Bawa v. Terhune, 013019 SUPAD, JAD19-01
|Opinion Judge:||RICCIARDULLI, J.|
|Party Name:||J.S. BAWA, Plaintiff and Appellant, v. DAVID TERHUNE, Defendant and Respondent.|
|Attorney:||Law Office of Allen R. King and Allen R. King, for Plaintiff and Appellant J.S. Bawa. Eviction Defense Network, Claudia Medina, for Defendant and Respondent David Terhune.|
|Judge Panel:||We concur: Kumar, Acting P. J. Richardson, J.|
|Case Date:||January 30, 2019|
|Court:||Superior Court of California|
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 17U06953 Michael B. Harwin, Judge. Reversed and remanded.
Law Office of Allen R. King and Allen R. King, for Plaintiff and Appellant J.S. Bawa.
Eviction Defense Network, Claudia Medina, for Defendant and Respondent David Terhune.
We hold that, when a landlord returns a tenant's rent check without cashing it based on a de minimis shortage in the agreed-upon rent, a tenant can assert the landlord's bad faith in rejecting the payment as a defense to an unlawful detainer action. We reject appellant's argument that when, as in the present case, a check is returned because it is one cent short and an eviction notice is served days later, the tenant must re-tender payment following service of the notice and has no defense to the action after failure to re-tender.
The jury in the unlawful detainer action brought by plaintiff and appellant J.S. Bawa determined defendant and respondent David Terhune “Did [not] fail to make at least one rental payment to [plaintiff] as required by the rental agreement, ” and the court entered judgment for defendant. As the tender of the check was rejected, defendant failed to pay the rent, and thus the judgment was not supported by the evidence. Because the jury determined (improperly) that defendant paid the rent, it did not address whether there was a legitimate defense to the unlawful detainer cause of action. We reverse and remand for a new trial.
Plaintiff filed the unlawful detainer case against defendant based on a failure to comply with a June 12, 2017 three-day notice to pay rent or quit. Plaintiff alleged the rental unit was subject to the City of Los Angeles Rent Stabilization Ordinance (LARSO) (L.A. Mun. Code, § 151.00 et seq.), and the action was warranted based on failure to pay rent (see L.A. Mun. Code, § 151.09, subd. A. [evictions under LARSO must be supported by “good cause”]). The attached three-day notice stated there was “unpaid and delinquent rent” of $507.61 for June 2017, consisting of the base $504 rent and a $3.61 City of Los Angeles Systematic Code Enforcement Program (SCEP) fee (L.A. Mun. Code, § 161.352). Plaintiff stated that, unless defendant complied with the notice, he “does hereby elect to declare a forfeiture of the subject lease... and will institute legal proceedings for the unlawful detainer... to recover possession of the premises....”
Defendant filed an answer, generally denying the allegations in the complaint, including that he was in default in paying the rent. Defendant also asserted affirmative defenses, including that plaintiff “[breached the] warranty of habitability, ” “filed this lawsuit to retaliate against tenant for... asserting tenant's legal rights, ” and “violated the [i]mplied [c]ovenant of [g]ood [f]aith and [f]air [d]ealing.” Defendant additionally asserted his “[b]reach was not material and thus will not support a forfeiture.”
At the ensuing jury trial, Tariq Saeed, plaintiff's resident manager, testified defendant was obligated to pay $507.61 at the beginning of each month. In early June 2017, Saeed received a check drawn on defendant's Wells Fargo bank account in the amount of $507.60. On June 7, Saeed mailed back the check, uncashed, with a letter stating “we are returning your check... since the rent amount is incorrect. The correct amount of your rent portion including the SCEP fees is currently $507.61.” Saeed served the three-day notice to pay rent or quit on defendant on June 12 by posting the notice on defendant's apartment door and mailing a copy to him on June 13. After expiration of the notice period, defendant sent plaintiff two checks, one dated June 20, 2017, in the amount of $507.61 and another for $519.86, dated June 25, 2017. The checks were not deposited into plaintiff's account, nor were they negotiated. Defendant's testimony confirmed none of his checks for June were paid by his bank.
The jury was instructed that, for plaintiff to prevail, it had to find defendant failed to pay the rent, a three-day notice was served on defendant, and defendant failed to comply with the notice. The jury was further instructed on defendant's affirmative defenses, including habitability and retaliation, but not “good faith and fair dealing” and that...
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