BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 782|
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THIRD READING
Bill No: SB 782
Author: Yee (D), et al
Amended: 5/13/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-0, 5/5/09
AYES: Corbett, Florez, Leno
NO VOTE RECORDED: Harman, Walters
SENATE FLOOR : 19-15, 05/28/09 (FAIL)
AYES: Alquist, Cedillo, Corbett, DeSaulnier, Ducheny,
Florez, Hancock, Kehoe, Leno, Liu, Lowenthal, Negrete
McLeod, Padilla, Pavley, Romero, Simitian, Steinberg,
Wiggins, Yee
NOES: Aanestad, Ashburn, Benoit, Cogdill, Correa, Cox,
Denham, Dutton, Hollingsworth, Huff, Maldonado, Runner,
Strickland, Walters, Wyland
NO VOTE RECORDED: Calderon, Harman, Oropeza, Wolk, Wright,
Vacancy
SUBJECT : Unlawful detainer: domestic violence
SOURCE : San Francisco District Attorney Kamala Harris
DIGEST : This bill creates an affirmative defense to an
unlawful detainer action if the court finds that (1) the
tenant or his/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
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tenant or household member.
ANALYSIS : Existing state and federal law prohibits
discrimination in housing and employment on the basis of
gender and other specified characteristics. (Section 12920
et seq. of the Government Code; 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. (Section 1946.7 of the Civil Code)
Existing law permits a landlord to file an unlawful
detainer action against a tenant in order to evict him/her
when, among 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. (Section 1161(4) of the Code of Civil
Procedure) 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.
(Section 1942.5 of the Civil Code)
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/her household member, other
than the perpetrator, has not vacated the premises.
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(Section 1161 of the Code of Civil Procedure)
This bill creates an affirmative defense to an unlawful
detainer action if the court finds both of the following:
(1) the tenant or his/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(s) 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 provides 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 lawfully issued that protects the
tenant or household member from further domestic
violence, sexual assault, or stalking, as specified.
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.
3. Other written documentation from a qualified third party
(as defined) of the act or acts constituting domestic
violence, sexual assault, or stalking.
This bill provides that a court may determine whether a
tenant acted as the dominant aggressor in the act(s)
constituting domestic violence, sexual assault, or
stalking. In making the determination, the court shall
consider specified factors listed in subdivision (b) of
Section 13701 of the Penal Code.
This bill provides that the court may terminate the tenancy
of the tenant who acted as the dominant aggressor in the
act(s) of domestic violence, sexual assault, or stalking,
while allowing the tenancy of the remainder of the tenants
to continue undisturbed.
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This bill provides that 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/her
immediate eviction and issue an order to stay away from the
premises against the aggressor.
This bill specifies that if the dominant aggressor is not a
lessee and is an actual and imminent threat to the safety
of persons on the premises, a court may issue an order to
stay away from the premises against the aggressor.
This bill defines "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/her official
capacity.
This bill defines "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/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).
3. That the tenant informed the qualified third party of
the name of the alleged perpetrator, if known to the
victim.
4. That the qualified third party attests that he/she
believes that the act(s) in question are bona fide acts
of abuse.
This bill provides 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:
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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.
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 specifies 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 requires 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 victim or is otherwise
required pursuant to state, federal, or local law.
This bill provides that, if two or more cotenants are
requesting the defense described above and each alleges
that he/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, as specified. This bill
provides that if a court determines that a tenant was the
dominant aggressor, he/she would not be entitled to the
affirmative defense.
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's office, the leading cause of
homelessness among women is domestic violence. The
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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.
In response to many of these concerns, last year the
Legislature passed and the Governor signed AB 2052 (Lieu),
Chapter 440, Statutes of 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), 2005-06 Session, would have
extended the protections of the Fair Employment and Housing
Act and other residential tenancy laws to victims of
domestic violence. SB 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, 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/her
for certain violations. This bill creates 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.
Prior legislation . AB 2052 (Lieu), Chapter 440, Statutes
of 2008, pass ed the Senate with a vote of 36-0 on August
30, 2008.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
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SUPPORT : (Verified 5/13/09)
San Francisco District Attorney Kamala Harris (source)
California Partnership to End Domestic Violence
California Rural Legal Assistance Foundation
City and County of San Francisco Department on the Status
of Women
Los Angeles County District Attorney's Office
National Housing Law Project
Western Center on Law and Poverty
OPPOSITION : (Verified 5/13/09)
Apartment Association, California Southern Cities
Orange County Apartment Association
ARGUMENTS IN SUPPORT : 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 bill,
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
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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 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.
ARGUMENTS IN OPPOSITION : The Apartment Association,
California Southern Cities and Orange County Apartment
Association argue that the bill would "place landlords and
their agents in a legal quandary" because it balances 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 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." They 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."
RJG:mw 5/29/09 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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