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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 112762
Experience:  Attorney with over 24 years experience.
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If a landlord sues and serves the summons and complaint

Customer Question

If a landlord sues and serves the summons and complaint for unlawful detainer, on a Calif. residential tenant in possession of the rented home, based on claim for past due, unpaid rent, when the tenant remains in possession, for over a month, while the case is pending, with the past due rent over the amount of the posted security deposit, before vacating the property, must the a Calif. Civil Code, Sec. 1950.5 notice be given by the landlord to the tenant?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

If there is a court action, as part of the court case when you get the unlawful detainer you would ask the court to award you the security deposit for damages. If the court awards you the deposit for damages, NO NOTICE is due when they leave about forfeiting their security deposit. If the court does not award you the deposit as part of then upon them leaving you have to send the notice listing the damages as required by the code.

Customer: replied 1 year ago.
When the case went to trial, the defendant claimed the plaintiff violated the defendant's rights by failing to have given her the notice indicated in Calif CC Sec. 1050.5. The court did determine that past due rent was owed for 45 days, including 31 days after the Court determined that Defendant falsely had represented the Defendant had vacated the property.
Please review your answer, check and clarify the second and third sentence of that answer.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

I had no idea what the court did, you never told me until your reply.

The court determined the Defendant falsely represented vacating the property, therefore it is up to the Plaintiff to ask the court as part of the damages in the court case pending to award the security deposit as part of the damages. If the court does not do so, then the plaintiff needs to give the 21 day notice as to why the plaintiff is keeping the deposit from the date they actually vacate. You said they are still in the property, the court found they falsely claim they vacated the property, so until they leave you do not send the notice. You do not send the notice if you ask the court to award it to you as part of the eviction judgment either.

Customer: replied 1 year ago.
At trial evidence was submitted, at trial, indicating the amount of the security deposit, of $2,050, and a judgment was entered, including damages for unpaid rent $2,850.00. The date the judgment was entered was several months after the Defendant had vacated the property.Please understand that by the Complaint, filed and served, an amount in excess of the security deposit was claimed for past due, unpaid rent. Defendant stayed in possession, while the case was pending trial, claimed to have moved out, but was proved to have vacated the property 31 days after she had claimed to have vacated the property. Also, at trial the court held Defendant liable for over $4,000.00 damages to the property.But my question is, under these circumstances, has the landlord violated his duty, based on Calif CC Sec. 1959.5, so that Defendant is entitled to payment of $1,850 from Plaintiff (return of the security deposit).Thank you for your efforts.
Customer: replied 1 year ago.
I've notice 2 typos in my last response: Most importantly, the relevant Calif. CC Sec. is, as stated previously, 1950.5.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

NO, the defendant is NOT entitled to payment from the plaintiff for return of the security deposit. There was a judgment against the plaintiff for unpaid rent and as such the defendant is NOT ENTITLED TO THE DEPOSIT BACK the suit and judgment was the notice on that.

Customer: replied 1 year ago.
I've been informed by the plaintiff, that, in fact, the judge, having determined that possession was not in issue, causing the case to be considered a general civil case, sent out a notice of intended decision, indicating the judgment was to be entered including the $2,850 due for unpaid rent, $4,000 for property damages, but with with the plaintiff obligated to pay defendant $2,050.00, as a return of the security deposit (or recognized as a set off against the amount of damages owed) for failure to have given the CA CC Sec. 1950.5 Notice.My question remained the same, was plaintiff obligated to return the $2,050 security deposit, for not giving defendant, the subject notice under the circumstances, as defendant remained in possession while the trial was pending, and after having been determined to have misrepresented her move out date to the Court. and to be responsible for paying damages for rent due, in excess of the amount of the security deposit?Please clarify your answer to the above question. .
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

NO, the plaintiff was NOT obligated to give the security deposit back, the court even said it was "set off" so you received an award as plaintiff and they set that off by what you held as security deposit. That just means the court applied the security deposit to part of what was owed for damages.

Customer: replied 1 year ago.
Please understand the judge stated that the judgment would include Damages of $2,850.00, but also said the Plaintiff would be obligated to pay the Defendant $2,050, as a return of the security deposit, due to not giving the Defendant the CC sec. 1950.5 notice. The judge did not use the term set off. Was that statement appropriate, under law, based on the facts and circumstances I indicated previously.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

So you did not give the notice BEFORE there was any judgment and the tenant moved out, it was not something that happened after the judgment was issued (when no 21 day notice would have been required). If you violated 1950.5 BEFORE any court judgment was issued, the court is correct that you should be penalized for that.

Customer: replied 1 year ago.
Again, the Complaint (verified) filed and served, indicated a claim for past due rent, which was then an amount equal to the security deposit, plus additional rent for the extended occupancy of the property..Defendant remained in possession, lied to the court that she moved out, 31 days before actually moving out, and the judge determined judge would be entered for $2,850, was included the full period of time for which rent was past due. Should the Court recognize that under the circumstances (the verified) Complaint stated a claim for at least an amount equal to the security deposit, and the Court found Defendant owed damages for rent in excess of the security deposit that a separate notice, such as required in CC sec. 1950.5, was not required?
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

The judge cannot say you failed to give notice if she did not move out yet. So you have to prove she did not move out to the court. You need to appeal the decision. The court should not have said you failed to comply with the notice requirement if she had not yet moved out and only lied to the court saying she did. But that was your burden to prove she did not move out.

Under the circumstances, if the court agreed she moved out and you did not send the notice, then they acted properly in offsetting damages against you owing the security deposit refund for not giving notice to her. This is something you have to appeal and have the burden of proving she did not move out as she claimed and she obtained that judgment from the court based on fraud to the court and lying to the court.

Customer: replied 1 year ago.
The tenant/defendant moved out, after the ud case was filed, seeking a judgment for rent past due, which then was for more than the security deposit, and she was served, with copies of the summons and complaint. She claimed she moved out 5 days after being served with the Summon and UD Complaint. The Judge determined, at trial, that she didn't move out until 31 days after being served, and that the judgment would provide for rent owed until the date she moved out, plus property damages of $4,000. However, the Judge indicated Defendant would be entitled payment from Plaintiff for the amount of the security deposit, since Plaintiff had not given Defendant a notice.The question still is, as Plaintiff's claim stated in the Complaint (which was later amended to include a claim for property damages) was for rent owed in an amount not in excess of the security deposit, and Defendant was found to have intentionally misrepresented, to the Court, her actual move out date, and found responsible to pay damages for past due rent and property damages, should Plaintiff be obligated to return the security deposit funds to Defendant. Please try one last time to provide an answer to this question. Thank you for your efforts.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

The tenant lied, you said that. It is up to you to prove they lied in court though. SO on appeal, where you get a new trial, you need to prove they lied so the defendant would not be entitled to the deposit because the notice was not get due because they truly did not move out as they claimed.