BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 782|
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UNFINISHED BUSINESS
Bill No: SB 782
Author: Yee (D), et al
Amended: 8/16/10
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
SENATE FLOOR : 21-18, 6/1/09
AYES: Alquist, Cedillo, Corbett, DeSaulnier, Ducheny,
Florez, Hancock, Kehoe, Leno, Liu, Lowenthal, Negrete
McLeod, Oropeza, Padilla, Pavley, Romero, Simitian,
Steinberg, Wiggins, Wolk, Yee
NOES: Aanestad, Ashburn, Benoit, Calderon, Cogdill,
Correa, Cox, Denham, Dutton, Harman, Hollingsworth, Huff,
Maldonado, Runner, Strickland, Walters, Wright, Wyland
NO VOTE RECORDED: Vacancy
ASSEMBLY FLOOR : 70-5, 8/17/10 - See last page for vote
CONTINUED
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SUBJECT : Resident tenancies: domestic violence
SOURCE : San Francisco District Attorney Kamala Harris
DIGEST : This bill prohibits a landlord from terminating
a tenancy based upon an act or acts of domestic violence,
sexual assault, or stalking against the tenant or tenant's
household member, if the act(s) can be appropriately
documented and the perpetrator is not a tenant of the same
dwelling unit as the tenant. Permits a tenant to change
locks of the dwelling unit, or request the landlord to do
so, as specified, if the tenant has a restraining order
against another person based on that other person's acts of
domestic violence, sexual assault, or stalking against the
tenant.
Assembly Amendments recast the entire bill to meet concerns
raised, thus removing all opposition.
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
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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.
(Section 1161 of the Code of Civil Procedure)
This bill:
1. Defines a "protected tenant" as a tenant who has
obtained a court order against another person based on
acts of domestic violence, sexual assault, or stalking,
or has filed a police report, as specified, alleging
that the protected tenant or a household member is a
victim of domestic violence, sexual abuse, or stalking.
2. Requires a landlord to change the exterior locks of a
protected tenant's dwelling unit upon written request of
the protected tenant not later than 24 hours after the
protected tenant gives the landlord a copy of a court
order or a police report issued or written within the
last 180 days. Provides that if the landlord fails to
change the locks within 24 hours, the protected tenant
may change the lock without the landlord's permission,
as specified.
3. Provides that notwithstanding the prohibition against
unilaterally changing a tenant's locks in Section 789.3
of the Civil Code, if the locks are changed pursuant to
the provisions of this bill, the landlord is not liable
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to a person excluded from the dwelling unit.
4. Specifies that a tenant who is excluded from dwelling
unit under this bill remains liable under the lease with
all other tenants of the dwelling unit for rent as
provided in the lease.
5. Prohibits a landlord from terminating a tenancy or
failing to renew a tenancy based upon an act or acts
against a tenant or a member of a tenant's household
member that constitute domestic violence, sexual
assault, or stalking if both of the following apply:
A. The act or acts of domestic violence have been
documented by a protective court order based on
allegations of domestic violence, sexual assault, or
stalking against the tenant or a tenant's household
member, or by a police report alleging domestic
violence, sexual assault, or stalking against the
tenant or tenant's household member. Specifies that
the court order or police report must have been
issued or written within the last 180 days.
B. The person against whom the protection order has
been issued or who was named in the police report is
not a tenant of the same dwelling unit as the tenant
or household member.
6. Notwithstanding the above, a landlord may terminate or
decline to renew a tenancy after the tenant has availed
himself/herself of the protections afforded in this bill
if both of the following apply:
A. Either of the following: (1) the tenant allows
the person against whom the protection order was
issued or who was named in the police report to visit
the property, or (2) the landlord reasonably believes
that the presence of the person against whom the
protection order has been issued or who was named in
the police report poses a physical threat to guest,
invitees, or licensees, or to the tenant's right to
quiet possession, as specified.
B. The landlord previously gave at least three days
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notice to correct the violation.
7. Provides that notwithstanding any provision of the lease
to the contrary, the landlord shall not be liable to any
other tenants for any action that arises due to the
landlord's compliance with the provisions of this bill.
8. Requires the Judicial Council, on or before January 1,
2012, to develop a new form or revise an existing form
that may be used by a party to assert in the responsive
pleading the grounds set forth in the eviction
provisions of this bill as an affirmative defense to an
unlawful detainer.
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
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
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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
According to the Assembly Appropriations Committee
analysis, minor absorbable costs to the Judicial Council to
provide the necessary forms for use in defense of an
unlawful detainer action.
SUPPORT : (Verified 8/18/10)
San Francisco District Attorney Kamala Harris (source)
Apartment Association of Southern California
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
Orange County Apartment Association
Western Center on Law and Poverty
ARGUMENTS IN SUPPORT : According to the author, this bill
will prevent victims of domestic violence from being
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unfairly evicted from their homes based upon the actions of
their abusers. According to the author and supporters,
victims of domestic violence sometimes face the prospect of
eviction on the grounds that the acts of violence against
them created a "nuisance" for which a landlord could seek
an unlawful detainer. For example, neighbors and other
tenants may complain of repeated police calls or of loud
noises that may accompany the acts of violence.
Unfortunately, permitting nuisance-based evictions in these
situations means that the domestic violence victim is
victimized twice: first by the abuser, and then by the
landlord who evicts the victim based on the acts of
another. This two-year bill is a carefully crafted
compromise that seeks to balance a complicated set of
equities: the right of victims of domestic violence not to
lose their homes due to the actions of others; the right of
other tenants to the quiet enjoyment of their units; the
right of alleged abusers not to be constructively evicted
on the basis of false allegations; and the right of
landlords to evict tenants who are breaking the law or
creating a nuisance.
In order to challenge an unlawful detainer action under
this bill, the victim would need to present - most likely
in his/her answer to the unlawful detainer - evidence that
he/she is a victim of domestic violence. This evidence can
be established either through possession of a protective
court order or a police report alleging domestic violence,
sexual assault, or stalking against the tenant of a member
of the tenant's household. The court order or police
report must have been issued or written with the past 180
days.
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.
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ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Bass, Beall, Bill
Berryhill, Tom Berryhill, Block, Blumenfield, Bradford,
Brownley, Buchanan, Caballero, Carter, Chesbro, Cook,
Coto, Davis, De La Torre, De Leon, DeVore, Eng, Evans,
Feuer, Fletcher, Fong, Fuentes, Furutani, Galgiani,
Garrick, Gatto, Gilmore, Hall, Harkey, Hayashi,
Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight,
Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Monning,
Nava, Nestande, Niello, Nielsen, Norby, V. Manuel Perez,
Portantino, Ruskin, Salas, Saldana, Skinner, Smyth,
Solorio, Audra Strickland, Swanson, Torlakson, Torres,
Torrico, Tran, Villines, Yamada, John A. Perez
NOES: Anderson, Conway, Fuller, Gaines, Miller
NO VOTE RECORDED: Blakeslee, Charles Calderon, Hagman,
Silva, Vacancy
RJG:mw 8/18/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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