Monday, March 18, 2019
Rent Payment One Cent Short Won’t Suffice, but Defense to UD Possible
By a MetNews Staff Writer
The Appellate Division of the Los Angeles Superior Court has reversed a judgment in favor of a tenant in an unlawful detainer case, holding that substantial evidence does not support a jury’s finding that he paid his rent prior to being served with a three-day notice because the check he proffered was for an amount that was one cent short.
However, the court said, in an opinion released yesterday after the Court of Appeal declined to take the case up, the tenant might have an equitable defense that can be raised on remand.
Judge Alex Ricciardulli wrote the opinion, filed Jan. 30. It reverses a judgment by Los Angeles Superior Court Judge Michael B. Harwin.
The tenant, David Terhune, paid rent, by check, in the amount of $507.60—one cent less than the proper amount. The check was returned and the landlord, J.S. Bawa, on June 12, 2017, served a three-day notice to quit or pay rent.
Terhune did not write a new check in the proper amount and Bawa instituted an action in unlawful detainer.
Defenses Not Considered
Ricciardulli said that because the jury found—erroneously—that Terhune did pay rent, “it did not address whether there was a legitimate defense to the unlawful detainer cause of action.”
Pointing to a possible defense that may be raised on remand, he said:
“[W[hen a landlord refuses to accept rent that is one penny short of the required amount, without any legitimate intent other than to manufacture a default in order to evict a tenant, a tenant may assert the landlord’s bad faith as an unlawful detainer defense.”
The judge noted that questions on the verdict form that were permissibly not answered by the jury, in light of its determination that Terhune had, in fact, paid rent, included whether the three-day notice was valid, whether it set forth the correct amount, and whether Bawa had waived the right to reject Terhune’s check in the amount of $507.60.
“[A]s the jury failed to determine whether plaintiff proved all the elements of the unlawful detainer action, plaintiff is not entitled to have the court enter judgment in his favor on remand. Both plaintiff and defendant must be afforded the opportunity to litigate the issues in a new trial.”
The case is Bawa v. Terhune, BV 032618.
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