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Old 08-19-2014, 10:36 AM
 
4 posts, read 10,761 times
Reputation: 31

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Hi,

My landlord deducted close to $1000 from security deposit. We returned the house is good clean condition and used a professional cleaner to clean the house. She didn't send receipts for many of the charges. When we sent a demand letter, she sent a partial refund of $350 by certified mail even though we did not agree to that amount. I believe she thinks I'm forced to accept the refund if she sent it by certified mail which she can use in the court to prove that I accepted it. We have decided to go ahead and sue her in small claims court. The question is should I accept the certified mail and sue her for the rest of the amount or not accept the certified mail and sue for the entire amount? One the charges she refunded by certified mail is pretty serious. She altered the receipt from a vendor and used that to charge us more. She doesn't want us to use that in the court. That's why she sent it by certified mail. Please advice.

Thanks.
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Old 08-19-2014, 11:07 AM
 
158 posts, read 321,152 times
Reputation: 101
I actually have solid advice for this, having been to small claims court recently, myself. Do not go to small claims court over this. It's not worth it. Anything less than a few thousand dollars at stake in any case is not worth your time. I recommend cashing the $350 and thereby "losing" the $650 difference.

Facts to know:
- The filing fees alone are $90
- Calculate your cost from time missed from work to be at small claims (and fuzzy math for aggravation and stress on your life)
- Landlord did have legitimate costs for cleaning your house. Every tenant who moves out gets the place cleaned as a matter of course, regardless of how much they tidied up afterward. May not have cost $650 for a simple cleaning, but you don't know if they had other things like wall painting, carpet, etc that could be legitimately shown in court.
- If you sue, they can show up and delay on a technicality. It's easy for them to do this. Then you have to go back a second time, third time...stressful.
- On the flip side, if you sue and they don't show up, you win by default. But then again, you now have to wrench money from them, and most of the time they will just keep dodging your attempts to collect.

Trust me, if you have any sort of job or busy life, this $650 is not worth going to small claims. Small claims is not set up to give you instant resolution and satisfaction. They only way I would recommend this is if you have a whole lot of free time and really, really need that money (yet can risk losing the $90 filing fee).

I feel your pain though. One last tip: don't let emotions get the best of you here. You run the risk of it snowballing into a very stressful, aggravating situation that can drag on for months. Sorry to give the sad opinions, just trying to help you out.
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Old 08-19-2014, 11:41 AM
 
310 posts, read 613,026 times
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My guess is that certified mail doesn't make a difference. My second guess is that cashing a check doesn't mean that you agreed that it was payment-in-full, even if the check is marked, "Payment in full". But check with somebody more knowledgeable than me.

I'd suggest that you find a government agency and file a complaint with them. They will be better able to apply the relevant law.

Small Claims Court is a waste of time. Did you know that, if the defendant loses in Small Claims Court, he can choose to get a new trial in Superior Court and you have to do the entire trial all over again but with lawyers? So, if he loses, he gets a free "do over" as if the Small Claims Court case never happened. Did you know that, if the plaintiff loses in Small Claims Court, his case is over and he cannot get a new trial in Superior Court, no matter how unfair, baseless or wrong the Small Claims Court trial was? But, if you still don't believe me, drop by the Small Claims Court and sit in the gallery for 2-3 hours and, when they announce mediation, sit in the corridor and eavesdrop on all the ignorant mediators and moronic plaintiffs and defendants. It's a joke.

I'm sympathetic: you did the right thing and the landlord did the wrong thing. But theft of security deposits is common nowadays. In the future, you will not spend one dime to clean the place when you move out, you'll try to get a walkthrough when you move out and, still, you'll know that the landlord will probably steal some or all of your security deposit.
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Old 08-20-2014, 12:50 PM
 
158 posts, read 321,152 times
Reputation: 101
Quote:
Originally Posted by nagleepark View Post
Did you know that, if the defendant loses in Small Claims Court, he can choose to get a new trial in Superior Court and you have to do the entire trial all over again but with lawyers? So, if he loses, he gets a free "do over" as if the Small Claims Court case never happened. Did you know that, if the plaintiff loses in Small Claims Court, his case is over and he cannot get a new trial in Superior Court, no matter how unfair, baseless or wrong the Small Claims Court trial was?
Your general sentiment and general advice is sound, and mostly correct, but not entirely.

I was sued in small claims court and lost. (Short story: judge was a complete idiot.) My options were to appeal to the higher court (insane option from small claims), or to get a trial de novo ("new trial") in small claims again. We did the latter and won that time around. But as the judge pointed out, that ruling was final and there are no more appeals allowed to me (the defendant).

But if the plaintiff had lost the initial small claims trial, then they are not allowed to appeal either to superior or small claims.

Don't mean to nitpick. Just been through the full wringer, first-hand.

And just to emphasize some more, I can attest that small claims isn't going to be worth it in most cases, and especially not for the OP.

The most you might do is ask for the rest of the amount and say to them that you're considering taking them to small claims court if they don't cough up the rest. But then don't actually go to small claims.
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Old 08-21-2014, 06:20 PM
 
310 posts, read 613,026 times
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Quote:
Originally Posted by Zeya View Post
... or to get a trial de novo ("new trial") in small claims ...
You're probably right. The defendant is probably able to choose Small Claims again, instead of going to Superior Court.
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Old 08-21-2014, 07:52 PM
 
Location: Silicon Valley
18,666 posts, read 25,852,165 times
Reputation: 37427
Okay, I totally disagree with the others, humbly :-)

You should definitely sue and you will win. Been there several times helping my daughter and others to get their security deposits back. I was a property manager in my former life.

Before I forget, I would not cash the check she sent. Sue for the entire amount, and add that you also want your court costs included and any punitive damages the judge finds to be appropriate. You can shoot for the moon. The judge can deduct that amount from what she has to pay you.

So sue for your deposit, and twice the deposit as punitive damages and whatever the actual out of pocket is for the court fees - to file and have the court serve her by mail (they will do it for you).

It doesn't matter if you will actually get all of the above. What may happen, is she will contact you and want to work out a deal. At that point you say, well, give me back all of the rest of my deposit, plus my court costs, plus the fee to have the court dismiss the suit, and be sure you get your money in CASH only from her.

If she's stupid enough not to agree to the above, you sue.

In CA a LL has to follow the rules to a tee, or they lose the right to ANY of your deposit.

So, first, did she give you written notice of your right to an initial pre-move out inspection? She must do this in writing, and ask you if you want an inspection. She can only get out of a PRE move-out inspection, if 1) she's evicting you; 2) you abandon the place; or 3) you waive your right to the pre-move-out inspection.

If she did this, then she can't schedule a pre-move-out inspection any sooner than 2 weeks before you move out. She must schedule it, however, leaving you with enough time to do everything on her list, so that you can get your FULL deposit back.

CA law is designed to give tenants the opportunity to get their FULL deposits back. No mandatory fees are allowed. No non-refundable deposits or fees are allowed.

At the pre-move-out inspection, the landlord must give you a specific list of things you need to do in order to get your FULL deposit back. She cannot require you to do anything about normal wear and tear items. And you only have to get the place in the same condition it was in when you rented it - less normal wear and tear.

The only way she can charge you for anything that wasn't on the list from the pre-move-out inspection, is if the damage was not noticeable during the inspection (giant hole behind the Picasso), or the damage happened after the inspection (you destroyed the wood floor while moving out).

If she didn't do the above, she loses all right to your deposit.

Then next, she has to meet the 21 day deadline, and has to include receipts. The only way around the receipts, is if the TOTAL she is deducting is about $125 or less (forget exact figure). Even then, if you ask for receipts for that amount within 14 days of receiving the deposit refund, she must even cough those up.

So, she did not do what she is supposed to do by law. And therefore, she loses all right to any of your deposit.

The fact that she doctored receipts could mean you would even get punitive damages. It's very rare that a judge will award punitive damages, but you may just get them.

No need to send another demand letter. Just file in small claims court.

When you go to court, assuming she won't pay you what she should, just tell the judge that the landlord didn't follow the law regarding an "initial" inspection per CA law, which should have given you the opportunity to do what needed to be done to get your full deposit back. Plus, you believe you did leave the place in the same condition it was in when you rented it less wear and tear, and that in fact it was probably left even cleaner than it was when you moved in (assuming this is true). And because of this you disagree with the deductions she took from your depost. And, further, she did not comply with the law regarding sending receipts with the deposit refund, and when you insisted on getting them, she sent you doctored receipts. Because of her doctoring the receipts, you believe you should get punitive damages.

Then tell the judge that you believe the relevant laws are California Civil Code Section 1950.5 paragraph "F" for the initial inspection law, and California Civil Code Section 1950.5 paragraph "G" for the return of the security deposit, and California Civil Code Section 1950.5 paragraph "L" regarding punitive damages.

Tell the judge the landlord sent you a partial refund, which you have not cashed (if you did cash it, just say you cashed it but she still owes you more), and you would like the judge to tell you what to do with that check.

You will hand over your copy of your lease, the copies of any communication about the deposit, the check she sent you, and a copy of the landlord-tenant laws that are relevant. You can just print out this document. Don't assume the judge knows all these laws or will look them up. Just hand it in with everything else. The judge can save face if he/she doesn't know that section of law (they are often full time lawyers who practice other areas of the law), and you can make it easy for him/her to rule in your favor.

http://housing.ucsc.edu/cro/pdf/CCC_...y-deposits.pdf

Go for it. My daughter (twice) and my friend all won, hands down. The judge will usually just say he/she will mail their decision. If you just say basically what I wrote and shut up unless asked a question, and hand over your stuff you will be good. Let the landlord rant, rave and lie all she wants. The law wins. And if she didn't follow the law, she loses.

And landlords are very easy to collect from. The ones I knew of in the cases I mentioned, all paid up right away after the judge said they had to. You can always get the sheriff to collect their rent money. You will be able to collect. And the judge will make her reimburse your court costs, too. The judge may not give you punitive damages, but you'll get your deposit and out of pocket filing/serving fees.

Go get her! LOL! I can't stand crooked landlords.

Last edited by NoMoreSnowForMe; 08-21-2014 at 08:01 PM..
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Old 08-21-2014, 08:08 PM
 
Location: Silicon Valley
18,666 posts, read 25,852,165 times
Reputation: 37427
Here's the Santa Clara County small claims court page for plaintiffs (you):

For the Plaintiff - Small Claims - Superior Court of California

Tells you how to file, etc.

You really don't need to read everything and get overwhelmed. Just download the form for filing, fill it out with the amounts I mentioned above, say this is the right court because this is the county where the landlord lives (and if that's not the case, say it's the right court because this is the county where you did business with the landlord).

http://www.courts.ca.gov/documents/sc100.pdf

Take the form to the courthouse and file it. Then say what I wrote above, and let the judge decide. It doesn't need to be more complicated than that. And the reason is, because all you need to do is show what the law is, and that the landlord didn't follow the law, and the law says if she doesn't, you get your deposit back. It's all about the law. That's all the judge can decide on. Reasons and excuses for not following the law don't win against the law.
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Old 08-22-2014, 05:06 AM
 
310 posts, read 613,026 times
Reputation: 294
If you sue, let us know how it turns out.
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Old 08-22-2014, 04:02 PM
 
49 posts, read 61,879 times
Reputation: 37
As usual, NoMoreSnowForMe nails it. We are lucky you are on this forum.
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Old 08-22-2014, 04:24 PM
 
4 posts, read 10,761 times
Reputation: 31
Thanks all for the advice. Thank you so much NoMoreSnowForMe! I went to the nearest fairhousing office and they recommended the same as what you suggested. So we are not cashing the check she sent and will sue her for the full amount, plus punitive damages. Also, we recently found out that she did the same thing for the previous tenant ($3000!!!) and some of the charges we have are exactly the same as previous tenant. They are planning to sue her as well. I will post updates on how it turns out.

Thanks again everyone!
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