BILL ANALYSIS                                                                                                                                                                                                    





                             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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