Fights over security deposits are a common dispute between landlords and tenants. If your landlord is unfairly withholding your deposit, don’t panic. Here’s our step-by-step guide to suing in small claims court for your deposit.
Step 1: You are required to send a demand letter first
In California, a landlord has twenty-one days after a tenancy is terminated to return a deposit in full or properly account for any deductions. Cal. Civil Code § 1950.5. If a landlord fails to do this, you must write a letter to them before filing a lawsuit explaining why you believe you are entitled to a larger or full refund. The demand letter is a chance to give your landlord your forwarding address (if you haven’t already done that when you gave notice to move). It also builds your case for a lawsuit in small claims, making it more likely that a judge will award punitive damages if the landlord doesn’t follow the letter of the law.
In the letter, be sure to do the following:
- Include the specific details of your dispute;
- Send it by email and certified or priority mail to track its delivery;
- Include the current date, as well as your former unit number or address;
- Note that you either haven’t received a full refund of your security deposit or that you dispute deductions, citing section 1950.5 as your authority;
- State that you expect the full or partial refund within two weeks or you will exercise your right to sue in small claims court and;
- Keep a copy for your records.
If your landlord doesn’t respond, you can file a lawsuit in small claims for up to $10,000 for your deposit. You can ask for twice the amount of the deposit as a penalty if you can show bad faith, plus any actual damages for breach of contract, retaliation and fraud, among others.
Suing your landlord in small claims is inexpensive, typically less than $50 to file a case.
Step 2: Fill out the court forms
To prepare a claim, you need to fill out court forms that inform the court and the landlord about your claim.
- Plaintiff’s Claim and ORDER to Go to Small Claims Court (Form SC-100).
- For more than 2 plaintiffs or 1 defendant, also fill out Other Plaintiffs or Defendants (Attachment to Plaintiff’s Claim and ORDER to Go to Small Claims Court) (Form SC-100A).
- If extra space is needed to describe your claim or to include witness statements, a Declaration (Form MC-030).
You can have a small claims advisor review your documents for accuracy and provide general help in preparing for your day in court.
When you fill out the claim summary, be sure to include all breaches by the landlord. Expand your claim beyond the deposit if possible. For example, if you did not have heat or the landlord harassed you, be sure to ask for rent back and emotional distress for this.
Step 3: File your complaint
Take your completed forms with payment (if you can’t afford the filing fee, you can ask the court for a fee waiver) to your small claims clerk to be filed. After checking your forms, the clerk will usually stamp the forms “Filed” and fill in the date, time, and location of your court hearing. The clerk will keep the originals of the forms and give you a copy for yourself and other copies for each defendant you are suing.
Once filed, your dispute will go before a judge within a month or two. You won’t need a lawyer, and they generally aren’t even allowed.
Step 4: Serve your complaint
“Service” is when someone other than you – or anyone else listed in your case – gives a copy of your court papers to the landlord you’re suing. Service lets your landlord know:
- What you’re seeking
- Time and location of your court date
- What they can do in response
File the proof of service with the court (Form SC-104B).
Step 5: Gather your evidence
Before your day in court, assemble as much evidence as possible to strengthen you case:
- Photos or video of the unit’s condition, pre-inspection and post-inspection;
- A copy of any signed assessment of the unit’s condition upon moving in and after moving out;
- Receipts for any supplies purchased to complete final repairs or clean up;
- A copy of your lease or rental agreement and;
- Any personal or written testimony by one or more persons who can confirm the condition of the unit before and/or after your tenancy and;
- A copy of your demand letter to the landlord
Step 6: Practice makes perfect
If you’ve never been to small claims court, attend a few trials before your court date to get familiar with the process. Watch how the trial proceeds, and pay attention to how the parties present their case.
Practice your presentation; having confidence in your evidence and how you will present it to the court, will reduce a lot of anxiety prior to your court date.
Step 7: Presenting your case
The trial will consist of you and your landlord explaining your sides of the dispute and presenting evidence and witnesses.
When you present your case, simply and briefly state the facts. Describe your loss and how much you are asking in compensation.
Then tell your story chronologically, presenting relevant evidence along the way. If you’ve brought witnesses, make them known to the court, tell the judge what testimony they will give, and then ask permission to call them.
Your testimony will usually take about 15 minutes or less, after which the judge either announces a decision in the courtroom or mails it within a few days.
Step 8: Appealing
Usually, only the defendant (your landlord) can appeal the decision in small claims. If your landlord wants to appeal, the case will be heard from the beginning, in front of a new judge in the civil division of the superior court. You are allowed to be represented by a lawyer for the appeal.