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  1. #1
    Join Date
    Nov 2012
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    Default Tenant Paid Partial Owed Rent in the Middle of Eviction Process

    My question involves an eviction in the state of: California.

    My tenant has not paid rent for October and November, which is due 1st of the each month. Earlier in the week I filed Unlawful Detainer complaint after the 3 day notice to pay or quit is up. I have also hired a process server to serve the summons and complaint but they have not been served to my tenants. My tenants may or may not be aware I have already started the lawsuit. This morning I received rent for October, and was told he's working on getting me paid for November. Obviously I took the money.

    My question is, should I do anything to my lawsuit at this time? ie inform the court about partial payment of what's due (3 day notice to pay or quite says 2 month rent)? tell the process server not to serve the summons and complaint? or wait until November rent is paid before I inform the court?

    Thanks

  2. #2
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    Default Re: Tenant Paid Partial Owed Rent in the Middle of Eviction Process

    For a residential tenancy, you are not obligated to accept partial payment after serving a three-day "pay or quit" notice. If you do accept partial payment - and sometimes it makes sense to do so - you need to file a new three-day notice stating the actual amount of rent due. See EDC Associates, Ltd. v. Gutierrez (1984) 153 Cal.App.3d 167, 200 Cal. Rptr. 333.

    If you have already commenced your lawsuit you can attempt to amend the lawsuit to reflect the partial payment, but even in commercial tenancies you have to give actual notice to the tenant that your acceptance of partial payment does not waive any of your rights or remedies against the tenant. As your tenant was apparently unaware of the eviction lawsuit, I would expect a court to be sympathetic to the argument that they believed they were preventing an eviction action through your acceptance of their tender of partial payment, and would thus take the approach of serving a new three-day-notice and, absent full payment of the remaining balance, file and serve a new complaint based upon the updated notice.

    (The rules are more relaxed for commercial tenancies, see Code of Civil Procedure, Sec. 1161.1, but I am inferring that you are talking about a residential tenancy).

  3. #3
    Join Date
    Nov 2012
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    4

    Default Re: Tenant Paid Partial Owed Rent in the Middle of Eviction Process

    Mr. Knowitall,

    I appreciate your reply. It is a residential tenancy. As I have accepted partial payment (October rent), it sounds like I will need to give a new 3-day notice to pay or quit for the November rent, before I amend my complaint with the Superior Court. Questions I have:
    -- Will I need to amend or re-do the Summons (form SUM-130 for California)
    -- The tenants have not been served with the summons and complaint. Should I hold off on serving them until I have the amended summons/complaint?

    I'd appreciate your feedback.

  4. #4
    Join Date
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    Default Re: Tenant Paid Partial Owed Rent in the Middle of Eviction Process

    If you can avoid a fee for service of process, I would suggest telling your process server to hold off.

    My approach would be to dismiss, serve a new "pay or quit" motion, and refile if necessary.

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