BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          SB 1403 (Yee)
          As Amended August 6, 2012
          Hearing Date: August 15, 2012
          Fiscal: No
          Urgency: Yes
          TW


                                        SUBJECT
                                           
          Domestic Violence:  Permanent Restraining Orders and Elder Abuse 
                                       Orders

                                      DESCRIPTION  

          Existing law allows a tenant to terminate his or her lease 
          within 180 days of the issuance of a temporary restraining 
          order, emergency protective order, or written report by a peace 
          officer alleging that the tenant, or household member, is a 
          victim of domestic violence, sexual assault, or stalking.  
          Existing law also prohibits a landlord from terminating a 
          tenancy or failing to renew a tenancy based upon an act or acts 
          against a tenant or a tenant's household member that constitute 
          domestic violence, sexual assault, or stalking if those acts 
          have been documented by a temporary restraining order, emergency 
          protective order, or written report by a peace officer.  

          This bill would extend these tenant protections to victims of 
          elder or dependent adult physical abuse.  This bill would also 
          add protective orders to the list of qualifying documents that a 
          tenant may provide to a landlord to substantiate early 
          termination of a lease.

          This bill is an urgency measure.

                                      BACKGROUND  

          Victims of domestic violence, sexual assault, and stalking face 
          numerous challenges when seeking to regain control of their 
          lives.  Depending on the situation, the victim may need to 
          change his or her phone number, participate in the Safe at Home 
                                                                (more)



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          Program through the Secretary of State, or even move, to create 
          a safe environment for themselves and their family.  Victims who 
          rent their home also face challenges in their ability to leave a 
          dangerous environment if they are currently in a long-term 
          lease.  

          In response to concerns about the inability for victims to 
          terminate their lease without liability, AB 2052 (Lieu, Ch. 440, 
          Stats. 2008) allowed a tenant to terminate his or her lease 
          within 60 days of the issuance of a temporary restraining order, 
          emergency protective order, or written report by a peace officer 
          alleging that the tenant, or household member, is a victim of 
          domestic violence or stalking.  Absent that protection, victims 
          who relocated could still be subject to liability under the 
          lease if the landlord did not agree to release the tenant from 
          his or her obligations.  Subsequently, AB 588 (V. Manuel Pérez, 
          Ch. 76, Stats. 2011) increased the time period in which a tenant 
          may provide a notice to terminate tenancy from 60 to 180 days of 
          the issuance of a temporary restraining order, emergency 
          protective order, or written report by a peace officer alleging 
          that the tenant, or household member, is a victim of domestic 
          violence or stalking.  Additionally, SB 782 (Yee, Ch. 626, 
          Stats. 2010) prohibited landlords from terminating or failing to 
          renew a tenancy based upon a documented act or acts against a 
          tenant or a tenant's household member that is a victim of 
          domestic violence, sexual assault, or stalking.

          This bill would extend these tenant protections to a victim of 
          elder or dependent adult physical abuse.  This bill would also 
          add protective order to the list of documents with which a 
          tenant-victim may substantiate the necessity for early 
          termination of a lease or rental agreement.  

                                CHANGES TO EXISTING LAW
           
           Existing law  defines the rights and duties of landlord and 
          tenants, including presumptions regarding the terms of the 
          hiring, the lawful means of terminating a lease or rental 
          agreements, and the remedies available to the respective parties 
          in the event of a breach of a lease or rental agreement.  (Civ. 
          Code Sec. 1940 et seq.)  

           Existing law  provides that if a tenant or lessee of real 
          property breaches the lease and abandons the property before the 
          end of the term, the landlord may deem the lease terminated and 
          seek damages, or continue to perform under the lease and seek 
                                                                      



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          rent as it becomes due.  (Civ. Code Sec. 1951.2; 250 LLC v. 
          Photopoint Corp. (2005) 131 Cal.App.4th 703.) 

           Existing law  allows a tenant to terminate his or her tenancy if 
          the tenant, or a household member, was the victim of domestic 
          violence, sexual assault, or stalking.  The notice to terminate 
          a tenancy must be in writing, with one of the following 
          attached: (1) copy of a temporary restraining order or emergency 
          protective order, as specified; or (2) copy of a written report 
          by a peace officer, as specified.  (Civ. Code Sec. 
          1946.7(a)-(b).)

           Existing law  requires the notice to terminate tenancy to be 
          given within 180 days of the date that any order was issued, or 
          within 180 days of the date that any written report was made, or 
          the time period otherwise required for termination of tenancy.  
          (Civ. Code Sec. 1946.7(c).)

           Existing law  prohibits a landlord from terminating a tenancy or 
          failing to renew a tenancy based upon an act or acts against a 
          tenant or a tenant's household member that constitute domestic 
          violence, sexual assault, or stalking if the acts of domestic 
          violence, sexual assault, or stalking have been documented by a 
          temporary restraining order, emergency protective order, or a 
          copy of a written report by a peace officer.  (Code Civ. Proc. 
          Sec. 1161.3(a).)

           This bill  would also allow a tenant to terminate his or her 
          tenancy if the tenant or a household member was the victim of 
          elder or dependent adult physical abuse.

           This bill  would prohibit a landlord from terminating a tenancy 
          or failing to renew a tenancy based upon an act or acts against 
          a tenant or a tenant's household member that constitute elder or 
          dependent adult abuse.

           This bill  would add to the list of documents with which a tenant 
          may substantiate the need for early termination of a lease or 
          rental agreement based upon domestic violence, sexual assault, 
          or stalking obtains a protective order.

           This bill  contains an urgency clause.

                                        COMMENT
           
          1.  Stated need for the bill  
                                                                      



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          According to the author:

            Existing law allows victims of certain violent acts to 
            terminate a tenancy before the end of the tenancy agreement to 
            allow them to leave a potentially dangerous environment, 
            however when the list of vulnerable victims was constructed it 
            left out victims of elder and dependent adult abuse.  The acts 
            these victims have suffered are consistent with the acts of 
            domestic violence, sexual assault, or stalking, which are 
            listed in the existing code.

            The list of documentation that is acceptable to end a 
            tenancy is a temporary restraining order, emergency 
            protective order, or a report by a peace officer.  This bill 
            will add "protective order" to this list.

          2.  Extending existing tenant protections to victims of elder or 
            dependent adult abuse

           Current law allows a victim of domestic violence, sexual 
          assault, or stalking to break a rental or lease agreement in 
          order to secure safety for himself or herself and the family.  
          Current law also prohibits a landlord from evicting a tenant who 
          is a victim of domestic violence, sexual assault, or stalking, 
          which has been documented through a temporary restraining order, 
          emergency protective order, or written report by a peace 
          officer.  This bill would extend these provisions to victims of 
          elder or dependent adult physical abuse.

          In support of this bill, the National Housing Law Project 
          argues:

            As an example of why SB 1403 is needed, in one case an elderly 
            woman had been raped by her caretaker but was too frightened 
            and intimidated to report the incident to police. A judge 
            granted the woman an elder abuse restraining order against the 
            caretaker based on other abusive conduct.  Unfortunately, the 
            landlord would not accept the elder abuse restraining order as 
            sufficient proof for ending the woman's lease, because this 
            type of order is not included in Civil Code ÝSection] 1946.7.  
            Currently, the code lists only domestic violence restraining 
            orders, civil harassment restraining orders, and juvenile 
            restraining orders as acceptable documentation for ending the 
            lease. This led to unnecessary stress for the woman, who 
            needed to relocate for her mental wellbeing and had to retain 
                                                                      



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            an attorney to negotiate with the landlord to end the lease.

            By extending housing protections to victims who have obtained 
            elder abuse restraining orders, SB 1403 would assist some of 
            the state's most vulnerable victims in resolving housing 
            matters. In many cases, these victims may not have a domestic 
            violence restraining order or other proof currently required 
            under the housing laws, because an elder abuse restraining 
            order provides more appropriate relief based on the abuse that 
            these victims are experiencing. SB 1403 also would ensure that 
            our housing laws consistently protect abuse victims of all 
            ages.

          It should be noted that, as with victims of domestic violence, 
          sexual assault, or stalking, tenants who are victims of elder or 
          dependent adult abuse seeking to terminate their rental or lease 
          agreements early would be subject to certain requirements and 
          restrictions discussed below.

              a.   Tenant may notify landlord of status as victim of elder 
               or dependent adult physical abuse; documentation required  

            This bill would provide relief to a tenant who provides 
            written notice to the landlord that he or she or a household 
            member was a victim of elder or dependent adult physical 
            abuse.  If the tenant has a valid temporary restraining order, 
            emergency protective order, protective order, elder or 
            dependent adult abuse order, or a written report by a law 
            enforcement agency or officer, the tenant may terminate the 
            rental agreement and quit the premises.  

            The notice to terminate the rental agreement must be given 
            within 180 days of the date a temporary restraining order, 
            emergency protective order, or elder or dependent abuse order 
            was issued, or within 180 days of the date that written 
            documentation was provided by the law enforcement agency.  

              b.   Tenant to pay rent for the 30 days after notice to 
               terminate is given, then is released from rent obligations 
               without penalty  

            If the tenant gives the notice in writing, provides 
            documentation as required, and gives the notice of termination 
            of tenancy within the required 180 days, existing law would 
            require the tenant to pay rent only for the 30 days following 
            the date notice of termination to the landlord was given.  
                                                                      



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            After that, the tenant would be released from the obligation 
            to pay rent under the rental agreement or under Civil Code 
            Section 1946.  Section 1946 renews a term of tenancy for the 
            same period implied by law if the landlord accepts rent from 
            the tenant, unless either party gives written notice at least 
            as long before the expiration of the term as the term of the 
            hiring itself.  Section 1946 also allows for the parties to 
            terminate the tenancy at any given time by giving not less 
            than 30-days' notice before the expiration of the term that is 
            on a month-to-month basis.

              c.   If property is rented prior to end of 30-day period, 
               rent is prorated  

            Under Civil Code Section 1946.7(e), if during the 30-day 
            period after the notice of termination of tenancy was given, 
            the tenant quits the premises and the landlord then lets the 
            property to another party, the amount of rent due for the 
            premises shall be prorated, and existing law on security 
            deposits applies.  

            For example, if a tenant-victim gives notice on June 25 that 
            she is terminating her lease, the tenant would still be as 
            responsible as the abuser for the rent for the 30-day period 
            following the date the notice of termination of tenancy is 
            given to the landlord, but would not be responsible for any 
            rent afterwards, even though the lease or rental agreement is 
            for a longer period.  The landlord would have to look to the 
            abuser-tenant for enforcement of the rest of the lease or 
            rental agreement. 

             d.    Relief from rent obligation applies only to tenant or 
               household member with status and to his or her family

             Existing law expressly states that the relief provided to 
            victims of domestic violence, sexual assault, or stalking 
            would be available only to such a tenant and his or her 
            household members, and other tenants who are parties to the 
            rental agreement would still have to fulfill their obligations 
            under that rental agreement.  This bill would apply the same 
            limitations to tenants that are victims of elder or dependent 
            adult abuse.

          As discussed above, existing law provides a balance between 
          protections for victims of domestic violence, sexual abuse, and 
          stalking, while maintaining protections for landlords.  In 
                                                                      



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          support of extending these provisions to victims of elder and 
          dependent adult abuse, the California Partnership to End 
          Domestic Violence argues that "adding elder abuse orders 
          recognizes the vulnerability of elder victims.  These 
          common-sense changes included in SB 1403 will increase the 
          ability for victims to access these protections and find 
          safety."  As a matter of public policy, elder and dependent 
          adult abuse victims should be to able utilize tenant protections 
          provided under existing law for other abuse victims in order to 
          secure safer accommodations.

          3.   Clarifying protective orders in the list of authorized 
          documents
           
          This bill would add protective order to the list of documents 
          that a tenant can provide to a landlord to substantiate domestic 
          violence, sexual assault, or stalking for early termination of a 
          lease or rental agreement.  Under existing law, a protective 
          order includes restraining orders (temporary or permanent) 
          enjoining specific acts of abuse, excluding a person from a 
          dwelling, or enjoining other specified behavior.  (Fam. Code 
          Sec. 6218.)  Additionally, protective order includes elder or 
          dependent adult abuse orders.  (Welf. & Inst. Code Sec. 
          15657.03(b)(3).)  

          As discussed above, current law provides that a tenant who 
          secures a temporary restraining order or emergency protective 
          order may terminate their tenancy early without penalties the 
          tenant would otherwise incur for early termination.  However, a 
          permanent restraining order is not specifically included in the 
          list of documents a tenant may provide to a landlord for early 
          lease or rental agreement termination.  Yet, a permanent 
          restraining order is a protective order, as are temporary 
          restraining orders, emergency protective orders, and elder and 
          dependent adult abuse orders.  This bill would clarify that a 
          protective order (temporary or permanent) may be used to 
          substantiate the necessity for a tenant to terminate a lease or 
          rental agreement and, thus, would provide increased protection 
          for victims of domestic violence, sexual assault, stalking, and 
          elder or dependent adult abuse.

          4.   Urgency measure
           
          The bill contains an urgency clause, making it effective 
          immediately upon passage and the Governor's signature.  The 
          rationale provided for the urgency is that it is necessary for 
                                                                      



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          the immediate preservation of the public peace, health, or 
          safety to ensure improved protection against domestic violence 
          and elder abuse in California.

          5.   Author's amendment
           
          Existing law prohibits a landlord from terminating tenancy based 
          upon domestic violence, sexual assault, or stalking.  In the 
          event a landlord files an unlawful detainer (eviction) action 
          against a victim, the victim can assert affirmative defenses 
          based upon documented domestic violence, sexual assault, or 
          stalking.  This bill would extend these affirmative defenses to 
          a tenant who is a victim of elder or dependent adult abuse.

          Existing law, by January 1, 2012, requires the Judicial Council 
          of California to develop or revise a form that may be used by 
          the tenant to assert a responsive pleading setting forth an 
          affirmative defense to an unlawful detainer action brought by a 
          landlord against a tenant.  Since this bill would authorize a 
          tenant who is the victim of elder or dependent adult abuse to 
          assert affirmative defenses against eviction proceedings, the 
          author offers an amendment to require the Judicial Council of 
          California to revise the responsive pleading form to incorporate 
          the provisions of this bill by January 1, 2014.

             Author's amendment  :

            On page 5, at line 23, remove and replace "2012" with "2014"


           Support  :  California Partnership to End Domestic Violence; Crime 
          Victims United California; National Housing Law Project

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 588 (V. Manuel Pérez, Ch. 76, Stats. 2011) See Background.

          SB 782 (Yee, Ch. 626, Stats. 2010) See Background.
                                                                      



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          AB 2052 (Lieu, Ch. 440, Stats. 2008) See Background.

           Prior Vote  :  Not relevant.

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