BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 782
Senator Yee
As Amended March 31, 2009
Hearing Date: May 5, 2009
Code of Civil Procedure
SK:jd
SUBJECT
Unlawful Detainer: Domestic Violence
DESCRIPTION
This bill would create an affirmative defense to an unlawful
detainer action if the court finds that (1) the tenant or his or
her household member is a victim of domestic violence, sexual
assault, or stalking; and (2) the notice to vacate is
substantially based upon an act or acts of domestic violence,
sexual assault, or stalking against the tenant or household
member.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
This bill is based on an ordinance adopted recently by the Board
of Supervisors of the City and County of San Francisco which
provides for a defense to eviction for victims of domestic
violence, sexual assault, or stalking. According to the author,
the leading cause of homelessness among women is domestic
violence. The National Coalition for the Homeless reports that
a 2004 survey by San Diego's Regional Task Force on the Homeless
found that 50 percent of homeless women are domestic violence
victims. Furthermore, women living in rental housing are three
times as likely to be victimized than women living in owned
housing, according to the National Housing Law Project (NHLP).
The NHLP also states that housing issues often cause victims to
stay in or return to an abusive relationship.
(more)
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In response to many of these concerns, last year the Legislature
passed and the governor signed AB 2052 (Lieu, Ch. 440, Stats.
2008), which provided that a tenant or a household member who
was a victim of domestic violence, sexual assault, or stalking
may terminate a rental agreement and be discharged from rental
payments due. In 2006, SB 1745 (Kuehl, 2006) would have
extended the protections of the Fair Employment and Housing Act
(FEHA) and other residential tenancy laws to victims of domestic
violence. Senate Bill 1745 was vetoed.
A January 2008 compilation by the National Law Center on
Homelessness and Poverty showed that nine other states and the
District of Columbia have enacted laws providing for a defense
against eviction for domestic violence victims. Federal law,
the Violence Against Women Act (VAWA), also offers protection
from eviction for victims of domestic violence, dating violence,
and stalking who live in housing subsidized by the Section 8 or
Public Housing programs.
Existing law permits a landlord to file an unlawful detainer
action against a tenant in order to evict him or her for certain
violations. This bill would create an affirmative defense to an
unlawful detainer action where the tenant or household member is
a victim of domestic violence, sexual assault, or stalking and
the eviction is substantially based upon that fact.
CHANGES TO EXISTING LAW
Existing state and federal law prohibits discrimination in
housing and employment on the basis of gender and other
specified characteristics. (Gov. Code Sec. 12920 et seq.; 42
U.S.C. 3601 et seq.)
Existing law permits a tenant or a household member who was a
victim of domestic violence, sexual assault, or stalking to
terminate a rental agreement and be discharged from rental
payments due. The tenant must provide the landlord with a copy
of a temporary restraining order, emergency protective order, or
a written report by a peace officer stating that the tenant or
household member has filed a police report alleging that the
tenant or household member is a victim of domestic violence,
sexual assault, or stalking. (Civ. Code Sec. 1946.7.)
Existing law permits a landlord to file an unlawful detainer
action against a tenant in order to evict him or her when, among
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other things, 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. (Code
Civ. Pro. Sec. 1161(4).) 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. Examples of
affirmative defenses recognized by the courts and by statute
include that the landlord has breached the implied warranty of
habitability (Green v. Superior Court (1974) 10 Cal.3d 616) or
that the landlord is retaliating against the tenant for having
exercised a protected right. (Civ. Code Sec. 1942.5.)
Existing law , until January 1, 2012, provides that if a person
commits an act of domestic violence, sexual assault, or stalking
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. This
presumption does not apply, however, if the victim or his or her
household member, other than the perpetrator, has not vacated
the premises. (Code Civ. Pro. Sec. 1161.)
This bill would create an affirmative defense to an unlawful
detainer action if the court finds both of the following: (1)
the tenant or his or her household member (defined as a member
of the tenant's family who lives in the same household) is a
victim of domestic violence, sexual assault, or stalking; and
(2) the notice to vacate is substantially based upon an act or
acts of domestic violence, sexual assault, or stalking against
the tenant or household member, including, but not limited to,
an unlawful detainer action based on complaints of noise,
disturbances, or repeated police presence.
This bill would provide that, in making the findings described
above, the court shall consider evidence, which may include any
of the following:
1) a copy of a temporary restraining order or emergency
protective order that protects the tenant or household member
from further domestic violence, sexual assault, or stalking;
2) a copy of a written police report stating that the tenant or
household member has filed a report alleging that he or she is
the victim of domestic violence, sexual assault, or stalking;
or
3) other written documentation from a qualified third party (as
defined) of the act or acts constituting domestic violence,
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sexual assault, or stalking.
This bill would define "qualified third party" as a peace
officer or victim advocate employed by a state or local law
enforcement agency, a licensed clinical social worker, or a
marriage and family therapist, acting in his or her official
capacity.
This bill would define "written documentation from a qualified
third party" as a document signed and dated within the preceding
60 days by a qualified third party that states all of the
following:
1) that the tenant notified the qualified third party that he
or she was a victim of domestic violence, sexual assault, or
stalking;
2) the time, date, and location of domestic violence, sexual
assault, or stalking incident(s); and
3) that the tenant informed the qualified third party of the
name of the alleged perpetrator, if known to the victim.
This bill would provide that, unless the tenant or household
member has obtained a protective order against the alleged
abuser to vacate or stay away from the property, the tenant may
not obtain relief under the affirmative defense created by this
bill if all of the following apply:
1) the tenant was granted relief against the landlord pursuant
to this bill's affirmative
defense within the previous five years;
2) a subsequent unlawful detainer action has now been filed; and
3) the notice to vacate in the subsequent unlawful detainer
action is substantially based upon continuing acts
constituting domestic violence, sexual assault, or stalking by
the same person alleged to be the abuser in the previous
unlawful detainer action.
This bill would specify that its provisions shall not be
construed to affect the tenant's liability for delinquent rent
or other sums owed to the landlord, or the landlord's remedies
in recovering against the tenant for those sums.
This bill would require the landlord to retain all information
regarding acts of domestic violence, sexual assault, or stalking
in strictest confidence when received in confidence from a
tenant or household member except to the extent that disclosure
is necessary to provide for a reasonable accommodation for the
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victim or is otherwise required pursuant to state, federal, or
local law.
This bill would provide that, if two or more cotenants are
requesting the defense described above and each alleges that he
or she was a victim of domestic violence, sexual assault, or
stalking committed by another cotenant who is also a party, the
court may determine whether a tenant acted as the dominant
aggressor, using specified factors. This bill would provide
that if a court determines that a tenant was the dominant
aggressor, he or she would not be entitled to the affirmative
defense.
COMMENT
1. Stated need for the bill
The author writes:
Existing law does offer some protections to victims of
domestic violence. If [people find] themselves in a situation
where they must leave their homes due to violence, they can,
under court discretion, break a lease without penalty in order
to relocate to a safe environment. However the reverse option
is not available. There are no protections offered to
domestic violence/stalking victims currently in place that
protect them from being evicted from their housing based on
crimes committed against them.
The National Housing Law Project (NHLP) supports the measure,
stating that it will "protect the safety of victims by ensuring
that they can call the police or seek a restraining order
without fear of being evicted." NHLP writes:
Studies, congressional findings, and our own work have shown
that families are being evicted because of their status as
victims of domestic violence. Many victims are afraid to call
the police or obtain a restraining order to exclude their
abusers from their homes for fear that they will be evicted.
Domestic violence is a leading cause of homelessness among
women in several California cities, in part because victims
face severe obstacles to obtaining alternative housing once
they have been evicted due to the abuser's criminal acts.
Under the Violence Against Women Act (VAWA), thousands of
federally subsidized landlords in California are barred from
evicting Section 8 tenants based on their status as victims of
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domestic violence. VAWA has saved numerous victims from
homelessness. Victims in unsubsidized housing should be given
similar protections.
A national survey by the National Law Center on Homelessness and
Poverty and National Network to End Domestic Violence, entitled
Lost Housing, Lost Safety: Survivors of Domestic Violence
Experience Housing Denials and Evictions Across the Country
(February 2007) found that many victims are evicted because of
violence against them. In one case, a victim was evicted
because she called the police to request emergency assistance.
Another victim was evicted after obtaining a protective order
against the abuser.
2. Bill would provide an affirmative defense to eviction for
victims of domestic violence, sexual assault, and stalking;
duty of landlord to protect against reasonably foreseeable
risks
This bill-by providing an affirmative defense to an unlawful
detainer action for victims of domestic violence, sexual
assault, or stalking-raises the question of whether a landlord
would be prevented from evicting a tenant when that tenant's
continued occupancy could represent an immediate, foreseeable
harm to other tenants.
In general, landlords owe a duty to their tenants and members of
the public to protect them from reasonably foreseeable risks on
the premises. This includes the risk of harm caused by the
criminal conduct of third parties. Where the landlord should
have anticipated the third party's criminal acts and taken
measures to protect the tenant, the landlord may be liable.
(O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798.)
If the risk of third party harm is not reasonably foreseeable,
then there is no duty and no liability. (See, e.g., Castaneda
v. Olsher (2007) 41 Cal.4th 1205; Ann M. v. Pac. Plaza Shopping
Center (1993) 6 Cal.4th 666.)
The Apartment Association, CA Southern Cities and Orange County
Apartment Association have an oppose unless amended position,
arguing that the bill would "place landlords and their agents in
a legal quandary" because it would balance a tenant's rights as
a victim of domestic violence, sexual assault, or stalking
against "a landlord's continuing legal duty to provide for a
reasonably safe and habitable property." The groups further
state that a landlord's ability to provide for the reasonable
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safety of all tenants is impaired when "the aggressor remains in
the unit." They also argue that the bill does not currently
address how to "treat multiple acts of aggression against the
same victim over a defined period of time."
The federal Violence Against Women Act (VAWA) addresses this
issue by permitting a landlord or public housing agency to evict
a tenant if the landlord or agency can demonstrate an actual and
imminent threat to other tenants or others if that tenant is not
evicted. VAWA also permits a landlord or public housing agency
to bifurcate a lease and evict a tenant who engages in criminal
acts of violence against family members or others while at the
same time permitting the victim of such violence to remain in
the unit.
In response to these concerns, the author has agreed to amend
the bill as follows:
1)Allow the court to terminate the tenancy of the aggressor
tenant while permitting any other tenants to remain in the
unit;
2)Authorize a court to order the immediate eviction of an
aggressor tenant who is an actual and imminent threat to the
safety of other people on the premises and authorize a court
to issue a stay-away order in these cases; and
3)If the aggressor is not a lessee, authorize a court to issue a
stay-away order against an aggressor who is an actual and
imminent threat to the safety of persons on the premises.
Language for these amendments is summarized in Comment 6.
Although the author's amendments would permit the court to
terminate the tenancy of the aggressor tenant and allow
immediate eviction if the aggressor is an actual and imminent
threat, the Apartment Association, CA Southern Cities and Orange
County Apartment Association raise concerns that the proposed
language permits "the 'less dominant' party to remain in
tenancy" rather than requiring both parties to vacate if there
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are mutual acts of aggression. The author points out that a
tenant who is violent may still be evicted because he or she has
violated the lease.
3. Landlord must keep information regarding domestic violence,
sexual assault, or stalking in strict confidence
a. VAWA exception for use in an eviction proceeding may be
appropriate here
This bill would require a landlord to retain all information
regarding acts of domestic violence, sexual assault, or
stalking in strictest confidence when received in confidence
from a tenant or household member except to the extent that
disclosure is necessary to provide for a reasonable
accommodation for the victim or is otherwise required pursuant
to state, federal, or local law. While VAWA similarly
provides for the confidentiality of this information received
by the landlord, it permits the information to be disclosed in
three instances: (1) when requested or consented to by the
individual in writing; (2) when otherwise required by
applicable law; or (3) if required for use in an eviction
proceeding.
This last exception is not contained in this bill. To provide
consistency with VAWA and ensure that a landlord may be
responsive to the court's questions when it is making the
determinations required by the bill, the author has agreed to
amend the bill to permit a landlord to disclose information
when necessary to assist the court in making its
determinations in the eviction proceeding. This amendment is
summarized in Comment 6.
b. Bill does not currently require that victim's consent to
disclosure be in writing
This bill permits the tenant or household member who is a
victim of domestic violence, sexual assault, or stalking to
authorize "limited or general release" of any information
otherwise deemed confidential under the bill. The bill does
not specify, however, that this release, or consent to
disclosure, be in writing.
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As noted above, VAWA requires that an individual's consent to
disclosure be in writing and such a requirement would appear
to be appropriate here, where the victim can authorize limited
or general release of information. Consent in writing can
help to make clear what information a victim has permitted to
be disclosed and avoid potential misunderstandings. The
author's office has indicated a willingness to amend the bill
to address this issue and require that the release be in
writing. This amendment is summarized in Comment 6.
4. Evidence to support the affirmative defense
This bill would require a court, in evaluating the tenant's
affirmative defense, to consider evidence which can include any
of the following: (1) a temporary restraining order or emergency
protective order; (2) a written police report; or (3) other
written documentation from a qualified third party (as defined).
a. Use of other written documentation by a qualified third
party to make the plaintiff's case for the affirmative
defense
This bill provides that a court may rely on "other written
documentation by a qualified third party" in making its
findings that a tenant is entitled to the affirmative defense
created by this bill. An earlier version of AB 2052, that
permitted a tenant who was a victim to terminate a rental
agreement, contained similar language authorizing the tenant
to terminate the lease if he or she has reported the domestic
violence, sexual assault, or stalking to a qualified third
party (defined more broadly than this bill). That language
required the third party to then provide the tenant with
written documentation that the tenant was the victim of an
act(s) constituting domestic violence, sexual assault, or
stalking.
The provision was later removed from the bill in response to
concerns that it permitted third parties to make a
determination that the tenant was a victim of domestic
violence, sexual assault, or stalking (presumably based on the
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word of the victim alone). Instead, AB 2052 was amended to
require that the tenant provide either a temporary restraining
order, emergency protective order, or police report alleging
that he or she is a victim of domestic violence, sexual
assault, or stalking.
The Apartment Association, CA Southern Cities and Orange
County Apartment Association oppose the inclusion of the third
party documentation provisions in this bill, specifically
arguing that the provisions raise issues of corroboration and
"'qualified third parties' do not provide sufficient
information." The organizations also state that "written
documentation for [sic] a court or a peace officer is
reliable, uniform and easily understood in comparison to the
requirements of SB 782."
It is important to note, however, that VAWA contains similar
provisions allowing for third party certification of a
tenant's status as a victim of domestic violence, dating
violence, or stalking. Specifically, VAWA provides that a
landlord may request that a tenant complete a HUD approved
certification form and the tenant may provide the landlord
with documentation signed by a victim service provider,
attorney, or medical professional from whom the tenant has
sought assistance in addressing the violence in which the
third party attests that the incidents are bona fide incidents
of abuse. As in this bill, the alleged perpetrator must be
named in the certification.
In order to tighten the qualified third party provisions in
the bill and make them more consistent with VAWA, the author
has agreed to make clear that the party attests that he or she
believes that the act or acts are bona fide incidents of
abuse. This amendment is summarized in Comment 6.
b. Duration of protective order
This bill would permit a court to rely on a temporary
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restraining order or emergency protective order, as specified,
in making its findings that a tenant is entitled to the
affirmative defense created by this bill. Those orders can be
valid for up to five years. The author has indicated that he
is working with relevant stakeholders who have raised concerns
that this length of time may be problematic.
In any event, even if an order is several years old, a tenant
or household member would only be able to raise the
affirmative defense created by this bill if the order to
vacate was substantially based on the domestic violence,
sexual assault, or stalking committed against the tenant or
household member. If a landlord brings an unlawful detainer
action against a tenant for using the premises for an unlawful
purpose (drug dealing, for example) and that tenant also has a
protective order, the tenant would not be able to take
advantage of the affirmative defense created by this bill
because the unlawful detainer action was not substantially
based on the domestic violence, sexual assault, or stalking
committed against the tenant.
A clarifying amendment is needed, however, in order to make
clear that the perpetrator named in the protective order is
the same one who is currently threatening the tenant victim.
In order to address this issue, the author has agreed to amend
the bill to provide that the protective order must protect the
tenant from further domestic violence, sexual assault, or
stalking by the same person alleged to be the abuser. This
amendment is summarized in Comment 6.
5. Concerns of the California Apartment Association; working with
the author
The California Apartment Association (CAA) reports that it is
working with the author to address its concerns which include
how to address the situation where "a victim, who has a valid
protective order, continually invites the perpetrator back to
the property (in the name of reconciliation) and thus disturbs
the quiet enjoyment of other tenants." CAA also states that
while the bill currently limits the victim's ability to assert
the affirmative defense once every five years this would
"effectively encourage landlords to file an unlawful detainer
action . . . in order for the victim to assert the defense for
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the record." This could potentially adversely affect the
victim's credit. CAA also would like clarity on a landlord's
rights or responsibilities regarding a perpetrator who is named
on the lease agreement.
CAA also raises questions that the bill does not currently
"address when and if a tenant victim must disclose the existence
of a protective order to the landlord" and indicates that the
bill should address the victim's responsibility to provide the
landlord with a copy of the protective order once it is
obtained. The Apartment Association, CA Southern Cities and
Orange County Apartment Association have also raised similar
concerns about this issue.
6. Summary of amendments
The mockup of the bill contains the substantive amendments
described above in Comments 2, 3, and 4 as well as several
technical and clarifying amendments. The following is a summary
of all of the amendments contained in the mockup:
1)On page 2, line 18 strike "It" and insert "Except as provided
in subdivision (c), it"
2)On page 2, line 19 strike "paragraph" and insert "paragraphs
(1) or"
3)On page 3, line 33 insert "lawfully" before "issued"
4)On page 3, line 39 after "stalking" insert "by the same person
alleged to be the abuser under subdivision (a)"
5)On page 4, strike lines 9-19 and insert the following:
(c)(1) A court may determine whether a tenant acted as the
dominant aggressor in the act or acts constituting domestic
violence, sexual assault, or stalking. In making the
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determination, the court shall consider the factors listed in
subdivision (b) of Section 13701 of the Penal Code.
(2) The court may terminate the tenancy of the tenant who acted
as the dominant
aggressor in the act or acts of domestic violence, sexual
assault, or stalking, while allowing the tenancy of the
remainder of the tenants to continue undisturbed.
(3)(i) If the dominant aggressor is a lessee and is an actual
and imminent threat to the safety of persons on the premises, a
court may order his or her immediate eviction and issue a stay
away order from the premises against the aggressor.
(ii) If the aggressor is not a lessee and is an actual and
imminent threat to the safety of persons on the premises, a
court may issue a stay away order from the premises against the
aggressor.
(4) If two or more cotenants are parties seeking relief under
subdivision (a), and each alleges that he or she was a victim of
domestic violence, sexual assault, or stalking perpetrated by
another cotenant who is also a party, the court may determine
whether a tenant acted as the dominant aggressor, as provided in
subparagraph (1). A tenant who the court determines was the
dominant aggressor in the act or acts constituting domestic
violence, sexual assault, or stalking is not entitled to relief
under subdivision (a).
6)On page 5, line 28 after "violence" insert ", sexual assault,"
7)On page 5, between lines 28 and 29 insert "(D) That the
qualified third party attests that he or she believes that the
act or acts in question are bona fide acts of abuse."
8)On page 5, line 38 after "victim" insert a comma and strike
"or"
9)On page 5, line 39 after "law" insert ", or is necessary to
assist the court in making the determinations under
subdivision (a)."
10) On page 6, line 2 after the period insert "Such release
shall be in writing."
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Support : National Housing Law Project; Western Center on Law and
Poverty; California Rural Legal Assistance Foundation; Los
Angeles County District Attorney's Office; California
Partnership to End Domestic Violence
Opposition : Apartment Association, CA Southern Cities (unless
amended); Orange County Apartment Association (unless amended)
HISTORY
Source : Author/San Francisco District Attorney Kamala Harris
Related Pending Legislation : None Known
Prior Legislation :
AB 2052 (Lieu, Ch. 440, Stats. 2008). See Background.
SB 1745 (Kuehl, 2006). See Background.
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