BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2819 (Chiu)
Version: May 12, 2016
Hearing Date: June 21, 2016
Fiscal: No
Urgency: No
TH
SUBJECT
Unlawful Detainer Proceedings
DESCRIPTION
This bill would restrict access to court records filed in an
unlawful detainer action to any person after the complaint has
been filed unless the plaintiff prevails in the action within 60
days of filing the complaint, except as specified. This bill
would also permit a court to dismiss an unlawful detainer
proceeding without prejudice if proof of service is not filed
within 60 days of the complaint's filing.
BACKGROUND
Under existing law, a tenant in rented accommodations can be
subject to an unlawful detainer or "eviction" action if they do
such things as break a term of their lease, fail to pay rent, or
create a nuisance. These eviction actions are meant to be
resolved quickly, usually in less than one month's time. While
the action is pending, existing law "masks" court records
generated in the eviction action for the first 60 days, and
permanently thereafter if the defendant tenant prevails in the
action within that 60-day window. This masking provision,
enacted by SB 345 (Kuehl, Ch. 787, Stats. 2003), is designed to
protect a tenant's identity from being released both while an
action is pending and afterward, if the tenant prevails, so as
not to harm the tenant's ability to secure alternate rental
accommodations.
While the majority of unlawful detainer actions are resolved
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within the 60-day masking period, tenants who contest the action
and choose to be represented by an attorney often times do not
reach a resolution until after the 60 day mark. Consequently,
even in cases where a tenant ultimately prevails and defeats an
unlawful detainer action, existing law permits the record of
these unlawful detainer actions resolved after more than 60 days
to be unmasked.
Several private companies compile unmasked unlawful detainer
court records and offer them - particularly the names of the
defendant tenants - to landlords as a tool for screening
prospective renters. CoreLogic, Inc., for example, offers a
service that compiles tenant eviction histories for landlords,
and states on its Web site:
Our eviction history reports are compiled from public
landlord/tenant court records that have been filtered for
quality using identity check and search logic. This extensive
eviction history information has proven to be a leading
indicator of future rent payment behavior and can help you
select applicants who are most likely to fulfill a lease.
(See http://www.myrental.com/products/eviction-history-report
[as of June 8, 2016].)
This bill would modify the 60-day masking period in unlawful
detainer actions to restrict access to court records generated
by these proceedings unless the plaintiff prevails in the action
within 60 days of filing the complaint, except as specified.
CHANGES TO EXISTING LAW
Existing law permits a landlord to file an unlawful detainer
action against a tenant in order to evict him or her when, among
other things, the tenant continues in possession of the
property, or any part thereof: (1) after the expiration of the
term for which it is let; (2) after default in the payment of
rent, pursuant to the lease or agreement under which the
property is held; or (3) after a neglect or failure to perform
conditions or covenants of the lease or agreement under which
the property is held; or when the tenant has: (1) committed
waste upon the premises contrary to the conditions of the lease;
or (2) committed or maintained a nuisance upon the premises or
permitted the nuisance to be committed or maintained. While a
landlord must prove each element of the unlawful detainer
action, the tenant may also present evidence to support an
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affirmative defense which, if proved, defeats the landlord's
right to possession. (Code Civ. Proc. Sec. 1161.)
Existing law provides that court records in an eviction action
may be made available only to the following:
a party to the action, including the party's attorney;
any person who provides the clerk with the names of at least
one plaintiff and one defendant and the address of the
premises;
a resident of the premises who provides the clerk with the
name of one of the parties or the case number and who shows
proof of residency;
any person by order of the court on a showing of good cause;
or
any other person 60 days after the filing of a complaint
unless the defendant tenant prevails in the action within 60
days after the filing. If the defendant prevails, the court
records may not be made available except to a person specified
above. (Code Civ. Proc. Sec. 1161.2(a).)
Existing law specifies that, for purposes of the above
provision, "good cause" includes, but is not limited to, the
gathering of newsworthy facts by a person described in Section
1070 of the Evidence Code. (Code Civ. Proc. Sec. 1161.2(b).)
This bill re-casts the above provisions to state instead that
court records in an eviction action may be made available to:
a party to the action, including the party's attorney;
a person who provides the clerk with the names of at least one
plaintiff and one defendant and the address of the premises;
a resident of the premises who provides the clerk with the
name of one of the parties or the case number and who shows
proof of residency;
a person by order of the court on a showing of good cause;
any person by order of the court if judgment is entered for
the plaintiff after trial more than 60 days after the filing
of the complaint, which shall issue upon entering judgment for
the plaintiff; or
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.
This bill specifies that if a default or default judgment is set
aside more than 60 days after the complaint has been filed,
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these provisions shall apply as if the complaint had been filed
on the date the default or default judgment is set aside.
This bill specifies that its provisions shall not be construed
to prohibit the court from issuing an order that bars access to
court records, as specified, if the parties to the action so
stipulate.
This bill states that, for purposes of accessing court records
in an eviction action by order of the court on a showing of good
cause, "good cause" includes, but is not limited to:
the gathering of newsworthy facts by a person described in
Section 1070 of the Evidence Code; and
the gathering of evidence by a party to an unlawful detainer
action solely for the purpose of making a request for judicial
notice.
This bill specifies that its provisions do not alter any
provision of the Evidence Code.
This bill states that 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.
This bill would make other technical and conforming changes.
This bill would make related findings and declarations.
COMMENT
1.Stated need for the bill
According to the author:
Under existing law, court records in eviction lawsuits (termed
"unlawful detainers" or "UDs") become public within 60 days
unless tenants win before the deadline. UDs are supposed to be
heard within 20 days of filing; however, following severe
budget cuts and court closures during the recent recession,
statewide delays in the judicial system now commonly push
these hearings past the 60-day mark. The most recent data
from Judicial Council shows that a record 32 [percent] of UD
cases remain unresolved at the 45-day mark.
As a result, the identities of thousands of tenants-even if
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they ultimately prevail in the eviction action -are
automatically revealed if they fail to win by the 60-day mark.
Companies capture and publish lists of these tenants' names,
and this information may remain on a tenant's credit report
for up to seven years. In other words, mere involvement in an
eviction lawsuit becomes grounds for tenant blacklisting.
Landlords who rely on this information are unable to
distinguish between problematic and innocent tenants, so they
end up screening out meritorious applicants. The housing
crisis is then exacerbated for thousands of innocent
Californians.
This bill seeks to prevent the blacklisting of innocent
tenants whose credit and reputations can be ruined, by
requiring that court records remain sealed unless landlords
prevail in eviction lawsuits. The Legislature attempted to
resolve this issue in 1991 through a similar measure. AB
1796, Allen, Chapter 965, Statutes of 1991 prohibited the
release of tenants' information by consumer credit agencies
unless the landlord prevailed in a UD case. Unfortunately, AB
1796 was struck down by the California Court of Appeals in
1995 on 1st Amendment grounds because it prohibited truthful
reporting of information contained in court files that were
already available to the public. The court noted that if
there are indeed concerns about detrimental effects on
tenants, the state must take care to ensure the information
isn't made public in the first place.
By focusing on when tenant UD case records can be released by
the courts into the public domain, AB 2819 will finally
fulfill the original intent of the Legislature to address this
significant problem while avoiding the legal challenges faced
by prior legislation. Given the recent economic and
foreclosure crisis, the negative impact of erroneous
disclosures is greater than ever. In counties across
California, there are thousands of families each year harmed
under current law through no fault of their own, particularly
in competitive housing markets. In San Francisco alone, as
many as 500 eviction lawsuits a year may not be heard until
after the 60-day mark has passed. AB 2819 will provide a
common-sense reform that protects families while ensuring
landlords have access to timely and accurate information
regarding prospective tenants.
2.Protecting tenants from unwarranted screening
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As noted above in the Background, the Legislature enacted an
identity masking tool for parties in unlawful detainer actions
when it passed SB 345 (Kuehl, Ch. 787, Stats. 2003). This
masking tool protects all parties identities, but particularly
that of the tenant's, from being released during the first 60
days of the action. If the defendant tenant prevails within
that 60-day window, these records are sealed permanently and
cannot be accessed, in most cases, except by parties to the
action and others who have demonstrated cause and received a
court order granting access to the files.
This masking provision operates to protect tenants who prevail
within the 60-day window by keeping them from being included on
lists of unlawful detainer defendants compiled by companies who
offer tenant vetting services to landlords. According to Bay
Area Legal Aid, writing in support:
When these cases become public, the mere existence of the
unlawful detainer case mars these tenants' records and
prevents them from finding new housing. Credit agencies
collect the information, which then appears on the tenant's
credit report and on landlords' blacklists for up to seven
years. The unfortunate reality faced by our client population
is that many landlords will not want to engage with them based
solely on the existence of an unlawful detainer being filed
against the tenant.
However, because the masking provision is time limited, it often
fails to protect tenants who seek and retain attorneys to assist
them in navigating the unlawful detainer process, and who,
because of motion practice timelines and court delays, are
unable to prevail in the action until after 60 days have
elapsed. Indeed, the time-limited nature of the masking
provision in current law may serve as a disincentive for tenants
to seek legal advice in certain scenarios when faced with
defending an unlawful detainer. The Eviction Defense
Collaborative, writing in support, states:
This law punishes tens of thousands of innocent tenants across
California every year, including tenants who successfully
settle, secure a dismissal of the case, or win after trial,
but have the misfortune of doing so after the 60 day deadline
has passed. The law also unjustly harms tenants who are never
given notice of the eviction lawsuit or afforded their day in
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court, but - in some cases, after years have passed - discover
that their credit has been ruined. Eviction Defense
Collaborative finds that tenants whom we could help win their
case are afraid to fight for fear of running into the 60th day
or beyond.
By shifting the masking provision to protect tenants' identities
from being revealed unless the plaintiff prevails in the first
60 days, this bill would eliminate the harms visited upon
tenants who are unable to successfully defend an unlawful
detainer action within the initial 60-day window. This bill
also helps tenants avoid unjust default judgments in unlawful
detainer cases by authorizing a court to dismiss an action when
the plaintiff fails to file proof of service of the summons
within 60 days of the complaint's filing, and by restarting the
60-day masking period when a default or default judgment is set
aside more than 60 days after a complaint was filed.
3.Opposition concerns
A coalition of apartment associations opposed to this bill
argues that the proposed changes to the existing masking
provision will promote delay tactics and frivolous legal claims
in unlawful detainer actions. They write:
Requiring property owners to prevail in order to unmask a UD
[unlawful detainer] proceeding only serves to promote more
delays and frivolous claims. One [of] the few policies that
encourage eviction defense organizations not to delay the UD
proceedings is the masking law. Because the proceedings
become unmasked at the 60-day mark, the parties are encouraged
to settle or complete trial before then. This bill removes
the incentive to settle quickly, while encouraging the
practice of lodging baseless and meritless claims.
The opposition coalition also argues that the proposed changes
to this provision will prevent the public from gaining access to
court records that are of public concern. They state:
Like any credit default, bankruptcies, and other debt
obligations, non-payment of rent is a matter of public record
and concern. . . . Public access to court records in UD cases
not only serves to encourage people to pay their rent on-time,
property owners have the right to know whether a prospective
tenant is a serial rent defaulter or vexatious litigant.
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Legislation like this bill, that serves to keep important
information from public view, is contrary to California's open
records and public access policies, and unfairly keeps rental
property owners in the dark and from knowing the truth about
prospective tenants.
Instead of the changes proposed in AB 2819, the opposition
coalition argues that the existing masking provision should
instead be amended to allow the masking of unlawful detainer
action records in cases where: the tenant prevails; the
plaintiff-property owner voluntarily dismisses the unlawful
detainer action against the tenant; the parties so stipulate; or
the tenant vacates the premises within 30 days from the time the
action is filed.
Support : AIDS Legal Referral Panel; American Civil Liberties
Union; Bay Area Legal Aid; City of Santa Monica; Community Legal
Services in East Palo Alto; East Bay Community Law Center;
Eviction Defense Collaborative; Eviction Defense Network; Inner
City Law Center; Legal Aid Foundation of Los Angeles; Legal
Services of Northern California; National Housing Law Project;
Neighborhood Legal Services of Los Angeles County; Public Law
Center; Tenants Together
Opposition : Apartment Association, California Southern Cities;
Apartment Association of Greater Los Angeles; Apartment
Association of Orange County; California Mortgage Association;
East Bay Rental Housing Association; North Valley Property
Owners Association; San Diego County Apartment Association;
Santa Barbara Rental Property Association; Western Manufactured
Housing Communities Association
HISTORY
Source : California Rural Legal Assistance Foundation; Western
Center on Law & Poverty
Related Pending Legislation : AB 1522 (Committee on Judiciary,
2015) would extend to April 20, 2016, and April 20, 2018, the
dates by which the California Research Bureau is to prepare a
report on the use of a pilot program authorizing specified
jurisdictions to bring unlawful detainer actions in the name of
the people against tenants for unlawful activities on real
property involving controlled substances, weapons, or
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ammunition. This bill is pending in the Senate Judiciary
Committee.
Prior Legislation :
AB 2310 (Ridley-Thomas and Dickinson, Ch. 339, Stats. 2014)
reauthorized a lapsed pilot program allowing city attorneys or
prosecutors in specified cities to bring an unlawful detainer
action in the name of the people against a tenant of rental
housing for unlawful activities relating to weapons or
ammunition on real property.
AB 2485 (Dickinson and Ridley-Thomas, Ch. 341, Stats. 2014)
reauthorized a lapsed pilot program allowing city attorneys or
prosecutors in specified cities to bring an unlawful detainer
action in the name of the people against a tenant of rental
housing for illegal conduct involving a controlled substance on
real property.
SB 1149 (Corbett, Ch. 641, Stats. 2010) prohibits a court clerk
from releasing records in an eviction action involving a
residential property that has been sold in foreclosure unless,
after 60 days have elapsed since the complaint was filed, a
judgment against all defendants has been entered for the
plaintiff, after a trial.
AB 1865 (Alejo, Ch. 241, Stats. 2012) requires a notice of
filing of an unlawful detainer action by the clerk of the court
to include the name and telephone number of any entity certified
as a lawyer referral service that requests inclusion in the
notice of filing, as specified, and information on how to locate
a lawyer referral service through the State Bar.
SB 345 (Kuehl, Ch. 787, Stats. 2003) prohibited court clerks
from providing access to court records in an unlawful detainer
action if the defendant is the prevailing party within 60 days
after the complaint is filed.
AB 1796 (Friedman, Ch. 965, Stats. 1991) precluded consumer
credit reporting agencies and investigative consumer credit
reporting agencies from including in a credit report an item of
information on an unlawful detainer action unless the lessor was
the prevailing party.
Prior Vote :
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Assembly Floor (Ayes 41, Noes 30)
Assembly Judiciary Committee (Ayes 7, Noes 1)
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