2
Reyes failed to pay the delinquent amount within three days, she and Rothbard decided
that “the most straightforward way to evict was based upon the nonpayment of rent” so
she “rejected their one day late tender of the rent amount and proceeded” to file the
unlawful detainer action.
The unlawful detainer action was tried in October 2013 by the Honorable Derek
Woodhouse. A contested question was whether Kruger had returned the payment of
certain rent that Reyes had paid by direct deposit into her bank account. Kruger testified
that during her first eviction attempt, she realized she had to return the rent. She gave
$2,800 in cash to appellants by handing an envelope with the cash to an employee at the
door of appellants’ business. Kruger did not know the date and did not get a signed
receipt. She said the cash came from money she kept at her house. She acknowledged
that she had no proof of the payment. Reyes testified that she never received any cash at
any time from Kruger, and there was no employee at her business who was authorized to
accept cash for her. Reyes never received an e-mail or other communication indicating
that Kruger had dropped off cash. There was a similar factual dispute about a $2,800
check that Kruger testified she mailed but Reyes denied having ever received.
Rothbard explained to the trial court at the unlawful detainer trial that the
returned payment of $2,800 enabled application of the statutory presumption affecting
the burden of proof for commercial property unlawful detainer proceedings—whereby
the amount Kruger claimed was owed on appellants’ lease, as set forth in the three day
notice to pay rent or quit, was a reasonable estimate. (§ 1161.1, subds. (a), (e).) He
framed the question of the returned cash payment and the $2,800 check as “a pure
credibility question” for the court. Rothbard stated, “If Your Honor believes that my
client made up out of whole cloth sending the check, and . . . making a payment in cash,
we lose. [¶] If your Honor believes that my client is testifying accurately, we prevail.”
Rothbard criticized his client’s decision to return payment in cash without a receipt but
represented that he believed she did it and pointed to evidence of her credibility.
3
Reyes’s counsel at the unlawful detainer hearing responded that the case was not
“just about credibility” but also about respondents’ burden of proof to show that the
amount in the notice accurately reflected the amount of past-due rent, or reasonably
estimated that amount within 20 percent. Reyes argued it was “convenient” of Kruger to
claim she had returned the $2,800 rent payment in cash so that the estimate stated in the
notice was within the statutory 20 percent margin for a reasonable estimate. Reyes
further argued based on evidence in the record that Kruger had failed to satisfy the
burden of proof required to obtain forfeiture of the lease rights.
The trial court granted judgment in favor of Kruger. It reasoned that the technical
requirements in unlawful detainer actions must be “strictly adhered to” and that
considering the arguments and exhibits, it was “constrained to find judgment for the
[respondent] as requested.” The trial court entered judgment in favor of Kruger on
October 18, 2013.
After unsuccessful attempts to vacate the unlawful detainer judgment and to
petition for relief from the judgment as it declared forfeiture of the lease, Reyes filed an
appeal in the appellate division of the superior court. The appellate division reversed the
judgment in a published decision. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10,
12.) The appellate division found that because Reyes had “timely paid all rent due
through the period covered by the three-day notice by deposit directly into Kruger’s bank
account, . . . they had actually performed and were not in default when Kruger served
them with a three-day notice to pay rent or quit,” rendering the three-day notice
“premature and void as a matter of law.” (Ibid.)
Following the decision of the appellate division, Reyes sued Kruger in July 2015
in a breach of contract action for wrongful eviction. The trial court granted Kruger’s
special motion to strike the complaint under the anti-SLAPP statute and dismissed the
case. Reyes then filed the instant action.