BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2819|
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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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