Nourafchan

Defendant James P. Miner appeals from the adverse judgment in this unlawful detainer action for failure to pay rent after service of a three-day notice to pay or quit. (Code Civ. Proc., § 1161.) After unsuccessfully seeking a stay of execution pending appeal, defendant was evicted from his penthouse apartment. The issues raised on appeal are (1) the validity of service of the three-day notice by posting and mailing (Code Civ. Proc., § 1162, subd. 3), and (2) whether the past payments of rent in excess of the rent ceiling imposed by the Santa Monica Rent Control Law constitute a valid defense to an unlawful detainer action for failure to pay rent. For the reasons discussed below, we agree that defendant’s payment of rent in excess of the rent ceiling, without the approval of the Santa Monica Rent Control Board, constitutes a valid defense to this unlawful detainer action, and shall reverse the judgment.

Facts

Plaintiff Elis Nourafchan, together with his wife, is a 50 percent owner of the apartment building known as the Embassy Hotel, located at 1001 3d Street, Santa Monica. Plaintiff and defendant entered into an oral lease agreement for the penthouse apartment on March…