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Court of Appeal:
Cashing Rent Check Did Not Void Notice to Quit Premises
Payee Made Deposit by Mistake; It Can Be Found Not to Have Constituted ‘Acceptance’ of Payment, Grimes Says
By a MetNews Staff Writer
The Court of Appeal for this district has held that where a lessor on March 31, 2021, served a month-to-month tenant with a 30-day notice to quit the premises and then, by mistake, cashed a rent check for May of that year, that did not reinstate the tenancy, requiring service of a new eviction notice.
Acting Presiding Justice Elizabeth A. Grimes of Div. Eight authored the unpublished opinion, filed Friday. It affirms a judgment by Los Angeles Superior Court Judge James A. Kaddo, pursuant to a jury’s verdict, in favor of the lessor of commercial property in La Verne. Possession of the property and $26,818 in holdover damages were awarded.
Defendant Robert Matheka lost on his appeal despite representation by a lawyer—Jeremy Cook of Cal Tenant Law—while plaintiff Penny Dey, who was successor trustee of the trust that owned the property, was unrepresented and filed no brief.
Two Cases Cited
Citing a 1931 California Supreme Court opinion, Kern Sunset Oil Co. v. Good Roads Oil Co., and a 1980 decision by the Appellate Department of the Los Angeles Superior Court, Highland Plastics, Inc. v. Enders, Cook said in his brief on behalf of Matheka:
“If rent is accepted after a notice is given, the notice cannot support an eviction….
“Here, there is no dispute that the landlord accepted and deposited a rent check after the notice was given.”
Grimes responded:
“Neither of the cases defendant cites stands for the proposition that a new 30-day notice was required despite plaintiff’s evidence of mistaken cashing of the rent check and return of the funds to defendant. Neither case concerns mistaken deposit of a rent check.”
Decision Differentiated
In Kern, the justice recited, the high court said that acceptance by a lessor of a rent payment after a breach of the lease constitutes a waiver and precludes a subsequent declaration of a forfeiture of the lease based on the breach. She said:
“This case has nothing to do with waiver after breach of a condition of the lease.”
In Highland Plastics, the Appellate Department (now known as the Appellate Division) set forth:
“Tender of rent and its acceptance by the landlord within the notice period probably results in an implied withdrawal of the landlord’s notice to terminate the periodic tenancy provided the rent accepted is sufficient to cover a period beyond the 30-day period. The mere tender of the rent does not, however, result in a waiver. In order for there to be a waiver, the landlord must accept the rent and the rent accepted must be an amount sufficient to cover the rent period beyond the period specified in the termination notice.”
Grimes wrote:
“Here, the jury could reasonably find plaintiff’s mistaken deposit of the rent and its return to defendant did not amount to receipt or acceptance of the rent.”
Other Points
Matheka ascribed significance to the fact that the payment was refunded by Dey’s predecessor as trustee after more than 30 days had elapsed. He pointed out:
“[T]the return check…could not be cashed, because it was made out to the wrong payee….The check was made out to Robert Matheka, but the tenant was a corporate entity, Kala Construction, Inc.”
Grimes gave short shrift to these contentions, saying:
“The jury apparently found no such problems; nor do we.”
Defense Disallowed
The appellant’s brief argues that there must be a reversal because Kaddo “refused to allow any evidence or jury instructions on retaliation, Matheka’s main defense,” contending:
“First, the court claimed that Matheka did not have a retaliation defense because the lease made Matheka responsible for paying all utilities….But this was an abuse of discretion because (1) the lease specifically provided that the landlord was responsible for paying for water…and (2) in any event, the landlord removed the gas lines, preventing Matheka from getting gas even though he was paying the gas bills….
Second, the court stated that retaliatory eviction does not apply to a commercial case and refused a jury instruction on that basis….But commercial tenants also have a defense of retaliatory eviction.”
Grimes agreed as to the second point, but not the first. She said:
“[I]n a commercial case, the retaliatory eviction defense is applicable, if at all, only where there is a strong public policy that would be furthered by protecting the lessee from eviction….Defendant has identified no public policy of any kind that supports protecting him from eviction. Consequently, the trial court did not err in excluding evidence of defendant’s purported retaliatory eviction defense.”
Judicial Bias Alleged
Kaddo met with the parties, separately, before trial. Dey’s predecessor had terminal cancer and her lawyer remarked that Matheka “denied the family the comfort they deserve, the care they deserve when they are dying from cancer.”
The judge replied, “I’m all on your side” and “you got my heart.” He said of Matheka:
“[O]bviously he’s being evasive, obviously he wants to get off as cheap as he can. He may be rich in assets, he may be hiding money in Panama or Switzerland….”
Cook’s brief says:
“While these comments were not in front of the jury, they reveal the trial court’s view on these issues.”
Comments Before Jury
The brief adds:
“At the start of his direct examination, before Matheka could say anything, the judge said ‘so now under oath, why are you refusing to leave?’…He continued, “you’re still there, aren’t you?...When Matheka explained that landlords must follow the proper steps to evict a tenant legally, the judge said “now you’re talking as a lawyer?”…Thus the judge clearly communicated to the jury his view that Matheka should have left, and was ‘refusing to leave.’ ”
Grimes declared:
“Unlike defendant, we do not see judicial bias against defendant on the record of this trial. Indeed, we see instances where the trial court criticized plaintiff’s counsel and raised objections on behalf of defendant. Certainly this is not a case where defendant may be relieved of the affirmative burden of showing prejudice….”
The case is Dey v. Matheka, B321403.
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