Amended in Assembly May 9, 2016

Amended in Assembly May 2, 2016

Amended in Assembly April 18, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2819

Introduced by Assembly Member Chiu

February 19, 2016

An act to amend Section 1161.2 of, and to add Section 1167.1 to, the Code of Civil Procedure, relating to unlawful detainer proceedings.

LEGISLATIVE COUNSEL’S DIGEST

AB 2819, as amended, Chiu. Unlawful detainer proceedings.

Under existing law, a tenant of real property, for a term less than life, or the executor or administrator or his or her estate, is guilty of unlawful detainer when he or she continues in possession, in person or by subtenant, of the property or any part of the property, after the expiration of the term for which it is let to him or her, except as specified. Under existing law, access to limited civil case records filed in an unlawful detainer action is restricted to (1) parties to the action, (2) certain people who provide the court clerk with specified information about the parties to the action, (3) any person by order of the court on a showing of good cause, and (4) any other person 60 days after the complaint has been filed, unless the defendant prevails in the action within 60 days after the filing of the complaint, in which case access is limited to the other parties allowed access, as described above.

This bill would instead provide that access to limited civil case records filed in an unlawful detainer action is restricted, for purposes of (4), as described above, begin insert (1) to any person by order of the court if judgment is entered for the plaintiff after trial more than 60 days since the filing of the complaint, and (2) end insert to any other person 60 days after the complaint has been filed if the plaintiff prevails in the action within 60 days of the filing of the complaint. The bill would provide that if a default or default judgment is set aside more than 60 days after the complaint was filed, the court file access restrictions, as described above, shall apply as if the complaint had been filed on the date the default or the default judgment is set aside. The bill would authorize the court to bar access to court records in the action if the parties so stipulate.

Existing law requires a complaint filed in an unlawful detainer proceeding to include certain information and requires a defendant to answer the complaint, as specified, within 5 days of being served with a summons and the complaint, unless the court orders otherwise for good cause shown. Existing law also requires proof of service of a summons to be filed in a civil action, including in an unlawful detainer proceeding.

This bill would permit a court to dismiss an unlawful detainer proceeding without prejudice if proof of service of the summons has not been filed within 60 days of the complaint’s filing.

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) It is the policy of the state to promote open access to public
records. It is in the interest of the public to ensure, to the greatest
extent possible, that there is open public access to court records,
including civil case records.

(b) It is the policy of the state that access to public records be
limited or restricted only under compelling circumstances.

(c) With the enactment of Chapter 1007 of the Statutes of 1991,
the Legislature began restricting public access to civil case records
in unlawful detainer proceedings. Under current law, with limited
exceptions, civil case records in unlawful detainer proceedings are
unavailable to the public for a period of 60 days after filing. Civil
case records in unlawful detainer proceedings in which the
defendant prevails within 60 days of filing are permanently
unavailable to the public.

(d) The state has a housing crisis that requires revising the
current restrictions on public access to civil case records in
unlawful detainer proceedings. More than four decades have passed
since the California Supreme Court first observed, in Green v.
Superior Court (1974) 10 Cal.3d 616, 625, “a scarcity of adequate
low cost housing in virtually every urban setting [in California].”
Yet the shortage of affordable housing for low-income tenants has
only grown. Median monthly rents in the state are now
approximately 50 percent higher than the national average, but
high prices have failed to spur sufficient housing construction to
meet demand. As a result, households in the state in the bottom
quarter of the income distribution spend an average of 67 percent
of their income on housing. The recent economic and foreclosure
crises have only exacerbated the challenges that low-income
households face in securing affordable housing.

(e) The difficulty of securing affordable housing in competitive
rental markets is also worsened by the existing law governing
access to civil case records in unlawful detainer proceedings.
Specifically, once unlawful detainer civil case records become
public, tenant screening companies and credit reporting agencies
capture and publish personal identifying information regarding
tenants named as defendants in those records. This information
appears in published lists, known as unlawful detainer registries,
and on tenants’ credit reports. So long as it is accurate, the fact
that a tenant was once sued for unlawful detainer is publicly
available for up to seven years and cannot be challenged under
federal or state laws governing consumer credit reporting.

(f) The names of thousands of innocent tenants whose cases are
resolved only after the 60-day deadline appear on unlawful detainer
registries. Many of these tenants successfully settle, secure a
dismissal, or win at trial, and would have escaped negative credit
reporting if only they had prevailed before the deadline. In other
instances, unlawful detainer complaints are filed against tenants
but never served. Because these complaints are never dismissed,
the tenant’s name is publicly released after 60 days and negative
credit reporting ensues. Because landlords, who are attempting to
decide between numerous applicants for scarce rental housing,
rely on unlawful detainer registries and on credit reports, landlords
often choose not to rent to tenants who appear on these registries,
even if the tenants were eventually found innocent of unlawful
detainer. As a result, given the statewide housing shortage, these
tenants may be shut out of rental markets for up to seven years
through no fault of their own.

(g) This act strikes a just balance between ensuring open access
to public records and protecting the credit and reputation of
innocent tenants. This act also ensures that landlords will have
access to timely and more accurate information regarding
prospective tenants. This act is a response to the state’s ongoing
affordable housing crisis and is necessary to prevent tenants from
being inadvertently denied an opportunity to secure housing simply
as a result of being named in an unlawful detainer lawsuit.

SEC. 2.  

It is the intent of the Legislature to amend existing
statutes regarding open access to public records by making
permanently unavailable to the public civil case records in unlawful
detainer proceedings in which the plaintiff does not prevail within
60 days of filing instead of unlawful detainer proceedings in which
the defendant prevails within 60 days of filing.

SEC. 3.  

Section 1161.2 of the Code of Civil Procedure is
amended to read:

1161.2.  

(a) (1) The clerk shall allow access to limited civil
case records filed under this chapter, including the court file, index,
and register of actions, only as follows:

(A) To a party to the action, including a party’s attorney.

(B) To a person who provides the clerk with the names of at
least one plaintiff and one defendant and the address of the
premises, including the apartment or unit number, if any.

(C) To a resident of the premises who provides the clerk with
the name of one of the parties or the case number and shows proof
of residency.

(D) To a person by order of the court, which may be granted ex
parte, on a showing of good cause.

begin insert

(E) To a person by order of the court if judgment is entered for
the plaintiff after trial more than 60 days since the filing of the
complaint.

end insert begin delete

(E)

end delete

begin insert (F) end insert  Except as provided in subparagraph begin delete (F), end delete begin insert (G), end insert to any other
person 60 days after the complaint has been filed if the plaintiff
prevails in the action within 60 days of the filing of the complaint,
in which case the clerk shall allow access to any court records in
the action. If a default or default judgment is set aside more than
60 days after the complaint has been filed, this section shall apply
as if the complaint had been filed on the date the default or default
judgment is set aside.

begin delete

(F)

end delete

begin insert (G) end insert  In the case of a complaint involving residential property
based on Section 1161a as indicated in the caption of the complaint,
as required in subdivision (c) of Section 1166, to any other person,
if 60 days have elapsed since the complaint was filed with the
court, and, as of that date, judgment against all defendants has
been entered for the plaintiff, after a trial.

(2) This section shall not be construed to prohibit the court from
issuing an order that bars access to the court record in an action
filed under this chapter if the parties to the action so stipulate.

(b) (1) For purposes of this section, “good cause” includes, but
is not limited to, both of the following:

(A) The gathering of newsworthy facts by a person described
in Section 1070 of the Evidence Code.

(B) The gathering of evidence by a party to an unlawful detainer
action solely for the purpose of making a request for judicial notice
pursuant to subdivision (d) of Section 452 of the Evidence Code.

(2) It is the intent of the Legislature that a simple procedure be
established to request the ex parte order described in subparagraph
(D) of paragraph (1) of subdivision (a).

(c) Upon the filing of a case so restricted, the court clerk shall
mail notice to each defendant named in the action. The notice shall
be mailed to the address provided in the complaint. The notice
shall contain a statement that an unlawful detainer complaint
(eviction action) has been filed naming that party as a defendant,
and that access to the court file will be delayed for 60 days except
to a party, an attorney for one of the parties, or any other person
who (1) provides to the clerk the names of at least one plaintiff
and one defendant in the action and provides to the clerk the
address, including any applicable apartment, unit, or space number,
of the subject premises, or (2) provides to the clerk the name of
one of the parties in the action or the case number and can establish
through proper identification that he or she lives at the subject
premises. The notice shall also contain a statement that access to
the court index, register of actions, or other records is not permitted
until 60 days after the complaint is filed, except pursuant to an
order upon a showing of good cause for access. The notice shall
contain on its face the following information:

(1) The name and telephone number of the county bar
association.

(2) The name and telephone number of any entity that requests
inclusion on the notice and demonstrates to the satisfaction of the
court that it has been certified by the State Bar of California as a
lawyer referral service and maintains a panel of attorneys qualified
in the practice of landlord-tenant law pursuant to the minimum
standards for a lawyer referral service established by the State Bar
of California and Section 6155 of the Business and Professions
Code.

(3) The following statement:

“The State Bar of California certifies lawyer referral services in
California and publishes a list of certified lawyer referral services
organized by county. To locate a lawyer referral service in your
county, go to the State Bar’s Internet Web site at
www.calbar.ca.gov or call 1-866-442-2529.”

(4) The name and telephone number of an office or offices
funded by the federal Legal Services Corporation or qualified legal
services projects that receive funds distributed pursuant to Section
6216 of the Business and Professions Code that provide legal
services to low-income persons in the county in which the action
is filed. The notice shall state that these telephone numbers may
be called for legal advice regarding the case. The notice shall be
issued between 24 and 48 hours of the filing of the complaint,
excluding weekends and holidays. One copy of the notice shall be
addressed to “all occupants” and mailed separately to the subject
premises. The notice shall not constitute service of the summons
and complaint.

(d) Notwithstanding any other law, the court shall charge an
additional fee of fifteen dollars ($15) for filing a first appearance
by the plaintiff. This fee shall be added to the uniform filing fee
for actions filed under this chapter.

(e) This section does not apply to a case that seeks to terminate
a mobilehome park tenancy if the statement of the character of the
proceeding in the caption of the complaint clearly indicates that
the complaint seeks termination of a mobilehome park tenancy.

(f) This section does not alter any provision of the Evidence
Code.

SEC. 4.  

Section 1167.1 is added to the Code of Civil Procedure,
to read:

1167.1.  

If proof of service of the summons has not been filed
within 60 days of the complaint’s filing, the court may dismiss the
action without prejudice.