BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2819|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   THIRD READING 


          Bill No:  AB 2819
          Author:   Chiu (D) 
          Amended:  5/12/16 in Assembly
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  5-2, 6/21/16
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

           ASSEMBLY FLOOR:  41-30, 5/16/16 - See last page for vote

           SUBJECT:   Unlawful detainer proceedings


          SOURCE:    California Rural Legal Assistance Foundation
                     Western Center on Law & Poverty


          DIGEST:  This bill restricts 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  
          also permits 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.


          ANALYSIS:  


          Existing law:










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          1)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: (a) after the expiration of the term for  
            which it is let; (b) after default in the payment of rent,  
            pursuant to the lease or agreement under which the property is  
            held; or (c) 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  
            affirmative defense which, if proved, defeats the landlord's  
            right to possession.  (Code Civ. Proc. Sec. 1161.)


          2)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).)


          1)Specifies that, for purposes of the above provision, "good  
            cause" includes, but is not limited to, the gathering of  







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            newsworthy facts by a person described in Section 1070 of the  
            Evidence Code.  (Code Civ. Proc. Sec. 1161.2(b).)


          This bill:


          1)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.


          1)Specifies that if a default or default judgment is set aside  
            more than 60 days after the complaint has been filed, these  
            provisions shall apply as if the complaint had been filed on  
            the date the default or default judgment is set aside.


          2)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.







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          3)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.


          1)Specifies that its provisions do not alter any provision of  
            the Evidence Code.


          2)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.


          3)Makes other technical and conforming changes, and makes  
            related findings and declarations.


          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, Chapter 787, Statutes of 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.







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          While the majority of unlawful detainer actions are resolved  
          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 modifies 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.


          Comments
          
          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  







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            cases remain unresolved at the 45-day mark.

            As a result, the identities of thousands of tenants-even if  
            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  







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            landlords have access to timely and accurate information  
            regarding prospective tenants.


          Related/Prior Legislation


          AB 2310 (Ridley-Thomas and Dickinson, Chapter 339, Statutes of  
          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, Chapter 341, Statutes of  
          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.


          AB 1865 (Alejo, Chapter 241, Statutes of 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 1149 (Corbett, Chapter 641, Statutes of 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.


          SB 345 (Kuehl, Chapter 787, Statutes of 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.








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          AB 1796 (Friedman, Chapter 965, Statutes of 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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/21/16)


          California Rural Legal Assistance Foundation (co-source)
          Western Center on Law & Poverty (co-source)
          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:   (Verified6/21/16)


          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







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          Santa Barbara Rental Property Association
          Western Manufactured Housing Communities Association


          ARGUMENTS IN SUPPORT:     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  
            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.

          ARGUMENTS IN OPPOSITION:     The Santa Barbara Rental Property  
          Association, writing in opposition, states:


            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 [unlawful  
            detainer] 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.  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.


          ASSEMBLY FLOOR:  41-30, 5/16/16
          AYES:  Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown,  
            Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,  
            Dodd, Eggman, Eduardo Garcia, Gipson, Gonzalez, Gordon, Gray,  
            Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty,  
            Mullin, Nazarian, Quirk, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Rendon







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          NOES:  Achadjian, Baker, Bigelow, Brough, Chang, Chávez, Dahle,  
            Beth Gaines, Gallagher, Gatto, Grove, Hadley, Harper, Roger  
            Hernández, Jones, Kim, Lackey, Linder, Maienschein, Mathis,  
            Mayes, Melendez, Obernolte, Olsen, Patterson, Ridley-Thomas,  
            Steinorth, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Travis Allen, Dababneh, Daly, Frazier,  
            Cristina Garcia, Gomez, Medina, O'Donnell, Rodriguez

          Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
          6/24/16 14:33:48


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