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Small claims court...

Anyone here in CA been to small claims, either suing or being sued?

Uh oh, What happened Nero?

Uhm. Ya. over a fence for my house.

I can say that I have some experience in this area...three-year fight with upstairs neighbor over poorly installed hardwood flooring that deprived me of several months sleep (meaning that if all the lost sleep were added together, it would probably add up to several months solid!), plus an HOA that really wasn't interested in enforcing the rules.

If you believe that you have a case, then go for it. Just be prepared to come with facts and condense it down much as possible, judges roll their eyes when someone comes up with a 6" thick stack of papers and 15 exhibits...

If you win, your filing fee of $50 will be included in the judgment, all you're out is a $10 credit card processing fee (note, with the current budget prices, these fees may have quadrupled, so check it out first). You can file online, then must serve the other party a two-page form, then appear in court (your case MUST be heard at the court having jurisdiction over your area, or area of incident). Not a very pleasant process, but I won and recouped every penny of my attorney fees spent along with the filing fee.

There are court assistants paid to help you for free by phone, but I just researched and did it all online. This link will get you started:

http://www.courtinfo.ca.gov/selfhelp/smallclaims/

As inmuzzik said make sure you have proper evidence and go prepared. I took someone to small claims once. It was more out of principal. Tell us about your case and/or defense.

Well we are getting sued $5000 for a $1300 security deposit, we own a complex and we were renting out to this x tenant that is trying to sue us.

So they are suing us 1300 for the security deposit, 1300 in punitive damages and 2400 in negligence and bad faith.

Can you freaking believe that? They took it to the max, 5000.00 bucks. I think that's one thing that is key that is going to help us show that they are just trying to pull money out of us.

One thing that bugs me also is that we just got notified today, yet the papers were served 12/05/08. They came them selves and dropped off the small claims court paper work. We NEVER got anything in the mail. The court date is only 2 weeks away, so for over 2 months they had all this time yet we didn't.

Getting to it though...

The tenets left in September, and they left the place a dump. I have 71 hi rez pictures of the condition they left the place. They DID work on the place and DID do some repairs to the unit, but it was still a joke. We still dropped around 3g's into the unit and i did the work my self or else it would have been WAY more. I have estimates to show the judge of $3000 in estimated labor costs by a general contractor and receipts for $800 bucks in appliances.

The one thing where we did mess up with is the 3 week California security deposit law. The law states that we the landlord has to give the tenant in writing a letter why the deposit was not giving back with in 27 days of their departure. The law doesn't state anything at all if the deposit report isn't given within the 27 days We need to list and show repair to actual "damage" and not wear and tear. Well we kind of shit the bed there. We never really formally gave the tenant anything in writing, but we did formally tell them and gave them a property walk through of the unit explaining why the deposit wouldn't be given back.

Another thing is they are complaining about some things NOW and not back then. She claims that the building had "negligence mold" that we never fixed anything "hot water in shower and heater" and that we "violated her rights as a tenant." Which is all BS, if shit was so bad they wouldn't have stayed in the complex for over 5 years. We never knew about any negligence mold, nothing was brought up. When we purchased the complex they were already in the unit and when the inspector came in and inspected the building, mold was not put on the report. And that we violated her tenant rights? She violated the contracting by having over 13 people living in a 3 unit apartment on several occasions months at a time. But this is kind of irrelevant i guess in this matter i think.

So yeah i am just trying to be prepared for court since i only have 2 weeks to prepare for the case to defend our selves.

The only thing they somewhat have on us is the 27 day deposit advisement law where we never notified them why they were not going to get the deposit back. On the other hand, we have receipts, pictures, proof that she made fraudulent paper work and evidence that we spent well over 1300 into the unit once she moved out.

So if any of you guys have any suggestions comments or questions to help me out?

Please do.

what does the copy of the lease look like? Did you authorize them to make repairs?

quote:

She claims that the building had "negligence mold" that we never fixed anything "hot water in shower and heater" and that we "violated her rights as a tenant."

Did she ever notify you in writing? What was your response?

quote:

On the other hand, we have receipts, pictures, proof that she made fraudulent paper work and evidence that we spent well over 1300 into the unit once she moved out

Counter-sue. That might allow you also to postpone the court-date

First off, you can't get punitives.

As for Negligence, they must prove you had a duty, you breached the duty, that you were the actual cause (but for whatever you did) and the legal cause (no intervening factors) and finally damages.

Landlord has a non-delegable duty to make premises safe. Further if they want to use the repair and deduct statute and pay less rent, they have to give written notice about the repairs before they repair and deduct.

They can claim constructive eviction if they left because the place was inhabitable. There is an implied warranty of habitability with residential units (not commercial). So no hot water, heat, the place was flooded...something like that.

Don't ever admit guilt. For all you know, you sent the letter showing the repairs and deductions to their apartment, and by that time they left. So even if you didn't send it...how would they know? And how would you know where to send it to?

In sum, the case will probably be dismissed imo. Your pictures of how you left the place and the receipt showing necessary bills should suffice. And I take it they probably didn't pay their month or two of rent. Throw in the fact that you didn't get adequate notice that they were leaving. (you must get one whole period notice, so a day before the last month)

This is exactly why I never want to invest in more real estate for the purposes of renting it out and being a landlord. What a hassle. I'd much rather invest in other places. Sorry to hear you're in a mess with that dude. Stress city, eh?

quote:

Originally posted by Orbital32 what does the copy of the lease look like? Did you authorize them to make repairs?

We did not authorize them to do any repairs, but the lease doesn't specifically say that they cant. So i think they were ok on doing so.

quote:

Originally posted by Orbital32 Did she ever notify you in writing? What was your response?

She never did anything in writing, they did complain about some stuff verbally and that stuff was taken care of on time.

quote:

Originally posted by Orbital32 Counter-sue. That might allow you also to postpone the court-date

We thought of that, but we rather just get over it and get it done in 2 weeks instead of having that issue still pending. I might counter-sue but i have to think about it first.

quote:

Originally posted by mar46017 First off, you can't get punitives. As for Negligence, they must prove you had a duty, you breached the duty, that you were the actual cause (but for whatever you did) and the legal cause (no intervening factors) and finally damages. Landlord has a non-delegable duty to make premises safe. Further if they want to use the repair and deduct statute and pay less rent, they have to give written notice about the repairs before they repair and deduct.

Yeah they cant really prove negligence. They never gave us anything in writing. Some repairs were made by them or their friends and we just "payed" them for it. Nothing was ever on paper though. The mold case was never mentioned, the hot water in the bathroom and heater issues were fixed. But like i said nothing on paper.

quote:

Originally posted by mar46017 They can claim constructive eviction if they left because the place was inhabitable. There is an implied warranty of habitability with residential units (not commercial). So no hot water, heat, the place was flooded...something like that.

See they didn't even leave because the place was bad (because of course its not), they left because they couldn't afford it anymore. They all moved into a 2 bed 2 bath place that is a few hundred dollars less a month then our place. They just couldn't afford it so they left.

quote:

Originally posted by mar46017 Don't ever admit guilt. For all you know, you sent the letter showing the repairs and deductions to their apartment, and by that time they left. So even if you didn't send it...how would they know? And how would you know where to send it to?

GOOD point, now that i remember i did drop off a packet with a copy of the disk and all the repairs in the mail for them.....

quote:

Originally posted by mar46017 In sum, the case will probably be dismissed imo. Your pictures of how you left the place and the receipt showing necessary bills should suffice. And I take it they probably didn't pay their month or two of rent. Throw in the fact that you didn't get adequate notice that they were leaving. (you must get one whole period notice, so a day before the last month)

Yeah i am also thinking it will get thrown out in the end for the lack of evidence on her part. I have all the evidence in the world, before and after pictures and documents on everything

One thing though, they did leave on good terms. They actually did pay the rent to the last day they were there, they did give us 30 day notice once the lease expired and everything looked ok. Well everything minus the deposit. LOL

I am also going to go to lunch with one of my x professors from college that was also a Realtor. Hopefully he is in town and i can meet up with him before the court date.

Also thanks again guys.

quote:

Originally posted by skizzell This is exactly why I never want to invest in more real estate for the purposes of renting it out and being a landlord. What a hassle. I'd much rather invest in other places. Sorry to hear you're in a mess with that dude. Stress city, eh?

I mean its kind of a hassle.

This is the first issue we have had in the 5 years we have owned and managed this place.

Its only a hassle when the tenants leave and we have new tenants come in. When everyone stays put, and renews the 1 year contract everything goes smoothly. We have been lucky that a lot of our tenants are happy here and don't plan on leaving soon.

I took my previous landlord to small claims and I won. All I wanted was my deposit back. When I left the place, the place was exactly how they leased it to us. Carpet was clean, windows were the same, everything was the same. However, the landlord claimed they had to do some fixes on the place and the deposit was used towards it.

I didn't have any pix or anything to prove I had left it intact (this was 10 years ago), but I read the lease over and over and over until I found a breach of contract. The lease said no alterations were to be made to the place without prior written authorization from BOTH OF US. I never authorized thosed fixes, court agreed and I won! I got my $1000 deposit back.

I was like 18 or 19 at the time, so I was young. Everyone in the courtroom clapped and cheered when the judge ruled in my favor.

max for small claims court is now $7500 now

quote:

Originally posted by Nerologic The tenets left in September, and they left the place a dump. I have 71 hi rez pictures of the condition they left the place. They DID work on the place and DID do some repairs to the unit, but it was still a joke. We still dropped around 3g's into the unit and i did the work my self or else it would have been WAY more. I have estimates to show the judge of $3000 in estimated labor costs by a general contractor and receipts for $800 bucks in appliances.

btw: You must differentiate between normal wear and tear and waste. The tenant is not liable for normal wear and tear. So make sure you use those words that the way they left it was more than normal "wear and tear"

Also talk about waste. A tenant has a duty not to commit waste. (you can sue them for making holes the walls etc) If they added any permanent fixture, they become part of the property. If they do remove the fixtures and cause damage as a result, that is also considered waste.

Ameliorative waste is waste that actually increases the value of the property. (so you may not be able to claim anything in the case of ameliorative waste)

I sued my landlord about 6 years ago to get my $2k deposit back, and won. I moved on to a place and he neglected to tell me that a street trader was using our doorstep as his stand. The caused a serious inconvenience to ever get access to the property (and a fire risk etc.) We complained and he said well the trader has a lease for that space so we should move out he'd give us our money back.

To sum up, we had photos and evidence but he said we just suddenly moved one day and he had loss of rent (which was a lie too). The case was decided on the clause in the lease we highlighted to the judge that said we were meant to "quietly enjoy and possess the property". I stated we could not "enjoy or possess under these circumstances" and the judge immediately ruled in our favor. The other thing was that it was our word against his, but we turned up smart, with evidence and were respectful at all times - the landlord turned up in a ripped shirt, kept interrupting and had no tangible evidence.

Even though it was in England, the same basic laws are common here.

So a few tips for your day in court. I know these are going to sound obvious but you'd be surprised.

Go smart - wear a tie if needed, but not so over the top that you feel uncomfortable.

Be polite and respectful to the judge at all times (your honor, sir/mam, "yes" not "yeah" etc), never get worked up or interrupt either the judge or the other party.

Not admitting guilt is excellent advice, often people think they have done something wrong when in fact they haven;t or the law isn't quite as strict as they think - don't ever get caught in a lie, but as long as it's your word against theirs, the above two tips will actually really help you.

Remember that small claims is more relaxed in the respect that the judge rules on common law and a lot of common sense, as they see fit. So they want to hear a story that makes sense - and you need to be able to tell it well, from start to finish.

When telling your side, offer specific evidence (as you go) that supports your testimony. This makes it easy for the judge to make a decision and get a picture of what really happened.

State the reason they left clearly and how long they were tenants - their defense sounds like they're trying to paint you as bad landlords, but this is easily refuted by the fact they stayed there for 5 years, and that you put money in to the property while they were there and for future tenants - you wouldn't do that if it were really the case that you are bad landlords but you do actually have to make that point obvious to the judge.

Do you have proof that they coudn't afford it? (even if they said that to you in person or on the phone?) Did they ever pay late or short?

Be able to answer a question of "when did you send {insert document name here] to the tenant" with an exact date - being vague will make you sound like a bullshitter.

Don't sweat it too much about the hot water etc. - shit happens to old rented properties, and you fixed it to the satisfaction of the tenants - nothing is ever perfect all the time and as long as you followed through the judge will understand it.

Good luck and keep us posted.

Well i am glad that both of you guys won, but you guys were in the right, unlike our x tenants...

quote:

Originally posted by mar46017 btw: You must differentiate between normal wear and tear and waste. The tenant is not liable for normal wear and tear. So make sure you use those words that the way they left it was more than normal "wear and tear" Also talk about waste. A tenant has a duty not to commit waste. (you can sue them for making holes the walls etc) If they added any permanent fixture, they become part of the property. If they do remove the fixtures and cause damage as a result, that is also considered waste. Ameliorative waste is waste that actually increases the value of the property. (so you may not be able to claim anything in the case of ameliorative waste)

Yeah as far as "waste" there is a lot of it. There are a lot of holes in the walls and bad stains in the carpet (the carpet was replaced). It was not normal wear and tear it was just neglect and being lazy.

They did "patch up" the holes, but they were not done correctly. We had to go out and re do all the holes and on top of that add texture to the areas that were re done. They just went to home depot and bought some mud and slapped it on the holes to cover them up.

I mean does this even look right? This was there definition of patching holes LOL



Here are a few more examples of the place:







Clearly that isn't normal wear and tear...

quote:

Originally posted by DJ RANN Go smart - wear a tie if needed, but not so over the top that you feel uncomfortable. Be polite and respectful to the judge at all times (your honor, sir/mam, "yes" not "yeah" etc), never get worked up or interrupt either the judge or the other party. Not admitting guilt is excellent advice, often people think they have done something wrong when in fact they haven;t or the law isn't quite as strict as they think - don't ever get caught in a lie, but as long as it's your word against theirs, the above two tips will actually really help you. Remember that small claims is more relaxed in the respect that the judge rules on common law and a lot of common sense, as they see fit. So they want to hear a story that makes sense - and you need to be able to tell it well, from start to finish. When telling your side, offer specific evidence (as you go) that supports your testimony. This makes it easy for the judge to make a decision and get a picture of what really happened. State the reason they left clearly and how long they were tenants - their defense sounds like they're trying to paint you as bad landlords, but this is easily refuted by the fact they stayed there for 5 years, and that you put money in to the property while they were there and for future tenants - you wouldn't do that if it were really the case that you are bad landlords but you do actually have to make that point obvious to the judge. Do you have proof that they coudn't afford it? (even if they said that to you in person or on the phone?) Did they ever pay late or short? Be able to answer a question of "when did you send {insert document name here] to the tenant" with an exact date - being vague will make you sound like a bullshitter. Don't sweat it too much about the hot water etc. - shit happens to old rented properties, and you fixed it to the satisfaction of the tenants - nothing is ever perfect all the time and as long as you followed through the judge will understand it. Good luck and keep us posted.

Thanks for the advice...

We have receipts that show the 50 dollar late fee being imposed because they did not have the rent ready on time. We have MANY months that show they were late. They paid late all the time, and a handful of times only gave a part of the rent and then gave the rest within a week or sometimes 2. We do not have any proof for that though, just the 50 dollar late fee on the receipt.

As far as a date, and i need to go back through all the paper work and come up with a date that makes sense with all the dates.

I am still getting everything together right now, i should be ready in about a week. I am going to go over everything before me and my moms go into court and defend our selves. I want to have every angle covered because its complete bullshit on their part for suing us...

I am actually signing a lease tomorrow, but prior to that i did take a blank copy of the acutal lease, its very thorough. It covers alot of the issues that you had. Would you like a copy for the future?

quote:

Originally posted by DJ RANN To sum up, we had photos and evidence but he said we just suddenly moved one day and he had loss of rent (which was a lie too). The case was decided on the clause in the lease we highlighted to the judge that said we were meant to "quietly enjoy and possess the property". I stated we could not "enjoy or possess under these circumstances" and the judge immediately ruled in our favor.

You used good words! All residential leases contain implied warranties of habitability and an implied covenant of quiet enjoyment.

Btw: Thanks for the Landlord/Tenant review, I'm taking the bar on Tuesday. Wish me luck!

quote:

Originally posted by Orbital32 I am actually signing a lease tomorrow, but prior to that i did take a blank copy of the acutal lease, its very thorough. It covers alot of the issues that you had. Would you like a copy for the future?

I have a few different types, but another one wouldn't hurt

quote:

Originally posted by mar46017 You used good words! All residential leases contain implied warranties of habitability and an implied covenant of quiet enjoyment. Btw: Thanks for the Landlord/Tenant review, I'm taking the bar on Tuesday. Wish me luck!

Haha

Good luck, and thanks for the advice...

Both of us came up on the deal

quote:

Originally posted by Nerologic Well i am glad that both of you guys won, but you guys were in the right, unlike our x tenants... Yeah as far as "waste" there is a lot of it. There are a lot of holes in the walls and bad stains in the carpet (the carpet was replaced). It was not normal wear and tear it was just neglect and being lazy. They did "patch up" the holes, but they were not done correctly. We had to go out and re do all the holes and on top of that add texture to the areas that were re done. They just went to home depot and bought some mud and slapped it on the holes to cover them up. I mean does this even look right? This was there definition of patching holes LOL Here are a few more examples of the place: Clearly that isn't normal wear and tear... Thanks for the advice... We have receipts that show the 50 dollar late fee being imposed because they did not have the rent ready on time. We have MANY months that show they were late. They paid late all the time, and a handful of times only gave a part of the rent and then gave the rest within a week or sometimes 2. We do not have any proof for that though, just the 50 dollar late fee on the receipt. As far as a date, and i need to go back through all the paper work and come up with a date that makes sense with all the dates. I am still getting everything together right now, i should be ready in about a week. I am going to go over everything before me and my moms go into court and defend our selves. I want to have every angle covered because its complete bullshit on their part for suing us...

You're looking good - seriously, the carpet alone is enough to show they did not look after the property - it was un-rentable with that carpet so tale the receipt for the new one. Then you have the broken drawer and make sure you emphasize how bad their "fixes" were and that you are out of pocket to refix them.

The fact they paid late so many times is also great contributing evidence that they were bad tenants, and basically even though you don't have evidence for some it, there is enough to make the judge believe you are telling the truth about it.

Mikey, you're totally right about that but I could prove that a specific covenant had been broken, and that's where the case was closed according to the judge.

Countersue those ******s.

quote:

Originally posted by DJ RANN Countersue those ******s.

Yeah that's what someone else suggested today. I am going to talk to a small claims adviser tomorrow.

Also Mikey...

What are the 3 different kind of trust funds/deeds to a property?

To like switch owners all of a sudden in case of an emergency?

The person i met up with that today mentioned that, do you have any idea of what i am talking about?

EDIT: seems like its a living trust, i need to figure that out now...

quote:

Originally posted by Nerologic Yeah that's what someone else suggested today. I am going to talk to a small claims adviser tomorrow. Also Mikey... What are the 3 different kind of trust funds/deeds to a property? To like switch owners all of a sudden in case of an emergency? The person i met up with that today mentioned that, do you have any idea of what i am talking about? EDIT: seems like its a living trust, i need to figure that out now...

A trust is a fiduciary relationship where a trustee holds legal title for an ascertainable beneficiary.

A valid trust must contain 1) Settlor 2) Trust "res" or property 3) Ascertainable beneficiaries 4) Trustee 5) Valid Purpose (nothing illegal or against public policy)

Living Trust or "inter-vivos" trusts are usally made to avoid probate. (a will goes into probate...or if there is no will by intestate succession)

Intestate succession depends if the dececeased leaves a spouse or issue (children)

If there is a spouse and 1 child. Spouse gets all Community Property and 1/2 separate property. If there is a spouse and two or more children - Spouse get 1/3 and children (2 or more) get 2/3. No spouse or children. Goes to parents. No parents, goes to issue of parents. No issue of parents goes to issue of predeceased spouse. If none, next of kin. If none - escheats to the state.

Above is more review for me.

You mentioned a deed. There is a general warranty did that gives 6 coventant...3 present and 3 future. Basically saying, you own the place, its free of encumbrances, it is marketable and others that go to future owners.

A quitclaim deed on the other hand gives up whatever interest you have (no warranties)

Lemme know if you wanna know more about a trust. A trustee has many duties. Duty of care, loyalty, earmarking assets, accounting, prudent investing, no self-dealing.

There are other types of trust like a spendthrift trust, which shields creditors. For example you want to leave money to your child, but only want the money to be used for education or necessities of life. (but you as a grantor can't use this to shield creditors.)

A discretionary trust leaves the discretion to the trustee for whatever he/she feels like paying out.

Other non-sense trusts are
Totten trust - more common on the east coast. This is when you put a child's name on a bank account, but you owe no duties to your child and can take from the account as you please.
or
Honorary trust - when one leaves money for a dog or cat. Its up to the trustee's "honor" whether he uses the funds for that purpose.

Income beneficiaries - take income that comes as a result of the trust.

Principal beneficiaries - take what is left after the trust purpose is fulfilled.

I hope I get a question on trusts but it is the least tested subject. I know 22 subjects...but only 6 will be tested on the essays. 5 on the muliple choice. Day 1 start with a 3 hour essay consisting of 3 quesiton. 1 hour break. Then a 3 hour performance exam. Day 2 3 hours of 100 multiple choice. 1 hours break. Another 3 hours of multiple choice. Day 3 is like day 1.

I will be one happy guy Thursday night! Just found out today I have good moral character (Basically the background check)

Here's a good read on living trusts

http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath=Living_Trust.gif&sCategoryPath=/Home/Public%20Services/Consumer%20Information/Pamphlets&sHeading=Living%20Trust&sFileType=HTML&sCatHtmlPath=html/Pamphlets_Living-Trust.html

quote:

Originally posted by mar46017 I hope I get a question on trusts but it is the least tested subject. I know 22 subjects...but only 6 will be tested on the essays. 5 on the muliple choice. Day 1 start with a 3 hour essay consisting of 3 quesiton. 1 hour break. Then a 3 hour performance exam. Day 2 3 hours of 100 multiple choice. 1 hours break. Another 3 hours of multiple choice. Day 3 is like day 1. I will be one happy guy Thursday night! Just found out today I have good moral character (Basically the background check) Here's a good read on living trusts http://www.calbar.ca.gov/state/calb...ving-Trust.html

Thanks again man. I am looking into legal trusts, we might just make it through "legalzoom" since its pretty cheap and effective. I just need to figure out some things out first before we do the trust.

And good luck man, i know the bar is pretty hard so good luck with that.

Going tomorrow to court, we actually filed a defendants claim and are suing them for 2400 since we spent almost 4g's into the place.

Here is a run down of everything that i am taking and going to talk about:

We got recommendations from all our current tenants that we are good landlords and fix everything immediately.

We are going to mention its our first time in court.

Show pictures and list all the things that didn't work when they left, dish washer stove etc...

Show pictures of the place, i printed out a good 20 of them.

Show over 3700 in receipts of labor and materials as proof of our claim.

Show the judge a copy of the "packet" that we sent out on the 25th of July 2008 that i guess never made it too them.

Explain to the judge that labor ($2000) to paint and prep all the walls was so expensive because the poorly patched holes needed to be redone.

And i think that's it.

Anyone have any last minutes suggestions?

will you be on judge judy or the red head mexican chick.. whats her name..

but from one fellow evo owner to another........ but from the pics, you win

quote:

Originally posted by DizkokidD will you be on judge judy or the red head mexican chick.. whats her name.. but from one fellow evo owner to another........ but from the pics, you win

haha thanks man

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