BILL NUMBER: AB 568 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 23, 2009
AMENDED IN ASSEMBLY MAY 5, 2009
AMENDED IN ASSEMBLY APRIL 14, 2009
INTRODUCED BY Assembly Member Lieu
FEBRUARY 25, 2009
An act to add and repeal Chapter 4 (commencing with Section 17800)
of Part 3 of Division 7 of the Business and Professions Code,
and to amend Section 1161 of the Code of Civil Procedure,
relating to counterfeit goods.
LEGISLATIVE COUNSEL'S DIGEST
AB 568, as amended, Lieu. Counterfeit goods: unlawful
detainer. abatement.
Existing law provides that every building or place used for the
purpose of unlawfully selling, serving, storing, keeping, giving
away, or manufacturing controlled substances, and every building or
place wherein or upon which these acts take place, is a nuisance that
shall be enjoined, abated, and prevented, whether it is a public or
private nuisance. Existing law authorizes a district attorney, county
counsel, city attorney, or citizen, as specified, to maintain an
action to abate and prevent the nuisance and perpetually to enjoin
the person conducting or maintaining it, and the owner, lessee, or
agent of the building or place in or upon which the nuisance exists
from directly or indirectly maintaining or permitting the nuisance.
This bill would provide that every if a
person is convicted of a specified crime, then a nonresidential
building or place used by that person for the purpose of
willfully manufacturing, intentionally selling, or knowingly
possessing for sale any counterfeit goods, defined to include
counterfeit of a registered mark or any recording or audiovisual
work, the cover, box, jacket, or label of which does not disclose
specified information, is shall be deemed
a nuisance that shall be enjoined, abated, and prevented
against the person convicted , whether it is a public or
private nuisance. The bill would authorize a district attorney,
county counsel, city prosecutor, city attorney, or
citizen, as specified, to maintain an action to abate and prevent
the nuisance and perpetually to enjoin the person conducting or
maintaining it, and the owner, lessee, or agent of the nonresidential
building or place in or upon which the nuisance exists from directly
or indirectly maintaining or permitting the nuisance. The bill would
provide that a violation or disobedience of the injunction or order
for abatement is punishable as a contempt of court by a specified
fine and imprisonment. The bill would require the district
attorney, city attorney, or city prosecutor to report, by October 1,
2013, to the Senate and Assembly Committees on Judiciary on their use
of these abatement provisions and their effectiveness.
The bill would make changes to related provisions. The
bill's provisions would become inoperative on January 1, 2015.
Because this bill would provide for criminal penalties and
require a report to the Legislature , it would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 4 (commencing with Section 17800) is added to
Part 3 of Division 7 of the Business and Professions Code, to read:
CHAPTER 4. COUNTERFEITING ABATEMENT
17800. (a) Every nonresidential building or place used for the
17800. If there is a conviction for a violation
of Section 653w or paragraph (2) of subdivision (a) of Section 350 of
the Penal Code by any person, then a nonresidential building or
place used by that person for the purpose of willfully
manufacturing, intentionally selling, or knowingly possessing for
sale any counterfeit goods is shall be deemed
a nuisance which shall be enjoined, abated, and prevented
against the person convicted , and for which damages may be
recovered, whether it is a public or private nuisance.
(b) As used in this chapter, "counterfeit goods" means (1) any
counterfeit of a mark registered with the Secretary of State or
registered on the Principal Register of the United States Patent and
Trademark Office or (2) any recording or audiovisual work, the cover,
box, jacket, or label of which does not disclose the information as
specified in subdivision (a) of Section 653w of the Penal Code.
17801. Whenever there is reason to believe that
If a nuisance as described in Section 17800 is
kept, maintained, or exists in any county, the district attorney
of the county, the county counsel, or the city prosecutor or
city attorney of any incorporated city or of any city and county, in
the name of the people, may, or any citizen may, or
any citizen of the state resident in the county, in his or her
own name, may , maintain an action to abate and prevent
the nuisance and perpetually to enjoin the person conducting or
maintaining it, and the owner, lessee, or agent of the nonresidential
building or place in or upon which the nuisance exists from directly
or indirectly maintaining or permitting the nuisance.
17802. (a) To effectuate the purposes of this chapter, the
district attorney, the county counsel, city prosecutor, or city
attorney may file, in the name of the people, an action for unlawful
detainer against any person who is in violation of the nuisance or
illegal purpose provisions of subdivision 4 of Section 1161 of the
Code of Civil Procedure, with respect to a counterfeit goods purpose.
In filing this action, which shall be based upon an arrest report or
on another action or report by a regulatory or law enforcement
agency, the district attorney, county counsel, city prosecutor, or
city attorney shall utilize the procedures set forth in Chapter 4
(commencing with Section 1159) of Title 3 of Part 3 of the Code of
Civil Procedure, except that in cases filed under this section, the
following also shall apply:
(1) (A) Prior to filing an action pursuant to this section, the
district attorney, county counsel, city prosecutor, or city attorney
shall give 30 calendar days' written notice to the owner, requiring
the owner to file an action for the removal of the person who is in
violation of the nuisance or illegal purpose provisions of
subdivision 4 of Section 1161 of the Code of Civil Procedure with
respect to a counterfeit goods purpose.
(B) This notice shall include sufficient documentation
establishing a violation of the nuisance or illegal purpose
provisions of subdivision 4 of Section 1161 of the Code of Civil
Procedure and shall be served upon the owner and the tenant in
accordance with subdivision (e).
(C) The notice to the tenant shall also include on the bottom of
its front page, in at least 14-point bold type, the following:
"Notice to Tenant: This notice is not a notice of eviction.
However, you should know that an eviction action may soon be filed
in court against you for suspected counterfeit goods activity, as
described above.
You should call (insert name and telephone number of the district
attorney, county counsel, city prosecutor, or city attorney pursuing
the action) or legal aid to stop the eviction action if any of the
following is applicable:
(i) You are not the person named in this notice.
(ii) The person named in the notice does not occupy the premises
with you.
(iii) The person named in the notice has permanently moved.
(iv) You do not know the person named in the notice.
(v) You have any other legal defense or legal reason to stop the
eviction action.
A list of legal assistance providers is attached to this notice.
Some provide free legal help if you are eligible."
(D) The owner shall, within 30 calendar days of the mailing of the
written notice, either provide the district attorney, county
counsel, city prosecutor, or city attorney with all relevant
information pertaining to the unlawful detainer case, or provide a
written explanation setting forth any safety-related reasons for
noncompliance, and an assignment to the district attorney, county
counsel, city prosecutor, or city attorney of the right to bring an
unlawful detainer action against the tenant.
(E) The assignment shall be on a form provided by the district
attorney, county counsel, city prosecutor, or city attorney and may
contain a provision for costs of investigation, discovery, and
reasonable attorney's fees, in an amount not to exceed six hundred
dollars ($600).
(F) If the district attorney, county counsel, city prosecutor, or
city attorney accepts the assignment of the right of the owner to
bring the unlawful detainer action, the owner shall retain all other
rights and duties, including the handling of the tenant's personal
property, following issuance of the writ of possession and its
delivery to and execution by the appropriate agency.
(2) Upon the failure of the owner to file an action pursuant to
this section, or to respond to the district attorney, county counsel,
city prosecutor, or city attorney as provided in paragraph (1), or
having filed an action, if the owner fails to prosecute it diligently
and in good faith, the district attorney, county counsel, city
prosecutor, or city attorney may file and prosecute the action and
join the owner as a defendant in the action. This action shall have
precedence over any similar proceeding thereafter brought by the
owner, or to one previously brought by the owner and not prosecuted
diligently and in good faith. Service of the summons and complaint
upon the defendant owner shall be in accordance with Sections 415.10,
415.20, 415.30, 415.40, and 415.50 of the Code of Civil Procedure.
(3) If a jury or court finds the defendant tenant guilty of
unlawful detainer in a case filed pursuant to paragraph (2), the
district attorney, county counsel, city prosecutor, or city attorney
may be awarded costs, including the costs of investigation and
discovery and reasonable attorney's fees. These costs shall be
assessed against the defendant owner, to whom notice was directed
pursuant to paragraph (1), and once an abstract of judgment is
recorded, it shall constitute a lien on the subject real property.
(4) Nothing in this chapter shall prevent a local governing body
from adopting and enforcing laws, consistent with this chapter,
relating to counterfeit goods enforcement. Where local laws duplicate
or supplement this chapter, this chapter shall be construed as
providing alternative remedies and not preempting the field.
(5) Nothing in this chapter shall prevent a tenant from receiving
relief against a forfeiture of a lease pursuant to Section 1179 of
the Code of Civil Procedure.
(b) In any proceeding brought under this section, the court may,
upon a showing of good cause, issue a partial eviction ordering the
removal of any person, including, but not limited to, any person
occupying the premises with the tenant, if the court finds that the
person has engaged in the activities described in subdivision (a).
Persons removed pursuant to this section may be permanently barred
from returning to or reentering any portion of the entire premises.
The court may further order as an express condition of the tenancy
that the remaining tenants shall not give permission to or invite any
person who has been removed pursuant to this subdivision to return
to or reenter any portion of the entire premises.
(c) For the purposes of this section, "counterfeit goods purpose"
means willfully manufacturing, intentionally selling, or knowingly
possessing for sale (1) any counterfeit of a mark registered with the
Secretary of State or registered on the Principal Register of the
United States Patent and Trademark Office or (2) any recording or
audiovisual work, the cover, box, jacket, or label of which does not
disclose the information as specified in subdivision (a) of Section
653w of the Penal Code.
(d) Notwithstanding subdivision (b) of Section 68097.2 of the
Government Code, a public entity may waive all or part of the costs
incurred in furnishing the testimony of a peace officer in an
unlawful detainer action brought pursuant to this section.
(e) The notice and documentation described in paragraph (1) of
subdivision (a) shall be given in writing and may be given either by
personal delivery or by deposit in the United States mail in a sealed
envelope, postage prepaid, addressed to the owner at the address
known to the public entity giving the notice, or as shown on the last
equalized assessment roll, if not known. Separate notice of not less
than 30 calendar days and documentation shall be provided to the
tenant in accordance with this subdivision. Service by mail shall be
deemed to be completed at the time of deposit in the United States
mail. Proof of giving the notice may be made by a declaration signed
under penalty of perjury by any employee of the public entity that
shows service in conformity with this section.
17803. For purposes of this chapter, an action to abate a
nuisance may be taken by the district attorney of the county, the
county counsel, the city attorney, or the city prosecutor of the city
or city and county within which the nuisance exists, is kept, or is
maintained. An action by a county counsel, city attorney, or city
prosecutor shall be accorded the same precedence as an action
maintained by the district attorney of the county.
17803. For purposes of this chapter, an action to abate a
nuisance, as described in Section 17800, may be taken by the city
attorney or the city prosecutor of the city or city and county within
which the nuisance exists, is kept, or is maintained. An owner shall
be provided with 30 days' notice prior to the filing of an action to
abate a nuisance. An action by a city attorney or city prosecutor
shall be accorded the same precedence as an action maintained by the
district attorney.
17804. Unless filed by the district attorney, county
counsel, city prosecutor, or city attorney, the complaint
in the action shall be verified.
17805. (a) If the existence of the nuisance is shown in the
action to the satisfaction of the court or judge, either by verified
complaint or affidavit, the court or judge shall allow a temporary
restraining order or injunction to abate and prevent the continuance
or recurrence of the nuisance.
(b) A temporary restraining order or injunction may enjoin
subsequent owners, commercial lessees, or agents who acquire the
nonresidential building or place where the nuisance exists with
notice of the temporary restraining order or injunction, specifying
that the owner of the property subject to the temporary restraining
order or injunction shall notify any prospective purchaser,
commercial lessee, or other successor in interest of the existence of
the order or injunction, and of its application to successors in
interest, prior to entering into any agreement to sell or lease the
property. The temporary restraining order or injunction shall not
constitute a title defect, lien, or encumbrance on the real property.
17806. (a) At the time of application for issuance of a temporary
restraining order or injunction pursuant to Section 17805, if proof
of the existence of the nuisance depends, in whole or part, upon the
affidavits of witnesses who are not peace officers, upon a showing of
prior threats of violence or acts of violence by any defendant or
other person, the court may issue orders to protect those witnesses,
including, but not limited to, nondisclosure of the name, address, or
any other information which may identify those witnesses.
(b) A temporary restraining order or injunction issued pursuant to
Section 17805 may include closure of the premises pending trial when
a prior order or injunction does not result in the abatement of the
nuisance. The duration of the order or injunction shall be within the
court's discretion. In no event shall the total period of closure
pending trial exceed one year. Prior to ruling on a request for
closure, the court may order that some or all of the rent payments
owing to the defendant be placed in an escrow account for a period of
up to 90 days or until the nuisance is abated. If the court
subsequently orders a closure of the premises, the money in the
escrow account shall be used to pay for relocation assistance
pursuant to subdivision (d). In ruling upon a request for closure,
whether for a defined or undefined duration, the court shall consider
all of the following factors:
(1) The extent and duration of the nuisance at the time of the
request.
(2) Prior efforts by the defendant to comply with previous court
orders to abate the nuisance.
(3) The nature and extent of any effect that the nuisance has upon
other persons, such as tenants or businesses.
(4) Any effect of prior orders placing displaced occupants' rent
payments into an escrow account upon the defendant's efforts to abate
the nuisance.
(5) The effect of granting the request upon any occupant of the
premises who is not named in the action, including the availability
of an alternative building or relocation assistance, the pendency of
any action to evict an occupant, and any evidence of participation by
an occupant in the nuisance activity.
(c) In making an order of closure pursuant to this section, the
court may order the premises vacated and may issue any other orders
necessary to effectuate the closure. However, all tenants who may be
affected by the order shall be provided reasonable notice and an
opportunity to be heard at all hearings regarding the closure request
prior to the issuance of any order.
(d) In making an order of closure pursuant to this section, the
court shall order the defendant to provide relocation assistance to
any tenant ordered to vacate the premises, provided the court
determines that the tenant was not actively involved in the nuisance
activity. The relocation assistance ordered to be paid by the
defendant shall be in the amount necessary to cover moving costs,
security deposits for utilities and for a comparable building,
adjustment in any lost rent, and any other reasonable expenses the
court may deem fair and reasonable as a result of the court's order.
(e) At the hearing to order closure pursuant to this section, the
court may make the following orders with respect to any displaced
tenant not actively involved in the nuisance:
(1) Priority for senior citizens, physically handicapped persons,
or persons otherwise suffering from a permanent or temporary
disability for claims against money for relocation assistance.
(2) Order the local agency seeking closure pursuant to this
section to make reasonable attempts to seek additional sources of
funds for relocation assistance to displaced tenants, if deemed
necessary.
(3) Appoint a receiver to oversee the disbursement of relocation
assistance funds, whose services shall be paid from the escrow fund.
(4) Where a defendant has paid relocation assistance pursuant to
subdivision (d), the escrow account under subdivision (b) may be
released to the defendant and no appointment under paragraph (3)
shall be made.
(f) (1) The remedies set forth in this section shall be in
addition to any other existing remedies for nuisance abatement
actions, including, but not limited to, the following:
(A) Capital improvements to the property, such as security gates.
(B) Improved interior or exterior lighting.
(C) Security guards.
(D) Posting of signs.
(E) Owner membership in neighborhood or local merchants'
associations.
(F) Attending property management training programs.
(G) Making cosmetic improvements to the property.
(H) Requiring the owner or person in control of the property to
occupy the property until the nuisance is abated. The order shall
specify the number of hours per day or per week the owner or person
in control of the property must be physically present in the
property. In determining this amount, the court shall consider the
nature and severity of the nuisance.
(2) At all stages of an action brought pursuant to this chapter,
the court has equitable powers to order steps necessary to remedy the
problem and enhance the abatement process.
17807. On granting the temporary writ, the court or judge shall
require an undertaking on the part of the applicant to the effect
that the applicant will pay to the defendant enjoined any damages,
not exceeding an amount to be specified, as the defendant sustains by
reason of the injunction if the court finally decides that the
applicant was not entitled to the injunction. This bond
requirement shall not apply to any action brought by the district
attorney, county counsel, city attorney, or city prosecutor.
17808. The action shall have precedence over all other actions,
except criminal proceedings, election contests, hearings on
injunctions, and actions to forfeit vehicles under Division 10
(commencing with Section 11000) of the Health and Safety Code.
17809. In any action for abatement instituted pursuant to this
chapter, all evidence otherwise authorized by law, including evidence
of reputation in a community, as provided in the Evidence Code,
shall be admissible to prove the existence of a nuisance.
17810. If the complaint is filed by a citizen, it shall not be
dismissed by him or her for want of prosecution except upon a sworn
statement made by him or her and his or her attorney, setting forth
the reasons why the action should be dismissed, and by dismissal
ordered by the court.
17811. In case of failure to prosecute the action with reasonable
diligence, or at the request of the plaintiff, the court, in its
discretion, may substitute any other citizen consenting thereto for
the plaintiff.
17812. If the action is brought by a citizen and the court finds
there was no reasonable ground or cause for the action, the costs
shall be taxed against him or her.
17813. If the existence of the nuisance is established in the
action, an order of abatement shall be entered as part of the
judgment in the case, and plaintiff's costs in the action are a lien
upon the nonresidential building or place. The lien is enforceable
and collectible by execution issued by order of the court.
17814. A violation or disobedience of the injunction or order for
abatement is punishable as a contempt of court by a fine of not less
than five hundred dollars ($500) nor more than ten thousand dollars
($10,000), or by imprisonment in the county jail for not less than
one nor more than six months, or by both.
A contempt may be based on a violation of any court order,
including failure to pay relocation assistance. Notwithstanding any
other provision of law, any fines assessed for contempt shall first
be held by the court and applied to satisfaction of the court's order
for relocation assistance pursuant to subdivision (d) of Section
17806.
Evidence concerning the duration and repetitive nature of the
violations shall be considered by the court in determining the
contempt penalties.
17815. (a) If the existence of the nuisance is established in the
action, an order of abatement shall be entered as a part of the
judgment, which order shall direct the removal from the
nonresidential building or place of all fixtures, musical
instruments, and other movable property used in conducting,
maintaining, aiding, or abetting the nuisance and shall direct their
sale in the manner provided for the sale of chattels under execution.
(b) (1) The order shall provide for the effectual closing of the
nonresidential building or place against its use for any purpose, and
for keeping it enclosed for a period of up to one year.
This subdivision is intended to give priority to closure. Any
alternative to closure may be considered only as provided in this
section.
(2) In addition, the court may assess a civil penalty not to
exceed twenty-five thousand dollars ($25,000) against any or all of
the defendants, based upon the severity of the nuisance and its
duration.
(3) One-half of the civil penalties collected pursuant to this
section shall be deposited in the Restitution Fund in the State
Treasury, the proceeds of which shall be available only upon
appropriation by the Legislature to indemnify persons filing claims
pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of
Part 4 of Division 3 of Title 2 of the Government Code, and one-half
of the civil penalties collected shall be paid to the city in which
the judgment was entered, if the action was brought by the city
attorney or city prosecutor. If the action was brought by a district
attorney or county counsel , one-half of the civil
penalties collected shall be paid to the treasurer of the county in
which the judgment was entered.
(c) (1) If the court finds that any vacancy resulting from closure
of the nonresidential building or place may create a nuisance or
that closure is otherwise harmful to the community, in lieu of
ordering the nonresidential building or place closed, the court may
order the person who is responsible for the existence of the
nuisance, or the person who knowingly permits the manufacture or sale
of counterfeit goods, to pay damages in an amount equal to the fair
market rental value of the nonresidential building or place for one
year to the city or county in whose jurisdiction the nuisance is
located for the purpose of carrying out counterfeit goods abatement
programs. If awarded to a city, eligible programs may include those
developed as a result of cooperative programs among schools,
community agencies, and the local law enforcement agency. These funds
shall not be used to supplant existing city, county, state, or
federal resources used for counterfeit goods enforcement or education
programs.
(2) For purposes of this subdivision, the actual amount of rent
being received for the rental of the nonresidential building or
place, or the existence of any vacancy therein, may be considered,
but shall not be the sole determinant of the fair market rental
value. Expert testimony may be used to determine the fair market
rental value.
17816. While the order of abatement remains in effect, the
nonresidential building or place is in the custody of the court.
17817. For removing and selling the movable property, the officer
is entitled to charge and receive the same fees as he or she would
for levying upon and selling like property on execution; and for
closing the premises and keeping them closed, a reasonable sum shall
be allowed by the court.
17818. The proceeds of the sale of the movable property shall be
applied as follows:
(a) To the fees and costs of the removal and sale.
(b) To the allowances and costs of closing and keeping closed the
nonresidential building or place.
(c) To the payment of the plaintiff's costs in the action.
(d) The balance, if any, to the owner of the property.
17819. If the proceeds of the sale of the movable property do not
fully discharge all of the costs, fees, and allowances, the building
and place shall then also be sold under execution issued upon the
order of the court or judge and the proceeds of the sale shall be
applied in like manner.
17820. (a) If the owner of the nonresidential building or place
has not been guilty of any contempt of court in the proceedings, and
appears and pays all costs, fees, and allowances that are a lien on
the nonresidential building or place and files a bond in the full
value of the property conditioned that the owner will immediately
abate any nuisance that may exist at the nonresidential building or
place and prevent it from being established or kept thereat within a
period of one year thereafter, the court or judge may, if satisfied
of the owner's good faith, order the nonresidential building or place
to be delivered to the owner, and the order of abatement should be
canceled so far as it may relate to the property.
(b) The release of property under this chapter does not release it
from any judgment, lien, penalty, or liability to which it may be
subject.
17821. Whenever If the owner of a
nonresidential building or place upon which the act or acts
constituting the contempt have been committed, or the owner of any
interest therein, has been guilty of a contempt of court, and fined
in any proceedings under this chapter, the fine is a lien upon the
nonresidential building or place to the extent of his or her interest
in it. The lien is enforceable
and collectible by execution issued by order of the court.
17822. The district attorney, city attorney, or city prosecutor
shall report to the Senate and Assembly Committees on Judiciary, by
October 1, 2013, on their use of the provisions of this chapter and
its effectiveness. The report shall include, but not be limited to,
all of the following:
(a) The frequency of use of the nuisance abatement provisions as
well as statistics on whether the use of the abatement correlates
with a decrease in the use of criminal penalties.
(b) Any statistics or information concerning the impact of the use
of these provisions on counterfeiting overall, both in the relevant
county or city and overall.
17822. 17823. This chapter shall
remain in effect only until January 1, 2015, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2015, deletes or extends that date.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 2. Section 1161 of the Code of Civil
Procedure, as amended by Section 2 of Chapter 440 of the Statutes of
2008, is amended to read:
1161. A tenant of real property, for a term less than life, or
the executor or administrator of his or her estate heretofore
qualified and now acting or hereafter to be qualified and act, is
guilty of unlawful detainer:
1. When he or she continues in possession, in person or by
subtenant, of the property, or any part thereof, after the expiration
of the term for which it is let to him or her; provided the
expiration is of a nondefault nature however brought about without
the permission of his or her landlord, or the successor in estate of
his or her landlord, if applicable; including the case where the
person to be removed became the occupant of the premises as a
servant, employee, agent, or licensee and the relation of master and
servant, or employer and employee, or principal and agent, or
licensor and licensee, has been lawfully terminated or the time fixed
for occupancy by the agreement between the parties has expired; but
nothing in this subdivision shall be construed as preventing the
removal of the occupant in any other lawful manner; but in case of a
tenancy at will, it must first be terminated by notice, as prescribed
in the Civil Code.
2. When he or she continues in possession, in person or by
subtenant, without the permission of his or her landlord, or the
successor in estate of his or her landlord, if applicable, after
default in the payment of rent, pursuant to the lease or agreement
under which the property is held, and three days' notice, in writing,
requiring its payment, stating the amount which is due, the name,
telephone number, and address of the person to whom the rent payment
shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment
(provided that, if the address does not allow for personal delivery,
then it shall be conclusively presumed that upon the mailing of any
rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the
date posted, if the tenant can show proof of mailing to the name and
address provided by the owner), or the number of an account in a
financial institution into which the rental payment may be made, and
the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or
if an electronic funds transfer procedure has been previously
established, that payment may be made pursuant to that procedure, or
possession of the property, shall have been served upon him or her
and if there is a subtenant in actual occupation of the premises,
also upon the subtenant.
The notice may be served at any time within one year after the
rent becomes due. In all cases of tenancy upon agricultural lands,
where the tenant has held over and retained possession for more than
60 days after the expiration of the term without any demand of
possession or notice to quit by the landlord or the successor in
estate of his or her landlord, if applicable, he or she shall be
deemed to be holding by permission of the landlord or successor in
estate of his or her landlord, if applicable, and shall be entitled
to hold under the terms of the lease for another full year, and shall
not be guilty of an unlawful detainer during that year, and the
holding over for that period shall be taken and construed as a
consent on the part of a tenant to hold for another year.
3. When he or she continues in possession, in person or by
subtenant, after a neglect or failure to perform other conditions or
covenants of the lease or agreement under which the property is held,
including any covenant not to assign or sublet, than the one for the
payment of rent, and three days' notice, in writing, requiring the
performance of such conditions or covenants, or the possession of the
property, shall have been served upon him or her, and if there is a
subtenant in actual occupation of the premises, also, upon the
subtenant. Within three days after the service of the notice, the
tenant, or any subtenant in actual occupation of the premises, or any
mortgagee of the term, or other person interested in its
continuance, may perform the conditions or covenants of the lease or
pay the stipulated rent, as the case may be, and thereby save the
lease from forfeiture; provided, if the conditions and covenants of
the lease, violated by the lessee, cannot afterward be performed,
then no notice, as last prescribed herein, need be given to the
lessee or his or her subtenant, demanding the performance of the
violated conditions or covenants of the lease.
A tenant may take proceedings, similar to those prescribed in this
chapter, to obtain possession of the premises let to a subtenant or
held by a servant, employee, agent, or licensee, in case of his or
her unlawful detention of the premises underlet to him or her or held
by him or her.
4. Any tenant, subtenant, or executor or administrator of his or
her estate heretofore qualified and now acting, or hereafter to be
qualified and act, assigning or subletting or committing waste upon
the demised premises, contrary to the conditions or covenants of his
or her lease, or maintaining, committing, or permitting the
maintenance or commission of a nuisance upon the demised premises or
using the premises for an unlawful purpose, thereby terminates the
lease, and the landlord, or his or her successor in estate, shall
upon service of three days' notice to quit upon the person or persons
in possession, be entitled to restitution of possession of the
demised premises under this chapter. For purposes of this
subdivision, a person who commits an offense included in subdivision
(c) of Section 11571.1 of the Health and Safety Code, subdivision (c)
of Section 3485 of the Civil Code, or subdivision (c) of Section
17802 of the Business and Professions Code, or uses the premises to
further the purpose of that offense shall be deemed to have committed
a nuisance upon the premises. For purposes of this subdivision, if a
person commits an act of domestic violence as defined in Section
6211 of the Family Code, sexual assault as defined in Section 261,
261.5, 262, 286, 288a, or 289 of the Penal Code, or stalking as
defined in Section 1708.7, against another tenant or subtenant on the
premises there is a rebuttable presumption affecting the burden of
proof that the person has committed a nuisance upon the premises,
provided, however, that this shall not apply if the victim of the act
of domestic violence, sexual assault, or stalking, or a household
member of the victim, other than the perpetrator, has not vacated the
premises. This subdivision shall not be construed to supersede the
provisions of the Violence Against Women and Department of Justice
Reauthorization Act of 2005 (Public Law 109-162) that permit the
removal from a lease of a tenant who engages in criminal acts of
physical violence against cotenants.
5. When he or she gives written notice as provided in Section 1946
of the Civil Code of his or her intention to terminate the hiring of
the real property, or makes a written offer to surrender which is
accepted in writing by the landlord, but fails to deliver possession
at the time specified in that written notice, without the permission
of his or her landlord, or the successor in estate of the landlord,
if applicable.
As used in this section, tenant includes any person who hires real
property except those persons whose occupancy is described in
subdivision (b) of Section 1940 of the Civil Code.
This section shall remain in effect only until January 1, 2012,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2012, deletes or extends that date.
SEC. 3. Section 1161 of the Code of Civil
Procedure, as added by Section 3 of Chapter 440 of the Statutes of
2008, is amended to read:
1161. A tenant of real property, for a term less than life, or
the executor or administrator of his or her estate heretofore
qualified and now acting or hereafter to be qualified and act, is
guilty of unlawful detainer:
1. When he or she continues in possession, in person or by
subtenant, of the property, or any part thereof, after the expiration
of the term for which it is let to him or her; provided the
expiration is of a nondefault nature however brought about without
the permission of his or her landlord, or the successor in estate of
his or her landlord, if applicable; including the case where the
person to be removed became the occupant of the premises as a
servant, employee, agent, or licensee and the relation of master and
servant, or employer and employee, or principal and agent, or
licensor and licensee, has been lawfully terminated or the time fixed
for occupancy by the agreement between the parties has expired; but
nothing in this subdivision shall be construed as preventing the
removal of the occupant in any other lawful manner; but in case of a
tenancy at will, it must first be terminated by notice, as prescribed
in the Civil Code.
2. When he or she continues in possession, in person or by
subtenant, without the permission of his or her landlord, or the
successor in estate of his or her landlord, if applicable, after
default in the payment of rent, pursuant to the lease or agreement
under which the property is held, and three days' notice, in writing,
requiring its payment, stating the amount which is due, the name,
telephone number, and address of the person to whom the rent payment
shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment
(provided that, if the address does not allow for personal delivery,
then it shall be conclusively presumed that upon the mailing of any
rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the
date posted, if the tenant can show proof of mailing to the name and
address provided by the owner), or the number of an account in a
financial institution into which the rental payment may be made, and
the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or
if an electronic funds transfer procedure has been previously
established, that payment may be made pursuant to that procedure, or
possession of the property, shall have been served upon him or her
and if there is a subtenant in actual occupation of the premises,
also upon the subtenant.
The notice may be served at any time within one year after the
rent becomes due. In all cases of tenancy upon agricultural lands,
where the tenant has held over and retained possession for more than
60 days after the expiration of the term without any demand of
possession or notice to quit by the landlord or the successor in
estate of his or her landlord, if applicable, he or she shall be
deemed to be holding by permission of the landlord or successor in
estate of his or her landlord, if applicable, and shall be entitled
to hold under the terms of the lease for another full year, and shall
not be guilty of an unlawful detainer during that year, and the
holding over for that period shall be taken and construed as a
consent on the part of a tenant to hold for another year.
3. When he or she continues in possession, in person or by
subtenant, after a neglect or failure to perform other conditions or
covenants of the lease or agreement under which the property is held,
including any covenant not to assign or sublet, than the one for the
payment of rent, and three days' notice, in writing, requiring the
performance of such conditions or covenants, or the possession of the
property, shall have been served upon him or her, and if there is a
subtenant in actual occupation of the premises, also, upon the
subtenant. Within three days after the service of the notice, the
tenant, or any subtenant in actual occupation of the premises, or any
mortgagee of the term, or other person interested in its
continuance, may perform the conditions or covenants of the lease or
pay the stipulated rent, as the case may be, and thereby save the
lease from forfeiture; provided, if the conditions and covenants of
the lease, violated by the lessee, cannot afterward be performed,
then no notice, as last prescribed herein, need be given to the
lessee or his or her subtenant, demanding the performance of the
violated conditions or covenants of the lease.
A tenant may take proceedings, similar to those prescribed in this
chapter, to obtain possession of the premises let to a subtenant or
held by a servant, employee, agent, or licensee, in case of his or
her unlawful detention of the premises underlet to him or her or held
by him or her.
4. Any tenant, subtenant, or executor or administrator of his or
her estate heretofore qualified and now acting, or hereafter to be
qualified and act, assigning or subletting or committing waste upon
the demised premises, contrary to the conditions or covenants of his
or her lease, or maintaining, committing, or permitting the
maintenance or commission of a nuisance upon the demised premises or
using the premises for an unlawful purpose, thereby terminates the
lease, and the landlord, or his or her successor in estate, shall
upon service of three days' notice to quit upon the person or persons
in possession, be entitled to restitution of possession of the
demised premises under this chapter. For purposes of this
subdivision, a person who commits an offense included in subdivision
(c) of Section 11571.1 of the Health and Safety Code, subdivision (c)
of Section 3485 of the Civil Code, or subdivision (c) of Section
17802 of the Business and Professions Code, or uses the premises to
further the purpose of that offense shall be deemed to have committed
a nuisance upon the premises.
5. When he or she gives written notice as provided in Section 1946
of the Civil Code of his or her intention to terminate the hiring of
the real property, or makes a written offer to surrender which is
accepted in writing by the landlord, but fails to deliver possession
at the time specified in that written notice, without the permission
of his or her landlord, or the successor in estate of the landlord,
if applicable.
As used in this section, tenant includes any person who hires real
property except those persons whose occupancy is described in
subdivision (b) of Section 1940 of the Civil Code.
This section shall become operative on January 1, 2012.
SEC. 4. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.