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Appellants were entitled to notice that rent was again “due” and a demand for payment before
they could be deemed in default for nonpayment of rent for this period. This case differs from
those cited by Kruger in that she did not reject a mere tender of cash or checks sent for payment
of rent. Instead, she actually possessed or controlled the funds in her own bank account as her
property and then returned (some of) the funds that had been directly deposited. Because of the
direct deposits, which under Civil Code section 1500 extinguished Appellants‟ obligation to pay
the rent due by the due dates as provided in the lease, they had actually performed and were not
in default on September 9, 2013. A state of default was necessary under Code of Civil
Procedure section 1161, subdivision (2), before Kruger could validly serve Appellants with a
three-day notice to pay rent or quit.
As noted, the record shows Kruger had returned rental payments timely deposited in her
bank account in the several months before September 9, 2013, that covered the period through
September 30, 2013, and until September 9, 2013 when she dismissed the prior action, she did
not consider rent to then be “due.” Because of these facts, Appellants could not, as a matter of
law, have been in default for non-payment of rent on September 9, 2013, when the three-day
notice was served. To the extent rent was then “unpaid,” it was due solely to Kruger having
returned the funds that had already been timely deposited into her bank account, extinguishing
Appellants‟ obligation to pay rent on the first of each of these months under Civil Code section
1500. Further, we find nothing in the record to suggest that after Kruger had returned rent
payments deposited directly into her bank account before September 9, 2013, and the
subsequent reinstatement of the lease on that day, Appellants were ever informed that Kruger
again considered rent “due” and would accept it for the months for which it had not just been
tendered but timely paid, i.e., through September 30, 2013. Without notice that rent was again
“due” and that Kruger would accept it, Appellants were not required to again pay or tender rent
that had already been timely deposited but returned. They had performed their obligation to
timely pay under Civil Code section 1500, and because of that, they were not in a state of
default. Accordingly, Appellants were not in default for nonpayment of rent on September 9,
2013, and Kruger was not legally entitled to serve a three-day notice to pay rent or quit on that