15
Thus, we find that, through Foster’s contention and the evidence he presented that
plaintiff manufactured the instant action because Foster had availed himself of pandemic-
related legal protections, Foster established a triable issue of material fact to be decided by the
jury concerning a lack of good faith and retaliation on plaintiff’s part.
Materiality of breach
“Normally the question of whether a breach of an obligation is a material breach, so as
to excuse performance by the other party, is a question of fact.” (Brown v. Grimes (2011) 192
Cal.App.4th 265, 277.)
Paragraph 24 of the lease agreement in the instant case provides the parties agree “that
every condition, covenant, and provision of this Agreement is material and reasonable” and any
breach would constitute a material breach. The notice of change of lease terms regarding the
security deposit became a covenant of the lease requiring defendant to pay the increased
amount. Nonetheless, to the extent enforcement of this materiality clause would lead to
forfeiture of the lease, a tenant is not foreclosed from arguing breach of the residential lease
agreement must be material to justify such forfeiture. (Boston LLC v. Juarez (2016) 245
Cal.App.4th 75, 82 (Boston).) The Court of Appeal in Boston relied on a long line of cases that
hold a lease can be terminated only for a material breach, even if the residential lease contains a
clause, like the one in the instant case, that dispenses with the materiality requirement. (Id. at p.
81.)
As explained above, in addition to claiming he made a partial payment and manifested
an intent to fully pay the increased amount of the security deposit, Foster averred plaintiff did
not return the amount he had tendered. But plaintiff offered no argument to debunk Foster’s
contention other than to point out Foster’s assertion in this regard was not unequivocal. Given
this set of facts, if the jury concludes plaintiff did not waive its ability to evict Foster, then the
jury can consider these issues in deciding whether any breach was material. (See Whitney Inv.