BILL NUMBER: SB 782 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 13, 2009
AMENDED IN SENATE MARCH 31, 2009
INTRODUCED BY Senator Yee
( Coauthor: Assembly Member
Huffman )
FEBRUARY 27, 2009
An act to add Section 1161.3 to the Code of Civil Procedure,
relating to unlawful detainer.
LEGISLATIVE COUNSEL'S DIGEST
SB 782, as amended, Yee. Residential tenancies: domestic violence.
Existing law governs the hiring of real property based on the
terms of the agreement, or on the behavior of the parties. Under
existing law, a tenant may notify the landlord in writing that he or
she, or a household member, was a victim of an act of domestic
violence, sexual assault, or stalking, and intends to terminate the
tenancy. The tenant is released from any rent payment obligation 30
days following the giving of the notice, or as specified.
Existing law establishes the criteria for determining when a
tenant is guilty of unlawful detainer of a premises, and includes
committing nuisance in this regard. Existing law provides, until
January 1, 2012, for the purposes of the law of unlawful detainer,
that if a person commits any specified act or acts of domestic
violence, sexual assault, or stalking against another tenant or
subtenant on the premises, there is a rebuttable presumption
affecting the burden of proof that the person has committed a
nuisance on the premises if the victim or a member of the victim's
household has not vacated the premises.
This bill would create a defense to an action for possession under
the unlawful detainer provisions described above , except as
specified, if the court determines that (1) the tenant or the
tenant's household member is a victim of an act or acts that
constitute domestic violence, sexual assault, or stalking, and (2)
the notice to vacate is substantially based upon the act or acts
against the tenant or a tenant's household member that constitute
domestic violence, sexual assault, or stalking, including, but not
limited to, an action for possession based on complaints of noise,
disturbances, or repeated presence of police. The bill would require
a landlord to retain in strictest confidence all information
regarding any act or acts of domestic violence, sexual assault, or
stalking that is received in confidence from a tenant or a tenant's
household member who is a victim, except as specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Domestic violence is a widespread problem impacting one in
three households in the United States in all communities.
(b) Safe housing for domestic violence victims is essential for
safe recovery.
(c) Countless studies demonstrate that stable, safe housing is a
public safety issue, a critical element of ensuring the safety of
domestic violence and stalking victims.
(d) Landlords may evict domestic violence and stalking victims
based upon complaints of noise, fighting, or repeated visits from the
police to a victim's residence, even though they are results of
crimes committed against the victim.
(e) Domestic violence and stalking victims should not lose their
housing because they are being abused and should not be forced to
leave their homes in order to report abuse.
(f) The United States government and many states, cities, and
counties already have enacted comprehensive tenants' rights
protections for victims of domestic violence and stalking.
SEC. 2. Section 1161.3 is added to the Code of Civil Procedure, to
read:
1161.3. (a) It Except as provided in
subdivision (c), it shall be a defense to an action for
possession under paragraph (4) subdivisions 1
or 4 of Section 1161 if the court makes both of the following
determinations:
(1) The tenant or the tenant's household member is a victim of an
act or acts that constitute domestic violence, sexual assault, or
stalking.
(2) The notice to vacate is substantially based upon the act or
acts against the tenant or a tenant's household member that
constitute domestic violence, sexual assault, or stalking, including,
but not limited to, an action for possession based on complaints of
noise, disturbances, or repeated presence of police.
(b) In making the determinations under subdivision (a), the court
shall consider evidence, which may include, but is not limited to,
any of the following:
(1) A copy of a temporary restraining order or emergency
protective order lawfully issued pursuant to Part 3
(commencing with Section 6240), Part 4 (commencing with Section
6300), or Part 5 (commencing with Section 6400) of the Family Code,
Section 136.2 of the Penal Code, Section 213.5 of the Welfare and
Institutions Code, or Section 527.6 of this code, that protects the
tenant or household member from further domestic violence, sexual
assault, or stalking by the same person alleged to be the abuser
under subdivision (a) .
(2) A copy of a written report by a peace officer employed by a
state or local law enforcement agency acting in his or her official
capacity, stating that the tenant or tenant's household member has
filed a report alleging that he or she is a victim of domestic
violence, sexual assault, or stalking.
(3) Other written documentation from a qualified third party of
the act or acts constituting domestic violence, sexual assault, or
stalking.
(c) (1) A court may determine whether a tenant acted as the
dominant aggressor in the act or acts constituting domestic violence,
sexual assault, or stalking. In making the determination, the court
shall consider the factors listed in subdivision (b) of Section 13701
of the Penal Code.
(2) The court may terminate the tenancy of the tenant who acted as
the dominant aggressor in the act or acts of domestic violence,
sexual assault, or stalking, while allowing the tenancy of the
remainder of the tenants to continue undisturbed.
(3) (A) If the dominant aggressor is a lessee and is an actual and
imminent threat to the safety of persons on the premises, a court
may order his or her immediate eviction and issue an order to stay
away from the premises against the aggressor.
(B) If the dominant aggressor is not a lessee and is an actual and
imminent threat to the safety of persons on the premises, a court
may issue an order to stay away from the premises against the
aggressor.
(c)
(4) If two or more cotenants are parties seeking relief
under subdivision (a), and each alleges that he or she was a victim
of domestic violence, sexual assault, or stalking perpetrated by
another cotenant who is also a party, the court may determine whether
a tenant acted as the dominant aggressor in the act or acts
constituting domestic violence, sexual assault, or stalking. In
making the determination, the court shall consider the factors listed
in paragraph (1) of subdivision (b) of Section 13701 of the Penal
Code , as provided in paragraph (1) .
A tenant who the court determines was the dominant aggressor in the
act or acts constituting domestic violence, sexual assault, or
stalking is not entitled to relief under subdivision (a).
(d) Unless the tenant or the tenant's household member has
obtained a protective order against the alleged abuser to vacate or
stay away from the dwelling unit as a result of an act or acts
constituting domestic violence, sexual assault, or stalking against
the tenant or the tenant's household member, the tenant may not
obtain relief under subdivision (a) if all of the following apply:
(1) The tenant was granted relief against the landlord under
subdivision (a) in an action for possession of the dwelling unit
within the previous five years.
(2) A subsequent action for possession of the dwelling unit has
now been filed.
(3) The notice to vacate in the subsequent action for possession
is substantially based upon continuing acts constituting domestic
violence, sexual assault, or stalking by the same person alleged to
be the abuser in the previous action for possession.
(e) For the purposes of this section:
(1) "Household member" means a member of the tenant's family who
lives in the same household as the tenant.
(2) "Protective order" means a temporary restraining order or
emergency protective order issued pursuant to Part 3 (commencing with
Section 6240), Part 4 (commencing with Section 6300), or Part 5
(commencing with Section 6400) of the Family Code, Section 136.2 of
the Penal Code, Section 213.5 of the Welfare and Institutions Code,
or Section 527.6 of this code, that protects the tenant or household
member from further acts of domestic violence, sexual assault, or
stalking.
(3) "Qualified third party" means a peace officer or victim
advocate employed by a state or local law enforcement agency, a
licensed clinical social worker (LCSW), or a marriage and family
therapist (MFT), acting in his or her official capacity.
(4) "Victim of domestic violence, sexual assault, or stalking"
means any person who has been, or is currently being, subjected to
one or more of the following:
(A) Domestic violence, as defined in Section 6211 of the Family
Code or Section 13700 of the Penal Code.
(B) Sexual assault, as defined in Section 261, 261.5, 262, 286,
288a, or 289 of the Penal Code.
(C) Stalking, as defined in Section 1708.7 of this code or Section
646.9 of the Penal Code.
(5) "Written documentation from a qualified third party" means a
document signed and dated within the preceding 60 days by a qualified
third party stating all of the following:
(A) That the tenant notified the qualified third party that he or
she was a victim of domestic violence, sexual assault, or stalking.
(B) The time, date, and location of the act or acts that
constitute the domestic violence, sexual assault, or stalking.
(C) That the tenant informed the qualified third party of the name
of the alleged perpetrator of the act or acts of domestic violence
, sexual assault, or stalking, if known to the
victim.
(D) That the qualified third party attests that he or she believes
that the act or acts in question are bona fide acts of abuse.
(f) Nothing in this section shall be construed to affect the
tenant's liability for delinquent rent or other sums owed to the
landlord, or the landlord's remedies in recovering against the tenant
for those sums.
(g) A landlord shall retain in strictest confidence all
information regarding any act or acts of domestic violence, sexual
assault, or stalking that is received in confidence from a tenant or
a tenant's household member who is a victim, except to the extent
that disclosure is necessary to provide for a reasonable
accommodation for the victim or , is
otherwise required pursuant to federal, state, or local law , or
is necessary to assist the court in making the determinations under
subdivision (a) . The victim may authorize limited or general
release of any information otherwise deemed confidential under this
subdivision. The release shall be in writing.