BILL ANALYSIS �
SB 426
Page 1
Date of Hearing: June 14, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 426 (Calderon) - As Amended: March 25, 2011
Proposed Consent (As Proposed to Be Amended)
SENATE VOTE : 39-0
SUBJECT : Tenancy: Evictions: Nuisance
KEY ISSUE : Should a property used for unlawful dogfighting or
cockfighting be considered a public nuisance, and should a
tenant who maintains such a nuisance be subject to eviction?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill would (1) provide that a property or building used to
conduct illegal dogfighting or cockfighting shall be deemed a
public nuisance and (2) specify that a landlord may evict a
tenant who maintains such a nuisance. The Humane Society of the
United States, the sponsor of the bill, claims that dogfighting
and cockfighting operations have become a significant problem in
California and throughout the nation. Not only do such
operations constitute cruelty to animals - which is why
dogfighting and cockfighting are already illegal in California -
but the sponsor claims that this activity attracts other kinds
of unwanted and unlawful activity, including illegal drugs,
gambling, and gang violence. By expressly stating that such
activity is a public nuisance, this bill would permit local
authorities to target it as both a criminal matter and a
nuisance abatement matter. In addition, the bill would amend
the state's unlawful detainer statute to specify that
maintaining a dogfighting or cockfighting operation is grounds
for eviction. This bill passed off the Senate Floor on a 39-0
vote. There is no known opposition.
SUMMARY : Provides that a building or property used to conduct
dogfighting or cockfighting, as specified, is a nuisance and
specifies that a tenant who commits or maintains such a nuisance
on rental property may be evicted. Specifically, this bill :
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1)Provides that any building or property used for the purpose of
willfully conducting dogfighting or cockfighting in violation
of state laws is a public nuisance.
2)Provides that any tenant who willfully conducts a dogfighting
or cockfighting on the rented premises in violation of state
laws shall be deemed to have committed a nuisance upon the
premises.
EXISTING LAW :
1) Defines a "nuisance" to mean anything which is injurious to
health, including but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the
senses, or is an obstruction to the free use and enjoyment of
property, or obstructs the free use of byways and navigable
waters. (Civil Code Section 3479.)
2)Defines "public nuisance" as one which affects at the same
time an entire community or neighborhood, or a considerable
number of persons, although the extent of the annoyance or
damage inflicted upon individuals may be unequal. Defines
"private nuisance" to mean any nuisance that is not a public
nuisance. (Civil Code Sections 3480 and 3481.)
3)Provides that a "public nuisance" may be abated by any public
body or officer or by a private person if the public nuisance
is especially injurious to that person. Provides that a
"private nuisance" may be abated or subject to a civil action
by the person injured by the nuisance. (Civil Code Sections
3494, 3495, and 3501-3502.)
4)Provides that any person who owns, possesses, keeps, or trains
any dog with the intent that the dog shall be engaged in an
exhibition of fighting with another dog, or causes dogs to
fight with one another for amusement or gain, or permits such
acts to be conducted on any premises under his or her control,
is guilty of felony. Makes any person that is knowingly
present, as a spectator, at any such exhibition guilty of a
misdemeanor. (Penal Code Section 597.5.)
5)Provides that any person who, for amusement or gain, causes
any cock to fight with another cock or with a different kind
of animal or creature or with any human being, or any person
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that permits the same on premises under his or her control, is
guilty of a misdemeanor. (Penal Code Section 597b (b).)
6)Provides that any tenant who maintains, commits, or permits
the commission of a nuisance on the premises, or uses the
premises for an unlawful purpose, thereby terminates the lease
and may be evicted. (Code of Civil Procedure Section 1161.)
COMMENTS : In recent years this Committee has heard and approved
several bills seeking to combat unlawful activities by
increasing the power of local authorities to bring nuisance
abatement actions against those unlawful activities and to more
clearly authorize landlords to evict tenants who engage in
unlawful activity on the rented premises. For example, AB 1013
(Ch. 456, Stats. of 2007), AB 530 (Ch. 244, Stats. of 2009), and
SB 1115 (Ch. 178, Stats. of 2010) collectively created pilot
projects that permit local authorities to bring nuisance
abatement actions against properties that permit the maintenance
of unlawful drug and weapons activity. Those statutes also
permit a city attorney or city prosecutor to file, in the name
of the people, an unlawful detainer against any person
maintaining the nuisance or unlawful conduct if the landlord
fails to evict after being informed of the unlawful activity.
Finally, those statutes amend the unlawful detainer provision of
the Code of Civil Procedure to specify that engaging in the
unlawful drug or weapons activity violates the rental agreement
and is grounds for eviction. In addition, various sections of
the Penal Code provide that use of buildings for certain illegal
activity, such as gambling and prostitution, constitute a public
nuisance. (See e.g. Penal Code Section 11225, the "Red Light
Abatement Law.")
This bill is not quite as expansive as recent legislation
relating to drug and weapons activity, in that it would not
permit local officials to bring an unlawful detainer action if a
landlord fails to evict. Instead, this bill simply declares
that any property or building used for the purpose of conducting
an unlawful dogfighting or cockfighting operation is a public
nuisance. In short, this bill would effectively provide that
such an unlawful operation is a public "nuisance per se." The
probable significance of this statutory declaration is that it
would provide clear authority to local officials (most likely a
city attorney), as well as any private party affected by the
nuisance, to bring a nuisance abatement action. The remedies in
such an action include injunctive relief or any fine or penalty
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provided by the local nuisance abatement ordinance. Arguably, a
city attorney or private party could already bring such an
abatement action under existing law (Civil Code Sections 3494
and 3495) by showing that the unlawful activity created a public
nuisance. However, by making unlawful dogfighting and
cockfighting operations a "public nuisance per se" the local
official or person would be relieved of the burden of showing
that the unlawful activity is also a public nuisance. Otherwise
the official or party bringing the abatement action would need
to show that the unlawful activity meets the threshold of a
"public nuisance" - which in turn requires that the activity is
injurious, or indecent or offensive to the senses, of an entire
neighborhood or a large number of persons. (If a nuisance is
injurious, indecent, or offensive to single person or property,
it is a "private nuisance" and only the affected party, and not
a public official, may bring a civil action for damages or
abatement.)
In addition to declaring that dogfighting and cockfighting
operations are a public nuisance, this bill would also specify
that a tenant who commits or maintains such a nuisance shall be
deemed to have committed a nuisance on the premises and is
therefore subject to eviction under the unlawful detainer law.
Arguably, a landlord could already evict a tenant who maintained
an unlawful dogfighting or cockfighting operation on the rental
premises because the unlawful detainer statute already provides
that a tenant, who maintains a nuisance on the premises, or uses
the premises for an unlawful purpose, thereby terminates the
lease and is subject to eviction. (Code of Civil Procedure
1161.) Nonetheless, the express reference provided by this bill
is consistent with the express references to the drug and
weapons statutes in the existing unlawful detainer statute.
Author's Technical Amendments :
- On page 2, line 5, after "a" insert: public
- On page 4, line 23, after "a" insert: public
ARGUMENTS IN SUPPORT : According to the author, animal fighting
operations, although already unlawful, pose "dangerous threats
and create a public nuisance" in too many California
communities. The author argues that deeming dogfighting and
cockfighting operations a "nuisance per se" will mean that the
injurious effects of the activity will be presumed rather than
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needing to be proved. The author notes that existing law
already creates such presumptions about other forms of illegal
activity, such gambling, prostitution, selling illegal
substances, or unlawfully selling or serving alcohol. The
author contends that organized dogfighting and cockfighting
operations often draw other kinds of illegal activity, including
illegal drugs, gambling, and unlawful possession of firearms.
It is the ancillary activity associated with the operations, as
much as the operations themselves that constitute the public
nuisance.
The Humane Society of the United States, the sponsor, contends
that "dogfighting and cockfighting remain pervasive, insidious,
and dangerous threats." Despite increased media attention, the
Humane Society writes, "these underground organized criminal
activities continue to thrive across urban and rural, coastal
and inland, northern and southern California." The Humane
Society also contends that these violent events often beget
other violence, citing an incident in which a $10 gambling
dispute at a cockfighting event in Merced County resulted in a
double homicide. The Humane society notes that while California
law enforcement officers "are serious about ending animal
fighting," and that criminal prosecution is the best response to
the problem, "there are several ways to attack this scourge and
increase the cost of 'doing business' for animal fighters in
California" and those who aid or abet them.
The American Society for the Prevention of Cruelty to Animals
(ASPCA) supports this bill because by declaring the activity a
"public nuisance," it will allow "for eviction of any tenant who
commits or maintains this nuisance." The ASPCA argues that
"animal fighting is not only a cruel and barbaric activity in
and of itself, but it is almost always accompanied by other
illegal activities such as gambling, money laundering, drugs,
firearms, alcohol, and gang fights."
REGISTERED SUPPORT / OPPOSITION :
Support
Humane Society of the United States (sponsor)
ASPCA
Opposition
SB 426
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None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334