Legal Question in Real Estate Law in California


A family member decided to rent a house with another person. Once they signed the lease the other friend bounced first rent check. Then my family member discovered mold and mildew. They were able to move but landlord sent deposit check in both names. Now the friend is saying that she is going to take my family member to small claims court. Is she blowing smoke, or could she actually do this? Also if by some chance the other friend has cashed check, can family member then take to small claims court??

Thank you!!

Asked on 8/24/06, 9:52 am

2 Answers from Attorneys

Robert F. Cohen Law Office of Robert F. Cohen

Re: Lease

I think I understand that your family member received back and cashed the deposit check because the friend did not pay the first month's rent. Legally, the family member should not have cashed a check with both names on it without the permission of the other. However, it will probably cost the former "friend" more both in time and money to file the small claims action than it's worth, and your family member has a claim for half the rent. Judge Judy loves these kinds of cases.

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Answered on 8/24/06, 10:53 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Lease

It's not clear from your facts what basis, if any, the "friend" would have for taking your relative to court. Possibly, as Mr. Cohen suggests, it's because your relative cashed the two-party check without sharing the proceeds, but then you go on to speculate that the friend may have cashed the check. That leads me to conclude you just don't know what's become of the two-party check, and that leads to the further conclusion that your relative didn't cash it, because if he/she had cashed it, you would know. Am I right?

In any event, the "friend" may be blowing smoke and taking your relative to small claims court at the same time. Lots of court cases are brought, unfortunately, by plaintiffs who have very weak or non-existent claims. They may simply be misguided, or they may be hoping for a settlement offer, or that the defendant will default by not answering and appearing.

In California small claims, the defendant can bring a cross-complaint (called a counterclaim in the statute) against the plaintiff. See California Code of Civil Procedure section 116.360. If sued, your relative probably should counterclaim.

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Answered on 8/24/06, 12:26 pm

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