Filed 7/12/24 Dey v. Matheka CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PENNY DEY, as Successor 

Trustee, etc.,

Plaintiff and Respondent,

v.

ROBERT MATHEKA,

Defendant and Appellant.

 B321403

 Los Angeles County

 Super. Ct. No. 21WCUD00388

APPEAL from a judgment of the Superior Court of Los 

Angeles County. James A. Kaddo, Judge. Affirmed.

Cal Tenant Law and Jeremy Cook for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

_____________________________
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SUMMARY

The jury in a commercial unlawful detainer trial found in 

favor of the lessor. The judgment awards the lessor possession of 

the premises and $26,818 in holdover damages. The tenant

(defendant) appeals. He contends the trial court erred by refusing 

to allow him to present evidence on his “main defense” of retaliatory 

conduct by the lessor. Defendant also contends the lessor’s

mistaken deposit and subsequent reimbursement to defendant of a 

rent check, occurring after lessor’s 30-day eviction notice,

invalidated the notice as a matter of law, and the issue should not 

have gone to the jury. Defendant claims he had no individual 

liability and should have been dismissed from the case; that he was 

prejudiced by admission of irrelevant evidence that inflamed the 

jury; and the court was biased against him.

We conclude the trial court properly rejected defendant’s 

retaliation defense and none of defendant’s other claims has merit. 

Accordingly, we affirm the judgment.

FACTS

Plaintiff Sandra Johnson was a trustee of the Martha H. 

Marsh Revocable Trust, the owner of the property. She died during 

this litigation, in August 2021, and her sister Penny Dey became 

the trustee and plaintiff. (At trial, the parties sometimes referred 

to Ms. Johnson as “the former landlord.”)

Ten years earlier, in August 2011, the trust as lessor and 

Kala Construction, Inc. as tenant entered into a commercial lease of 

an office and utility yard in the City of La Verne. Robert Matheka 

signed the lease for the tenant. Mr. Matheka is the defendant. 

(A default judgment was entered against Kala Construction.)

The lease was for a one-year term beginning September 1,

2011, and ending September 1, 2012, “with self renewing clause or 

30 day notice in writing, prior to lease end.” Rent was $2,300 per 

month, with a 6 percent service charge if not paid by the fifth day of 
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each month. “Each year during the term of this lease and any 

extensions of it, beginning with the second year of the lease, the 

monthly rental for the twelve months commencing on September 1, 

2012, shall be increased” by an amount “to be determined at that 

time, by approval of both parties.” (Underscore omitted.) The rent 

was never increased. 

Plaintiff wanted to sell the property, and defendant knew that 

plaintiff was trying to do so. In February 2020, plaintiff served a 

30-day notice of termination of tenancy, but did not proceed further 

at that time and continued to receive rent payments from 

defendant.

A year later, on March 31, 2021, plaintiff served the operative

30-day notice of termination of tenancy, requiring defendant to 

vacate the premises within 30 days.

Defendant remained in the premises and sent plaintiff a 

check for May 2021 rent, which plaintiff cashed by mistake. She 

reimbursed defendant by sending him a check for $2,300 and 

explaining his payment had been deposited by mistake.

On June 24, 2021, plaintiff filed an unlawful detainer 

complaint. Plaintiff filed the operative first amended complaint on 

October 27, 2021, seeking possession, back rent or holdover 

amounts and attorney fees. 

Defendant remained in possession of the premises until the 

time of trial, at which he represented himself.

Trial began on March 16, 2022, and ended on March 18, 2022, 

with a general verdict for plaintiff, awarding damages of $26,818. 

The court entered judgment awarding plaintiff possession of the 

premises and $26,818 in holdover damages. 

Defendant filed a timely appeal from the judgment. 

DISCUSSION

Defendant, now represented by counsel, does not claim a lack 

of substantial evidence to support the verdict. Instead, he contends 
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that assorted legal errors necessitate reversal as a matter of law. 

We disagree.

1. Retaliatory eviction

Defendant’s principal claim—which he describes as his “main 

defense”—is that the trial court did not allow him to present 

evidence or testimony of retaliation. He asserts this case is “an 

illegal retaliatory eviction in which the landlord removed the gas 

lines and shut off the water in retaliation of [defendant] remaining 

on the premises.” Defendant claims the court erred in concluding

the affirmative defense of retaliatory eviction does not apply to a 

commercial lease. We find no error in the circumstances of this 

case.

Under the Civil Code, it is unlawful for a lessor (among other 

things) to “bring an action to recover possession . . . for the purpose 

of retaliating against the lessee because the lessee . . . has lawfully 

and peaceably exercised any rights under the law.” (Civ. Code, 

§ 1942.5, subd. (d).) Most cases involving retaliatory eviction 

concern residential leases. However, in Custom Parking, Inc. v. 

Superior Court (1982) 138 Cal.App.3d 90 (Custom Parking), the 

court held that the defense of retaliatory eviction could be raised in 

an unlawful detainer action brought against a commercial tenant, 

where the lessor terminated the tenancy “because [the tenant’s]

officers and employees refused to perjure themselves in an action 

involving [the lessor] and other tenants of [the lessor].” (Id. at 

pp. 91-92; see id. at p. 101.)

Custom Parking explains the history of the retaliatory 

eviction defense and the development of the principle that a 

landlord “ ‘ “may be precluded from evicting a tenant in retaliation 

for certain kinds of lawful activities,” ’ ” such as reporting a crime to 

the police or other basic legal rights. (Custom Parking, supra, 

138 Cal.App.3d at p. 94; see id. at pp. 93-95.) The court also 
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recognized the issue was complicated “by case law which recognizes 

and/or applies a distinction between commercial and residential 

unlawful detainer actions.” (Id. at p. 96; see id. at pp. 96-101.)

Custom Parking allowed the retaliatory eviction defense in 

that case because it involved a “strong public policy against 

intimidating witnesses in a lawsuit from testifying honestly,” a 

context where “the distinction between a commercial and a 

residential tenancy pales into insignificance.” (Custom Parking, 

supra, 138 Cal.App.3d at p. 101.) The court applied the principle 

established in S.P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d 

719, a residential eviction case: “In evaluating whether defendants 

have raised a valid defense of retaliatory eviction, we must engage 

in a balancing process. We must determine whether the public 

policies furthered by protecting defendants from eviction outweigh 

the interests in preserving the summary nature of unlawful 

detainer proceedings.” (Id. at p. 724; see id. at pp. 724, 730 [an 

eviction in retaliation for the filing of a federal lawsuit charging 

violations of a federal farm labor statute was improper].)

In short, in a commercial case, the retaliatory eviction defense 

is applicable, if at all, only where there is a strong public policy that 

would be furthered by protecting the lessee from eviction: as 

Custom Parking observes, “whether the need for litigating that 

matter in the unlawful detainer action is so vital as to overcome the 

public policy underlying the summary nature of unlawful detainer.” 

(Custom Parking, supra, 138 Cal.App.3d at p. 100.) Defendant has 

identified no public policy of any kind that supports protecting him 

from eviction. Consequently, the trial court did not err in excluding 

evidence of defendant’s purported retaliatory eviction defense.

2. Other Contentions

a. Receipt of rent after 30-day notice

Defendant asserts that because plaintiff cashed his May 2021 

rent check, his tenancy was reinstated and another 30-day notice 
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was required before he could be evicted. He contends the court 

should not have sent this issue to the jury, and instead should have 

dismissed the case. We disagree.

Neither of the cases defendant cites stands for the proposition 

that a new 30-day notice was required despite plaintiff’s evidence of 

mistaken cashing of the rent check and return of the funds to 

defendant. Neither case concerns mistaken deposit of a rent check. 

In Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d 

Supp. 1, the court states the principle that “if the rent was not 

accepted by the landlord, there was no waiver of plaintiff’s 

termination of defendant’s month-to-month tenancy nor was 

there an implied withdrawal of the notice of termination.” (Id. at 

p. 12.) In Highland Plastics, the landlord did not deposit the rent 

checks, and the evidence was “sufficient to support the implied 

finding of the trial court that there was no acceptance of the 

tendered rent during the notice period.” (Id. at pp. 11-12.) Here, 

the jury could reasonably find plaintiff’s mistaken deposit of the 

rent and its return to defendant did not amount to receipt or 

acceptance of the rent. The other case, Kern Sunset Oil Co. v. Good 

Roads Oil Co. (1931) 214 Cal. 435, does not help defendant either. 

Kern involved a lease of oil lands and stands for the proposition that 

“[t]he acceptance of rent by the landlord from the tenant, after the 

breach of a condition of the lease, with full knowledge of all the 

facts, is a waiver of the breach and precludes the landlord from 

declaring a forfeiture of the lease by reason of said breach.” (Id. at 

p. 440.) This case has nothing to do with waiver after breach of a 

condition of the lease.

Defendant asserts there are “problems with [the mistake] 

theory” because the return check was sent a month later and “could 

not be cashed” because it was made out to defendant (and not to his 

corporation). The jury apparently found no such problems; nor do 

we.
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b. Defendant’s motion to dismiss

Before jury selection, defendant made an oral motion to 

dismiss himself from the case, arguing that he was not a party to 

the lease and did not live on the property. Plaintiff’s counsel

contended a judgment against defendant was needed to obtain a 

writ of possession and defendant was refusing to surrender 

possession as an individual. The trial court denied defendant’s 

motion.

On appeal, defendant again contends the lease was in the 

name of a corporate entity which had already defaulted and 

therefore defendant had no individual liability. His argument takes 

up less than a page, cites no authority, and does not address his 

refusal to surrender possession of the premises. No error has been 

demonstrated.

c. The claimed evidentiary error

The trial court admitted into evidence an August 13, 2021 email from plaintiff’s counsel, responding to an e-mail from a lawyer, 

Chelsea Cooper, who stated she was filing an ex parte application 

on defendant’s behalf. The responding email from plaintiff’s 

counsel stated that “due to your client’s behavior during the last few 

months” occupying the property, the owner had died of cancer 

“without any end of life money as she was selling this property for 

her hospice care. Your client knew this full well.” (Underscoring 

omitted.) Defendant objected on the ground Ms. Cooper was not his 

lawyer. At trial, on cross-examination of defendant by plaintiff’s 

counsel, defendant was told to read the e-mail to the jury. There 

was also testimony from another witness and comments in 

plaintiff’s closing about the landlord’s cancer. Defendant contends 

it was an abuse of discretion to allow plaintiff to use the late 

owner’s illness to inflame the jury. 

Defendant did not object to this evidence on the ground he 

now raises on appeal. However, we need not address the 
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admissibility of the evidence; even if there were error, defendant 

has shown no reasonable probability that he would have obtained a 

more favorable result absent the error.

d. Judicial bias

Finally, defendant contends the trial court “express[ed] such a 

severe and consistent bias throughout the trial in front of the jury” 

that defendant “could not possibly have a fair trial.” Defendant 

relies on Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 

994, where the court reversed the judgment “because the judge 

committed misconduct so egregious [the plaintiffs] were denied a 

fair trial.” (Id. at p. 1002; see also id. at p. 1008 [“ ‘[w]here . . . the 

appearance of judicial bias and unfairness colors the entire record, 

we depart from the general rule requiring plaintiff to make an 

affirmative showing of prejudice’ ”].) This is not such a case.

Defendant first recites the trial court’s comments at a 

settlement conference, where the judge spoke to each side 

separately. These comments were not made in front of the jury. 

Next, defendant criticizes the court for asking defendant why he 

was refusing to leave, and stating “now you’re talking as a lawyer?” 

when defendant responded that landlords must follow a series of 

steps to evict a tenant legally. Defendant claims this exchange 

“communicated to the jury [the court’s] view that [defendant] 

should have left,” and was comparable to the Haluck trial court’s

misconduct in implying unethical or underhanded behavior by 

counsel in that case. We disagree.

The exchange just described was not in any way comparable 

to the egregious misconduct in Haluck, which was described at 

length (Haluck, supra, 151 Cal.App.4th at pp. 1003-1007) and 

included lack of courtesy and decorum, conduct “ ‘cast[ing] the 

judicial system itself in a bad light’ ” (id. at pp. 1003-1004), and 

many examples of “inappropriate conduct that mocked plaintiffs 

and their testimony and impugned their credibility” (id. at p. 1007).
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Defendant then asserts he “did not get a chance to present his 

case in the manner he wanted,” “he was not able to testify about the 

checks, or other topics he might want to raise,” and the judge 

“frequently displayed a hostile demeanor.” Defendant ends by 

referring to “derogatory comments coloring the entire record,” but 

identifies no comments made before the jury that can be described 

as derogatory.

Unlike defendant, we do not see judicial bias against 

defendant on the record of this trial. Indeed, we see instances 

where the trial court criticized plaintiff’s counsel and raised 

objections on behalf of defendant. Certainly this is not a case where 

defendant may be relieved of the affirmative burden of showing 

prejudice, as in Haluck, where “ ‘the court’s comments would cause 

a reasonable person to doubt the impartiality of the judge or would 

cause us to lack confidence in the fairness of the proceedings such 

as would necessitate reversal.’ ” (Haluck, supra, 151 Cal.App.4th at 

p. 1008.) Defendant has established no such doubt.

DISPOSITION

The judgment is affirmed. No costs are awarded.

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. 

VIRAMONTES, J.