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breached the rental agreement by failing to pay that amount within the allotted time; and
despite failing to cure the breach, defendants remained in possession of the subject property.
Plaintiff also argued Foster’s failure to assert any affirmative defenses in his answer indicated
there were no disputed facts and, in any event, Los Angeles Municipal Code (LAMC) section
49.99.2 and the Los Angeles County Eviction Moratorium were inapplicable to the unlawful
detainer action.
The motion was supported by declarations from David Asiss (plaintiff’s managing
member) and Erick Martin Salas (a registered process server) and copies of the original lease
agreement, the notice of change of terms of tenancy, and the COVID-19 Renter Protections
Fact Sheet in English and Spanish, which were attached to the declarations as exhibits.
On August 15, Foster filed an opposition to the motion, arguing triable issues of material
fact existed as to whether the eviction was barred because his inability to pay was due to the
COVID-19 pandemic; the eviction action was brought in good faith and in a non-retaliatory
manner; plaintiff waived any alleged breach of the tenancy terms; and the alleged breach was
material. Foster acknowledged his original responsive pleading, which was filed in propria
persona, included only a general denial and “[i]f given the chance, . . . [he] will seek leave from
the Court pursuant to Code of Civil Procedure § 473(a) to submit an amended answer that
raises specific affirmative defenses, including those discussed in this opposition brief.” Foster
submitted a declaration and various exhibits in support of his opposition.
At the hearing of the motion on August 16, defense counsel argued there was an issue
concerning whether plaintiff waived the alleged breach because Foster had made a partial
payment of the “newly-imposed security deposit” before the complaint was filed and, as of the
date Foster’s opposition to the motion was filed, plaintiff had not returned that partial payment
to him. Defense counsel also argued there remained a factual question as to whether the failure
to “completely provide that security deposit in this time frame is actually a material term within
the bargain that the parties have.” In addition, he maintained there were open questions
concerning whether a security deposit imposed during the course of a tenancy was permissible