Legal Question in Landlord & Tenant Law in California

"Malice" is not found very often in typical residential evictions. Malice is going to be defined by case law interpreting CCP �1174, and is not otherwise defined specifically in the codes governing evictions. One court held that "malice" in this context means possession of the property is "deliberate, intentional and obstinate." Notice that it required all three circumstances to exist. They relied upon the tenant's use of many legal procedural "tricks" to delay the entry of a judgment against him. Some of the subsequent cases seem to rely more on the tenant's subjective belief that they have the right to remain in possession of the property, even if they turn out to be completely wrong. Finally, because there is no definition of what "malice" means in this context, you can look at the standard jury instructions for CCP �1174(b), which read as follows: "A tenant acts with malice if he or she willfully continues to occupy the property with knowledge that he or she no longer has the right to do so." Proving the tenant's subjective knowledge or believe, however, is somewhat difficult.

"[H]olding possession with refusal to pay," absent other facts, is definitely not "malice" for purposes of CCP �1174. Every eviction based upon a tenant's failure to pay rent, if that were true, would involve malice and would entitle the landlord to additional damages. As for illegal activity, how does their illegal activity relate to maliciously holding possession of the property? It probably doesn't, but as with this whole question, it is going to be fact-dependent and you should review it with a knowledgeable landlord-tenant attorney who can look at the specific facts and make a determination if the award of additional damages is justified.

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