My question is since she moved back in for a month is she entitled?
A: Cal. Civil Code 1950.5(b) provides four specific purposes for which a security deposit may be used: "(1) The compensation of a landlord for a tenant’s default in the payment of rent; (2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant; (3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act adding this sentence shall apply only to tenancies for which the tenant’s right to occupy begins after January 1, 2003; (4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement."
Although Section 1950.5(b) generally permits a security deposit to be used for "any purpose," no California appellate court case, to my knowledge has ever permitted a security deposit to be used to pay damages for "pain and suffering." I very much doubt that the tenant would be permitted to use Section 1950.5(b) to recover double damages for your failure to pay her alleged pain and suffering damages from the security deposit. Moreover, the tenant would have to prove that pain and suffering, which, as I have already explained, is nearly impossible to accomplish in small claims court. The tenant would have to sue in Superior Court, and would have no right to recover attorney's fees -- which would make the cost of litigation far greater than any possible recovery.
Consequently, I think that this is a dead end for the tenant, because she will be unable to prove you or the property manager negligent in the maintenance of the rental unit.
However, if you are looking for an unequivocal "yes" or "no" answer concerning the tenant's right to recover damages for pain and suffering, then that is a question that neither I nor anyone else can answer. It's a question of fact for a judge or jury. The tenant can demand damages, but getting a court judgment for those damages is a very difficult proposition, as previously explained. My opinion is that the tenant will lose this claim. But, I can't promise you this, because, again, it's a judgment call, and I'm not the judge.
Also our property manager will not give us the keys unless we pay him 252. I'm not sure for what and he won't let anyone on the property.
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