1LEGAL MEMORANDUM LEGAL ISSUE: Does the fact that the landlord has not refunded any monies

to you, and in fact has continued to hold on the any monies collected by them instead of remitting them to you even after preparing and serving the termination notice imply a waiver of the notice to terminate because the rent accepted was in an amount to cover the rent period beyond the period specified in the termination notice. The second legal issue is can an oral modification be made to a contract that was originally in writing. RULE: Tender of rent and its acceptance by the landlord within the notice period probably results in an implied withdrawal of the landlord's notice to terminate the periodic tenancy provided the rent accepted is sufficient to cover a period beyond the 30-day period. The mere tender of the rent does not, however, result in a waiver. In order for there to be a waiver, the landlord must accept the rent and the rent accepted must be an amount sufficient to cover the rent period beyond the period specified in the termination notice. Highland Plastics, Inc. v. Enders (1980) 109 Cal. App. 3d Supp. 1, 11. (internal citations omitted). See also Cal. Real Est. 2d Digest Landlord & Tenant s 134, Breach of covenant or condition, generally-Waiver and estoppel ; and Miller and Starr California Real Estate s 19:239, Waiver and estoppel. It is well established that a landlord who serves a tenant with notice of termination of tenancy and thereafter accepts rent from the tenant with knowledge of the tenant's breach of the lease waives the right to terminate the lease. Savett v. Davis (1994) 29 Cal.App.4th

Supp. 13, 16, citing Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440 441. Payment is the performance of an obligation for the delivery of money, Civil Code 1478.The performance may take place by the delivery and acceptance of other things of value instead of money, but there is only payment when the money or other things of value are given and accepted in discharge of the obligation in whole or in part. Sousa v. First Cal. Co. (1950) 101 Cal.App.2d 533, 540. (internal citations omitted). California Civil Code 1473 states that, Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it. California Civil Code 1698 states that, (a) A contract in writing may be modified by a contract in writing. (b) A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties. (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions. (d) Nothing in this section precludes in an appropriate case the application of rules of law concerning estoppel, oral novation and substitution of a new agreement, rescission of a written contract by an oral agreement, waiver of a provision of a written contract, or oral independent collateral contracts.

Oral modifications of written agreements are precluded only if the written agreement provides for written modification. Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1465. (citing text). There are no provisions in the space lease agreement which state any modifications must be in writing which means that oral modifications are not precluded. And the California Supreme Court has ruled that an oral modification to a written contract can be proven by a preponderance of the evidence. Indeed, even where a contract has been solemnized by a writing, an oral modification of that written contract may be proved by a preponderance of the evidence. Weiner v. Fleischman (1991) 54 Cal.3d 476, 488. (citing text). CONCLUSION: Based on the legal research performed it is clear that by the actions of the landlord they waived the thirty-day notice of termination as they are holding on to rent for a rent period beyond the period specified in the termination notice, and they have also collected more monies after the date that they prepared and served the thirty-day notice of termination. Further, as they have not required you to pay rent directly to them for such a long period of time, a Court or jury could easily conclude that there was an oral modification to the written contract regarding how your rent was to be paid.