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Well, I think I found my answer and, at least in terms of statute of limitations, I now believe we have a chance of being heard. This is from the California of Consumer Affairs:
"The other option is to sue the landlord in small claims court for return of your security deposit. However, the landlord then can file a counterclaim against you. In the counterclaim, the landlord can assert a right to make deductions from the deposit, for example, for unpaid rent or for damage to the rental that the landlord alleges that you caused. Each party then will have to argue in court why he or she is entitled to the deposit"
I do not see any mention that the landlord can only make the counterclaim if he/she had already asked for the money within 21 days.
I think what you'll find in court is that the "judges" in many cases aren't even lawyers & the law doesn't really matter much. If you're going up against a good liar, you're losing no matter what "the law" actually says. All you can hope to do is keep your case short & on point & hope the other side goes off the rails into irrelevant "facts", droning on for so long that your short/correct/concise argument overpowers the b.s. Good lawyers don't want to go to court, because it's uncertain & for all we talk about "justice" in this country, it doesn't happen very often in court. You're flipping a coin, and the bad guys & people that know how to work the system win just as often as the good guys. Short/sweet/simple, "just the facts", then shut up & hope the other side digs themselves into a hole.. They often do.
If you're in a courtroom, you already lost, even if you "win". Don't get your hopes up too high & don't expect much justice or fairness. Just based on what you've posted, the other side is unlikely to collect on their claim of "unfair" withholding & treble damages - if you were a deadbeat, you'ld have kept the entire deposit. You're also unlikely to collect on damages you never claimed in a timely manner. //. Not a lawyer, but been to court a few times in CA.
One thing that the OP needs to be aware is that time is limited so the Judges don;t have long drawn out trails. The tenant will be asked to make their case and the landlord will provide proof that they followed the law. Next the landlord will be asked to make their counter suit case and the tenant will be asked to give their side. There won't be much room for lots of back and forth and often the Judge will hear something that they decide can end it at that point.
I don't see the OP having any issue with the "bad Faith" return of deposit so long as they can document the damages with the move in and move out inspection sheets along with the bills and document of proper mailing in time. That should end it.
But, I am concerned about the counterclaim. Judges get very suspicious of counterclaims after the fact unless the damages were not visible at the time of walk though or vacancy. If it was visible, Judges tend to ask why didn't you claim it at the beginning or warn the tenant so they could have corrected it? That's why many after the fact counterclaims are dismissed. There is also the issue of ambiguity. Who really is responsible for lawn care? If there is any ambiguity, Judges normally side with the tenant.
The concern is if the tenant claims the counterclaim is in bad faith and ask for punitive damages. It's not unheard of for CA Judges to view after the fact damage claims as bad faith especially if it was known at the time of the walk through. CA expects landlords to give tenants an opportunity to fix issues in advance so the question of why it's coming up afterwards will weight on the Judge's decision. If the tenant can cast doubt on their responsibility and that the counterclaim was just to retaliate for their claim, that can raise a bad faith issue against the landlord. This is touchy and can backfire on the OP.
I think what you'll find in court is that the "judges" in many cases aren't even lawyers & the law doesn't really matter much. If you're going up against a good liar, you're losing no matter what "the law" actually says. All you can hope to do is keep your case short & on point & hope the other side goes off the rails into irrelevant "facts", droning on for so long that your short/correct/concise argument overpowers the b.s. Good lawyers don't want to go to court, because it's uncertain & for all we talk about "justice" in this country, it doesn't happen very often in court. You're flipping a coin, and the bad guys & people that know how to work the system win just as often as the good guys. Short/sweet/simple, "just the facts", then shut up & hope the other side digs themselves into a hole.. They often do.
If you're in a courtroom, you already lost, even if you "win". Don't get your hopes up too high & don't expect much justice or fairness. Just based on what you've posted, the other side is unlikely to collect on their claim of "unfair" withholding & treble damages - if you were a deadbeat, you'ld have kept the entire deposit. You're also unlikely to collect on damages you never claimed in a timely manner. //. Not a lawyer, but been to court a few times in CA.
Thanks a lot for your perspective - it really helps. And I agree that in a way, we've already lost. This has been a very draining experience, already. The "judge" who we saw in action last Monday seemed pretty sharp in spotting inconsistencies but who knows who we are going to get. Our main goal is to avoid judgment against us; any compensation beyond that would be nice but not crucial.
One thing that the OP needs to be aware is that time is limited so the Judges don;t have long drawn out trails. The tenant will be asked to make their case and the landlord will provide proof that they followed the law. Next the landlord will be asked to make their counter suit case and the tenant will be asked to give their side. There won't be much room for lots of back and forth and often the Judge will hear something that they decide can end it at that point.
I don't see the OP having any issue with the "bad Faith" return of deposit so long as they can document the damages with the move in and move out inspection sheets along with the bills and document of proper mailing in time. That should end it.
But, I am concerned about the counterclaim. Judges get very suspicious of counterclaims after the fact unless the damages were not visible at the time of walk though or vacancy. If it was visible, Judges tend to ask why didn't you claim it at the beginning or warn the tenant so they could have corrected it? That's why many after the fact counterclaims are dismissed. There is also the issue of ambiguity. Who really is responsible for lawn care? If there is any ambiguity, Judges normally side with the tenant.
The concern is if the tenant claims the counterclaim is in bad faith and ask for punitive damages. It's not unheard of for CA Judges to view after the fact damage claims as bad faith especially if it was known at the time of the walk through. CA expects landlords to give tenants an opportunity to fix issues in advance so the question of why it's coming up afterwards will weight on the Judge's decision. If the tenant can cast doubt on their responsibility and that the counterclaim was just to retaliate for their claim, that can raise a bad faith issue against the landlord. This is touchy and can backfire on the OP.
wow! Thanks a lot for pointing this out. We will present the angle (which is true) that, being that it is a large amount of money, we were concerned that we might get drawn into a dispute. I do not know if it can be construed as bad faith on our side but it does make me nervous. Even then, we have emails to the tenant when he changed his mind and asked to stay, that as a condition to stay he had to fix the yard. We also have notices from the city specifying the expectation to reduce water usage and there is not mention of a ban on watering lawns. I do not know why we would be seen in bad faith for saying that we were trying to avoid conflict but I guess anything can happen.
That's good news diamante and I'm glad you shared that with us. Your case is looking much better.
(My rentals are not in California so my comments in this topic have been general in nature.)
Quote:
Originally Posted by Rabrrita
One thing that the OP needs to be aware is that time is limited so the Judges don;t have long drawn out trails. The tenant will be asked to make their case and the landlord will provide proof that they followed the law. Next the landlord will be asked to make their counter suit case and the tenant will be asked to give their side. There won't be much room for lots of back and forth and often the Judge will hear something that they decide can end it at that point.
This supports my advice earlier. Cases are often document based. Have all your documents in order, photographs, contracts, cancelled checks, correspondence sent via registered mail, and arrive at the court with an outline of how you will present your case. You are going to appear before the court in public and you must be concise and brief in your presentation of your case.
Or in short, waste the court's time and you lose. Get everything lined up to present a swift, concise case. Bring as much documentation as you have, use as much as you must, be prepared to present additional exhibits if they are needed.
Rapid reaction after yesterday's court appearance.
1) we did have a 2 hour mediation session but could not come to a compromise. We were aiming at canceling each other's claim; they did not see our side at all and wanted at least $600 back
2) during mediation we learned that we messed up a couple of charges (<$100) as they were in the check in list (they had not brought them up in their initial rebuttal letter or we would have surely paid them back for those) so we knew going in front of the judge that we would get a judgement against us
3) at that point, we went to the judge knowing that the potential for a judgement against them was real and for a maximum combined of $4k (damage to backyard and loss of rent)
4) we did not defend as vigorously as we should have so they might be able to score more than the $100 we expected to be hit with. In particular, we failed to mention how some of the items in their rebuttal letter were written in bad faith (claiming we were late in returning the deposit, and that the carpet was not stained).
5) on the other hand I think we feel that our counter claim was favorable. The fact that we did not ask for this money before was not an issue (my original concern). For the front yard, we brought up the case that there is a section of the contract saying that the tenant is responsible for damage to lawns etc and that it was their action of turning off the sprinkler that caused the damage. Tenants (as expected) said that they felt that it was not their responsibility to "maintain the yard" but we counterclaimed that this means that they tampered with the sprinkler, since it was none of their business. Tenant also admitted there were several conversations about the yard so this reinforces that there was nothing surprising about our requests. As for the late notification (tenants notified then changed his mind and wanted to stay) we pointed out that when he changed his mind he never said "but you should keep looking". He of course claimed we were in negotiations so we'll see. During mediation the mediator pointed out that our argument could hold ( think in this case the tenant had burden of proof) so we are optimistic on that.
6) the judge was indeed a temporary judge and it sucked. In the sense that he was only making us argue back and forth, without really asking any questions to probe further. So he never commented or argued about anything. The previous week when we visited the court we saw an actual judge and she was great at counter arguing and probing. On our case, it really felt like we had to fend for ourselves and it was 100% on us to prove inconsistencies.
Did we make the right decision in not settling? Who knows. For us it felt right to make them accountable for their actions. We should have done a better job at drilling in some of the arguments but we hope that the overall outcome will be a positive in our favor. Judgement will be within 2 week. I will post an update.
Last edited by diamante67; 01-24-2017 at 10:52 AM..
^^^ I am sure you are glad the court appearance is over. It's awesome that the tenant admitted that you discussed the yard issue with them before. And it's awesome that the tenant agreed to messing with the sprinkler system to turn if off.
Fingers crossed that your judgement includes expenses for the lawn.
^^^ I am sure you are glad the court appearance is over. It's awesome that the tenant admitted that you discussed the yard issue with them before. And it's awesome that the tenant agreed to messing with the sprinkler system to turn if off.
Fingers crossed that your judgement includes expenses for the lawn.
Please post back when you get the results.
I am still at the stage of "I should have said this, I should have said that", LOL but I guess slowly I will get over the whole thing. I am practically certain we'll get some form of judgement against us for the small things we missed, so that's a bummer as we tried to do everything right. We were in a hurry in trying to meet the 21 day deadline so we slipped on a couple of small items.
Tenants on the other side were totally on bad faith and even had the guts to say that maybe we stained the carpets on purpose after they moved out?!? As I said, the "judge" did not counteract any of their bs so I do not know how he read the whole situation. We'll see...
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so we knew going in front of the judge that we would get a judgement against us
