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Tenant Guide Legal Action Refund Security Deposit
Tenant can file a lawsuit in small claims court for the amount of the security deposit plus court costs, and possibly also a penalty and interest, up to a maximum of $7,500.261 (If your claim is for a little more than $7,500, you can waive (give up) the extra amount and still use the small claims court.) For amounts greater than $7,500, you must file in superior court, and you ordinarily will need a lawyer in order to effectively pursue your case. In such a lawsuit, the landlord has the burden of proving that his or her deductions from your security deposit were reasonable.262
If you prove to the court that the landlord acted in “bad faith” in refusing to return your security deposit, the court can order the landlord to pay you the amount of the improperly withheld deposit, plus up to twice the amount of the security deposit as a “bad faith” penalty. The court can award a bad faith penalty in addition to actual damages whenever the facts of the case warrant—even if the tenant has not requested the penalty.263 These additional amounts can also be recovered if a landlord who has purchased your building makes a “bad faith” demand for replacement of security deposits. The landlord has the burden of proving the authority upon which the demand for the security deposits was based.264
Whether you can collect attorney’s fees if you win such a suit depends on whether the lease or rental agreement contains an attorney’s fee clause.265 If the lease or rental agreement contains an attorney’s fee clause, you can claim attorney’s fees as part of the judgment, even if the clause states that only the landlord can collect attorney’s fees.266 However, you can only collect attorney’s fees if you were represented by an attorney.267
261 Civil Code Section 1950.5(n), Code of Civil Procedure Section 116.221.
262 Civil Code Section 1950.5(l).
263 Civil Code Section 1950.5(l).
264 Civil Code Section 1950.5(l).
265 Code of Civil Procedure Sections 1032(b), 1033.5(a)(10)(A).
266 Civil Code Section 1717.
267 Jacobson v. Simmons Real Estate (1994) 23 Cal.App.4th 1285 [28 Cal.Rptr.2d 699]; Trope v. Katz (1995) 11 Cal.4th 274 [45 Cal.
Rptr.2d 241]; see California Practice Guide, Landlord-Tenant, Paragraphs 9:391.1-9:391.4, 9:391.10 and following
(Rutter Group 2009).
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