BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 781
Senator Leno
As Introduced
Hearing Date: April 21, 2009
Health and Safety Code
SK:jd
SUBJECT
Eviction Procedure: Residential Care Facilities for the Elderly
DESCRIPTION
This bill would require a Residential Care Facility for the
Elderly (RCFE) to include additional information when providing
a notice of eviction to a resident, including the reason for the
eviction, the effective date of the eviction, and additional
information informing the resident of his or her rights
regarding evictions.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
Residential Care Facilities for the Elderly provide care to
persons 60 years and older. RCFEs provide 24-hour non-medical
care, including room, board, housekeeping, supervision, and
personal care assistance with basic activities such as bathing,
laundry, and eating. The number of elderly Californians who
live in RCFEs has grown as the state's population has continued
to age, according to one of the co-sponsors of this bill,
California Advocates for Nursing Home Reform (CANHR). CANHR
reports that there are more than 7,800 RCFEs housing over
168,000 elderly Californians.
Existing regulations provide that an RFCE may evict a resident
with 30 days written notice for specified reasons only. An RCFE
must include in the notice to quit the reasons relied upon for
the eviction with specific facts to permit determination of the
(more)
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date, place, witnesses, and circumstances of those reasons.
Despite these regulatory requirements, CANHR and co-sponsor Bet
Tzedek Legal Services report that too often RCFE residents'
rights are violated because they are unaware of these
protections.
Previous legislative efforts to address problems related to
evictions of RCFE residents were not successful. In 1997, AB
846 (Knox, 1997) proposed to prohibit evictions of RCFE
residents unless certain conditions were met and adopt the due
process provisions of the unlawful detainer statutes for those
RCFE residents who do not voluntarily surrender the residential
unit after being served with a notice of eviction. This bill
was vetoed. Similarly, AB 3383 (Knox, 1996), which would have
specified the circumstances under which an RCFE resident could
be evicted, was held in the Assembly Appropriations Committee.
This bill takes a more modest approach by requiring that RCFEs
include specified information in the notice to quit so that
residents are empowered and understand the protections to which
they are entitled.
CHANGES TO EXISTING LAW
Existing law , the California Residential Care Facilities for the
Elderly Act, provides for statutes and regulations governing
licensing and operation of Residential Care Facilities for the
Elderly. (Health and Saf. Code Sec. 1569 et seq.)
Existing regulations provide that an RCFE may, upon 30 days
written notice to the resident, evict the resident only for one
or more of the following reasons:
1) nonpayment of the rate for basic services within 10 days of
the due date;
2) failure of the resident to comply with state or local law
after receiving written notice of the alleged violation;
3) failure of the resident to comply with the general policies
of the facility. The general policies must be in writing,
must be for the purpose of making it possible for residents to
live together and must be made part of the admission
agreement;
4) if, after admission, it is determined that the resident has
a need not previously identified and a reappraisal has been
conducted, and the licensee and the person who performs the
reappraisal believe that the facility is not appropriate for
the resident; or
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5) changes of use of the facility. (Cal. Code Regs., tit. 22,
Sec. 87224.)
Existing regulations provide that an RCFE may, upon obtaining
prior written approval from the licensing agency, evict the
resident upon three days written notice to quit. The licensing
agency may grant approval for the eviction upon a finding of
good cause, as specified. (Cal. Code Regs., tit. 22, Sec.
87224(b).)
Existing regulations require an RCFE to include in the notice to
quit the reasons relied upon for the eviction with specific
facts to permit determination of the date, place, witnesses, and
circumstances concerning those reasons. (Cal. Code Regs., tit.
22, Sec. 87224(d).)
Existing regulations require an RCFE, in addition to either
serving a 30-day notice or seeking approval from the Department
of Social Services (DSS) and serving a three-day notice on the
resident, to also notify or mail a copy of the notice to quit to
the resident's responsible person. (Cal. Code Regs., tit. 22,
Sec. 87224(c).)
Existing law permits a landlord to evict residents through an
unlawful detainer
action which is summary in nature. (Code Civ. Proc. Sec. 1161.)
This bill would require an RCFE that sends a notice of eviction
to a resident to comply with the above described regulations and
would codify the regulatory requirement that an RCFE include in
the notice to quit the reasons relied upon for the eviction,
with specific facts to permit determination of the date, place,
witnesses, and circumstances regarding those reasons.
This bill would also require the notice to quit to include the
following:
1) the effective date of the eviction;
2) resources available to assist in identifying alternate
housing and care options, including public and or private
referral services and case management organizations;
3) information about the resident's right to file a complaint
about the eviction with DSS and relevant contact information.
If the eviction is pursuant to relocation order, as specified,
the notice must also include a statement about the resident's
right to appeal that order within three days.
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4) an explanation that in order to evict a resident, the RCFE
must first file an unlawful detainer action in superior court
and receive a written judgment signed by a judge. If the
facility pursues an unlawful detainer, the resident must be
served with a summons and complaint, and the resident has the
right to contest the eviction in writing and through a
hearing.
This bill would also codify the regulatory requirement that an
RCFE, in addition to either serving a 30-day notice or seeking
approval from DSS and serving a three-day notice on the
resident, also notify or mail a copy of the notice to quit to
the resident's responsible person.
COMMENT
1. Stated need for the bill
The author writes:
SB 781 will require Residential Care Facilities for the
Elderly (RCFEs) to include additional provisions in their
eviction notices to ensure that vulnerable residents who have
been living in these facilities, often for years, are
adequately informed of their legal rights before being forced
to leave their homes. . . . Due to severe budget cuts within
the Department of Social Services (DSS), California's
7,800-plus RCFEs are surveyed only once every five years. The
current situation leaves more than 168,000 of California's
most vulnerable seniors without the oversight and supervision
intended to protect residents from harmful or illegal
practices carried out by facility operators. In fact, every
year hundreds of California's elderly are unfairly displaced
from their care facilities due to insufficient eviction
notices. SB 781 is simply about consumer awareness. Elderly
seniors living in RCFEs shouldn't be expected to know all of
the legal protections designed to shield them from unfair
evictions.
California Advocates for Nursing Home Reform (CANHR),
co-sponsor, states:
Despite their vulnerabilities, RCFE residents have few
protections from unsafe and unwarranted evictions from their
homes. . . . Once the notice has been given, the RCFE
resident's only means for opposing the eviction is to make an
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appeal to Community Care Licensing or to refuse to leave and
force the facility to seek an unlawful detainer. What makes
RCFE evictions particularly problematic is that residents are
often not even aware of the few protections they do have. The
lack of basic information about the processes designed to
protect RCFE residents, combined with their vulnerabilities
and the lack of meaningful regulatory oversight from Community
Care Licensing, results in frequently inappropriate evictions
to places that are unable to provide sufficient care services.
Bet Tzedek Legal Services, a co-sponsor of the measure, writes
that "[b]y requiring RCFEs to include in their eviction notices
information regarding appeal rights, . . . procedure, and
timing, SB 781 will empower RCFE residents and help reduce the
frequency and severity of transfer trauma and displacement.
2. This bill would add additional information to the notice to
quit for RCFE residents
This bill would require an RCFE to include additional
information in a notice to quit in order to help a resident
better understand his or her rights when facing eviction. For
example, as amended by the proposed author's amendments, the
notice to quit must give the resident information about
resources available to assist him or her in identifying
alternate housing and care options. This information must
include public and/or private referral services and case
management organizations. RCFEs must also include information
about a resident's right to file a complaint with DSS about the
eviction and relevant contact information.
3. This bill would codify notice requirements in certain
regulations and would give RCFE residents notice of
landlord-tenant rights
This bill would codify several regulations currently in place
which require RCFEs to include specified information in a notice
to quit and which require RCFEs, in addition to notifying a
resident, to also notify the resident's responsible person or
mail a copy of the notice to quit to that person.
This bill would also give RCFE residents notice of
landlord-tenant rights. According to California Elder Law
Litigation: An Advocates' Guide (Sec. 4.64, Cal. CEB 2008), a
resident of an RCFE, "just like an apartment tenant, is
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protected by the landlord-tenant law." A combination of
regulations, statutes, and caselaw supports this assertion. For
example, regulations provide that the eviction procedures
governing RCFEs are not intended to preclude an RCFE or resident
from "invoking any other available remedy." Under Civil Code
Section 1940(a), landlord-tenant law applies to anyone who
"hire[s] a dwelling unit," such as a room in an RCFE.
California Elder Law Litigation further states that Civil Code
Section 1940(a) provides that "[l]andlord-tenant protections
explicitly apply to 'tenants, lessees, boarders, lodgers, and
others, however denominated."
And, in Klarfeld v. Berg (1981) 29 Cal.3d 893, the California
Supreme Court held that, for purposes of a rent control
ordinance, the term "dwelling unit" includes a room in a
retirement residence where meals and other services are included
as part of a single overall charge. In sum, California Elder
Law Litigation states "Accordingly, an RCFE resident can
challenge an eviction by simply refusing to move. The RCFE will
then be forced to file an unlawful detainer action and prove its
allegations in court." This bill would provide RCFE residents
with notice of landlord-tenant rights.
4. Potential amendment to ensure that notice to residents is
uniform
This bill would require an RCFE to provide certain information
to a resident in a notice to quit, including an "explanation
that in order to evict a resident, the RCFE must first file an
unlawful detainer action in superior court and receive a written
judgment signed by a judge. If the facility pursues an unlawful
detainer, the resident must be served with a summons and
complaint, and the resident has the right to contest the
eviction in writing and through a hearing." In order to ensure
that the notice provided to residents is uniform, the author may
consider amending the bill as follows:
Amendment
On page 2, delete lines 28-33 and insert the following:
4. The following statement: In order to evict a resident, a
Residential Care Facility for the Elderly must first file an
unlawful detainer action in superior court and receive a
written judgment signed by a judge. If the facility pursues
the unlawful detainer, you must be served with a summons and
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complaint. You have the right to contest the eviction in
writing and through a hearing.
5. Author's amendments
In order to address concerns raised by Aging Services of
California that facilities may not know where a resident will be
discharged, the author has agreed to amend the bill as follows:
On page 2, line 20 delete "The location to which the resident
will be discharged" and insert "Resources available to assist in
identifying alternate housing and care options, including public
and or private referral services and case management
organizations."
Support : Advocacy, Inc.; Consumer Attorneys of California;
Alzheimer's Association
Opposition : Aging Services of California (unless amended)
HISTORY
Source : California Advocates for Nursing Home Reform (CANHR)
and Bet Tzedek Legal Services
Related Pending Legislation : None Known
Prior Legislation :
AB 846 (Knox, 1997). See Background.
AB 3383 (Knox, 1996). See Background.
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