BILL ANALYSIS Ó
AB 969
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Date of Hearing: January 14, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 969 (Ammiano) - As Amended: January 6, 2014
As Proposed to be Amended
SUBJECT : LANDLORD AND TENANT: UNLAWFUL DETAINER
KEY ISSUE : SHOULD EXISTING LAW BE CLARIFIED TO UNDERSCORE THAT
FACTUAL QUESTIONS OF HABITABILITY SHALL BE DETERMINED BY THE
JURY IN AN UNLAWFUL DETAINER CASE IN WHICH THERE IS A JURY, OR,
ALTERNATIVELY, BY THE JUDGE IF THERE IS NO JURY IN THE CASE?
SYNOPSIS
According to the author, the bill is needed to clarify existing
law in response to recent instances where some judges have
apparently been misinterpreting the law to disallow the jury
from considering questions of habitability, and instead have
been reserving that determination to themselves. This bill is
sponsored by the East Bay Community Law Center (EBCLC), a
non-profit law office that provides legal services to low-income
people, including defending tenants in eviction cases, and whose
lawyers were among the first to encounter instances of this type
of judicial interpretation of the statute. Proponents contend
that the bill's proposed clarifications are essentially
declarative of existing law and they are needed to ensure
consistent and appropriate application of landlord-tenant laws
that are often misread or misapplied to deprive tenants of
rights and protections they have under existing law.
The bill is opposed by a number of apartment associations and
landlord groups. Opponents contend, among other things, that
simply "adding the word 'jury' to the provisions of the statute
will encourage the use of jury trials where none exist today,"
which consequently will add months of delay to what are supposed
to be summary proceedings and will increase costs and burdens
upon the courts. Some opponents also contend that the
Legislature specifically intended to withhold determination of
habitability questions from the jury when it enacted Section
1174.2. In other words, they assert that "the court" means
"judge" and never "jury."
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The key issue presented by the bill stems from interpretation of
the term "the court", within the meaning of Code of Civil
Procedure (CCP) Section 1174.2. Proponents assert that "the
court" essentially means the trier of fact in the case, which is
the jury if there is a jury, otherwise the judge. In support of
this argument, proponents contend that CCP Section 1171 (stating
"Whenever an issue of fact is presented by the pleadings, it
must be tried by a jury"), in conjunction with authoritative
case law, together clearly require juries to determine factual
questions of habitability in eviction cases if there is a jury
in the case.
The Committee's research of the legislative history of the
section is inconclusive on the question of specific Legislative
intent, but subsequent case law and other secondary evidence
strongly appears to favor the interpretation supported by
proponents of the bill-as evidenced by the current practice in
most courts in the state that requires juries to determine
habitability questions in cases where there is a jury, but
otherwise requires judges to do so when there is no jury.
SUMMARY : Clarifies existing law regarding the determination of
habitability questions in unlawful detainer trials, both when
there is and is not a jury, and makes other clarifying and
technical amendments. Specifically, this bill :
1)Clarifies that, in an eviction proceeding in which the tenant
has raised as an affirmative defense a breach of the warranty
of habitability, the jury shall determine whether a
substantial breach of these obligations has occurred if the
proceeding is tried with a jury, and the judge shall make this
determination if the proceeding is tried without a jury.
2)Clarifies that the provisions of subdivision (c) of Civil Code
Section 1942.5 (prohibiting retaliation against a tenant for
participating in a tenants' association or lawfully exercising
rights) apply generally to tenants, notwithstanding any
provisions of separate subdivision (a) (generally prohibiting
retaliation against tenant for making habitability complaint
to an appropriate agency.)
3)Finds that the provisions of this bill are declarative of
existing law.
EXISTING LAW :
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1)Provides that the breach of any warranty of habitability
(implied or express) is a defense to an unlawful detainer
action filed to recover possession or residential premises
based on nonpayment of rent. (Green v. Superior Court (1974)
10 Cal. 3d 616.)
2)Provides that whenever an issue of fact is presented by the
pleadings, it must be tried by a jury, unless the jury has
been waived. (Code of Civil Procedure Section 1171.)
3)Establishes that whether a breach of warranty of habitability
has occurred is a question of fact. (Lehr v. Crosby, (1981)
123 Cal. App. 3rd Supp. 1, 6.)
4)Provides that where the trial is by jury, except as otherwise
provided by law, all questions of fact are to be decided by
the jury. (Evidence Code Section 312(a).)
5)Provides that in an unlawful detainer proceeding in which the
tenant has raised as an affirmative defense a breach of the
landlord's obligations under Civil Code Section 1941 or of any
warranty of habitability, the court shall determine whether a
substantial breach of these obligations has occurred. Further
provides that nothing in this section is intended to deny the
tenant the right to a trial by jury. (Code of Civil Procedure
Section 1174.2.)
6)Provides that if the landlord retaliates against the tenant
because the tenant has exercised his rights under this chapter
or made a complaint to an appropriate agency as to
habitability of a dwelling, and if the tenant is not in
default as to the payment of his rent, the landlord may not
recover possession of the dwelling in any action or
proceeding, cause the tenant to quit involuntarily, increase
the rent, or decrease any services within 180 days from the
date the tenant has exercised certain rights, including, among
other things:
a) In good faith, having given notice or made an oral
complaint to the landlord regarding habitability.
b) In good faith, having filed a written complaint, or
registered an oral complaint, with an appropriate agency,
of which the landlord has notice, for the purpose of
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obtaining correction of a condition relating to
habitability. (Civil Code Section 1942.5(a).)
7)Prohibits a landlord from increasing rent, decreasing
services, causing a tenant to quit involuntarily, bringing an
action to recover possession, or threatening to do any of
those acts, for the purpose of retaliating against the tenant
because he or she has lawfully organized or participated in a
tenants' association or an organization advocating tenants'
rights, or has lawfully and peaceably exercised any rights
under the law. Further provides that in an action brought by
or against the landlord pursuant to this provision, the tenant
shall bear the burden of producing evidence that the
landlord's conduct was, in fact, retaliatory. (Civil Code
Section 1942.5(c).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : According to the author, the bill is needed to
clarify existing law in response to recent instances where some
judges have apparently been misinterpreting that law to disallow
the jury from considering questions of habitability, and instead
have been reserving that determination to themselves. This bill
is sponsored by the East Bay Community Law Center (EBCLC), a
non-profit law office that provides legal services to low-income
people, including defending tenants in eviction cases, and whose
lawyers were among the first to encounter instances of this type
of unofficial judicial interpretation of the statute. According
to EBCLC attorneys, the wording of the statute leads to lengthy
arguments before virtually every trial in which habitability is
at issue. They explain:
Landlord attorneys regularly file motions to have the
question of whether there is a breach of the warranty
of habitability decided by the judge, even when the
case is being tried by a jury. While these motions
contravene Section 1171 of the Code of Civil Procedure
(which provides: "[w]henever an issue of fact is
presented by the pleadings, it must be tried by a
jury?"), considerable court time is wasted in arguing
these motions and, when the motions are successful,
tenants are deprived of their right to have their cases
decided by juries.
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According to the proponents, the bill's clarifying provisions
are declarative of existing law, but nonetheless needed to
ensure consistent judicial application of those sections of law,
thereby "(bringing) them into closer alignment with the intent
and policy considerations underlying their original
codification."
This bill seeks to clarify and harmonize Section 1174.2 with
longstanding existing law that requires the jury to determine
questions of fact in cases in which there is a jury. The issue
presented by the bill stems from interpretation of the term "the
court", as used in Code of Civil Procedure Section 1174.2, that
appears to conflict with other statutory and case law that
clearly requires juries to determine factual questions of
habitability in eviction cases. Specifically, Code of Civil
Procedure Section 1171 states the clear rule that "Whenever an
issue of fact is presented by the pleadings, it must be tried by
a jury, unless such jury be waived." (See also Evidence Code
Section 312(a), requiring all questions of fact to be decided by
the jury if there is a jury trial, except as otherwise
provided.) Existing law also firmly establishes that breach of
habitability is a question of fact, not law. (See e.g. Lehr v.
Crosby (1981) 123 Cal App. 3rd sup. 1, 6.) Therefore, Section
1171 and authoritative case law such as Lehr lead to the
inescapable conclusion that under existing law, issues of
habitability--because they are factual--must be determined by
the jury if there is a jury in the case.
Accordingly, this bill seeks to clarify Section 1174.2 to
reaffirm existing law that appropriately requires juries to
determine factual questions in cases where there is a jury.
Specifically, the bill amends Section 1174.2 to provide that
"the jury, or the court, if the proceeding is tried without a
jury," shall determine whether a substantial breach of the
warranty of habitability has occurred. If there is no jury in
the case, then under the bill and under existing law, the judge
must make that determination, and quite appropriately in that
situation since there is no other actor or entity that can do so
when there is no jury.
In response to concerns, raised by the Apartment Association of
Greater Los Angeles, that the bill may give the "trier of fact"
(the jury, if there is a jury) additional authority that is
properly the province of the judge, the author proposes a
clarifying amendment to replace that term with the clearer
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phrase "jury or court", which is more consistently used
throughout the rest of Section 1174.2 as proposed to be amended.
The amendment is:
On page 4, line 29, delete "trier of fact" and replace with
"jury or court"
The legislative history of Section 1174.2 does not support the
contention that the Legislature intended to categorically
exclude juries from determining habitability questions in jury
trials. Current Civil Code Section 1174.2 was enacted by AB
3920 (Roos), Ch. 805, Stats. 1986, to provide that "the court"
shall determine whether breach of habitability obligations has
occurred. Opponents contend that it was the intent of the
Legislature in enacting AB 3920 to "delegate the sole authority
of determining habitability defenses to the court." However,
the Committee's review of the full legislative history of
Section 1174.2 did not yield any evidence that the Legislature
specifically intended determination of breach to be withheld
from the jury, or for that matter reserved solely to the court.
Unlike the present bill, the central issue presented by AB 3920
was not what entity (whether judge or jury) shall make the
determination of breach of habitability. Instead, the
Legislature was primarily concerned with specifying criteria for
determining who the prevailing party was in an unlawful detainer
when breach of warranty of habitability had already been proven
at trial. (Senate Judiciary Committee analysis, August 14,
1986, p.2.) There is no evidence that the Legislature even
contemplated the meaning of the term "the court" in the relevant
context, so it cannot be said with any certainty, despite
opponent's contentions, that the Legislature intended to exclude
juries from determining habitability questions in jury trials
when it enacted AB 3920.
This bill reaffirms current law and predominant legal practice,
rather than creating a drastic new change of the law. Some
opponents of the bill contend both that the bill "drastically
changes (Section 1174.2) procedure to allow juries to determine
the habitability issue" and that "courts in California
erroneously permit juries to decide breach of warranty of
habitability." On the contrary, there is ample evidence to
support exactly the opposite conclusion, namely that the
existing law requires questions of habitability to be determined
by the jury, if there is a jury in the case, and current
predominant practice in California reflects this understanding.
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This conclusion is reflected in secondary legal sources used by
lawyers for guidance, such as Witkin's Summary of California Law
for Real Property, which states "CCP 1171 provides that unless
waived, fact issues presented in unlawful detainer actions are
to be tried by jury. Included among these are the breach of the
warranty of habitability [internal citation omitted]." 4
Witkin, Summary of California Law (1987) Real Property § 711(b)
at p. 896. (See also, the Landlord-Tenant Practice Guide for the
Continuing Education of the Bar (providing jury should make an
express finding of the extent of uninhabitability, regardless of
the method used to measure damages for breach.) Moscovitz, et
al. 2 Cal. Landlord-Tenant Practice , CEB 2d Ed., §13.36 at p.
990.2-990.3.)
Furthermore, CACI 4320, a detailed jury instruction form
prepared by the Judicial Council, has for years been used in
many courts to specifically assist juries in evaluating
habitability questions, including evaluating the numerous
habitability standards set forth in Civil Code Section 1941.1.
Many courts, including the California Supreme Court, have
examined the sufficiency of jury instructions in actions against
a landlord for breach of warranty of habitability. (see, e.g.
Knight v. Hallsthammer (1981) 29 Cal. 3rd 46, 58 (failure to
provide the jury with instructions regarding the warranty of
habitability and the relevant standards for determining whether
a breach had occurred constitutes prejudicial error).) In light
of the persuasive evidence to the contrary, it is not credible
to say this bill "drastically changes procedure" by now allowing
juries to make habitability determinations when they already
have been doing so for many years pursuant to existing law. It
is also difficult to find support for opponents' contentions
that only the court has the expertise and the authority to
determine habitability, and that juries that determine those
issues today are being "erroneously" permitted to do so, when no
less than the state Supreme Court and other courts of appeal
have published opinions examining the sufficiency of jury
instructions in breach of habitability cases without finding any
apparent need to correct the "erroneous" practice of "allowing"
juries to make habitability determinations.
This bill clarifies a rule that only applies if there already is
a jury trial-which under existing law either party is entitled
to have by right. It is important to note that nothing in this
bill requires the use of juries in an eviction case. The bill
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simply clarifies that if there is a jury, then that jury shall
consider factual questions of habitability in the case. If
there is not a jury, then the bill provides that the court (i.e.
the judge) shall make those determinations. In any case,
proponents and opponents of the bill agree that under existing
law, both the landlord and the tenant in an unlawful detainer
case have the statutory right to a jury trial unless both sides
waive that right at the beginning of the case. (Proponents and
opponents disagree as to whether the right is constitutional,
but that is not an issue here.) This bill does nothing to upset
that particular rule. Furthermore, existing subdivision (d) of
Section 1174.2 states that "nothing in this section is intended
to deny the tenant the right to a trial by jury."
Nevertheless, opponents are strongly opposed to this bill
because they contend that: (1) the bill will encourage new jury
trials; (2) jury determination of habitability questions will
lengthen what should be a summary or expedited proceeding; and
(3) the bill will impose undue cost on both the courts and
landlords. For example, the California Apartment Association
states: "Adding the word 'jury' to the provisions of the
statute will encourage the use of jury trials where none exist
today. While a jury trial may be a landlord's and tenant's
right in certain circumstances, encouraging more jury trials in
eviction cases throughout the state will add months of delay and
costs to the courts. . . Requesting a jury trial is one of the
easiest tactics for a tenant to live 'rent-free.' If this bill
becomes law, a rental property owner would not receive a single
dollar in rent for six months, while at the same time, paying
thousands of dollars in legal fees."
Proponents of the bill question the premise that simply "adding
the word 'jury' to the statute will encourage the use of jury
trials where none exist today." They contend this broad
statement ignores the context by which the word "jury" is used
in the bill, and reiterate that the bill simply clarifies that
if there is a jury, then the jury shall consider questions of
habitability in the case. EBCLC attorneys also report that in
the courts in Alameda County where they practice, jury trials in
eviction cases are currently being heard, on average, sooner
than non-jury trials. They concede while this is not occurring
by operation of law and may differ from court to court, it
nonetheless counters opponents' argument that this bill will
necessarily lengthen the time it takes for such matters to be
heard and resolved so the landlord can recover possession or
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otherwise achieve resolution.
In addition, EBCLC attorneys note that existing law, unchanged
by the bill, still requires the tenant and his attorney to meet
the burden of proving breach of habitability, and requires the
landlord to prevail on that issue if that burden is not met, in
jury trials and non-jury trials alike. If the tenant's defense
to unlawful detainer is to establish breach of habitability,
then Section 1174.2 should not be interpreted to reserve
determination of those facts to the judge because that
essentially deprives the tenant of his or her right to have a
jury try their case. An interpretation of the statute that
would accommodate the tenant's right to have a jury in the case,
but then not allow the jury to consider the factual evidence of
breach at the heart of the defense's argument, makes little
sense and seems contrary to existing law and Legislative intent
with respect to the role and authority of juries in court
proceedings generally.
Finally, with respect to opponents' concerns that this bill will
unnecessarily lengthen what should be an expedited proceeding,
courts have consistently found that such concerns are
substantially outweighed by the interest of justice. In Green
v. Superior Court (1974) 10 Cal. 3d 616, 636, the California
Supreme Court explained:
[W]hile the state does have a significant interest in
preserving a speedy repossession remedy, that interest
cannot justify the exclusion of matters which are
essential to a just resolution of the question of
possession at issue.... Certainly the interest in
preserving the summary nature of an action cannot
outweigh the interest of doing substantial justice. To
hold the preservation of the summary proceeding of
paramount importance would be analogous to the 'tail
wagging the dog."
This bill clarifies that subdivisions (a) and (c) of Civil Code
Section 1942.5 are distinct provisions. According to the
author, this bill clarifies subdivision (c) of Civil Code
Section 1942.5 to address a reportedly common misreading of the
statute. Section 1942.5 codifies the common law defense of
retaliatory eviction established by the California Supreme Court
in Schweiger v. Superior Court (1970) 3 Cal. 3d 507.
Subdivision (a) provides that a landlord may not increase rent,
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decrease services, or terminate a tenancy within 180 days of the
tenant making a complaint about habitability if the landlord is
retaliating against a tenant and if the tenant is not in default
of the rent. (Emphasis added.) Subdivision (c), on the other
hand, more broadly prohibits landlords from increasing rent,
decreasing services, or evicting a tenant for the purpose of
retaliating against the tenant for participating in a tenants'
association or because the tenant "has lawfully and peaceably
exercised any rights under the law."
Although subdivisions (a) and (c) are distinct provisions, the
sponsor contends that landlord attorneys regularly seize upon
the limitations imposed in subsection (a) to argue that
retaliation is not a defense in any unlawful detainer action
based on alleged non-payment of rent. According to the
proponents, these landlord attorneys typically file motions to
prevent the tenant from introducing evidence of retaliation at
trial. Because non-payment of rent cases make up the majority
of unlawful detainer cases before the court, proponents contend
that much court time is wasted in hearing and considering these
motions, and when they are successful, tenants who may truly be
the victims of retaliation are deprived of one of their most
important (and in some cases, only) affirmative defenses.
Proponents note that the Judicial Council provided two separate
jury instructions on retaliation, which they contend recognize
that the two subdivisions are distinct. Judicial Council form
CACI 4321, based on subdivision (a), requires a tenant to prove
retaliation and that he or she is not in default of rent. CACI
4322, based on subdivision (c), requires the tenant to prove
only that the landlord is retaliating against the tenant for
lawfully and peaceably exercising a right, without any reference
to rent.
More persuasively for this purpose, the Committee's own research
of the legislative history of Section 1942.5 indicates that the
Legislature did not intend to apply conditions appearing in
subdivision (a) to limit provisions in subdivision (c). Section
1942.5 was significantly revised and reorganized by AB 771
(Hart), Ch. 652, Stats. 1979. Prior to AB 771, Section 1942.5
made no reference to the kind of retaliation against a tenant
participating in a tenant's association described in current
subdivision (c). As introduced, the bill proposed protection
from retaliation for this kind of activity in paragraph (3),
along with other protected activities, but under a single rule
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articulated in subdivision (a) (which, as introduced, did not
limit the protection to only those tenants who were not in
default on rent.) The May 22, 1979 amendments to the bill not
only revised the language of paragraph (3) into the form that
exists today (having remained unchanged since AB 771),
but-significantly--also relocated this right into a stand-alone
subdivision, existing subdivison (c). Subdivision (a) was later
amended by AB 771 to reprise the "not in default" condition
(which had existed prior to that bill), but the Legislature did
apparently not see fit to apply that condition to subdivision
(c) of the same act when it had the opportunity to do so, or it
surely would have before approving the bill.
To clarify that limitations that apply to subdivision (a) are
not misread to negate the ability to present evidence of
retaliation pursuant to subdivision (c), this bill would simply
insert the phrase "Notwithstanding subdivision (a)" into the
beginning of subsection (c), thus reflecting the Legislature's
intent when it enacted subdivision (c) in 1979.
The Committee notes this bill does not seek to relieve the
tenant from his current burden of proving the elements of
retaliation in order to successfully employ the defense.
Subdivision (e) of Section 1942.5 provides that under both
subdivisions (a) and (c), the tenant has the burden of proving
retaliation and the landlord can overcome the defense by
pleading and proving a non-retaliatory good-faith reason for the
adverse action. The amendment proposed by this bill
("Notwithstanding subdivision (a)") seeks to clarify that
limitations that apply to subdivision (a) should not be misread
to negate the ability to present evidence of retaliation
pursuant to subdivision (c).
Author's Amendment: In order to reflect that the author
believes the bill to be clarifying and declarative of existing
law, he proposes to make the following amendment:
On page 5, below line 29, insert: "SEC.3. The Legislature
finds that Sections 1 and 2 of this act are declarative of
existing law."
REGISTERED SUPPORT / OPPOSITION :
Support
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East Bay Community Law Center (EBCLC) (sponsor)
Eviction Defense Center
Los Angeles Center for Law & Justice
National Housing Law Project
Tenants Together
Opposition
Apartment Association, California Southern Cities
Apartment Association of Greater Los Angeles
Apartment Association of Orange County
California Apartment Association
East Bay Rental Housing Association
NORCAL Rental Property Association
San Diego County Apartment Association
Santa Barbara Rental Property Association
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334