BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 781
                                                                  Page  1

          Date of Hearing:   June 30, 2009

                        ASSEMBLY COMMITTEE ON HUMAN SERVICES
                                Jim Beall, Jr., Chair
                      SB 781 (Leno) - As Amended:  June 8, 2009

           SENATE VOTE  :  36-0
           
          SUBJECT  :  Residential care facilities for the elderly:  eviction  
          procedure

           SUMMARY  :  Provides 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 that 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;

             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 of Social Services (DSS)  
               regarding the eviction, with the name, address, and  
               telephone number of the nearest office of community care  
               licensing and the State Ombudsman; and, 

             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." 









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          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, to 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 & Safety Code Section 1569  et seq  .)

          2)Provides, under existing regulations (California Code of  
            Regulations (CCR), Title 22, Section 87224.), 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  
               residents to live together and must be made part of the  
               admission agreement; 

             d)   A determination, after admission, 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.  (CCR, title 22, Section  
               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.  (CCR, title 22,  
            Section 87224(b).)








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          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.   
            (CCR, title 22, Section 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.  (CCR,  
            title 22, Section 87224(c).)

          6)Provides, under existing regulations, that nothing in the RCFE  
            eviction regulations is intended to preclude the licensee or  
            resident from invoking any other available remedy.  (CCR,  
            title 22, Section 87224(h).)
           
           7)Permits a landlord to evict residents through an unlawful  
            detainer action which is summary in nature.  (Code of Civil  
            Procedure Section 1161.) 

           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.

           COMMENTS  :  According to the author, this bill seeks to raise  
          consumer awareness.  The other says that elderly seniors living  
          in RCFEs shouldn't be expected to know all of the legal  
          protections designed to shield them from unfair evictions.  This  
          bill 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 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.  (CCR,  








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               title 22, Section 87224) RCFEs must also seek a court  
               order to remove any residents who do not comply with  
               an eviction notice.  (Code of Civil Procedure Section  
               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 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.

          RCFEs 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  








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          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. 

          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.  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, 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. 
          
          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 case law 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.   








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           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.

           SECOND COMMITTEE OF REFERENCE  .  This bill was previously heard  
          in the Assembly Judiciary Committee on June 23, 2009, and was  
          approved on a 10-1 vote.

           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 
           
          None on file.

           Analysis Prepared by  :    Eric Gelber / HUM. S. / (916) 319-2089