9
Cal.App.3d 167, 170-171 [acceptance of rent after the notice period expires may constitute a
waiver of breach].) Even if a lease agreement contains an anti-waiver clause, a party’s conduct
may, nonetheless, constitute waiver. (Gould, supra, 192 Cal.App.4th at p. 1180; see also
Bettelheim v. Hagstrom Food Stores, Inc. (1952) 113 Cal.App.2d 873, 878 (Bettelheim)[“Even
a waiver clause may be waived by conduct”].)
Paragraph 32 in the rental agreement in which the parties entered provides “[a]cceptance
of rent following a breach of this agreement shall not be deemed to constitute a waiver of such
breach.” But, this is counterbalanced by Foster’s allegation plaintiff retained the $800 payment
before plaintiff filed the complaint in this action, conduct which may be deemed inconsistent
with plaintiff’s intent to evict Foster. Such conduct may be deemed to constitute waiver,
notwithstanding the anti-waiver provision in the lease agreement. (Gould, supra, 192
Cal.App.4th at p. 1180; Bettelheim, supra, 113 Cal.App.2d at p. 878.)
In a declaration Foster submitted in support of his opposition to the summary judgment
motion, Foster declared he made a partial payment of $800 toward the increased security
deposit before the complaint had been filed; informed the property manager of the purpose for
the payment; the manager informed him the property manager intended to return the payment to
Foster; and he had not yet received it.
In its ruling, the trial court noted Foster stated he did not think plaintiff returned the
$800 payment to him and Foster did not present a copy of any negotiable instrument nor state
the payment was marked in such a manner to indicate it was for payment on the security
deposit balance. The court took this position although evidence presented by Foster in
opposition to the summary judgment motion was to be liberally construed, with any doubts
about such evidence resolved in Foster’s favor (Regents, supra, 4 Cal.5th at p. 618; see also
Caliber Paving, supra, 54 Cal.App.5th at p. 190 [as reviewing court, we must draw from
evidence all reasonable inferences in the light most favorable to party opposing summary
judgment]). Further, at no time did plaintiff dispute the evidence Foster presented regarding the