BILL ANALYSIS SB 781 Page 1 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; SB 781 Page 2 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 SB 781 Page 3 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 SB 781 Page 4 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. SB 781 Page 5 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. SB 781 Page 6 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 SB 781 Page 7 Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334