Cinnamon Square Shopping Center v. Meadowlark Enterprises

Appellant, landlord, appeals from a judgment in favor of tenant in an unlawfiil detainer action. The trial court found that the amount demanded in the notice to pay rent exceeded the amount owed and hence was deficient. On that basis, the court held for tenant. Landlord contends (1) the court erred in awarding judgment to tenant since the latter failed to tender the amount of rent acknowledged to be due as required by Code of Civil Procedure section 1161.1; (2) the trial court improperly reformed the lease; and (3) there was insufficient evidence to support the judgment. We disagree with the last two contentions. Although section 1161.1 might have been invoked, landlord failed to do so in the court below; as a result, it has waived its rights under the section.

Tenant contends the appeal should be dismissed as moot since it has vacated the premises and an action is pending between the parties concerning the unpaid rent. Although there is nothing in the record to enable this court to determine tenant has, in fact, vacated the premises, counsel so stipulated during oral argument. We hold that, under the facts of this case, the restoration of possession to the landlord does…