Levitz Furniture Co. of the Pac., Inc. v. Wingtip Commc'ns, Inc.

In this case, we consider whether a commercial lessor’s three-day notice to quit or pay, which includes a demand for rent unpaid for more than a year before the notice was served, can support an action for unlawful detainer. We conclude that inclusion of rent due for over a year is not fatal to an unlawful detainer action, if the notice also includes a demand for payment of rent due within a year of the notice.

I. Facts

Levitz Furniture Company of the Pacific, Inc. (Levitz) subleased property in a shopping center to Wingtip Communications, Inc. (Wingtip). On July 30, 1999, Levitz served a three-day notice to pay rent or quit on Wingtip. The notice stated that rent was due in the “reasonably estimated sum of $99,025.40.” That sum was derived from a single payment of $6,646 due in December 1997 and 12 payments of $7,310, due each month from August 1998 through July 1999. When Wingtip neither paid the rent nor quit the premises, Levitz sued for unlawful detainer, seeking restoration of the premises and rent of $99,025.40.

Just prior to trial, Wingtip moved for judgment on the pleadings, claiming that Levitz’s inclusion of the December 1997 rent invalidated the three-day…