BILL NUMBER: AB 1536 CHAPTERED 09/22/03 CHAPTER 447 FILED WITH SECRETARY OF STATE SEPTEMBER 22, 2003 APPROVED BY GOVERNOR SEPTEMBER 20, 2003 PASSED THE ASSEMBLY SEPTEMBER 2, 2003 PASSED THE SENATE AUGUST 27, 2003 AMENDED IN SENATE AUGUST 18, 2003 AMENDED IN ASSEMBLY APRIL 2, 2003 INTRODUCED BY Assembly Member Goldberg FEBRUARY 21, 2003 An act to amend Sections 12962, 12980, 12981, and 12983 of the Government Code, relating to fair employment and housing. LEGISLATIVE COUNSEL'S DIGEST AB 1536, Goldberg. Discrimination. (1) Under the existing Fair Employment and Housing Act, when a complaint alleging an unlawful practice is filed with the Department of Fair Employment and Housing, the department is required to serve the complaint upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice, and service is to be completed within 45 days. This bill would provide that where a person claiming to be aggrieved by an unlawful practice is represented by private counsel, private counsel, and not the department, would instead serve the complaint, and in either case, service is to be completed within 60 days. (2) The existing act makes it unlawful to discriminate against any person in any housing accommodation on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, or disability. The act requires the department, upon the filing of a complaint, to serve notice upon the complainant of the time limits, rights of the parties, and choice of forums under the law and to provide a written explanation that informs the complainant that, if an accusation alleging an unfair housing practice is issued, the complainant may only be able to recover damages for emotional distress or other intangible injuries through a civil action filed under a specified statute. The act also requires the department to so advise the complainant, in writing, if the department determines, based on its investigation, that an accusation or amended accusation should include a prayer for damages for emotional distress or other intangible injuries. This bill would delete the requirement that the department provide this written explanation and advice in writing to the complainant regarding damages for emotional distress or other intangible injuries. (3) The act authorizes the department, or at its election the Attorney General, under specified circumstances, to bring an action to enjoin the owner of property as to which a housing discrimination complaint has been filed from taking further action to rent, lease, or sell the property. This bill would clarify that the department does not need to seek approval from the Attorney General before bringing such an action. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 12962 of the Government Code is amended to read: 12962. (a) The department shall cause any verified complaint filed for investigation under the provisions of this part to be served, either personally or by certified mail with return receipt requested, upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of. (b) Notwithstanding subdivision (a), where a person claiming to be aggrieved by an alleged unlawful practice hires or retains private counsel for purposes of representation of the claim, the private counsel, and not the department, shall cause the verified complaint filed under the provisions of this part to be served, either personally or by certified mail with return receipt requested, upon the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice. (c) Service shall be made at the time of initial contact with the person, employer, labor organization, or employment agency or the agents thereof, or within 60 days, whichever first occurs. At the discretion of the director, the complaint may not contain the name of the complaining party unless the complaint is filed by the director or his or her authorized representative. SEC. 2. Section 12980 of the Government Code is amended to read: 12980. This article governs the procedure for the prevention and elimination of discrimination in housing made unlawful pursuant to Article 2 (commencing with Section 12955) of Chapter 6. (a) Any person claiming to be aggrieved by an alleged violation of Section 12955, 12955.1, or 12955.7 may file with the department a verified complaint in writing that shall state the name and address of the person alleged to have committed the violation complained of, and that shall set forth the particulars of the alleged violation and contain any other information required by the department. The filing of a complaint and pursuit of conciliation or remedy under this part shall not prejudice the complainant's right to pursue effective judicial relief under other applicable laws, but if a civil action has been filed under Section 52 of the Civil Code, the department shall terminate proceedings upon notification of the entry of final judgment unless the judgment is a dismissal entered at the complainant's request. (b) The Attorney General or the director may, in a like manner, make, sign, and file complaints citing practices that appear to violate the purpose of this part or any specific provisions of this part relating to housing discrimination. No complaint may be filed after the expiration of one year from the date upon which the alleged violation occurred or terminated. (c) The department may thereupon proceed upon the complaint in the same manner and with the same powers as provided in this part in the case of an unlawful practice, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than the provisions of Article 1 (commencing with Section 12960), the provisions of this article shall prevail. (d) Upon the filing of a complaint, the department shall serve notice upon the complainant of the time limits, rights of the parties, and choice of forums provided for under the law. (e) The department shall commence proceedings with respect to a complaint within 30 days of filing of the complaint. (f) An investigation of allegations contained in any complaint filed with the department shall be completed within 100 days after receipt of the complaint, unless it is impracticable to do so. If the investigation is not completed within 100 days, the complainant and respondent shall be notified, in writing, of the department's reasons for not doing so. (g) Upon the conclusion of each investigation, the department shall prepare a final investigative report containing all of the following: (1) The names of any witnesses and the dates of any contacts with those witnesses. (2) A summary of the dates of any correspondence or other contacts with the aggrieved persons or the respondent. (3) A summary of witness statements. (4) Answers to interrogatories. (5) A summary description of other pertinent records. A final investigative report may be amended if additional evidence is later discovered. (h) If an accusation is not issued within 100 days after the filing of a complaint, or if the department earlier determines that no accusation will issue, the department shall promptly notify the person claiming to be aggrieved. This notice shall, in any event, be issued no more than 30 days after the date of the determination or 30 days after the date of the expiration of the 100-day period, whichever date first occurs. The notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person named in the verified complaint within the time period specified in Section 12989.1. The notice shall also indicate, unless the department has determined that no accusation will be issued, that the person claiming to be aggrieved has the option of continuing to seek redress for the alleged discrimination through the procedures of the department if he or she does not desire to file a civil action. The superior and municipal courts of the State of California shall have jurisdiction of these actions, and the aggrieved person may file in any of these courts. The action may be brought in any county in the state in which the violation is alleged to have been committed, or in the county in which the records relevant to the alleged violation are maintained and administered, but if the defendant is not found within that county, the action may be brought within the county of the defendant's residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department and of the commission. The remedy for failure to send a copy of a complaint is an order to do so. In a civil action brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorneys' fees. (i) All agreements reached in settlement of any housing discrimination complaint filed pursuant to this section shall be made public, unless otherwise agreed by the complainant and respondent, and the department determines that the disclosure is not required to further the purposes of the act. (j) All agreements reached in settlement of any housing discrimination complaint filed pursuant to this section shall be agreements between the respondent and complainant, and shall be subject to approval by the department. SEC. 3. Section 12981 of the Government Code is amended to read: 12981. (a) In the case of failure to eliminate a violation of Section 12955, 12955.1, or 12955.7 that has occurred, or is about to occur, through conference, conciliation, and persuasion, or in advance thereof if circumstances warrant, the director shall cause to be issued in the name of the department, notwithstanding Section 12971, a written accusation, in the same manner and with the same powers as provided in Section 12965, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than Section 12965, the provisions of this article shall prevail. An accusation alleging an unfair housing practice shall be issued within 100 days after the filing of a complaint unless it is impracticable to do so. The accusation shall require the respondent to answer the charges at an administrative hearing or civil trial as elected by the parties pursuant to Section 12989. Any aggrieved person may intervene as a matter of right in the proceeding, and the appeal or other judicial review of that proceeding. (b) If the department determines that an allegation concerns the legality of any zoning or other land use law or ordinance, the department or the Attorney General shall take appropriate action with respect to the complaint according to the procedures established in this part for other complaints of housing discrimination. (c) The commission shall hold hearings on accusations issued pursuant to subdivision (a) in the same manner and with the same powers as provided in Sections 12967 to 12972, inclusive, except that where the provisions of this article provide greater rights and remedies to an aggrieved person than do Sections 12967 to 12972, inclusive, the provisions of this article shall prevail. The commission shall make final administrative disposition of a complaint alleging unfair housing practices within one year of the date of filing of the complaint, unless it is impracticable to do so. If the department is unable to make final administrative disposition of a complaint within one year, it shall notify the complainant and the respondent, in writing, of its reasons for not doing so. (d) Within one year of the effective date of every final order or decision issued pursuant to this part, the department shall conduct a compliance review to determine whether the order or decision has been fully obeyed and implemented. (e) Whenever the department has reasonable cause to believe that a respondent has breached a conciliation agreement, the department shall refer the matter to the Attorney General with a recommendation that a civil action be filed for the enforcement of the agreement. (f) If the time for judicial review of a final commission order or decision has lapsed, or if all means of judicial review have been exhausted, the department may apply to the superior court in any county in which an action could have been brought under subdivision (b) of Section 12965 for the enforcement of the order or decision or order as modified in accordance with a decision on judicial review. If, after a hearing, the court determines that an order or decision has been issued by the commission and that either the time limits for judicial review have lapsed, or the order or decision was upheld in whole or in part on judicial review, the court shall issue a judgment and order enforcing the order or decision or order as modified in accordance with a decision on judicial review. The court shall not review the merits of the order or decision. The court's judgment shall be nonappealable and shall have the same force and effect as, and shall be subject to all the provisions of law relating to, a judgment in a civil action. SEC. 4. Section 12983 of the Government Code is amended to read: 12983. The department, or at its election the Attorney General, at any time after a complaint is filed with it and it has been determined that probable cause exists for believing that the allegations of the complaint are true and constitute a violation of this part, may bring an action in the superior court to enjoin the owner of the property from taking further action with respect to the rental, lease, or sale of the property, as well as to require compliance with Section 12956, until the department has completed its investigation and made its determination; but a temporary restraining order obtained under this section shall not, in any event, be in effect for more than 20 days. In this action an order or judgment may be entered awarding the temporary restraining order or the preliminary or final injunction in accordance with Section 527 of the Code of Civil Procedure.