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AB-2343 Real property: possession: unlawful detainer.(2017-2018)

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Date Published: 05/29/2018 09:00 PM
AB2343:v95#DOCUMENT

Amended  IN  Assembly  May 29, 2018
Amended  IN  Assembly  May 25, 2018
Amended  IN  Assembly  April 25, 2018
Amended  IN  Assembly  April 19, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2343


Introduced by Assembly Member Chiu

February 13, 2018


An act to amend Section 1942.5 of the Civil Code, and to amend Sections 1161, 1167, 1169, and 2020.410 of the Code of Civil Procedure, relating to real property.


LEGISLATIVE COUNSEL'S DIGEST


AB 2343, as amended, Chiu. Real property: possession: unlawful detainer.

(1)Existing law prohibits a lessor from taking specified actions for the purpose of retaliating against a lessee who has lawfully organized or participated in a lessees’ association or exercised any other legal right. Existing law provides that in an action brought pursuant to this subdivision, the lessee bears the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory.

This bill would create a rebuttable presumption that an action to recover possession of a dwelling is retaliatory if the notice upon which the action is based does not state a good-faith basis for recovering possession and is served within 180 days of specified actions taken by the lessee.

(2)

(1) Existing law establishes a procedure, known as an unlawful detainer action, that a landlord must follow in order to evict a tenant. Existing law provides that a tenant is subject to such an action if the tenant continues to possess the property without permission of the landlord in specified circumstances, including when the tenant has violated the lease by defaulting on rent or failing to perform a duty under the lease, but the landlord must first give the tenant a 3-day notice to vacate or cure the violation. For other more serious violations, such as waste, nuisance, or unlawful acts, existing law provides that a landlord may initiate an unlawful detainer action after serving the tenant with a 3-day notice to vacate.
This bill would change those notice periods to 10 days and 5 days, respectively. the notice period to exclude judicial holidays, including Saturday and Sunday. This bill would, with regard to a notice for a failure to perform a duty under the lease, require that the notice fully describe the nature of the alleged unperformed duty, as specified, and the manner in which the duty may be performed. The bill would also require that the notice state that the tenant may request that the landlord provide reasonable accommodations to the tenant for any disability affecting his or her ability to perform the duty. This bill would provide that these provisions would become operative on September 1, 2019.

(3)

(2) Under existing law, a plaintiff that wishes to bring an action to obtain possession of real property must file a complaint and serve the defendant with a notice of summons, in which case the defendant has 5 days to file a response. summons. If the defendant fails to appear and defend, the clerk of the court, upon receiving the plaintiff’s written application and proof of service of summons and complaint, must enter a default judgment for restitution of the premises and issue a writ of execution thereon, as specified.
This bill would extend the period in which a defendant may respond to a notice of summons to 14 days, as specified. For defendants who fail to appear and defend, the bill would also clarify that the period in which a defendant may respond to a notice of summons does not include judicial holidays, including Saturday and Sunday. For defendants who fail to appear and defend, the bill would also impose a 10-day 3-day period before the clerk may enter the above-describe default judgment and writ of execution. This bill would provide that these provisions would become operative on September 1, 2019.

(4)

(3) Existing law provides for the discovery and submission of evidence in civil actions. Existing law prohibits a deposition subpoena to copy business records from commanding compliance earlier than 20 days after the subpoena is issued, or 15 days after it is served, whichever date is later.
This bill would shorten that timeframe in actions to obtain possession of real property to 5 days after the service of the deposition subpoena, unless the subpoena is to a witness for personal records of a consumer and the consumer’s consent to release those records is not included with the subpoena, as specified. This bill would provide that this provision would become operative on September 1, 2019.
(4) This bill would provide that these provisions would become operative on September 1, 2019.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.Section 1942.5 of the Civil Code is amended to read:
1942.5.

(a)If the lessor retaliates against the lessee because of the exercise by the lessee of his or her rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his or her rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1)After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2)After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3)After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(4)After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5)After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

In each instance, the 180-day period shall run from the latest applicable date referred to in paragraphs (1) to (5), inclusive.

(b)A lessee may not invoke subdivision (a) or paragraph (2) of subdivision (d) more than once in any 12-month period.

(c)To report, or to threaten to report, the lessee or individuals known to the landlord to be associated with the lessee to immigration authorities is a form of retaliatory conduct prohibited under subdivision (a). This subdivision shall in no way limit the definition of retaliatory conduct prohibited under this section.

(d)(1)Notwithstanding subdivision (a), it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory.

(2)There shall be a rebuttable presumption that an action to recover possession is retaliatory if the action is based upon a notice that does not state the grounds upon which the lessor, in good faith, seeks to recover possession, and the notice was served upon the lessee within 180 days of the lessee, individually, collectively with other lessees, or through a lessee organization representing the lessee, presenting to the lessor a demand or grievance related to the subject premises, including a grievance related to a policy of the lessor, a request for accommodation of a disability, a lessee right or management practice, or other issue relating to the operation of the premises or treatment of lessees.

(e)To report, or to threaten to report, the lessee or individuals known to the landlord to be associated with the lessee to immigration authorities is a form of retaliatory conduct prohibited under subdivision (d). This subdivision shall in no way limit the definition of retaliatory conduct prohibited under this section.

(f)This section does not limit in any way the exercise by the lessor of his or her rights under any lease or agreement or any law pertaining to the hiring of property or his or her right to do any of the acts described in subdivision (a) or (d) for any lawful cause. Any waiver by a lessee of his or her rights under this section is void as contrary to public policy.

(g)Notwithstanding subdivisions (a) to (f), inclusive, a lessor may recover possession of a dwelling and do any of the other acts described in subdivision (a) within the period or periods prescribed therein, or within subdivision (d), if the notice of termination, rent increase, or other act, and any pleading or statement of issues in an arbitration, if any, states the ground upon which the lessor, in good faith, seeks to recover possession, increase rent, or do any of the other acts described in subdivision (a) or (d). If the statement is controverted, the lessor shall establish its truth at the trial or other hearing.

(h)Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following:

(1)The actual damages sustained by the lessee.

(2)Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.

(i)In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney’s fees to the prevailing party if either party requests attorney’s fees upon the initiation of the action.

(j)The remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law.

(k)A lessor does not violate subdivision (c) or (e) by complying with any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant.

SEC. 2.SECTION 1.

 Section 1161 of the Code of Civil Procedure is amended to read:

1161.
 A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:
1. When he or she continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him or her; provided the expiration is of a nondefault nature however brought about without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable; including the case where the person to be removed became the occupant of the premises as a servant, employee, agent, or licensee and the relation of master and servant, or employer and employee, or principal and agent, or licensor and licensee, has been lawfully terminated or the time fixed for occupancy by the agreement between the parties has expired; but nothing in this subdivision shall be construed as preventing the removal of the occupant in any other lawful manner; but in case of a tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code.
2. When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and 10 three days’ notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant.
The notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than 60 days after the expiration of the term without any demand of possession or notice to quit by the landlord or the successor in estate of his or her landlord, if applicable, he or she shall be deemed to be holding by permission of the landlord or successor in estate of his or her landlord, if applicable, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during that year, and the holding over for that period shall be taken and construed as a consent on the part of a tenant to hold for another year.
3. When he or she continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and 10 three days’ notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him or her, and if there is a subtenant in actual occupation of the premises, also, upon the subtenant. The notice shall fully describe the nature of the alleged unperformed duty, including the date, place, witnesses, and any other relevant facts, as well as the manner in which the duty may be performed. The notice shall also state that, upon request, the landlord must provide reasonable accommodations to the tenant for any disability of the tenant that affects his or her ability to perform the duty. Within 10 days three days, excluding Saturdays and Sundays and other judicial holidays, after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture; provided, if the conditions and covenants of the lease, violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to the lessee or his or her subtenant, demanding the performance of the violated conditions or covenants of the lease.
A tenant may take proceedings, similar to those prescribed in this chapter, to obtain possession of the premises let to a subtenant or held by a servant, employee, agent, or licensee, in case of his or her unlawful detention of the premises underlet to him or her or held by him or her.
4. Any tenant, subtenant, or executor or administrator of his or her estate heretofore qualified and now acting, or hereafter to be qualified and act, assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his or her lease, or maintaining, committing, or permitting the maintenance or commission of a nuisance upon the demised premises or using the premises for an unlawful purpose, thereby terminates the lease, and the landlord, or his or her successor in estate, shall upon service of five three days’ notice to quit upon the person or persons in possession, be entitled to restitution of possession of the demised premises under this chapter. For purposes of this subdivision, a person who commits or maintains a public nuisance as described in Section 3482.8 of the Civil Code, or who commits an offense described in subdivision (c) of Section 3485 of the Civil Code, or subdivision (c) of Section 3486 of the Civil Code, or uses the premises to further the purpose of that offense shall be deemed to have committed a nuisance upon the premises.
5. When he or she gives written notice as provided in Section 1946 of the Civil Code of his or her intention to terminate the hiring of the real property, or makes a written offer to surrender which is accepted in writing by the landlord, but fails to deliver possession at the time specified in that written notice, without the permission of his or her landlord, or the successor in estate of the landlord, if applicable.
As used in this section, tenant includes any person who hires real property except those persons whose occupancy is described in subdivision (b) of Section 1940 of the Civil Code.

SEC. 3.SEC. 2.

 Section 1167 of the Code of Civil Procedure is amended to read:

1167.
 (a) The summons shall be in the form specified in Section 412.20 except that when the defendant is served, the defendant’s response shall be filed within 14 days, including Saturdays and Sundays but excluding all five days, excluding Saturdays and Sundays and other judicial holidays, after the complaint is served upon him or her. If the last day for filing the response falls on a Saturday or Sunday, the response period shall be extended to and including the next court day.
(b) In all other respects the summons shall be issued and served and returned in the same manner as a summons in a civil action.

SEC. 4.SEC. 3.

 Section 1169 of the Code of Civil Procedure is amended to read:

1169.
 If, at the time appointed, any defendant served with a summons does not appear and defend, and after at least 10 three calendar days following filing of the proof of service of the summons and complaint, the clerk, upon written application of the plaintiff, shall enter the default of any defendant so served, and, if requested by the plaintiff, immediately shall enter judgment for restitution of the premises and shall issue a writ of execution thereon. The application for default judgment and the default judgment shall include a place to indicate that the judgment includes tenants, subtenants, if any, named claimants, if any, and any other occupants of the premises. Thereafter, the plaintiff may apply to the court for any other relief demanded in the complaint, including the costs, against the defendant, or defendants, or against one or more of the defendants.

SEC. 5.SEC. 4.

 Section 2020.410 of the Code of Civil Procedure is amended to read:

2020.410.
 (a) A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.
(b) Notwithstanding subdivision (a), specific information identifiable only to the deponent’s records system, like a policy number or the date when a consumer interacted with the witness, is not required.
(c) (1) A deposition subpoena that commands only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the business records designated in it. It shall be directed to the custodian of those records or another person qualified to certify the records. It shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.
(2) Notwithstanding paragraph (1), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, a deposition subpoena shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 5 days after the service of the deposition subpoena. This paragraph does not apply to a subpoena issued to a witness for personal records pertaining to a consumer, unless the subpoena is accompanied by the consumer’s written authorization to release the records pursuant to Section 1985.3.
(d) If, under Section 1985.3 or 1985.6, the one to whom the deposition subpoena is directed is a witness, and the business records described in the deposition subpoena are personal records pertaining to a consumer, the service of the deposition subpoena shall be accompanied either by a copy of the proof of service of the notice to the consumer described in subdivision (e) of Section 1985.3, or subdivision (b) of Section 1985.6, as applicable, or by the consumer’s written authorization to release personal records described in paragraph (2) of subdivision (c) of Section 1985.3, or paragraph (2) of subdivision (c) of Section 1985.6, as applicable.

SEC. 6.SEC. 5.

 Sections 2 through 5 of this This act shall become operative on September 1, 2019.