Bawa

INTRODUCTION

We hold that, when a landlord returns a tenant's rent check without cashing it based on a de minimis shortage in the agreed-upon rent, a tenant can assert the landlord's bad faith in rejecting the payment as a defense to an unlawful detainer action. We reject appellant's argument that when, as in the present case, a check is returned because it is one cent short and an eviction notice is served days later, the tenant must re-tender payment following service of the notice and has no defense to the action after failure to re-tender.

The jury in the unlawful detainer action brought by plaintiff and appellant J.S. Bawa determined defendant and respondent David Terhune "Did [not] fail to make at least one rental payment to [plaintiff] as required by the rental agreement," and the court entered judgment for defendant. As the tender of the check was rejected, defendant failed to pay the rent, and thus the judgment was not supported by the evidence. Because the jury determined (improperly) that defendant paid the rent, it did not address whether there was a legitimate defense to the unlawful detainer cause of action. We reverse and remand for a new…