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California Code of Civil Procedure Section 1161.1

Legal Research Home > California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 1161.1

1161.1.  With respect to application of Section 1161 in cases of
possession of commercial real property after default in the payment
of rent:
   (a) If the amount stated in the notice provided to the tenant
pursuant to subdivision (2) of Section 1161 is clearly identified by
the notice as an estimate and the amount claimed is not in fact
correct, but it is determined upon the trial or other judicial
determination that rent was owing, and the amount claimed in the
notice was reasonably estimated, the tenant shall be subject to
judgment for possession and the actual amount of rent and other sums
found to be due. However, if (1) upon receipt of such a notice
claiming an amount identified by the notice as an estimate, the
tenant tenders to the landlord within the time for payment required
by the notice, the amount which the tenant has reasonably estimated
to be due and (2) if at trial it is determined that the amount of
rent then due was the amount tendered by the tenant or a lesser
amount, the tenant shall be deemed the prevailing party for all
purposes. If the court determines that the amount so tendered by the
tenant was less than the amount due, but was reasonably estimated,
the tenant shall retain the right to possession if the tenant pays to
the landlord within five days of the effective date of the judgment
(1) the amount previously tendered if it had not been previously
accepted, (2) the difference between the amount tendered and the
amount determined by the court to be due, and (3) any other sums as
ordered by the court.
   (b) If the landlord accepts a partial payment of rent, including
any payment pursuant to subdivision (a), after serving notice
pursuant to Section 1161, the landlord, without any further notice to
the tenant, may commence and pursue an action under this chapter to
recover the difference between the amount demanded in that notice and
the payment actually received, and this shall be specified in the
complaint.
   (c) If the landlord accepts a partial payment of rent after filing
the complaint pursuant to Section 1166, the landlord's acceptance of
the partial payment is evidence only of that payment, without waiver
of any rights or defenses of any of the parties. The landlord shall
be entitled to amend the complaint to reflect the partial payment
without creating a necessity for the filing of an additional answer
or other responsive pleading by the tenant, and without prior leave
of court, and such an amendment shall not delay the matter from
proceeding. However, this subdivision shall apply only if the
landlord provides actual notice to the tenant that acceptance of the
partial rent payment does not constitute a waiver of any rights,
including any right the landlord may have to recover possession of
the property.
   (d) "Commercial real property" as used in this section, means all
real property in this state except dwelling units made subject to
Chapter 2 (commencing with Section 1940) of Title 5 of Part 4 of
Division 3 of the Civil Code, mobilehomes as defined in Section 798.3
of the Civil Code, or recreational vehicles as defined in Section
799.24 of the Civil Code.
   (e) For the purposes of this section, there is a presumption
affecting the burden of proof that the amount of rent claimed or
tendered is reasonably estimated if, in relation to the amount
determined to be due upon the trial or other judicial determination
of that issue, the amount claimed or tendered was no more than 20
percent more or less than the amount determined to be due. However,
if the rent due is contingent upon information primarily within the
knowledge of the one party to the lease and that information has not
been furnished to, or has not accurately been furnished to, the other
party, the court shall consider that fact in determining the
reasonableness of the amount of rent claimed or tendered pursuant to
subdivision (a).
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Last modified: March 17, 2014