Gonzalez v. Bolanos 11/6/25 L.A./AD

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Filed 11/06/25
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
ARIEL GONZALEZ,
Plaintiff and Respondent,
v.
MARIA BOLANOS,
Defendant and Appellant.
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24APLC00150
(Stanley Mosk Trial Court No.
23STUD13545)
OPINION
APPEAL from a judgment of the Superior Court of Los Angeles County, Ian C.
Fusselman, Judge. Affirmed.
BASTA, Inc., Daniel J. Bramzon and Eric M. Post for Defendant and Appellant.
Dennis P. Block & Associates and Dennis P. Block for Plaintiff and Respondent.
* * *

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This is an appeal by defendant Maria Bolanos from the judgment entered in favor of
plaintiff Ariel Gonzalez, following an unlawful detainer jury trial prosecuted on the theory that
defendant failed to comply with a three-day notice to perform convenants or quit. Defendant
contends the three-day notice was facially defective in various respects; the alleged breach of
lease covenant was immaterial as a matter of law due to plaintiff suffering no actual injury, and
there is no substantial evidence to support the jury’s special verdict finding that the breach of
lease was material. Additionally, defendant challenges the sufficiency of the evidence with
respect to her affirmative defense of waiver, and complains the court committed prejudicial
instructional error. As explained below, we affirm the judgment.
BACKGROUND
The complaint filed on October 17, 20231 alleged that plaintiff was the owner of the
premises and that defendant became a tenant on or about July 1, 1996, pursuant to a written
lease agreement which required her to pay rent of $926 per month. The property is subject to
the Los Angeles Rent Stabilization Ordinance (LARSO). On October 6, plaintiff caused
defendants to be served with a three-day notice to perform covenants or quit the premises; and,
as of October 11, defendant did not comply after expiration of the notice period. The complaint
demanded forfeiture of the lease, damages and contractual attorney fees.
The three-day notice to perform covenants or quit the premises stated: “You are hereby
notified that pursuant to the rental contract or law under which you hold possession of the
described premises, there is a violation or breach of said agreement or law in the following
manner: [¶] Pursuant to the terms of the lease agreement[2] the tenant shall not violate any City
Law. On August 16, . . . the [LAHD] issued a Notice and Order to Comply. The order stated
that you were in violation of a City law by storing personal property in your garage and that
you were blocking the pathway to and from the garage. [¶] Within the 3 days stated herein, you
must remove your personal property storage from the garage, as it is only for the parking of a
1 All further date references are to the year 2023 unless otherwise designated.
2 The referenced clause in the lease provides that “Lessee shall not violate any city
ordinance or state law in or about said premises.”

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vehicle. [¶] In addition, within the 3 days stated herein you must remove your vehicles so that
it is not blocking the pathway. [Sic.] The pathway must remain free and clear. [¶] Witness:
Jose Zepeda and Ariel Gonzalez.”
Defendant’s answer denied each adverse allegation in the complaint and asserted
multiple affirmative defenses, including no material breach of covenant, waiver, and violations
of LARSO. The cause proceeded to a trial by jury. Plaintiff introduced into evidence the lease,
Notice and Order to comply, three-day notice, and photographs depicting the garage and a
pathway to and from the garage. Plaintiff’s witnesses included herself, Mike Melendez,3
Zepeda, Souren Safrazbekin, and defendant who was called pursuant to Evidence Code section
776. The defense witnesses were defendant and plaintiff who was called pursuant to Evidence
Code section 776. The defense introduced into evidence photographs depicting the front of the
house, a cement mixer, the garage, and the driveway. The pertinent trial testimony follows.
Plaintiff purchased the subject property in 2016, subject to the existing lease agreement
with defendant. The premises consist of a duplex with a front-right unit occupied by defendant,
her daughter (Lourdes), and her son-in-law.4 The rent was $926 per month. The front left unit
was occupied by another tenant whose rent was $2,300. Behind the duplex there is a separate
one-bedroom unit that is occupied by plaintiff’s son. Between the units is a shared driveway
that leads to a shared garage. The lease entitles defendant to the use of the right side of the
garage space and plaintiff uses the left side of the garage for storage. The property was
registered with the LAHD, and plaintiff posted the 2023 LARSO certificate and related tenant
notices on the property.
Zepeda is a housing inspector for the LAHD who investigated the conditions underlying
this case, along with the 2022 inquiry discussed in footnote 4, ante. On or about July 10, the
3 Melendez is a registered process server who served defendant with the three-day notice
to perform covenants or quit. Service of the notice is not challenged on appeal.
4 Plaintiff’s previous attempt to evict Lourdes and defendant’s son-in-law as
unauthorized occupants was unsuccessful. In 2022, plaintiff spent thousands of dollars
renovating defendant’s unit after receiving a citation from the LAHD following a complaint
submitted by defendant.

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LAHD received a complaint from an unknown source concerning vehicles blocking the shared
driveway.5 Zepeda reviewed the complaint and visited the property on July 19. Zepeda
observed several city ordinance violations, including oil stains on the driveway, a cementer
mixer and tools stored in the exterior common areas, and a significant amount of personal
property being improperly stored on top of structural wooden two-by-four planks on the right
side of the garage. The wood was warping due to the weight of the items being stored on it.
This condition violated a city ordinance and posed a safety risk as the wood may eventually
cave in, and the structure could collapse.
There were no vehicles blocking the driveway when Zepeda visited the property, but he
had previously observed vehicles improperly parked on the driveway. According to Zepeda, a
shared driveway for a multi-unit residential property must remain clear to allow for escape in
case of an emergency, and to allow emergency personnel to access the property. Zepeda spoke
with plaintiff and defendant about the violations he observed. Defendant told Zepeda that the
personal property being stored in the garage belonged to her. Zepeda advised defendant the
conditions violated the city code and explained the garage shelving “wasn’t designed to carry
the weight that was up there because . . . the supports were spaced out too far and they weren’t
designed to carry any load.”
On or about August 16, Zepeda issued a Notice and Order to Comply, which was not
designated to be included in the record. The Notice listed the ordinance violations and
demanded removal of oil stains and open storage in the driveway, the cars blocking the
driveway, trash cans being used for open storage, and improper storage of personal property in
the garage. The Notice and Order to Comply was posted at the property and defendant was
given a copy. Compliance with the notice was due in September 2023.
Plaintiff testified that the cars blocking the driveway belonged to defendant. Defendant
testified the cars belonged to her son-in-law, and they had been parked in the driveway since
1996 without any reported problems. The personal property stored in the right side of the
5 Neither Zepeda nor defendant knew who submitted the complaint.

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garage belonged to defendant and her family. Defendant did not move the cars from the
driveway or remove the identified personal property from the garage.
Zepeda reinspected the property on September 26. There were no cars in the driveway
at the time, but the remaining conditions were not corrected. Zepeda testified the LAHD
“hold[s] the owners responsible” for ordinance violations, and the department does not cite
tenants.6 However, plaintiff was not fined by the city in this case.
Plaintiff hired counsel to serve the three-day notice to perform covenants or quit the
premises. Safrazbekian, who works as an administrator for plaintiff’s counsel, mailed a copy of
the three-day notice to the LAHD on or about October 5, 2023. Other than his testimony,
Safrazbekian could not confirm the notice was served upon the LAHD. After expiration of the
notice, the vehicles were parked again on the driveway and defendant’s personal property
remained stored on the structural support planks in the garage. Lourdes told plaintiff over the
phone that she and defendant “were not going to move the cars anymore, that the court has
given them the okay to leave the cars, and that . . . their attorney, told them not to move the
cars, nor the items that were around the house.”7
Plaintiff accepted rent payments from defendant at a time when the cars were parked on
the driveway and the personal property was being improperly stored in the garage. Plaintiff
never communicated to defendant that she was permitted to park cars on the driveway or to
store personal property on the structural planks in the garage, and she told defendant the cars
had to be moved when she accepted a rent payment.8
6 The LAHD does have legal authority to cite tenants under specified circumstances.
(See L.A. Mun. Code, § 161.701.2.)
All section references are to the Los Angeles Municipal Code unless otherwise stated.
7 Zepeda re-inspected the property five days before trial. All the items had been
removed from the driveway and garage, and the investigation was considered resolved at the
time of trial.
8 The court denied a defense motion for judgment on the pleadings, without explanation.

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After the court responded to a jury inquiry,9 the jury issued the following special verdict
findings: plaintiff owned the property; defendant violated the lease as alleged in the three-day
notice; the violation was a substantial breach of an important obligation under the lease;
plaintiff accepted at least one rent payment from defendant after receipt of the Notice and Order
to Comply, while clearly and continuously objecting to the violations; plaintiff served
defendant with a LAHD statement of registration of rental units before October 6; plaintiff
properly served defendant with the three-day notice; and defendant did not cure the breach
within three days after service of the notice.10
DISCUSSION
Timeliness of the Appeal
Plaintiff argues this court lacks jurisdiction to review the merits of the appeal as the June
6, 2024 notice of appeal was filed more than 30 days after entry of judgment on March 20,
2024, and the motions for new trial and for judgment notwithstanding the verdict did not extend
the time to appeal because they were untimely filed. We agree with defendant’s position that
the notice of appeal was filed in a timely manner.
A notice of appeal from a final judgment must be filed on or before the earliest of three
events: 30 days after the trial court clerk serves the appellant with a “‘Notice of Entry’ of
judgment or a filed-endorsed copy of the judgment,” 30 days after the appellant serves or is
served with a “Notice of Entry’ of judgment or a filed-endorsed copy of the judgment,” or 90
days after the entry of judgment. (Cal. Rules of Court, rule 8.822(a)(1).) The judgment was
entered on March 20, 2024, and the record does not reflect any service of a notice of entry of
judgment by a party or by the court clerk; thus, the default 90-day rule applies. (Cal. Rules of
9 The inquiry asked: “Are we understanding question #5 correctly if we think it’s
asking—‘did Gonzalez object enough to the violation after getting notice on Aug 16 and after
receiving September rent?’” (Sic.) The court responded, “The question does not require a
finding of degree (e.g. ‘enough’ or ‘not enough’)”.
10 In accordance with these special verdict findings, the court entered judgment in favor
of plaintiff. Defendant filed a motion for new trial and for judgment notwithstanding the
verdict. On June 6, 2024, prior to adjudication of the motions, defendant filed a notice of
appeal from the judgment. According to the register of actions, a hearing on the post-judgment
motions was taken off calendar after the filing of the notice of appeal.

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Court, rule 8.822(a)(1)(C).) Defendant’s notice of appeal was filed on June 6, 2024—only 78
days after entry of judgment.11
Validity of the Three-Day Notice
Defendant claims the three-day notice to perform or quit was defective, inaccurate and
confusing, and “[t]he lease lacks anything that could be reasonably construed as restricting the
use of the garage for storage or prohibiting parking in the driveway.” Our review of the notice
is de novo. (Foster v. Williams (2014) 229 Cal.App.4th Supp. 9, 13.)
To succeed on a cause of action for unlawful detainer, the lessor must plead and prove
at least one of the enumerated circumstances set forth in Code of Civil Procedure section 1161
eq. seq. (Stancil v. Superior Court (2021) 11 Cal.5th 381, 395.) As applicable to this case, a
tenant is guilty of unlawful detainer by continuing in possession, after failing to perform a
condition or covenant of the lease, following service of written notice of at least three days
demanding the performance of such condition or covenant. (§ 1161, subd. (3).) The lessor
must strictly comply with all applicable notice requirements. (Eshagian v. Cepeda (2025) 112
Cal.App.5th 433, 457-459.)
“At minimum this requires allegations that the defendant was served with a written
notice, [citation], specifying the alleged breach, [citation] and unequivocally demanding
possession within three days of service of the notice. [Citation.] Where the condition or
covenant allegedly violated is capable of being performed, the notice must give the tenant the
alternative of performing or quitting possession. [Citation.] In any case, the notice must advise
the tenant of the alleged breach. If it does not do so, the tenant cannot know whether to comply
with the notice to quit or remain in possession and contest the landlord’s allegations.” (Delta
Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036.)
LARSO imposes additional restrictions. To recover possession of a rental unit when a
lessee has violated a lawful covenant of the tenancy, the lessor “shall serve on the tenant a
11 Plaintiff’s reliance on California Rules of Court, rule 8.823 is unavailing as that rule
only increases the ordinary time to appeal. (Cal. Rules of Court, rule 8.823(a).) It was
unnecessary to increase the time to appeal because the notice of appeal was timely filed before
expiration of 90 days after entry of judgment. (Cal. Rules of Court, rule 8.822(a)(1)(C).)

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written notice setting forth the reasons for the termination . . . [which] shall be as described in .
. . Code of Civil Procedure Section[] 1161” (§ 151.09, subd. (C)), and “the termination notice
must set forth specific facts to permit a determination of the date, place, witnesses and
circumstances concerning the eviction reason” (id., subd. (C)(1)).
In the case sub judice, the three-day notice specified defendant breached section 3 of the
lease which prohibited her violation of any city ordinance in or about the premises. Citing the
Notice and Order to Comply, the three-day notice averred that defendant violated a city
ordinance, and was therefore in breach of the lease, by “storing personal property in your
garage” and “blocking the pathway to and from the garage.” The notice was sufficient to
clearly notify defendant of the alleged breach of covenant and it identified the witnesses to the
alleged violations. (§ 151.09, subd. (C)(1); Delta Imports, Inc v. Municipal Court, supra, 146
Cal.App.3d at p. 1036.) The notice was not required to cite the statutory provisions allegedly
violated by defendant—only the facts underlying the alleged breaches. (See Lee v. Kotyluk
(2021) 59 Cal.App.5th 719, 731 [“‘No particular words are prescribed, and no special form is
indispensable’”].)
The notice also specified what actions defendant was expected to take to cure the alleged
violations and retain possession—“you must remove your personal property storage from the
garage, as it is only for the parking of a vehicle” and “you must remove your vehicles so that it
is not blocking the pathway. The pathway must remain free and clear.” A reasonable person
would understand the lease violations being alleged in the notice. The instructions to cure the
alleged breaches were sufficiently clear and unequivocal such that defendant had notice she
was facing imminent eviction if she refused to cure the violations. (Eshagian v. Cepeda, supra,
112 Cal.App.5th at p. 459.)
Sufficiency of the Evidence
When assessing a challenge to the sufficiency of the evidence, “we must consider all of
the evidence in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference, and resolving conflicts in support of the judgment.” (Howard v. Owens
Corning (1999) 72 Cal.App.4th 621, 630.) “It is not our task to weigh conflicts and disputes in
the evidence; that is the province of the trier of fact. Our authority begins and ends with a

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determination as to whether, on the entire record, there is any substantial evidence, contradicted
or uncontradicted, in support of the judgment.” (Id. at pp. 630-631.) “If this ‘substantial’
evidence is present, no matter how slight it may appear in comparison with the contradictory
evidence, the judgment must be upheld.” (Id. at p. 631.) A party claiming a claim of
insufficient evidence faces a “‘daunting burden.’” (Whiteley v. Philip Morris Inc. (2004) 117
Cal.App.4th 635, 678.)
Violation of City Ordinance
Defendant maintains there is no substantial evidence to support the special verdict
finding that she violated any city ordinance, because it was undisputed that plaintiff was the
party who was cited by the LAHD for the violations.12 Whether a tenant’s acts constitute a
breach of the lease is ordinarily a question of fact which will not be disturbed on appeal if
supported by substantial evidence. (Freeze v. Brinson (1991) 3 Cal.App.4th Supp. 1, 3.)
It was undisputed that the Notice and Order to Comply, which is not in the record,
identified violations of sections 12.21(A)(1)(a) and 91.8104. Section 12.21(A)(1)(a) provides,
“[n]o building or structure shall be . . . maintained, nor shall any building, structure, or land be
used . . . for any use other than is permitted in the zone in which such building, structure, or
land is located . . . .” Section 91.8104 provides: “Every existing building, structure, or portion
thereof shall be maintained in a safe and sanitary condition and good repair. The premises of
every building or structure shall be maintained in good repair and free from . . . debris, rubbish,
garbage, trash, . . . or other similar material.”
12 This section of defendant’s opening brief consists of only two paragraphs, and the
analysis does not “‘summarize the evidence on that point, favorable and unfavorable, and show
how and why it is insufficient.’” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728,
738, italics omitted.) On appeal, “we will look only at the evidence and reasonable inferences
supporting the successful party, and disregard the contrary showing.” (Howard v. Owens
Corning, supra, 72 Cal.App.4th at p. 631.) Defendant’s approach to brief writing constitutes a
forfeiture of her challenge to the sufficiency of the evidence. (Schmidlin v. City of Palo Alto,
supra, at p. 738.) Nevertheless, we assess whether defendant’s actions or failure to act could be
considered a violation of any city ordinance such that it would constitute a breach of the lease.

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Citing section 161.701.2,13 defendant reasons that, because LAHD had the authority, but
did not cite her for the ordinance violations, she was necessarily not the party who violated the
city ordinance. Defendant’s analysis is unavailing. The Municipal Code makes it “unlawful
for any person to violate any provision or fail to comply with any of the requirements of this
Code.” (§ 11.00, subd. (m), italics added.) The term “any person” broadly includes a tenant.
There is no legal authority or provision in the lease requiring defendant to be cited or charged
with a violation as a condition precedent to constitute a breach of the clause in the lease. (See,
e.g., § 151.09(A)(11) [lessor may file unlawful detainer action to recover possession of a unit in
order to comply with a notice to comply issued by a governmental agency].) Defendant was
the proximate cause for the violation—but for defendant’s actions or failure to act, plaintiff
would not have received the Notice and Order to Comply. Thus, although defendant was not
cited by the LAHD, there is substantial evidence to support the jury’s determination that
defendant breached the lease by “violat[ing] any city ordinance . . . in or about said premises.”
Materiality of the Breach
The jury was instructed that defendant’s alleged failure to perform the lease covenant
“must not be trivial but must be a substantial violation of important obligations.” On appeal,
defendant argues there is no substantial evidence supporting the jury’s special verdict finding
that she committed a substantial breach of the lease, as the alleged violation “was immaterial as
a matter of law when the landlord suffered no injury due to the breach.” We do not agree.
“‘[A] lease may be terminated only for a substantial breach thereof, and not for a mere
technical or trivial violation.’” (Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 81
(Boston).) “‘“The law sensibly recognizes that although every instance of noncompliance with
13 Section 161.701.2 authorizes the LAHD to issue an order to comply and to pursue
enforcement remedies against “any tenant determined to have violated Section 91.8102.2 or . . .
Civil Code Section 1941.2 . . . .” Section 91.8102.2 makes it unlawful for a tenant of a
dwelling unit to fail to keep the dwelling unit free from an accumulation of debris, filth, rubbish
and garbage. Civil Code section 1941.2 excuses a lessor from the duty to repair a dilapidation
if the tenant is in substantial violation of certain obligations and the tenant’s violation
substantially contributes to the existence of the dilapidation or interferes with the lessor’s
obligation to repair.

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a contract’s terms constitutes a breach, not every breach justifies treating the contract as
terminated. [Citations.] . . . California courts allow termination only if the breach can be
classified as ‘material,’ ‘substantial,’ or ‘total.’”’” (NIVO 1 LLC v. Antunez (2013) 217
Cal.App.4th Supp. 1, 5 (NIVO).) A condition in a contract involving a forfeiture is strictly
interpreted against the party for whose benefit it is created. (Civ. Code, § 1442.) The question
of whether a breach of a lease obligation is a material breach is ordinarily a question of fact, but
if reasonable minds cannot differ on the issue of materiality, then the issue is resolved as a
matter of law. (Boston, supra, at p. 87.)
In NIVO, the tenant was evicted for breach of a lease covenant requiring the tenant to
maintain renter’s insurance for her personal property. (NIVO, supra, 217 Cal.App.4th at p.
Supp. 3.) The trial court entered judgment in favor of the tenant, finding her failure to maintain
insurance was not a material breach of the lease. (Ibid.) Affirming, this court concluded there
was substantial evidence to support the findings of immateriality when there was no evidence
the tenant had any property worth insuring, renter’s insurance would only benefit the tenant and
not the landlord, and the breach was selectively enforced by the lessor only against certain
“‘problem[atic]’” tenants. (Id. at p. Supp. 5.)
In Boston, the tenant was evicted for violating a lease clause requiring him to maintain
renter’s insurance. (Boston, supra, 245 Cal.App.4th at pp. 78-79.) The trial court entered
judgment in favor of the lessor, finding the forfeiture clause of the lease allowed the lessor to
terminate the tenancy for any breach regardless of its materiality. (Id. at pp. 79-80.) The Court
of Appeal reversed, holding the text of LARSO and its underlying public policy goals required
a material breach to enforce a forfeiture clause in a residential lease. (Id. at pp. 80-85.) The
court reasoned, “[t]he primary purpose of renter’s insurance is to protect the tenant, not the
landlord. As such, [lessor] has little ground to argue that [tenant’s] failure to obtain insurance
harmed it. For example, [lessor] does not argue [tenant] made claims against it that should
have been covered by renter’s insurance but were not because [tenant] lacked it. Instead,
[lessor] argues it was harmed because there was a chance [tenant’s] noncompliance encouraged
other tenants’ noncompliance. In the absence of evidence of actual harm, the chance [tenant’s]

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temporary noncompliance incited other tenants to not comply with their insurance obligations is
insufficient to demonstrate harm justifying forfeiture.” (Id. at p. 87.)
The NIVO and Boston cases do not support defendant’s prayer for reversal of the
judgment. First, unlike NIVO and Boston, there is no evidence plaintiff manufactured the lease
violations as a furtive basis for eviction. (E.g., Boston, supra, 245 Cal.App.4th at p. 85; e.g.
NIVO, supra, 217 Cal.App.4th at p. Supp. 5.)
Second, the NIVO and Boston decisions emphasized that the lessors suffered no harm
because the insurance clauses in each of the leases were intended to protect the tenants.
(Boston, supra, 245 Cal.App.4th at p. 87; NIVO, supra, 217 Cal.App.4th at p. Supp. 5.)
Contrarily, section 3 in defendant’s lease was presumably intended to protect both the property
and plaintiff from incurring potential civil or criminal liability for any illegality occurring in or
about the rented premises.
Third, NIVO and Boston are distinguishable because there was an actual risk of loss to
plaintiff, and the violations were not trivial. The ordinances cited in the Notice and Order to
Comply were enacted by the city to “promote health, safety, and the general welfare” (§
12.02), and to “establish minimum standards to regulate and encourage the proper maintenance
and use of existing buildings, structures and premises in order to safeguard life, limb, health,
property and public welfare” (§ 91.8101.1). Violations of the ordinance exposed plaintiff to
potential civil and even criminal sanctions. (See § 11.00, subds. (l)-(m).) Zepeda testified the
wood beams in the garage were designed to secure the structure from collapsing, the beams
were warping due to the weight of defendant’s property being stored on them, there was a risk
of collapse and potential injury, and the cars blocking the shared driveway posed a danger in
the event of an emergency.
It would be absurd if the lease was interpreted in a manner that prevented plaintiff from
curing the Notice and Order to Comply and instead required plaintiff to wait until she was
assessed penalties or incurred civil liability, before serving a notice to cure the violation or quit
the premises. (Civ. Code, § 1638 [favoring interpretation of a contract manner that avoids
absurd results]; Bill Signs Trucking, LLC v. Signs Family Limited Partnership (2007) 157
Cal.App.4th 1515, 1521 [same].) Courts seek to avoid interpreting a contract in a manner that

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prevents the lessor from complying with the law. (See Civ. Code, § 1643; see also Glenn R.
Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 672). We decline to adopt
defendant’s no harm, no foul reasoning.
Jury Instructions
The propriety of jury instructions is a question of law subject to independent review.
(A.H. v. Tamalpais Union High School Dist. (2024) 105 Cal.App.5th 340, 349.) “‘A party is
entitled upon request to correct, nonargumentative instructions on every theory of the case
advanced by [the party] which is supported by substantial evidence.’ [Citation.] Substantial
evidence necessary to support a jury instruction is ‘“. . . evidence from which a jury composed
of reasonable [persons] could have concluded that the articular facts underlying the instruction
did exist.”’” (Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 465-
466.)
Substantial Breach
Defendant asserts the court erred by refusing her request to instruct the jury with a
definition of a “substantial breach” of the lease covenant.14 The trial court found the model
instruction in Judicial Council of California Advisory Committee on Civil Jury Instructions
(CACI) No. 4304 was appropriate, which provided in relevant part: “[defendant’s] failure to
perform the requirements of the rental agreement must not be trivial but must be a substantial
violation of important obligations.” The instruction given followed Boston, supra, 245
14 The instruction proposed by defendant would have told the jury that: “A substantial
breach occurs if Plaintiff can show that she was injured or damaged by way of Defendant’s
breach of the rental agreement. [¶] Plaintiff must prove actual harm, not merely speculation
about the chance of harm, as a result of Defendant’s breach of the rental agreement. [¶] . . . [¶]
‘Although every instance of noncompliance with a contract’s terms constitutes a breach, not
every breach justifies treating the contract as terminated. California courts allow termination
only if the breach can be classified as “material,” “substantial,” or “total.”’ . . . ‘Nowhere will
change be tolerated, however, if it is so dominant or pervasive as in any real or substantial
measure to frustrate the purpose of the contract. . . . The question is one of degree, to be
answered, if there is doubt, by the triers of the facts. . . . We must weigh the purposes to be
served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of
enforced adherence. . . . [T]he law will be slow to impute the purpose, in the silence of the
parties, where the significance of the default is grievously out of proportion to the oppression of
the forfeiture.’”

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Cal.App.4th at p. 81, by requiring the jury to determine whether the violation was “substantial”
and not “trivial.”
In this context, the terms “trivial” and “substantial” were commonly understood and did
not require definitions in the instructions. (See Wilson v. Rancho Sespe (1962) 207 Cal.App.2d
10, 22.) “A party is not entitled to have the jury instructed in any particular phraseology and
may not complain on the ground that his requested instructions are refused if the court correctly
gives the substance of the law applicable to the case.” (Hyatt v. Sierra Boat Co. (1978) 79
Cal.App.3d 325, 335.)
Even assuming the court erred by refusing to adopt defendant’s definition of a
“substantial violation” in the instructions, it was not prejudicial. (Code Civ. Proc., § 475; Cal.
Const., art. VI, § 13; Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 617-618.) As
assessed in depth ante, the evidence of a substantial breach of the lease was overwhelming such
that a reasonable juror could not have deemed defendant’s breach to be immaterial. There is no
evidence the jury was misled or confused by this instruction. Consequently, we conclude there
is no reasonable probability defendant would have achieved a more favorable result absent the
alleged instructional error. (See ibid.)
Filing of the Notice with LAHD
Defendant argues the trial court prejudicially abused its discretion by refusing
defendant’s proposed instruction regarding the defense that plaintiff violated the LARSO by
failing to timely “file” the three-day notice with the LAHD. According to defendant, the
requirement to file the notice with the LAHD must be affirmatively proven by plaintiff as a
condition precedent to pursuing the unlawful detainer action. Not so.
In any action to recover possession of a rental unit, the landlord must serve the tenant a
written notice setting forth the reasons for the termination and “[a] copy of any written notice
terminating a tenancy shall be filed with the [LAHD] within three business days of service on
the tenant.” (§ 151.09, subd. (C)(9).) The service requirement in section 151.09, subdivision
(C)(9) is an affirmative defense. (§ 151.09, subd. (E); Chun v. Del Cid (2019) 34 Cal.App.5th
806, 816.) As an affirmative defense, defendant had the burden to prove that plaintiff failed to

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comply with the service requirement. (Evid. Code, § 500; California Valley Properties LLC v.
Berlfein (2020) 48 Cal.App.5th Supp. 1, 7.)
Plaintiff testified that her counsel submitted the three-day notice to the LAHD.
Safrazbekian, an employee of plaintiff’s attorney, testified that he personally prepared the
envelope and its contents and mailed the three-day notice to the LAHD. He did not have a
confirmation receipt. Defendant did not present any evidence to contradict Safrazbekian’s
testimony that the notice was mailed to the LAHD. Instead, it was defendant’s position that
because plaintiff had no documentary evidence to support the testimony of Safrazbekian, she
was entitled to an instruction on the affirmative defense. The trial court refused defendant’s
request to instruct the jury, citing defendant’s failure to cite any evidence adduced at trial that
plaintiff failed to comply with the notice requirement under section 151.09(E).
Defendant claims “[t]he trial court conflated some aspects of the LARSO that are
expressly denoted as affirmative defenses with this requirement that is part of the Plaintiff’s
prima facie to have a valid basis to evict.” Defendant’s analysis is incorrect. The service
requirement in subdivision (C)(9) of section 151.09 was indisputably an affirmative defense,
not part of plaintiff’s prima facie case. (§ 151.09, subd. (E); Chun v. Del Cid, supra, 34
Cal.App.5th at p. 816.) The only evidence in the record was that Safrazbekian mailed the three-
day notice to the LAHD. The mailing of the notice was sufficient to satisfy the service
requirement pursuant to section 11.00, subdivision (i): “Notices, Service of. Whenever a
notice is required to be given under this Code, unless different provisions in this Code are
otherwise specifically made applicable, the notice may be given . . . by deposit[ing] in the
United States Mail in a sealed envelope, postage prepaid, addressed to the person to be notified
at the person’s last known business . . . address . . . .” (§ 11.00, subd. (i).)
Plaintiff had no obligation to present documentary proof to support Safrazbekian’s
testimony that the notice was mailed to the LAHD. (See Evid. Code, § 411 [testimony of a
single credible witness is sufficient to prove a fact].) There was no evidence from which a
reasonable juror could have found that plaintiff failed to file the three-day notice with the
LAHD. Therefore, the proposed instruction was unsupported by substantial evidence and the

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court did not err by rejecting defendant’s proposed instruction. (See Bay Guardian Co. v. New
Times Media LLC, supra, 187 Cal.App.4th at pp. 465-466.)
Waiver by Acceptance of Rent
Defendant maintains “[t]he trial court erred in refusing to instruct the jury on the
presumption attached to acceptance of rent, and by framing the landlord’s knowledge of the
conditions constituting a breach as somehow only arising once the landlord was cited by the
LAHD,” and “[t]he verdict form was incorrect and misleading, making it seem that waiver
could only be found based on the landlord’s knowledge that the conditions constituted a
violation, rather than their knowledge of the conditions themselves.” Defendant also contends
“[n]o substantial evidence could support the finding that [p]laintiff informed the tenant that
acceptance would not waive the breach.”
Waiver—an intentional relinquishment of a known right—is a question of fact reserved
for the jury which may be implied through conduct displaying an intention to waive. (Gould v.
Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179.) “If a landlord has full
knowledge of all pertinent facts, acceptance of rent or other benefits after breach of a covenant
constitutes a waiver of the breach that precludes the landlord from declaring forfeiture of the
lease by reason of the breach.” (Runnymede Holdings, LLC v. Foster (2023) 96 Cal.App.5th
Supp. 1, 11.) “While waiver is a question of intent, the cases have required some positive
evidence of rejection on the landlord’s part . . . to overcome the presumption that tender and
acceptance of rent creates.” (EDC Associates Ltd v. Gutierrez (1984) 153 Cal.App.3d 167,
170.) The burden is on the tenant asserting the defense of waiver “‘“to prove it by clear and
convincing evidence that does not leave the matter to speculation, and “doubtful cases will be
decided against a waiver.”’” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout
III, Ltd. (1994) 30 Cal.App.4th 54, 60.)
As relevant, the jury was instructed: “[Defendant] claim[s] that [plaintiff] is not entitled
to evict her because [plaintiff] accepted payment of rent after the three-day notice period had
expired or [defendant] had violated the lease/rental agreement. To succeed on this defense,
[defendant] must prove, by clear and convincing evidence, that [plaintiff] demanded or
accepted a payment of rent after [plaintiff] knew that [defendant] had violated the rental

17
agreement. [¶] If [defendant] has proven that she paid rent, then she has the right to continue
occupying the property unless [plaintiff] proves that [plaintiff] clearly and continuously
objected to the violation of the rental agreement.” (CACI No. 4324.)
The instruction correctly informed the jury that it was defendant’s burden to prove the
defense of waiver by clear and convincing evidence. (See DRG/Beverly Hills, Ltd. v. Chopstix
Dim Sum Cafe & Takeout III, Ltd., supra, 30 Cal.App.4th at pp. 60-61.) This instruction was
not confusing or inaccurate. While the instruction did not include the term “presumption,” the
jury was correctly instructed on the principles underlying the presumption—that if the jury
found plaintiff accepted rent from defendant after the breach of the lease agreement, then the
burden of producing evidence shifted to plaintiff to prove she sufficiently objected to the lease
violation. Defendant was not entitled to any particular phraseology in the instruction. (Hyatt v.
Sierra Boat Co., supra, 79 Cal.App.3d at p. 335.)
Defendant further contends the special verdict form erroneously implied “that the
defense of waiver somehow only applies from when the landlord was cited by the LAHD
rather than when plaintiff knew of the conditions constituting the breach. This was wrong.
Plaintiff testified that he knew about the cars parked in the driveway and the storage in the
garage since 2016. [Citation.] However, the verdict form only inquired into a waiver ‘after
receipt of the August 16, 2023, Notice and Order to Comply.’ [Citation.] In effect, the trial
court suggested that a landlord can play ignorant of building codes and act like they only knew
of a violation when cited.”
When the court reviewed the final instructions with counsel, defense counsel agreed to
the language of the special verdict form concerning waiver. In response to an objection by
plaintiff, defense counsel asked, “that the [special verdict] question remain as written because
it’s consistent with the waiver instruction.” Defendant forfeited this contention by failing to
object on this basis at trial. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th
257, 277; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131, disapproved
on another ground in Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 205.)
We also reject defendant’s related sub-argument challenging the sufficiency of the

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evidence supporting the jury’s special verdict finding of no waiver.” Plaintiff testified that
when she accepted rent from defendant after receiving the Notice and Order to Comply in
August 2023, she told defendant the cars were not allowed to remain parked on the driveway
and that they had to be moved. When asked “when was the last time you accepted rent from
[defendant],” plaintiff testified “it was back in, I guess, 2023” but without specifying the
month. In a special interrogatory response read to the jury, plaintiff averred “‘the date of the
last rent payment [she] accepted from [defendant]’” was on September 6, . . .” Defendant does
not identify, and this court has not located any definitive evidence in the record that plaintiff
accepted rent payments from defendant after service of the three-day notice.
While the evidence as to when plaintiff stopped collecting rent was muddled, the jury
could reasonably find that plaintiff avoided a waiver by clearly objecting to the lease violations
once she served defendant with the three-day notice. (See, e.g., Thriftimart, Inc. v. Me & Tex
(1981) 123 Cal.App.3d 751, 753-754 [lessor’s acceptance of rent coupled with protest was not
a waiver]; cf. EDC Associates Ltd v. Gutierrez, supra, 153 Cal.App.3d at pp. 170-171
[landlord’s acceptance of rent following service of three-day notice constituted a waiver]; cf.
Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440-444 [five years of
acceptance of rent following breach of lease was a waiver].) Doubtful cases are resolved
against a waiver. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd.,
supra, 30 Cal.App.4th at p. 60.) Substantial evidence supports the jury’s rejection of the waiver
defense.
DISPOSITION
The judgment is affirmed. Plaintiff to recover costs on appeal.
_________________________
P. McKay, P. J.
We concur:
_________________________ _________________________
Ricciardulli, J. Guillemet, J.