8
1 Because the trial court erroneously refused to consider the Carters‟ affirmative defenses
2 of breach of the warranty of habitability and retaliatory eviction, both of which went to the heart
3 of Boyd‟s right to possession of the premises, the judgment in Boyd‟s favor must be reversed.
4 B. The Carters Had Paid the Rent Alleged to be Due in the Complaint,
Precluding an Unlawful Detainer Judgment Against Them
5
6 The Carters separately contend that the judgment should be reversed because they
7 established at trial that they had fully paid the rent alleged to be owed in the unlawful detainer
8 complaint. We agree and conclude that this is a separate ground warranting reversal of the
9 judgment.
10 A landlord cannot evict a tenant for nonpayment of rent if the tenant is not actually in
11 default. (Code Civ. Proc., § 1161, subd. (2).) And the unlawful detainer complaint must state
12 the amount of rent claimed to be in default. (Cal. Civ. Proc. § 1166, subd. (a)(4).) Here, the
13 unlawful detainer was ostensibly premised on a three-day notice to pay $765.38—half a
14 month‟s rent—or quit. But the complaint alleges that “the amount of rent due was $1,640”—a
15 full month‟s rent that the Carters undisputedly paid in early January 2013. 4 The Carters raised
16 this issue at trial, informing the court that they had fully paid the amount of rent due for January
17 2013, which was the $1,640 alleged in the complaint. During his direct testimony, Boyd
18 acknowledged that he had received a check from the Carters for the full January 2013 rent.
19 Boyd‟s counsel also acknowledged that the Carters had paid the full January rent but asserted,
20 “We have not accepted it. It‟s simply been received. None of the checks have been cashed. So
21 we are here on nonpayment of the amount of money, no more, no less, that they were required
22 under the three-day notice to pay.”
23 Thus, based on the undisputed facts in the record, the amount of rent the complaint
24 alleged to be due had in fact been tendered by the Carters to Boyd. Accordingly, the Carters
25 were not in default in the payment of rent—the basis of the unlawful detainer judgment—
26
27 4
This of course raises the question whether the variance between the three-day notice
28 and the complaint in the statement of amount of rent claimed to be due was fatal to Boyd in this
residential unlawful detainer proceeding. We need not reach this issue.