Column: Watts legal?

Question: My lease ended on Jan. 1. My landlord is refusing to return my security deposit. He says I need to collect it from the new tenant who’s replacing me. I don’t want to have to deal with whoever the new person is. Can the landlord make me do this?
— Kalin M., Sacramento.

Answer: No, your landlord can’t make you chase after the new tenants for the security deposit. That’s messed up. And illegal.

As I said in this column a couple weeks ago, within 21 days of you vacating the apartment, the landlord must refund your security deposit. If he doesn’t, or he refunds only part of it, he has to tell you why he did that. He needs to mail or personally hand to you an itemized list of the amounts of any deductions and the reasons for the deductions. He should also include copies of documents showing the charges incurred to clean or repair the apartment.

This list of deductions must be reasonable. He can’t just deduct for anything he wants.

Before you move out, you’re supposed to restore the apartment to the same level of cleanliness as it was in at the time you first moved in. Does the landlord want to steam clean the whole place? He can’t charge you for that, unless steam-cleaning is indeed necessary to return it to the previous level of cleanliness.

The portion of the security deposit that wasn’t necessary to return the apartment to its original condition must be returned to you by the landlord.

Why can’t the landlord tell you to get this from the new tenant?

Because you don’t have a contract with the new tenant. You’ve probably never met the new tenant. The new tenant has no idea how clean the apartment was when you first moved in, so he has no way of refunding you the correct amount.

You have a contract with your landlord. That means that if something goes wrong with that contract, you can sue only the landlord.

The law requires the landlord to hang onto that security deposit during the entire time you live there. California Civil Code Section 1950.5(D) states that any security deposit “shall be held by the landlord for the tenant who is party to the lease or agreement.”

Get your refund from the landlord, not the new tenant. He’s the one with the security deposit, so he’s the one who should give you the refund. A landlord who withholds your deposit in bad faith is liable for triple damages plus your attorney fees.

Question: I hate my boss and I hate the customers where I work. My boss can’t fire me if I flip him off (or flip off the customer), right? Isn’t that free speech?
—Tatiana K.

Answer: Unless you’ve got a contract with your employer that says it’s cool to flip the bird, no, you don’t have a free speech right to flip off your boss. Or the customers.

In fact, the First Amendment — the “free speech” part of the Constitution — doesn’t apply at all in a private workplace.

That’s why radio host Don Imus got fired for making derogatory comments about a women’s basketball team a couple years ago.

And if the First Amendment applied to private employers, Rush Limbaugh might have been the Superbowl announcer this year. He had a brief stint as a football commentator in 2003 but was fired for controversial comments. Free speech? Not for private employers.

A public employer is a different matter.

The Constitution restrains the government, not private employers, which means the University of California needs to tread lightly when deciding whether to fire its employees for something they say. This, along with union-sponsored contractual protections, is why the Occupy-friendly professors still work here. The administration doesn’t like rabble rousers, but they can’t easily get rid of them.

Your boss can fire you for flipping off customers, posting drunken photos on Facebook or tweeting threats to Justin Bieber. Restrain yourself, because the First Amendment will not restrain your boss.

Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.

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