BILL NUMBER: AB 2557 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Feuer
FEBRUARY 24, 2012
An act to amend Section 51 of the Civil Code, relating to
civil rights. An act to amend Section 2929.3 of the
Civil Code, and to amend Section 17980.7 of the Health and Safety
Code, relating to real property .
LEGISLATIVE COUNSEL'S DIGEST
AB 2557, as amended, Feuer. Unruh Civil Rights Act:
discrimination. Real property: maintenance and
abatement .
Existing law, until January 1, 2013, requires a legal owner to
maintain vacant residential property purchased or acquired through
foreclosure. Existing law also authorizes a governmental entity to
impose civil fines for failure to maintain that property of up to
$1,000 per day for a violation, after notice and an opportunity to
correct the violation is given.
This bill would authorize a person whose property is injuriously
affected or whose enjoyment is lessened by a property owner's
violation of those property maintenance provisions to bring an action
for injunctive relief. The bill would authorize an action to be
brought either in a small claims court or superior court within the
county in which the property is situated. The bill would also
authorize a prevailing plaintiff to recover court costs and
reasonable attorney's fees if the action is brought in superior
court.
Existing law provides for abatement of substandard conditions in
buildings and authorizes an enforcement agency to issue an order or
notice to repair or abate violations of specified building standards.
Under existing law, if the owner of a property with substandard
conditions fails to comply within a reasonable time period with the
terms of the order or notice, the enforcement agency, tenant, or
tenant association or organization may seek, and the court may order,
the appointment of a receiver for the substandard building.
This bill would also authorize any district attorney, county
counsel, or city attorney with jurisdiction over the substandard
building, acting in the name of the people, to seek a court order for
the appointment of a receiver for the substandard building.
The Unruh Civil Rights Act generally prohibits business
establishments from discriminating on the basis of sex, race, color,
religion, ancestry, national origin, disability, medical condition,
genetic information, marital status, or sexual orientation and
provides civil remedies for violations of its provisions.
This bill would make a technical, nonsubstantive change to that
provision.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2929.3 of the Civil
Code is amended to read:
2929.3. (a) (1) A legal owner shall maintain vacant residential
property purchased by that owner at a foreclosure sale, or acquired
by that owner through foreclosure under a mortgage or deed of trust.
A governmental entity may impose a civil fine of up to one thousand
dollars ($1,000) per day for a violation. If the governmental entity
chooses to impose a fine pursuant to this section, it shall give
notice of the alleged violation, including a description of the
conditions that gave rise to the allegation, and notice of the entity'
s intent to assess a civil fine if action to correct the violation is
not commenced within a period of not less than 14 days and completed
within a period of not less than 30 days. The notice shall be mailed
to the address provided in the deed or other instrument as specified
in subdivision (a) of Section 27321.5 of the Government Code, or, if
none, to the return address provided on the deed or other
instrument.
(2) The governmental entity shall provide a period of not less
than 30 days for the legal owner to remedy the violation prior to
imposing a civil fine and shall allow for a hearing and opportunity
to contest any fine imposed. In determining the amount of the fine,
the governmental entity shall take into consideration any timely and
good faith efforts by the legal owner to remedy the violation. The
maximum civil fine authorized by this section is one thousand dollars
($1,000) for each day that the owner fails to maintain the property,
commencing on the day following the expiration of the period to
remedy the violation established by the governmental entity.
(3) Subject to the provisions of this section, a governmental
entity may establish different compliance periods for different
conditions on the same property in the notice of alleged violation
mailed to the legal owner.
(b) A legal owner who fails to maintain a vacant residential
property in violation of paragraph (1) of subdivision (a) shall be
subject to an action for injunctive relief brought by any person
whose property is injuriously affected, or whose personal enjoyment
is lessened, by the property owner's violation. An action brought
pursuant to this subdivision may be brought either in a small claims
court or the superior court of the county in which the property is
situated. If the action is brought in superior court, a prevailing
plaintiff may recover court costs and reasonable attorney's fees.
(b)
(c) For purposes of this section, "failure to maintain"
means failure to care for the exterior of the property, including,
but not limited to, permitting excessive foliage growth that
diminishes the value of surrounding properties, failing to take
action to prevent trespassers or squatters from remaining on the
property, or failing to take action to prevent mosquito larvae from
growing in standing water or other conditions that create a public
nuisance.
(c)
(d) Notwithstanding subdivisions (a) and (b)
(c) , a governmental entity may provide less
than 30 days' notice to remedy a condition before imposing a civil
fine if the entity determines that a specific condition of the
property threatens public health or safety and provided that notice
of that determination and time for compliance is given.
(d)
(e) Fines and penalties collected pursuant to this
section shall be directed to local nuisance abatement programs.
(e)
(f) A governmental entity may not impose fines on a
legal owner under both this section and a local ordinance.
(f)
(g) These provisions shall not preempt any local
ordinance.
(g)
(h) This section shall only apply to residential real
property.
(h)
(i) The rights and remedies provided in this section
are cumulative and in addition to any other rights and remedies
provided by law.
(i)
(j) This section shall remain in effect only until
January 1, 2013, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2013, deletes or
extends that date.
SEC. 2. Section 17980.7 of the Health
and Safety Code is amended to read:
17980.7. If the owner fails to comply within a reasonable time
with the terms of the order or notice issued pursuant to Section
17980.6, the following provisions shall apply:
(a) The enforcement agency may seek and the court may order
imposition of the penalties provided for under Chapter 6 (commencing
with Section 17995).
(b) (1) The enforcement agency may seek and the court may order
the owner to not claim any deduction with respect to state taxes for
interest, taxes, expenses, depreciation, or amortization paid or
incurred with respect to the cited structure, in the taxable year of
the initial order or notice, in lieu of the enforcement agency
processing a violation in accordance with Sections 17274 and 24436.5
of the Revenue and Taxation Code.
(2) If the owner fails to comply with the terms of the order or
notice to correct the condition that caused the violation pursuant to
Section 17980.6, the court may order the owner to not claim these
tax benefits for the following year.
(c) The enforcement agency, tenant, or tenant
association or organization , or any district attorney, county
counsel, or city attorney with jurisdiction over the substandard
building, acting in the name of the people, may seek and the
court may order, the appointment of a receiver for the substandard
building pursuant to this subdivision. In its petition to the court,
the enforcement agency, tenant, or tenant
association or organization , or any district attorney, county
counsel, or city attorney with jurisdiction over the substandard
building shall include proof that notice of the petition was
served not less than three days prior to filing the petition,
pursuant to Article 3 (commencing with Section 415.10) of Chapter 4
of Title 5 of Part 2 of the Code of Civil Procedure, to all persons
with a recorded interest in the real property upon which the
substandard building exists.
(1) In appointing a receiver, the court shall consider whether the
owner has been afforded a reasonable opportunity to correct the
conditions cited in the notice of violation.
(2) The court shall not appoint any person as a receiver unless
the person has demonstrated to the court his or her capacity and
expertise to develop and supervise a viable financial and
construction plan for the satisfactory rehabilitation of the
building. A court may appoint as a receiver a nonprofit organization
or community development corporation. In addition to the duties and
powers that may be granted pursuant to this section, the nonprofit
organization or community development corporation may also apply for
grants to assist in the rehabilitation of the building.
(3) If a receiver is appointed, the owner and his or her agent of
the substandard building shall be enjoined from collecting rents from
the tenants, interfering with the receiver in the operation of the
substandard building, and encumbering or transferring the substandard
building or real property upon which the building is situated.
(4) Any receiver appointed pursuant to this section shall have all
of the following powers and duties in the order of priority listed
in this paragraph, unless the court otherwise permits:
(A) To take full and complete control of the substandard property.
(B) To manage the substandard building and pay expenses of the
operation of the substandard building and real property upon which
the building is located, including taxes, insurance, utilities,
general maintenance, and debt secured by an interest in the real
property.
(C) To secure a cost estimate and construction plan from a
licensed contractor for the repairs necessary to correct the
conditions cited in the notice of violation.
(D) To enter into contracts and employ a licensed contractor as
necessary to correct the conditions cited in the notice of violation.
(E) To collect all rents and income from the substandard building.
(F) To use all rents and income from the substandard building to
pay for the cost of rehabilitation and repairs determined by the
court as necessary to correct the conditions cited in the notice of
violation.
(G) To borrow funds to pay for repairs necessary to correct the
conditions cited in the notice of violation and to borrow funds to
pay for any relocation benefits authorized by paragraph (6) and, with
court approval, secure that debt and any moneys owed to the receiver
for services performed pursuant to this section with a lien on the
real property upon which the substandard building is located. The
lien shall be recorded in the county recorder's office in the county
within which the building is located.
(H) To exercise the powers granted to receivers under Section 568
of the Code of Civil Procedure.
(5) The receiver shall be entitled to the same fees, commissions,
and necessary expenses as receivers in actions to foreclose
mortgages.
(6) If the conditions of the premises or the repair or
rehabilitation thereof significantly affect the safe and sanitary use
of the substandard building by any tenant, to the extent that the
tenant cannot safely reside in his or her unit, then the receiver
shall provide relocation benefits in accordance with subparagraph (A)
of paragraph (3) of subdivision (d).
(7) The relocation compensation provided for in this section shall
not preempt any local ordinance that provides for greater relocation
assistance.
(8) In addition to any reporting required by the court, the
receiver shall prepare monthly reports to the state or local
enforcement agency which shall contain information on at least the
following items:
(A) The total amount of rent payments received.
(B) Nature and amount of contracts negotiated relative to the
operation or repair of the property.
(C) Payments made toward the repair of the premises.
(D) Progress of necessary repairs.
(E) Other payments made relative to the operation of the building.
(F) Amount of tenant relocation benefits paid.
(9) The receiver shall be discharged when the conditions cited in
the notice of violation have been remedied in accordance with the
court order or judgment and a complete accounting of all costs and
repairs has been delivered to the court. Upon removal of the
condition, the owner, the mortgagee, or any lienor of record may
apply for the discharge of all moneys not used by the receiver for
removal of the condition and all other costs authorized by this
section.
(10) After discharging the receiver, the court may retain
jurisdiction for a time period not to exceed 18 consecutive months,
and require the owner and the enforcement agency responsible for
enforcing Section 17980 to report to the court in accordance with a
schedule determined by the court.
(11) The prevailing party in an action pursuant to this section
shall be entitled to reasonable attorney's fees and court costs as
may be fixed by the court.
(12) The county recorder may charge and collect fees for the
recording of all notices and other documents required by this section
pursuant to Article 5 (commencing with Section 27360) of Chapter 6
of Division 2 of Title 3 of the Government Code.
(13) Nothing in this section shall be construed to limit those
rights available to tenants and owners under any other provision of
the law.
(14) Nothing in this section shall be construed to deprive an
owner of a substandard building of all procedural due process rights
guaranteed by the California Constitution and the United States
Constitution, including, but not limited to, receipt of notice of the
violation claimed and an adequate and reasonable period of time to
comply with any orders which are issued by the enforcement agency or
the court.
(d) If the court finds that a building is in a condition which
substantially endangers the health and safety of residents pursuant
to Section 17980.6, upon the entry of any order or judgment, the
court shall do all of the following:
(1) Order the owner to pay all reasonable and actual costs of the
enforcement agency including, but not limited to, inspection costs,
investigation costs, enforcement costs, attorney fees or costs, and
all costs of prosecution.
(2) Order that the local enforcement agency shall provide the
tenant with notice of the court order or judgment.
(3) (A) Order that if the owner undertakes repairs or
rehabilitation as a result of being cited for a notice under this
chapter, and if the conditions of the premises or the repair or
rehabilitation thereof significantly affect the safe and sanitary use
of the premises by any lawful tenant, so that the tenant cannot
safely reside in the premises, then the owner shall provide or pay
relocation benefits to each lawful tenant. These benefits shall
consist of actual reasonable moving and storage costs and relocation
compensation. The actual moving and storage costs shall consist of
all of the following:
(i) Transportation of the tenant's personal property to the new
location. The new location shall be in close proximity to the
substandard premises, except where relocation to a new location
beyond a close proximity is determined by the court to be justified.
(ii) Packing, crating, unpacking, and uncrating the tenant's
personal property.
(iii) Insurance of the tenant's property while in transit.
(iv) The reasonable replacement value of property lost, stolen, or
damaged (not through the fault or negligence of the displaced
person, his or her agent or employee) in the process of moving, where
insurance covering the loss, theft, or damage is not reasonably
available.
(v) The cost of disconnecting, dismantling, removing,
reassembling, reconnecting, and reinstalling machinery, equipment, or
other personal property of the tenant, including connection charges
imposed by utility companies for starting utility service.
(B) (i) The relocation compensation shall be an amount equal to
the differential between the contract rent and the fair market rental
value determined by the federal Department of Housing and Urban
Development for a unit of comparable size within the area for the
period that the unit is being repaired, not to exceed 120 days.
(ii) If the court finds that a tenant has been substantially
responsible for causing or substantially contributing to the
substandard conditions, then the relocation benefits of this section
shall not be paid to this tenant. Each other tenant on the premises
who has been ordered to relocate due to the substandard conditions
and who is not substantially responsible for causing or contributing
to the conditions shall be paid these benefits and moving costs at
the time that he or she actually relocates.
(4) Determine the date when the tenant is to relocate, and order
the tenant to notify the enforcement agency and the owner of the
address of the premises to which he or she has relocated within five
days after the relocation.
(5) (A) Order that the owner shall offer the first right to
occupancy of the premises to each tenant who received benefits
pursuant to subparagraph (A) of paragraph (3), before letting the
unit for rent to a third party. The owner's offer on the first right
to occupancy to the tenant shall be in writing, and sent by
first-class certified mail to the address given by the tenant at the
time of relocation. If the owner has not been provided the tenant's
address by the tenant as prescribed by this section, the owner shall
not be required to provide notice under this section or offer the
tenant the right to return to occupancy.
(B) The tenant shall notify the owner in writing that he or she
will occupy the unit. The notice shall be sent by first-class
certified mail no later than 10 days after the notice has been mailed
by the owner.
(6) Order that failure to comply with any abatement order under
this chapter shall be punishable by civil contempt, penalties under
Chapter 6 (commencing with Section 17995), and any other penalties
and fines as are available.
(e) The initiation of a proceeding or entry of a judgment pursuant
to this section or Section 17980.6 shall be deemed to be a
"proceeding" or "judgment" as provided by paragraph (4) or (5) of
subdivision (a) of Section 1942.5 of the Civil Code.
(f) The term "owner," for the purposes of this section, shall
include the owner, including any public entity that owns residential
real property, at the time of the initial notice or order and any
successor in interest who had actual or constructive knowledge of the
notice, order, or prosecution.
(g) These remedies shall be in addition to those provided by any
other law.
(h) Nothing in this section or in Section 17980.6 shall impair the
rights of an owner exercising his or her rights established pursuant
to Chapter 12.75 (commencing with Section 7060) of Division 7 of
Title 1 of the Government Code.
SECTION 1. Section 51 of the Civil Code is
amended to read:
51. (a) This section shall be known, and may be cited, as the
Unruh Civil Rights Act.
(b) All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, national origin, disability, medical condition, genetic
information, marital status, or sexual orientation are entitled to
the full and equal accommodations, advantages, facilities,
privileges, and services in all business establishments of every kind
whatsoever.
(c) This section shall not be construed to confer any right or
privilege on a person that is conditioned or limited by law or that
is applicable alike to persons of every sex, color, race, religion,
ancestry, national origin, disability, medical condition, marital
status, or sexual orientation or to persons regardless of their
genetic information.
(d) Nothing in this section shall be construed to require any
construction, alteration, repair, structural or otherwise, or
modification of any sort whatsoever, beyond that construction,
alteration, repair, or modification that is otherwise required by
other provisions of law, to any new or existing establishment,
facility, building, improvement, or any other structure, nor shall
anything in this section be construed to augment, restrict, or alter
in any way the authority of the State Architect to require
construction, alteration, repair, or modifications that the State
Architect otherwise possesses pursuant to other laws.
(e) For purposes of this section:
(1) "Disability" means any mental or physical disability as
defined in Sections 12926 and 12926.1 of the Government Code.
(2) (A) "Genetic information" means, with respect to any
individual, information about any of the following:
(i) The individual's genetic tests.
(ii) The genetic tests of family members of the individual.
(iii) The manifestation of a disease or disorder in family members
of the individual.
(B) "Genetic information" includes any request for, or receipt of,
genetic services, or participation in clinical research that
includes genetic services, by an individual or any family member of
the individual.
(C) "Genetic information" does not include information about the
sex or age of any individual.
(3) "Medical condition" has the same meaning as defined in
subdivision (h) of Section 12926 of the Government Code.
(4) "Religion" includes all aspects of religious belief,
observance, and practice.
(5) "Sex" includes, but is not limited to, pregnancy, childbirth,
or medical conditions related to pregnancy or childbirth. "Sex" also
includes, but is not limited to, a person's gender. "Gender" means
sex, and includes a person's gender identity and gender expression.
"Gender expression" means a person's gender-related appearance and
behavior whether or not stereotypically associated with the person's
assigned sex at birth.
(6) "Sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital status,
or sexual orientation" includes a perception that the person has any
particular characteristic or characteristics within the listed
categories or that the person is associated with a person who has, or
is perceived to have, any particular characteristic or
characteristics within the listed categories.
(7) "Sexual orientation" has the same meaning as defined in
subdivision (r) of Section 12926 of the Government Code.
(f) A violation of the right of any individual under the federal
Americans with Disabilities Act of 1990 (P.L. 101-336) shall also
constitute a violation of this section.