EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)

Citation: EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)
Parent Document: EDC Associates, Ltd. v. Gutierrez, 153 Cal. App. 3d 167 (1984)
Jurisdiction: California (state)
Effective Date: 1984-03-16
Original Source: https://www.courtlistener.com/opinion/2116822/edc-associates-ltd-v-gutierrez/ ↗

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An opinion by the Appellate Department of the Los Angeles Superior Court has gone so far as to hold that where the breach justifying forfeiture *Page 171
is nonpayment of rent, the tenant may cure the breach after a notice to pay rent or quit is served by paying the rent due. (Highland Plastics Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 11 [167 Cal.Rptr. 353].)1
(2) While the authorities cited in Highland Plastics,supra, in support of the principle that nonpayment of rent can be cured as a matter of right by payment of the past due rent seem sufficient to uphold such a ruling (see Walker v.Houston (1932) 215 Cal. 742, 745-747 [12 P.2d 952, 87 A.L.R. 937]; Owen v. Herzihoff (1906) 2 Cal.App. 622, 623-624 [84 P. 274]), it is not necessary in the present case to go beyond the general principles of waiver to hold that landlord waived its right to obtain possession of the leased premises. The only evidence presented at trial reflected that tenant mailed money orders for the delinquent rent and for the next month's rent to landlord. No evidence suggested that landlord refused tender, returned the money orders or failed to negotiate them.2 The landlord had the obligation of going forward with the evidence in order to prove that the money orders were not negotiated or that it took other action to insure that there was no waiver. As stated in Morris v. Williams (1967) 67 Cal.2d 733, 760 [63 Cal.Rptr. 689, 433 P.2d 697]: "Although a plaintiff ordinarily has the burden of proving every allegation of the complaint and a defendant of proving any affirmative defense, fairness and policy may sometimes require a different allocation. (See Evid. Code, § 500.) Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim. [Citations.]"

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