notice.
5 There was suggestion at trial that defendant will raise a defense under California Civil
6 Code, Section 1942.5. The Court must note that, while defendants Answer makes mention of the
7 filing of a complaint with the Department of Fair Employment and Housing (DFEH), he does not
plead a defense based on retaliation under CC 1942.5. An affirmative defense must be plead
with particularity and is waived if not so plead. Evid Code §§ 500, 550.
Notwithstanding the foregoing, defendant has failed to prove retaliation by Millard. The
evidence presented at trial fails to prove that Millard was aware of the claim to the DFEH prior to
13 filing the unlawful detainer action. The claim was filed on April 22, 2004. Millard testified that
14 she did not receive notice of the action until sometime after May 11, 2004 due to the fact that the
15 DFEH mailed it to a post office box which was no longer in use.
When asked about having received the notice from the DFEH denying defendants claim,
Millard testified that she received it at the property address. This proves nothing as Millard's
19 counsel was required to file with the response to the claim a notice of address. By the time the
20 denial of claim was sent, the DFEH had the correct address on file.
21 The defendant offered no evidence in the form of testimony by a representative of the
DFEH, or by a writing of any kind to prove that Millard had, in fact, received notice of the claim
prior to May 17, 2004. The defendant has the burden of proving his defense and of producing
25 evidence of the proscribed retaliation. Evid. Code §§ 500, 500; Western land Office, inc. v.
26 Cervantes (1985) 175 Cal. App.3d 724.
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