BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 781
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          Date of Hearing:  June 23, 2009

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                      SB 781 (Leno) - As Amended:  June 8, 2009

           SENATE VOTE  :  37-0
           
          SUBJECT  :  EVICTION PROCEDURE: RESIDENTIAL CARE FACILITIES FOR  
          THE ELDERLY

           KEY ISSUE  :  SHOULD A RESIDENTIAL CARE FACILITY FOR THE ELDERLY  
          INCLUDE ADDITIONAL INFORMATION WHEN PROVIDING A NOTICE OF  
          EVICTION?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS

          This relatively non-controversial bill requires 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.  The bill is supported by  
          Bet Tzedek Legal Services, the California Advocates for Nursing  
          Home Reform, and Disability Rights California (all co-sponsors),  
          as well as many other public interest groups.  It is opposed by  
          the Community Residential Care Association of California.

           SUMMARY  :  Seeks to provide additional information to a resident  
          receiving a notice of eviction from a Residential Care Facility  
          for the Elderly (RCFE).  Specifically,  this bill  :   

          1)Requires that in addition to complying with other applicable  
            regulations, an RCFE who sends a notice of eviction to a  
            resident shall set forth 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. 

          2)Requires the notice to quit to include the following: 

             a)   The effective date of the eviction;









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             b)   Resources available to assist in identifying alternative  
               housing and care options, including public and private  
               referral services and case management organizations; 

             c)   Information about the resident's right to file a  
               complaint with the department regarding the eviction, with  
               the name, address, and telephone number of the nearest  
               office of community care licensing and the State Ombudsman.  


             d)   The following statement:  "In order to evict a resident  
               who remains in the facility after the effective date of the  
               eviction, the residential care facility for the elderly  
               must file an unlawful detainer action in superior court and  
               receive a written judgment signed by a judge. If the  
               facility pursues the unlawful detainer action, you must be  
               served with a summons and complaint. You have the right to  
               contest the eviction in writing and through a hearing." 

          3)Requires 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.

           EXISTING LAW  :

          1)Provides, under the California Residential Care Facilities for  
            the Elderly Act, for statutes and regulations governing  
            licensing and operation of Residential Care Facilities for the  
            Elderly.  (Health and Safety Code Section 1569 et seq.)

          2)Provides, under existing regulations, that an RCFE may, upon  
            30 days written notice to the resident, evict the resident  
            only for one or more of the following reasons:

             a)   nonpayment of the rate for basic services within 10 days  
               of the due date;

             b)   failure of the resident to comply with state or local  
               law after receiving written notice of the alleged  
               violation; 

             c)   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  








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               residents to live together and must be made part of the  
               admission agreement; 

             d)   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

             e)   changes of use of the facility.  (Cal. Code Regs., tit.  
               22, Sec. 87224.)

          3)Provides, under existing regulations, 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).)

          4)Requires, under existing regulations, 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).)

          5)Requires, under existing regulations, 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).)
           
           6)Permits a landlord to evict residents through an unlawful  
            detainer action which is summary in nature.  (Code of Civil  
            Proc. Section 1161.) 

           COMMENTS  :  This bill seeks to raise consumer awareness.   
          According to the author, elderly seniors living in RCFEs  
          shouldn't be expected to know all of the legal protections  
          designed to shield them from unfair evictions.  SB 781 requires  
          RCFEs to include additional information to residents that will  
          help reduce unfair evictions and minimize the risk of  
          displacement and transfer trauma.  In support the author states:

               SB 781 will require Residential Care Facilities for  








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               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.  


               Under current law, RCFEs are required to provide a  
               30-day notice when evicting a resident which includes  
               the cause and circumstances of the eviction. (22  
               Calif. Admin. Code Sec. 87224) RCFEs must also seek a  
               court order to remove any residents who do not comply  
               with an eviction notice. (Calif. Code of Civil Proc.  
               Sec. 1161 et seq.)  However, they are not required to  
               provide information regarding the location of  
               discharge, nor are they required to notify the  
               resident of their legal right to file a complaint or  
               appeal the eviction. This unfairly places the burden  
               entirely on senior advocates who must ensure that  
               residents understand their eviction and are not  
               deprived of any legal remedies available to them under  
               existing statute.

               SB 781 aims to protect some of the most vulnerable  
               tenants in the state - those seniors living in the  
               nearly 8,000 Residential Care Facilities for the  
               Elderly (RCFEs) in California. These residents are  
               often frail and highly susceptible to transfer trauma  
               and displacement. They typically require greater  
               protections to keep them from falling victim to  
               financial fraud and other deceptive practices, as  
               well. 

               SB 781 will reduce the number of unfair evictions and  
               the impact they have on residents by requiring RCFE  
               eviction notices to include: 1) the effective date of  
               eviction, 2) a list of alternate housing and care  
               options 3) the resident's right to file a complaint  
               with DSS, Community Care Licensing, 3) an explanation  
               of the facility's duty to file an unlawful detainer in  
               Superior Court to evict, and 4) the resident's right  
               to contest the eviction when served with a summons and  
               complaint as a result of an unlawful detainer pursued  
               by the facility.









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          Residential Care Facilities for the Elderly provide care to  
          persons 60 years and older.  These facilities 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  
          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.  That 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. 

          SB 781 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.  The 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, 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. 








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          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  
          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.
          
           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Bet Tzedek Legal Services (co-sponsor)
          California Advocates for Nursing Home Reform (co-sponsor)
          Disability Rights California (co-sponsor)
          Advocacy, Inc.
          Alzheimer's Association
          Area Agency on Aging of Lake and Mendocino County
          California Alliance for Retired Americans
          Consumer Attorneys of California
          Senior Law Project
           
            Opposition 
           
          Community Residential Care Association of CA








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           Analysis Prepared by  :   Drew Liebert / JUD. / (916) 319-2334