California Civil Jury Instructions (CACI) (2017)

4327. Affirmative Defense—Landlord’s Refusal of Rent

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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/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
• Debtor’s 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.
• “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 (10th ed. 2006) Real Property, § 759
1California 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