Oakland eviction - non payment technicality

[Jessica Yau]

A tenant paid late last month and I applied a late fee according to our lease ($75). In their Nov invoice I clearly stated that the amount paid in October went first to cover the late fee and then rent, leaving an unpaid balance due for Oct rent.

This month they paid only the usual rental amount. I would like to serve them a 3 day notice and hopefully evict. I know that Oakland's rent law says that eviction based on non-payment of rent can only be used for rent, and not late fees. However, our lease states that 'Owner may apply any payment made by Tenant to any obligation of Tenant to Owner notwithstanding any dates or other direction from Tenant that accompanies any such payment.'

Has anyone used this technicality before and/or know if this will work?

Thanks!