CACI No. 4327. Affirmative Defense - Landlord’s Refusal of Rent

Judicial Council of California Civil Jury Instructions (2023 edition)

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4327.Affirmative Defense - Landlord’s Refusal of Rent
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun/it] because [name of plaintiff] refused to
accept [name of defendant]’s payment of the rent. To succeed on this
defense, [name of defendant] must prove:
1. That after service of the three-day notice but before the three-day
period had expired, [name of defendant] presented the full amount
of rent that was due to [name of plaintiff]; and
2. That [name of plaintiff] refused to accept the payment.
[Giving a check constitutes payment if [name of plaintiff]’s practice was
to accept payment by check unless [name of plaintiff] had previously
notified [name of defendant] that payment by check was no longer
New October 2008
Directions for Use
Give the last bracketed paragraph if the tender was by check and there is an issue as
to the landlord’s motive in refusing the check.
Sources and Authority
Debtors Deposit of Amount of Debt. Civil Code section 1500.
“The mere giving of a check or checks does not constitute payment.” (Mau v.
Hollywood Commercial Bldgs., Inc. (1961) 194 Cal.App.2d 459, 470 [15
Cal.Rptr. 181], internal citation omitted.)
“On this appeal appellants do not discuss or mention the above finding of their
bad faith, but argue that respondent was in default because its rental debt was
not extinguished within the three-day period as respondent tendered checks
instead of money, sent the checks by mail without checking delivery instead of
making personal tender and did not keep the tender alive by deposit in a bank as
provided by section 1500 of the Civil Code within the three-day period.
However, we think that the finding of bad faith, which is supported by the
evidence showing the facts, as stated hereinbefore, is of primary importance
where appellants try to enforce a forfeiture.” (Strom v. Union Oil Co. (1948) 88
Cal.App.2d 78, 81 [198 P.2d 347].)
“With respect to appellants there is no doubt that they could have had timely
payment if they had so desired, but that they were intentionally evasive and
uncooperative, hoping thereby to induce some technical shortcoming on which to
terminate a lease which they thought disadvantageous.” (Strom, supra, 88
Cal.App.2d at pp. 83-84.)
“Appellants complain that respondent mailed checks for the rent instead of
tendering money in person. The lease does not contain any place or mode of
payment of rent. Payment of rent to the original lessor had been made by
mailing of checks to his assignee. Appellant was entitled to continue payment by
mailing of checks so long as he had not been notified that this form of payment
was no longer acceptable. . . . If the payment by mailing of check, a normal
mode of payment though not a legal tender, was not acceptable to appellants, as
it had been to their predecessors, they should have notified respondent to that
effect. Neither was respondent after the mailing under duty to take special
measures to check timely receipt of the checks. ‘The ordinary principles of
reason, common sense, and justice should govern in questions of this kind. The
lessee, in law, had a right to assume that the Post [O]ffice Department would do
its duty and deliver the envelop[e] containing the rent in due time, and that the
lessor would, in justice, accept such rent; and if for any reason it was not
received or delivered the lessee should, as a matter of ordinary fairness and
justice, be advised of such fact and have a chance to remedy the same.’ This
principle was held applicable even where the letter containing the rent was lost
in the mail. It must govern a fortiori here, where the mail functioned correctly
and the fact that the checks did not reach appellants was solely attributable to
circumstances for which they were responsible. No further action of any kind
could be expected from respondent until it was informed, by the return of the
unclaimed letter, of the fact that the payment had not been effectuated. If
respondent’s action is open to any criticism it would be that the deposit of the
rent in a bank . . . did not follow soon enough after the checks were returned
. . . . However the delay did not cause any prejudice or make any difference to
appellants as they had then already launched the action in unlawful detainer at
which they had been aiming ever since respondent refused increase of rent. The
shortcoming of respondent is trivial compared to appellants’ bad faith.” (Strom,
supra, 88 Cal.App.2d at p. 84.)
“Nor does the rejection of the ‘tender that appellants made by letter,
unaccompanied by payment, and conditioned upon dismissal of the action, after
the action was brought, compel a finding of bad faith. It did not extinguish the
debt, since the procedure prescribed by Civil Code, section 1500, was not
followed. Nor was there a showing of continuous readiness to pay after the
tender.” (Budaeff v. Huber (1961) 194 Cal.App.2d 12, 21 [14 Cal.Rptr. 729].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 797
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 7.53-7.56
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) § 17.21
3 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.22
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21

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