EDC Associates Ltd v. Gutierrez

• Decision Date: 16 March 1984
• Docket Number: No. F002869,F002869
• Citation: 153 Cal.App.3d 167,200 Cal.Rptr. 333
• Court: California Court of Appeals Court of Appeals
• Parties: , 39 A.L.R.4th 1191 EDC ASSOCIATES, LTD., Plaintiff and Appellant, v. Gloria GUTIERREZ, Defendant and Respondent.

Page 333

200 Cal.Rptr. 333

153 Cal.App.3d 167, 39 A.L.R.4th 1191

EDC ASSOCIATES, LTD., Plaintiff and Appellant, v. Gloria GUTIERREZ, Defendant and Respondent.

No. F002869.

Court of Appeal, Fifth District, California.

March 16, 1984.

[153 Cal.App.3d 168] Wild, Carter, Tipton & Oliver, and Trevor C. Clegg, Fresno, for plaintiff and appellant.

Kathleen P. Reilley, Fresno, for defendant and respondent.

OPINION

ANDREEN, Associate Justice.

Plaintiff EDC Associates, Ltd., a California limited partnership (hereafter landlord), filed a complaint for unlawful detainer against defendant Gloria Gutierrez (hereafter tenant) in the Municipal Court of Fresno County. After trial the court issued judgment for tenant, finding that landlord's attempt at eviction was retaliatory in nature and that under the circumstances tenant's late tender of rent was excusable.

Landlord filed a notice of appeal to the superior court. The parties filed an "Agreed Statement on Appeal," and the matter came on for hearing before the appellate department of the superior court. The appellate department issued its decision reversing the judgment of the municipal court.

Tenant filed an application for certification to the Court of Appeal, the appellate department of the superior court granted same and we ordered the appeal transferred. (Cal.Rules of Court, rule 63; Code Civ.Proc., § 911.)

I. FACTS

The following summary is taken from the "Agreed Statement on Appeal" filed in the appellate department of the superior court, and other documents in the superior court file.

In May 1981 landlord and tenant entered into a written rental agreement establishing a month-to-month tenancy at a monthly rental of $260 payable in advance on the first day of each month. In May 1982, landlord hired a new property manager for the complex in which tenant's apartment was located. That same month, landlord served upon tenant a 30-day notice of termination of tenancy, which was later withdrawn by landlord after negotiations with tenant.

Landlord served a second 30-day notice of termination of tenancy on tenant on June 3, 1982. On July 1, 1982, tenant made a complaint of discrimination to the California Department of Fair Employment and Housing (DFEH), alleging that landlord was discriminating against her because of her Mexican ancestry. After investigation by DFEH, landlord and DFEH executed a written settlement agreement on July 26, 1982, which, inter alia, required landlord to acknowledge rescission of the June 3, 1982, notice of termination served on tenant.

Landlord served a third 30-day notice of termination of tenancy on tenant on August 30, 1982. Tenant again contacted DFEH and was advised that the agency would try to arrange a meeting with landlord's property manager. The DFEH representative erroneously advised tenant to withhold rent payments to landlord until a meeting could be held. Tenant had never before been late with a rent payment. The DFEH representative made three attempts to arrange the meeting, scheduling it once but then canceling it.

The rent due on September 1, 1982, was not paid. Landlord served a three-day notice to pay rent or quit on tenant on September 14, 1982. On September 30, 1982, tenant mailed a money order dated September 3, 1982, to landlord for her September rent. On October 2, 1982, defendant mailed to landlord a money order dated October 2, 1982, for her October rent.

On the issue of retaliatory purpose, tenant introduced testimony that landlord's property manager and his supervisor, both black, had insulted and harassed tenant and her family and made derogatory racial slurs about tenant and her daughter. Landlord's property manager had evicted four or five other Chicano families.

Landlord's defense was that tenant's adult daughter had violated apartment complex rules and subjected the property manager and his supervisor to insults and racial slurs. Neither party requested a statement of decision. (Code Civ.Proc., § 632.)

II. DID LANDLORD WAIVE THE RIGHT TO OBTAIN POSSESSION OF THE LEASED PREMISES BY ACCEPTING TENANT'S TENDER OF RENT?

It is a general rule that the right of a lessor to declare a forfeiture of the lease arising from some breach by the lessee is waived when the lessor, with knowledge of the breach, accepts the rent specified in the lease. (Bedford Investment Co. v. Folb (1947) 79 Cal.App.2d 363, 366, 180 P.2d 361.) While waiver is a question of intent, the cases have required some positive evidence of rejection on the landlord's part or a specific reservation of rights in the lease to overcome the presumption that tender and acceptance of rent creates. Thus, in Karbelnig v. Brothwell (1966) 244 Cal.App.2d 333, 53 Cal.Rptr. 335, the Court of Appeal noted, in finding a lack of waiver, "[h]ere the lessor not only relied upon the express agreement in the contract of the lease against waiver of its right to assert a forfeiture for the acceptance of rent after knowledge of the breach ... but it also gave notice that its acceptance of the rent after the breach ... became known was not to be construed as a ... waiver of its right to assert a forfeiture." (Id., at p. 342, 53 Cal.Rptr. 335.) Similarly, in Thriftimart, Inc. v. Me & Tex (1981) 123 Cal.App.3d 751, 177 Cal.Rptr. 24, the finding of no waiver was justified because,

"[the landlord], from the [inception of the breach], clearly evidenced its objection to it.... [I]t ... evidence[d] its willingness to make a new agreement .... [Landlord] from the start, evidenced, not a willingness to waive ... but a willingness to lease the land encroached upon, and, if that extended lease were arrived at, to continue the lease on the original parcel. We cannot impose on [landlord] a penalty for a reasonable effort to achieve an amicable adjustment of the breach." (Id., at p. 754, 177 Cal.Rptr. 24.)

An opinion by the Appellate Department of the Los Angeles Superior Court has gone so far as to hold that where the breach justifying forfeiture is nonpayment of rent, the tenant may cure the breach after a notice to pay rent or quit is served by paying the rent due. (Hyland Plastics Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 11, 167 Cal.Rptr. 353.) ¹

While the authorities cited in Hyland Plastics, supra, in support of the principle that nonpayment of rent can be cured as a matter of right by payment of the past due rent seem sufficient to uphold such a ruling (see Walker v. Houston (1932) 215 Cal. 742, 745-747, 12 P.2d 952; Owen v. Herzihoff (1906) 2 Cal.App. 622, 623-624, 84 P. 274), it is not necessary in the present case to go beyond the general principles of waiver to hold that landlord waived its right to obtain possession of the leased premises. The only evidence presented at trial reflected that tenant mailed money orders for the delinquent rent and for the next month's rent to landlord. No evidence suggested that landlord refused tender, returned the money orders or failed to negotiate them. ² The landlord had the obligation of going forward with the evidence in order to prove that the money orders were not negotiated or that it took other action in insure that there was no waiver. As stated in Morris v. Williams (1967) 67 Cal.2d 733, 760, 63 Cal.Rptr. 689, 433 P.2d 697:

"Although a plaintiff ordinarily has the burden of proving every allegation of the complaint and a defendant of proving any affirmative defense, fairness and policy may sometimes require a different allocation. (See Evid.Code, § 500.) Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim. [Citations.]"

Under these circumstances, landlord has waived its right to assert a forfeiture for failure to pay the rent on the date due.

III. CONCLUSION

The judgment of the municipal court is affirmed. Tenant will recover her costs.

PAULINE DAVIS HANSON, Acting P.J., and MARTIN, J., concur.

ANDREEN, Associate Justice, concurring.

The discussion in part II of the majority opinion resolves the litigation, but since the battlelines of the parties have been drawn around the tenant's defense of retaliatory eviction, I feel we should address the matter in order to make an alternative holding.

Landlord contends that a tenant in default of rent may not assert any retaliatory eviction defenses to an unlawful detainer action ostensibly based upon said nonpayment of rent. Landlord relies in support of its position on statutory interpretation, other state cases, and its timocratic view of desirable public policy.

Civil Code section 1942.5 sets forth the general statutory rules governing assertion of the defense of retaliatory eviction by tenant. ¹ Subdivision (a) of that section relates to actions taken by a tenant because the hired premises are dilapidated or otherwise untenantable. It provides a limitation upon a lessor's power to recover possession of the leased premises, raise the rent, decrease services, or cause the tenant to "quit involuntarily" in retaliation for "exercise ... of his rights under this chapter or ... his complaint to an appropriate agency as to tenantability of a dwelling ... if the lessee ... is not in default as to the payment of his rent...." (Emphasis added.) ² Subdivision (c), creates protections where habitability is not at issue, but the tenant has engaged in First Amendment activities. Unlike subdivision (a) it contains no reference to payment of rent. Landlord argues that a parallel requirement of current payment of rent must be implied as pertaining to subdivision (c) of the statute, pursuant to the principle of ejusdem generis.

The doctrine of ejusdem generis, a variation of nocitur a sociis (associated words), is described by 2A Sutherland, Statutory Construction (Sands 4th ed. 1973) Intrinsic Aids, section 47.17, page 103, as follows: "Where general words...