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service of the notice; Asiss declared defendant did not pay the security deposit balance after the
three-day notice to perform covenants or quit was served or at any other time; and Foster
remained in possession of the property at the time plaintiff filed the motion for summary
judgment.
As the burden shifted to Foster to establish the existence of a triable issue of material
fact, Foster stated in his declaration in support of his opposition to the motion his employers
stopped paying him after they closed due to the COVID-19 pandemic; he informed plaintiff he
was unable to pay rent as a result and provided proof he had applied to a rent relief program;
after Foster received the three-day notice to perform or quit, he was unable to pay the full
amount plaintiff demanded but submitted a money order for $800 as payment toward the
security deposit balance that was owed; and, although the building manager at the property
informed Foster the property manager intended to return the $800 payment, Foster did not
believe the property manager had done so. Defense counsel submitted a declaration and
attached a webpage which Foster asserted was evidence plaintiff had manufactured the
unlawful detainer action to circumvent the impact of pandemic-based legal protections and
thereby had acted in bad faith and as a means to retaliate against Foster for having benefited
from those protections.
In its August 22 order for the entry of judgment, the court did not specify the reasons for
granting summary judgment in plaintiff’s favor nor did it do so at the oral argument before
taking the matter under submission. In indicating the court found no material issue of fact, the
August 16 minute order noted only Foster’s failure to provide proof of payment toward the
balance of the security deposit as a basis for granting the motion, thereby impliedly negating
Foster’s waiver defense. However, Foster’s other defenses concerning whether the COVID-19
eviction moratorium was applicable; whether the eviction was sought in good faith and was
unlawful because it was for retaliatory reasons; and whether defendant materially breached the
lease were not addressed, even though defendant asked the court to state whether its ruling
granting the summary judgment motion was also based on finding no triable issue of material
fact existed on those specific grounds.