BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1838 (B. Berryhill)
As Amended June 15, 2010
Hearing Date: June 29, 2010
Fiscal: Yes
Urgency: No
SK:jd
SUBJECT
Unlawful Detainer: Controlled Substances and Firearms
DESCRIPTION
This bill would add the district attorney in San Joaquin County
to two existing pilot projects that permit city attorneys or
prosecutors to bring an unlawful detainer action against a
tenant for unlawful activities regarding firearms, ammunition,
and controlled substances.
BACKGROUND
In 1998, the Legislature passed and the governor signed AB 1384
(Havice, Ch. 613, Stats. 1998) to create a pilot project in five
specified Los Angeles Municipal Court districts to allow city
attorneys and district attorneys to seek the eviction of any
person who is in violation of the nuisance or controlled
substance law. The bill also permitted courts to order "partial
evictions" to allow innocent tenants to maintain possession of
the premises if the drug offender has permanently vacated the
premises. AB 1384 became effective on January 1, 1999 for a
three-year trial period. Participating cities were required to
collect specified data on their experiences under the pilot
program. A required Judicial Council report, issued on January
31, 2001, was unable to provide an evaluation of the merits of
the pilot program due to insufficient data.
AB 815 (Havice, Ch. 431, Stats. 2001) was enacted in 2001 to add
additional courts to the pilot program and to extend the program
for three additional years. A required Judicial Council report,
issued on April 22, 2004, could not evaluate the program due to
(more)
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lack of resources. In 2004, AB 2523 (Frommer, Ch. 304, Stats.
2004), further extended the sunset to January 1, 2010 and
augmented the reporting requirements. The bill also required
two additional Judicial Council reports to the Senate and
Assembly Committees on Judiciary summarizing the collected
information and evaluating the merits of the pilot program.
In 2007, AB 1013 (Krekorian, Ch. 456, Stats. 2007) was enacted
to create a similar pilot program to allow city attorneys and
prosecutors to seek the eviction of tenants who violate
specified weapons and ammunitions offenses on the rental
property. That bill, which also required reporting to the
Judicial Council, contained a sunset date of January 1, 2010.
Last year, AB 530 (Krekorian, Ch. 244, Stats. 2009) extended the
sunset dates on the two pilot programs to January 1, 2014, added
the city of Sacramento to the controlled substance pilot
program, and required that the reports to the Legislature be
completed by the California Research Bureau (CRB) rather than
the Judicial Council.
This bill, sponsored by the San Joaquin County Board of
Supervisors, would add the district attorney in San Joaquin
County to these two pilot projects.
CHANGES TO EXISTING LAW
Existing law provides that a tenant who maintains, commits, or
permits a nuisance upon the premises or uses the premises for an
unlawful purpose is subject to eviction pursuant to an unlawful
detainer action. Under existing law, a person who illegally
possesses certain firearms or ammunition on the premises, or who
illegally possesses or sells a controlled substance on the
premises, or who uses the premises to further either purpose, as
defined, is deemed to have committed a nuisance upon the
premises and is guilty of unlawful detainer. (Code Civ. Proc.
Sec. 1161(4).)
1. Existing law authorizes a pilot program permitting a city
attorney or prosecutor in specified cities to file an unlawful
detainer action in the name of the people against any person
who is in violation of nuisance provisions regarding illegal
possession or sale of specified weapons or ammunition on the
premises or use of the premises to further that purpose.
(Civ. Code Sec. 3485.)
Existing law provides that this pilot program applies only to
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courts having jurisdiction over unlawful detainer cases
involving property in the cities of Los Angeles, Long Beach,
San Diego, Oakland, and Sacramento. (Civ. Code Sec. 3485(f).)
Existing law provides that this pilot program sunsets on January
1, 2014. (Civ. Code Sec. 3485(h).)
This bill would extend these pilot program provisions to a
county district attorney in the County of San Joaquin.
This bill would sunset on January 1, 2014.
2. Existing law authorizes a pilot program permitting the city
attorney or prosecutor in specified cities to file an unlawful
detainer action in the name of the people against any person
engaging in certain controlled substances offenses. (Civ.
Code Sec. 3486.)
Existing law provides that this pilot program applies only to
courts having jurisdiction over unlawful detainer cases
involving property in the cities of Los Angeles, Long Beach,
Palmdale, San Diego, Sacramento, and Oakland. (Civ. Code Sec.
3486(f).)
Existing law provides that this pilot program sunsets on January
1, 2014. (Civ. Code Sec. 3486(h).)
This bill would extend these pilot program provisions to a
county district attorney in the County of San Joaquin.
This bill would sunset on January 1, 2014.
3. Existing law requires each city attorney and prosecutor
participating in either pilot program to submit specified
information to the CRB and requires the CRB to submit a report
to the Senate and Assembly Committees on Judiciary once on or
before March 20, 2011 and once on or before March 20, 2013.
That report must summarize the information collected under the
programs and evaluate the merits of the pilot programs. (Civ.
Code Secs. 3485(g)(2); 3486(g)(2).)
This bill would state the intent of the Legislature that San
Joaquin County participate fully in the pilot programs and "to
ensure that the project produces an appropriately wide range
of data," require that the district attorney in San Joaquin
County report information to the CRB in the same manner as the
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other participating jurisdictions.
COMMENT
1. Stated need for the bill
The author writes:
AB 1838 would add the county district attorney in the County
of San Joaquin to file an unlawful detainer action to the list
of local governments currently authorized to do so. This
would assist San Joaquin County by allowing the county to
selectively use the authority provided under the statute to
execute a civil eviction at specific locations where the calls
for service have shown a clear pattern of problem[s]. . . .
There are many locations in San Joaquin County that have a
history of documented criminal gang activity and serve to
enable the criminal street gang members to meet and spread the
influence of gangs throughout the communities. These
residences use valuable law enforcement resources with their
repeated need for attention.
One example: a home located in unincorporated San Joaquin
County recorded 444 calls for Sheriff service[s] over a six
year period of time for one such address. Other county agency
resources become involved with investigations, e.g.,: Code
Enforcement, Environmental Health. These types of
circumstances are unbearable for citizens trying to make their
home in the community.
The California Apartment Association, supporter, writes that it
would "welcome the addition of the County of San Joaquin to the
current pilot program."
2. Bill would add San Joaquin County to the pilot program before
the CRB completes its evaluation of the program.
This bill would add the district attorney in San Joaquin County
to the two pilot projects that permit city attorneys or
prosecutors to bring an unlawful detainer action against a
tenant for unlawful activities regarding firearms, ammunition,
and controlled substances. The CRB's report evaluating the
pilot programs, including their efficacy and potential
disadvantages, is due to the Legislature in 2011 and 2013.
When AB 1384 (Havice, Ch. 613, Stats. 1998) was first
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introduced, it raised significant concerns that it might unduly
affect innocent tenants and, as a result, the bill was amended
to include a sunset and limit its application to specified
cities only. As noted in the Background, last year the
Legislature passed and the governor signed AB 530 which extended
the sunset dates on the two pilot programs to January 1, 2014
and, importantly, required that the report on the programs be
completed by the CRB rather than the Judicial Council.
Since the controlled substance eviction pilot program was first
created in 1998, the Judicial Council has been required to
submit a report to the Legislature on the program. In 2001, the
required Judicial Council report was unable to provide an
evaluation of the merits of the pilot program due to
insufficient data. In 2004, the Judicial Council's report could
not evaluate the program due to lack of resources. While the
2009 Judicial Council report contained helpful information, it
was determined that the responsibility for summarizing the
information provided by city attorneys and prosecutors
participating in the program should be transferred to the CRB,
which was believed to be better suited to evaluate the merits of
the program and provide a comprehensive, meaningful report.
This change was contained in AB 530 and the CRB's reports are
due to the Senate and Assembly Judiciary Committees in 2011 and
2013.
Pilot programs can be useful tools when it appears that actual
experience under the law may provide empirical evidence of the
statute's usefulness or its unintended or undesirable impacts,
if any. However, because this bill adds San Joaquin County to
the pilot projects before a study evaluating the projects is
completed by the CRB, this bill raises the question of whether
it is timely and whether it is appropriate to add another county
to these pilot projects before the Legislature has a complete
picture regarding their effectiveness or their unintended or
undesirable impacts.
Western Center on Law and Poverty and the California Rural Legal
Assistance Foundation (CRLA) oppose the bill for this reason,
stating:
AB 1838 would extend a five-city pilot project, agreed to and
refined only last year, to all of San Joaquin County. The
California Research Bureau was given the task of evaluating
the efficacy, fairness and achievement of its objectives. The
pilot must be given the chance to run its course and report
its findings as originally designed and intended. We are
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concerned with granting the authority to more local
jurisdictions to step into a civil matter and prosecute an
eviction action. The opportunity for misuse is significant.
Citizens may be deprived of their property (i.e., their
leasehold interests) without even an arrest. In many cases,
renters conclude that they cannot possibly expect to win in a
legal fight with the city attorney or county counsel, and
surrender their property without a fight or hearing. Others
who might otherwise contest an erroneous eviction choose not
to, knowing that they are likely to wind up with a bad mark on
their credit reports, even if they ultimately prevail.
3. Potential compromise
Should the Committee approve including San Joaquin County in the
pilot programs, the Committee should also consider the following
potential compromise:
sunset the bill January 1, 2012;
require San Joaquin County to report to the CRB and to
the Legislature on December 31, 2011 pursuant to Civil Code
Sections 3485(g) and 3486(g);
cap the number of initial filings that the county may
file at five per year; and
require that the filing must be based on an arrest
report.
The opposition has indicated that the above compromise is
acceptable to them because of its extraordinarily short duration
and limitation on the number of filings that may be made under
the pilot program. Should this compromise be agreeable to the
Committee, the sponsors are encouraged to work with local legal
services providers in a comprehensive way to ensure the success
of San Joaquin's participation in the pilot program.
4. The process under the pilot programs
Under the pilot programs, a city attorney or city prosecutor may
file an unlawful detainer action against any person for creating
a nuisance on the property by using or allowing the premises to
be used for a controlled substance purpose or illegal possession
or sale of specified weapons or ammunition. The city's action
would be predicated on its belief that a specified controlled
substance offense or unlawful weapons offense has occurred on
the subject real property based upon an arrest report or other
law enforcement report.
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In any unlawful detainer action brought by the city prosecutor
or city attorney under the pilot programs, the public prosecutor
must first give 30-calendar days written notice documenting the
alleged nuisance or illegal activity to the landlord and the
offending tenant. This notice is designed to give the landlord
the first opportunity to file an unlawful detainer action
against the offending tenant. The landlord may then either file
the action or assign the right to bring the unlawful detainer
action to the public prosecutor. If the landlord fails to file
an unlawful detainer action, or fails to prosecute such an
action diligently and in good faith, the city attorney or city
prosecutor may file the action and may join both the landlord
and the offending tenant as co-defendants.
If a defendant tenant is found guilty of unlawful detainer, an
eviction order is entered and the tenant's right to possession
is declared forfeited. However, the court may issue a partial
eviction order directing removal only of the offending tenant
and permitting other tenants who have not violated the law to
remain. Tenants who are evicted from the property "may be
permanently barred from returning to or reentering any portion
of the entire premises." In addition, the court may order that
the remaining tenants, as an express condition of the tenancy,
not give permission to or invite any person who has been evicted
to return to or reenter any portion of the entire premises.
This ability to obtain a partial eviction order is considered a
key provision of the pilot programs because it allows
law-abiding tenants to not be punished for the deeds of
co-tenants or of family members. Partial evictions are seen as
an equitable and balanced response to a complex problem. In its
absence, a total eviction would punish innocent tenants who are
often family members, causing disruption and upheaval especially
when there are young children or when the grandparents or
relatives have become caretaker parents.
5. Opposition
The Department of Finance (DOF) opposes the bill because "it
could create a General Fund pressure to cover increased costs to
the trial courts." In its analysis, DOF states that the
"Judicial Branch indicates that extending the pilot program
could increase the courts' caseload which could impose
additional costs on the courts and increase pressure on the
General Fund to cover these costs."
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Support : Apartment Association, CA Southern Cities; California
Apartment Association; California Peace Officers' Association;
California Police Chiefs Association; Orange County Apartment
Association
Opposition : California Rural Legal Assistance Foundation
(CRLA); Department of Finance; Western Center on Law and Poverty
HISTORY
Source : San Joaquin County Board of Supervisors
Related Pending Legislation : None Known
Prior Legislation : See Background and Comment 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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