Taking notice

Taking Notice:

Recognizing and Reducing Avoidable Evictions in California

Applied Policy Project UCLA School of Public Affairs May 2006

Ian Barlow Robert Bullock Alexa Delwiche Montgomery-Randolph Lim

This report was prepared in partial fulfillment of the requirements for the Master in Public Policy degree in the Department of Public Policy at the University of California, Los Angeles. It was prepared at the direction of the Department and of the Western Center on Law & Poverty as a policy client. The views expressed herein are those of the authors and not necessarily those of the Department, the UCLA School of Public Affairs, UCLA as a whole, or the client.

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ACKNOWLEDGEMENTS

Acknowledgements We thank our advisor, Professor Mark A.R. Kleiman, for his invaluable assistance throughout this project. We also thank Christine Minnehan and Michael Moynagh at the Western Center on Law & Poverty for sharing so much of their time and expertise with us. There are many others who helped us with this project, including judges, attorneys, tenant advocates, and many landlords and tenants whom we surveyed, and we thank them all for their time and input into our project. Finally, we owe a special thanks to Jocelyn Newsome for her pro bono graphic design work. All photographs were taken by Ian Barlow in Los Angeles and Culver City.

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PREFACE

Preface A Style Note about Pronoun Usage Throughout the report, we use the male pronoun to refer to landlords and the female pronoun to refer to tenants. We do so for two reasons. The more practical, but less important, reason is that we often make use of sentence constructions that require some clear demarcation to keep track of which pronoun refers back to which party, landlord or tenant. We decided that with repeated usage of that construction, the reader may find it easier to follow our ideas if we are consistent.

The second reason for this style decision may be less practical, but we believe that it is even more important.

All the group members observed UD proceedings in courtrooms and interacted personally with tenants and landlords to develop both the background and findings of this report. One of our group members has experience as an attorney working with tenants and landlords in unlawful detainer cases. According to a recent article published by two leading housing policy experts, “Numerous studies have shown that those who are evicted are typically poor, women, and minorities.” i For example, in Philadelphia, “83 percent of the tenants facing eviction were nonwhite and . . . 70 percent were nonwhite women.” ii In Los Angeles, “the higher the percentage of African American persons and children . . . belonging to female headed households, the higher the eviction rate.” iii In Oakland, “four out of five ’30-day No Cause’ evictions (78%) are minority households.” iv Our experience reinforces such findings. These facts are significant for how housing policy should be analyzed and how power imbalances between landlords and tenants should be mediated.

Our usage of the male and female pronouns helps the reader distinguish between landlords and tenants more readily throughout this report. It also highlights some, but not all, of the relevant differences between the typical parties in an eviction case.

Chester Hartman and David Robinson, Evictions: The Hidden Housing Problem, 14 HOUSING POL’Y DEBATE 461, 467 (Fannie Mae Foundation, 2003) ii Id. (citing David L. Eldridge, The Making of a Courtroom: Landlord-Tenant Trials in Philadelphia’s Municipal Court (2001) (unpublished Ph.D. dissertation, University of Pennsylvania, School of Social Work)). iii Allan David Heskin & Kevin A. Davidson, Residential Evictions in the City of Los Angeles (first half of 1991): Ethnicity and Gender, unpublished paper. University of California, Los Angeles, Graduate School of Architecture and Urban Planning. iv Hartman and Robinson, supra (quoting East Bay Housing Organizations, Pushed Out for No Reason: Oakland Senior and Disabled Residents at High Risk for Eviction (2002)). i

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TABLE OF CONTENTS

Table of Contents Acknowledgements

i

Preface

ii

Executive Summary

1

Structure of This Report

3

I. Introduction: Analyzing Eviction Policy

4

The Magnitude of the Problem

4

The Purpose of Our Analysis

5

Policy Options Not Fully Considered in this Report

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Ii. Background: Overview of the UD Process

10

Types of Notices

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What Happens if a Tenant Does Not Comply with a Notice?

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Costs Associated with the UD Process

13

III. Analysis: Problems and Recommendations

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Problem 1: The current eviction notice process is inadequate. It fails to provide enough information or enough time for landlords and tenants to resolve their disputes without going to court

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Problem 2: The current system provides insufficient incentives for parties to resolve disputes before, or early on, in the unlawful detainer process

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Problem 3: Substandard housing conditions are not properly considered by judges as a defense to nonpayment cases

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Conclusion: The Importance of a Pilot Program

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TABLE OF CONTENTS

Appendix A: Glossary

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Appendix B: Methodology

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Appendix C: Survey Instruments

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Appendix D: Other Policy Options Considered

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Appendix E: 3-Day Notice to Cure or Quit

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Appendix F: 3-Day Notice to Pay Rent or Quit

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Appendix G: 3-Day Notice to Quit

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Appendix H: 30-Day Notice to Quit

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Appendix I: UD Defenses and the Trial Procedure

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Appendix J: Unlawful Detainer Complaint

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Appendix K: Unlawful Detainer Answer

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Appendix L: More Information about U.D. Registry, Inc.

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Appendix M : Recent Legislative Efforts Regarding the 60-Day Notice

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Appendix N: More About Mediation

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Appendix O: More About the Law of Habitability

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Appendix P: The Problem of Insufficient Data

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Appendix Q: Complete List of Problems and Recommendations for Pilot Program

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Bibliography

Figures

Figure 1: 3-day notice timeline in the UD process

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Figure 2: 30-day notice timeline in the UD process

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Figure 3: Sample of UD types, February 2006

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Figure 4: UD case type comparison, Long Beach Courthouse, April 2002 & April 2004

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EXECUTIVE SUMMARY

Executive Summary About 200,000 unlawful detainer (eviction) cases are filed annually in the California court system. Most of the tenant-defendants, about 4% of California’s renters, lose their cases and are evicted by the end of the litigation process. In addition, uncounted numbers of tenants move after being served with eviction notices, but before unlawful detainer cases are filed.

The status quo produces too many avoidable evictions at too high a cost. Being forced to move is expensive for tenants and for society as a whole. Displaced tenants may move into overcrowded or substandard conditions just to have any shelter at all. In some ways, however, losing an unlawful detainer case (UD) is much worse for tenants than simply heeding the initial eviction notice and vacating. While a tenant may gain more time by contesting the UD, she will likely have to move anyway after she loses, but finding replacement housing will be more difficult because of the negative credit ramifications of losing.

UDs are also costly for landlords and the court system. When tenants who have received eviction notices do not vacate voluntarily, landlords incur legal fees and other costs. The court system must intervene, spending a significant amount of resources on processing UDs. Rather than investing time and money to pursue a UD, these costs could be reduced if a landlord and tenant were able to reach a mutually beneficial agreement during the notice period.

Some evictions and their associated costs are avoidable; even when eviction is unavoidable, its costs could be reduced. At least in economic terms, tenants and landlords are acting irrationally when they pursue unnecessary UDs. Better policies that help parties avoid unnecessary UDs will allow potential mutual gains to be realized.

Our goals in making policy recommendations are to reduce the involuntary displacement of tenants in California, avoid unnecessary UDs, and reduce the costs involved in these processes, all without decreasing the incentives of tenants to comply with their rental agreements. While there are theoretically many ways to address these problems, we make our policy recommendations keeping political constraints in mind.

That is, our package of proposals is designed to be broadly acceptable to both landlord and tenant interest groups so that neither will block them in the California State Legislature.

We conclude that the list of recommendations set out below would be the most feasible and effective UD reform. These recommendations should first be implemented in the form of a one-county pilot program for the purpose of collecting data, evaluating the program, and determining which policies should be expanded statewide.

Landlords and tenants have a common interest in reducing the costs involved with the UD process. Our goal for this pilot program is to demonstrate an improved process and reveal this underlying interest. Our policy recommendations focus on three broad areas for reform both before and during the UD process.

The recommendations to be included in the pilot program, and the problems they are intended to address, are as follows:

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EXECUTIVE SUMMARY

PROBLEM 1:

The current eviction notice process is inadequate. It fails to provide either enough information or enough time for landlords and tenants to resolve their disputes without going to court.

Recommendations:

• Require more effective language on notices so more tenants will comply with proper notices.

• Establish longer notice periods in some types of cases.

• Create a variety of notice periods, making them relate more directly to the nature of the underlying disputes.

PROBLEM 2:

The current system provides insufficient incentives for parties to resolve disputes before, or earlier in, the unlawful detainer process.

Recommendations:

• Create a mediation process for those cases that could be handled more efficiently and equitably than they are in the current system.

• Create incentives for the parties to reach agreements through mediation and protect tenants’ credit records.

PROBLEM 3:

Substandard housing conditions are not properly considered by judges as a defense to nonpayment cases.

Recommendation:

• Create a better process for habitability cases that prioritizes using available resources on the most serious cases.

To reiterate, we recommend a pilot program to implement these recommendations for two reasons: 1. It is currently more politically feasible than adopting all of these policies statewide; and 2. It would allow an opportunity to collect data to measure the outcomes of the new policies.

The large number of evictions and inefficiencies in the UD process impose too many costs on landlords, tenants, and the court system. Implementing these recommendations will help prevent avoidable evictions, reduce the number of UDs, and therefore allow for more efficient processing of the remaining UDs.

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STRUCTURE OF REPORT

The Structure of This Report Section I introduces the basic problem that this report seeks to address, explaining its magnitude and relevance. We then discuss the purpose of our analysis, including the criteria for choosing our set of recommendations and a brief explanation of our methodology. The final part of section I explores several major policy options that are relevant to understanding the context within which our recommendations are made, but which we ultimately reject as not currently politically or economically feasible.

Section II presents the essential background for understanding the nature of the problems we seek to address with our recommendations. This section provides an overview of the UD process and also examines the costs and inefficiencies at issue.

Section III is the heart of the report. It lists the three main problems we have identified with the UD process, as well as the policy options we recommend to address them. We explore each problem and recommendation in some detail. The package of proposals is designed to be implemented initially as a pilot program. The purpose of the pilot program is to gather the necessary data to measure the success of our recommendations and then consider them for statewide implementation.

The Conclusion section reiterates our bottom-line proposal, which is to create a pilot program that incorporates the recommendations from section III. One final note about the structure of this report: The appendices are meant to provide the interested reader with more detailed information than space allowed in the body of the report. As noted throughout the report when terms that may not be familiar arise, Appendix A is a glossary that lists explanations of those terms. Appendix B discusses our methodology, and Appendix C contains our landlord and tenant survey instruments. Appendix D contains a list of several narrow policy options that we considered but did not recommend. Appendices E through H are examples of types of notices (3-day notice to cure or quit, 3day notice to pay rent or quit, 3-day notice to quit, and 30-day notice to quit). Appendix I provides more detail about UD defenses and procedure, while Appendices J and K reproduce the UD complaint and answer court forms, respectively. Appendix L discusses the U.D. Registry, Inc. A discussion about recent legislative efforts regarding the 60-day notice requirement can be found in Appendix M. Appendix N explores the subject of mediation in more detail, including implementation strategies. Appendix O contains more detail about the law of habitability. Appendix P provides further information on the problem of insufficient data about UDs. Finally, Appendix Q compiles in one place a complete listing of our problem statements and recommendations.

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INTRODUCTION

I. I NTRODUCTION :

Analyzing Eviction Policy The Magnitude of the Problem About 200,000 unlawful detainer cases are filed annually in California. 1 Most tenants lose their cases and face severe costs in being evicted by the end of the litigation process. 2 Tenants lose these cases, even when they have valid legal defenses, mostly because they are rarely represented by attorneys. Given that reality, the typical unrepresented tenant would be better off moving instead of contesting an unlawful detainer case (UD) that she will lose, which still results in her having to move, but with a severe negative mark on her credit (the judgment entered against her). Earlier resolution in eviction cases could result in a reduction of the costs associated with them. The issue then is one of designing policies that align more closely to the interests of the parties involved. Potential mutual gains exist, and this report examines them.

To the extent that the decision to engage in the UD fight is deliberate and premised on a belief that they will win, most tenants are wrong. What tenants gain by staying and fighting throughout the UD process is more time before they are forced to vacate. For that reason, not moving out before a UD is filed may be rational, but most tenants who think that they will win their case are acting against their own interests.

They would be better off reaching an agreement that did not result in judgment being entered against them.

Prevailing in these cases also imposes substantial costs to landlords and to the court system. Landlords may be acting against their own interests by acting too quickly to file a UD, escalating the intensity of the dispute rather than searching for more efficient ways to resolve it. Of course, the incentive to act quickly to file UDs exists because most landlords win. Again, this phenomenon is not necessarily because landlords should prevail under the law, but because the law is not self-enforcing – unrepresented tenants rarely convince judges to rule in their favor despite having meritorious claims. Still, in many cases, landlords would be better off if the disputes were resolved without resorting to the serious investment of time and

1 2

Email from Staff, Judicial Council of California, to Robert Bullock, UCLA Master of Public Policy candidate (July 2005).

There are no recent and reliable statewide data on the question of percentage of cases that landlords and tenants win and lose.

A 1990 study in Los Angeles County, conducted by the landlord industry, found that tenants prevailed in less than 1% of UDs. CALIFORNIA APARTMENT LAW INFORMATION FOUNDATION (CALIF), UNLAWFUL DETAINER STUDY (1991).

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INTRODUCTION

money involved in litigation. Landlords’ interests would be met in many cases if an enforceable deal were reached short of litigation.

Throughout the nation, the intersection of an increasing number of people living in or near poverty and the decreasing number of affordable housing units has caused a housing crisis. The problem of evictions is an important, but mostly overlooked, element of this greater housing crisis. The eviction process, with its significant costs to landlords, tenants, and the court system, is a “hidden housing problem” 3 to which the public, policymakers, and stakeholders have been largely inattentive.

Approximately 42% of the state’s population are renters.4 Each year, about 4% of renter households in California are named as defendants in UDs. 5 Many more receive written notices from their landlords demanding that they either resolve a problem or vacate. Some of those disputes are resolved without the tenant having to vacate. Other tenants do not contest the notice and instead move out. Little data exist on how much involuntary displacement6 results from notices and UDs. Disputes leading to eviction vary. A landlord may demand that a tenant: • Pay rent that is late; • Move out immediately because the landlord believes the tenant has broken the law or violated the lease in a serious way; or • Move out in 30 days, not necessarily based on any reason that is the tenant’s fault.

In most cases, California law requires a landlord to provide the tenant with a written notice of these demands. For many reasons discussed in this report, these notices are inadequate. When the tenant has not resolved the problem to the landlord’s satisfaction or has not moved out within the time allowed by the notice, the landlord may file a UD complaint7 in the court system.

The Purpose of Our Analysis, Including our Criteria and Methodology This paper argues that the UD process in California creates too much involuntary displacement of tenants at too high a cost to the parties involved. We identify key inefficiencies and inequities in the current system, while acknowledging that some level of displacement will occur and is necessary in a functioning housing market.

Landlords assert that it takes too long to complete the required UD process, but they rely on it heavily. In too many cases, landlords see formal written notices as the first step in the litigation process rather than as an opportunity to resolve the underlying disputes. We believe that many UDs could be avoided altogether with a better process, short of full litigation through the courts. Such a system would better serve landlords and tenants, as well as the courts.

Chester Hartman & David Robinson, Evictions: The Hidden Housing Problem, 14 HOUSING POL’Y DEBATE 461, 461 (Fannie Mae Foundation, 2003).

4 U.S. Census Bureau, at http://factfinder.census.gov/servlet/QTTable?_bm=y&-geo_id=04000US06&qr_name=DEC_2000_SF1_U_QTH3&-ds_name=DEC_2000_SF1_U&-redoLog=false (last visited May 3, 2006).

According to Census 2000, 13.8 million Californians are renters. Id. 5 Id. This number was calculated by dividing the approximate number of unlawful detainer cases in California for 2005 by the total number of renter households in California: 200,000 UDs/4,956,536= 3.885%. For the sake of simplicity, we are assuming this number does not include repeat defendants.

6 For an explanation of this term, see Glossary, Appendix A. 7 For an explanation of this term, see Glossary, Appendix A. 3

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To the extent possible, landlords should expect that more tenants will heed a proper notice and either resolve the problem or vacate the premises sooner, without landlords having to resort to the judicial process.

There should be more opportunities and incentives for the parties to settle disputes before the tenant is displaced or the landlord files a UD. Too many tenants assert frivolous defenses in these cases, likely leaving them worse off in the long run than if they had moved before the case was filed. A tenant who loses her case will still have to move but will also have a judgment entered against her, which will appear on her credit record and make it even harder to qualify for other housing. We offer recommendations aimed at addressing these issues.

Criteria for policy proposals include political and economic feasibility, as well as fundamental fairness to landlords and tenants generally. Our recommendations must be broadly acceptable in order to discourage landlord or tenant advocates from opposing them in the state legislative process. However, some problems call for specific solutions that one side or the other may not like, and so we aim to offer a range of recommendations that should be considered as a comprehensive whole. The long list of proposals takes these political or ideological differences into account and tries to balance them.

Outcomes of our proposals would ideally include economic savings for landlords and tenants as well as fewer UDs clogging the courts. Our proposals will also cost little, if anything, in public expenditures (and ideally be self-financing through increased court filing fees). Given California’s budget deficit (currently $6.3 billion8), it is crucial that our proposals do not create excessive new costs to the State. Our proposals form the outline for a pilot project that will require more specific budget analysis before implementation.

In addition to the criteria and constraints discussed above, our proposals should be equitable. Fundamental fairness is perhaps the most important criterion – none of our proposals should unduly harm either tenants or landlords. One aspect of that criterion is that we must not interfere with local rent control ordinances that differ from state law by giving tenants more substantive rights. Our proposals for changing state law are not intended to preempt existing local ordinances in any way. We examine eviction policy for our client, the Western Center on Law & Poverty (WCLP), 9 at the level of state law.

While WCLP is an advocate for tenants and low-income people generally, we have tried to perform our policy analysis in an objective manner. Because data are unavailable to strictly measure each of these proposals against our criteria, we analyze whether our recommendations meet our criteria by exploring the advantages and disadvantages of each policy recommendation.

In listing advantages and disadvantages for each of our recommendations, we attempt to be explicit about the potential tradeoffs involved. In making each specific recommendation, we believe that the advantages outweigh the potential disadvantages. That is, based on our findings, including discussions with our client and other experts in the field, we believe that the probability of positive impacts from the proposals is more likely than the probability of negative impacts. However, we recognize the need to actually implement the ideas in a pilot program setting so as to measure the outcomes achieved.

Letter from Michael Genest, Director, California State Department of Finance to Governor Arnold Schwarzenegger (Jan. 10, 2006), http://www.ebudget.ca.gov/BudgetSummary/DIR/1249557.html.

9 The Western Center on Law & Poverty (WCLP) “educates, advocates and litigates on health, housing and public benefits issues on behalf of low-income Californians. . . . With policy advocacy, impact litigation, and technical assistance, [WCLP] represent[s] low-income people in court, before administrative agencies (such as state and local welfare and health departments) and in the California Legislature. [WCLP] respond[s] to thousands of calls every year for advice or information from community-based advocates, legal services and pro bono lawyers, health clinics, government officials and the media.” Western Center on Law & Poverty, Our Services, at http://www.wclp.org/ aboutwclp/ourservices.php (last visited May 2, 2006).

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INTRODUCTION

Ultimately, we propose a list of recommendations that should be implemented in a pilot program to establish specific measures of success and to determine which policies strictly meet our criteria for statewide implementation. We refrain from ranking our proposals according to possible effectiveness for two reasons: (1) a lack of data to do so convincingly and, more importantly, because (2) they are complementary and should be pursued as a whole in order to satisfy our political feasibility criterion. As explained in the advantages and disadvantages section following each recommendation, some policy options would generally help landlords and harm tenants, and vice versa. We have tried to create a set of proposals that are fair overall and are therefore politically feasible.

The predominant measure of success will be whether a new policy reduces the number of UDs or at least reduces the net costs and time associated with them, considering all the relevant stakeholders – landlords, tenants, and the court system. Ultimately, we want to reduce the number of avoidable evictions and increase efficiency, revealing mutual gains that are available to all parties. In pursuing those goals, we try to keep the following questions in mind: Are tenants and landlords behaving in ways detrimental to their own interests? What are the incentives involved in current UD procedure, and how can we improve them?

Would our recommendations result in less involuntary displacement of tenants and fewer costs to all parties? At the same time, we have to consider whether the proposals might also reduce tenants’ incentives to comply with their rental agreements, if there were a lesser threat of eviction under the new policy.

Our process was iterative, going through lists of preliminary policy ideas, discussing and weighing them among ourselves and with our client and academic advisor. Our final recommendations were arrived at by relying on the experience and analysis within that group of people. We relied partly on the extensive experience of one of the authors of this report, who worked with both tenants and landlords as an attorney litigating unlawful detainer cases. As a result, less time was spent gathering background information pertaining to our project than might have been necessary otherwise. This allowed us to focus more on collaborating with our client to create our various proposals, weighing ideas against our criteria. Our contacts at WCLP considered our preliminary ideas from their perspective as successful advocates and based on their experience and communications with their colleagues representing other perspectives.

One of the most important discussions we had was with a prominent housing expert, Professor Gary Blasi at the UCLA School of Law, about the potential advantages and disadvantages of our ideas. 10 We also learned much about the problems in the UD process from speaking informally with landlord and tenant advocates in various settings. Finally, we generated a survey instrument for tenants and landlords and conducted courthouse surveys over a period of one month in order to gain a reliable measurement of tenant and landlord perspectives and understanding of the UD process. Our methodology is explained in greater detail in Appendix B, and our landlord and tenant survey instruments are reproduced in Appendix C.

Policy Options Not Fully Considered in this Report11 While we hope our report is understandable to a general audience, our target audience is informed policymakers and advocates. We discuss the following policy options early in the report because both landlord and tenant advocates are familiar with them and will anticipate that such options could meet some of our objectives. These options are not fully considered in this report because they are not politically 10 11

Interview with Gary Blasi, Professor, UCLA School of Law, in Los Angeles, CA (Feb. 3, 2006).

The policy options considered in this section are major issues we feel compelled to address in the body of the report.

See Appendix D for a list of other more narrow policy options that we considered but do not recommend as part of our package of proposals. We rejected these policy options early in the process of creating this report because they failed to meet the initial threshold of political feasibility or failed to mobilize the stakeholder interest necessary for further development.

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feasible at this time or may create greater unintended consequences than our recommended options. Also, many of the following options are beyond the scope of the problems we have sought to address. This report’s recommendations are confined to the UD process itself.

Rent Control and Just Cause Some tenant advocates would like to see statewide rent control, which would limit the amount by which landlords are able to increase rent, and statewide just cause protections, which would require that landlords have and prove a cause for evicting a tenant. However, these options are not currently politically feasible on a statewide level, though they have been successful in some localities. 12 Such policies may also restrict housing supply13 and encourage landlords to evict tenants for the main purpose of raising rent. 14 Some landlords would like for state laws to impose further restrictions on local rent control. Tenants do not want to give up these hard-fought protections that are beneficial to many, especially long-term, tenants. We have set out to propose changes to state law that will not affect these contentious issues.

Renter Subsidies and Increasing California’s Housing Stock Given that so many eviction cases are, at least nominally, about nonpayment of rent, the most effective ways to minimize the costs associated with displacement might be with policies designed to increase the effective incomes of poor tenants. Expansion of the federal Earned Income Tax Credit or the California Renters’ Tax Credit, an income-based tax credit available to California renters, 15 would be helpful in that regard, as would many other policy options, including an increase in the minimum wage or expanding other existing renter subsidy programs.

In addition, part of a comprehensive housing policy would include more aggressive efforts to increase housing supply to help alleviate the strain on the state’s tight rental market. Regardless of any policy proposals designed to improve the efficiency of the UD process, evictions will continue to be common until better and more expansive anti-poverty and affordable housing policies are implemented. However, these broader policies are beyond the scope of this project.

More Tenant Attorneys In a sample of 400 UD cases at a Los Angeles court, attorneys represented tenants in only eleven cases (2.8%). 16 By contrast, landlords were represented in 290 of the 400 cases (72.5%). 17 A study of UDs in Berkeley found that tenants were represented in 20% of the cases, while landlords were represented 89% of

See, e.g., Elizabeth Naughton, Comment, San Francisco’s Owner Move-In Legislation: Rent Control or Out of Control?, 34 U.S.F. L. REV. 537 (2000) (discussing controversies associated with rent-control and just cause eviction); see also California Tenant Law, Rent Control (indicating that rent control is a local issue and makes little sense statewide since rent control ordinances react to local vacancy rates), at http://www.caltenantlaw.com/RentControl.htm (last visited May 3, 2006).

13 See, e.g., Kenneth P. McNeely, Special Project on Landlord-Tenant Law in the District of Columbia Court of Appeals: Rent Control, 29 HOW. L.J. 165, 172 (1986) (describing studies indicating that rent control has had the effect of reducing housing stock because investors may not invest in a market where returns on investment are uncertain).

14 See, e.g., W. Dennis Keating, Response: Commentary on Rent Control and the Theory of Efficient Regulation, 54 BROOKLYN L. REV. 1223, 1227 (1989) (“[Professor] Epstein argues that rent control generally increases landlords' incentives for eviction if a vacated unit can be deregulated or converted to another use.”).

15 See, e.g., State of California Franchise Tax Board (FTB), Renters’ Tax Credit Differs from Past Years, Not Refundable (Dec. 1, 1998), at http://www.ftb.ca.gov/aboutFTB/press/Archive/1998/120198.html.

16 Bruce Zucker, California Pretrial Rent Deposit Pilot Project: A Legal and Empirical Analysis of the System in Action in the Los Angeles Municipal Court (Central Division), 35 CAL. W. L. REV. 159, 178 (1998).

17 Id. 12

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the time.18 In our survey of tenant-defendants conducted at the downtown Los Angeles and Long Beach courthouses, 26% of tenants were represented in court, mostly by nonprofit Legal Aid providers whose presence is greater in Los Angeles than any other city in the state. 19 It is clear that represented tenants fare better once they get to court than unrepresented ones, and anything less than full representation has limited effects on outcome. 20 Tenants are highly unlikely to win without attorney representation, but this does not mean that they do not have meritorious defenses. 21 In our surveys of tenant-defendants, represented tenants either prevailed or favorably settled their cases more often than landlords. 22 While an ideal world might include better access to free or low-cost legal representation for tenants, the costs for providing that access would be significant. 23 Because of perpetual lack of funding and staff, Legal Aid programs must refuse service to thousands of individuals with urgent civil legal problems.24 Nationwide, there are about 3,600 Legal Aid attorneys to serve more than 43 million income-eligible individuals.25 Only 20% of the legal needs of the poor are being met.26 However, providing legal representation to all tenants, because of the associated cost and landlord opposition, is not currently politically feasible.

REBECCA HALL, BERKELEY COMMUNITY LAW CTR., EVICTION PREVENTION AS HOMELESSNESS PREVENTION 9 (1991).

19 Surveys conducted in Los Angeles County courts (Feb. to March 2006) (see Appendix C) [hereinafter Courthouse Surveys].

20 Gary Blasi, How Much Access? How Much Justice?, 73 FORDHAM L. REV. 865, 869 (2004).

21 Id.; see also Hall, supra note 18 (indicating that when tenants are represented at UD hearings, their chances of winning are improved dramatically. “In cases in which the tenant was not represented by counsel, the landlord won 5.4 times for every time the tenant won.”).

22 Courthouse Surveys, supra note 19.

23 See, e.g., Steven Gunn, Eviction Defense for Poor Tenants: Costly Compassion or Justice Served?, 13 YALE L. & POL’Y REV. 385, 385-86 (1995). Providing counsel to low-income tenants is highly controversial. Many studies indicate that “the funding of legal services programs is highly cost-effective and results in savings of significant State funds. In many instances, the savings to the State outweigh the costs of providing counsel several times over.” LEGAL SERVICES PROJECT, FUNDING CIVIL LEGAL SERVICES FOR THE POOR 7 (1998). Closer examination of this debate is beyond the scope of our analysis because providing legal counsel to tenants does not meet our criteria of current political or economic feasibility. Landlords may perceive that adding more attorneys to the eviction process would complicate matters and require more, not less, of their time and resources.

24 FY 2000 Appropriations for the Legal Services Corporation and Defender Services Before the Subcommittee on Commerce, Justice, State, the Judiciary, and Related Agencies, House Committee on Appropriations, 106th Cong. (statement of Doreen D. Dodson, Chair of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants) (April 15, 1999), http:// www.abanet.org/legadv/testimony/lsc41599.html.

25 Id. 26 Id. 18

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BACKGROUND

II. B ACKGROUND :

Overview of the Unlawful Detainer Process The unlawful detainer (UD) process 27 was introduced as a legal alternative to “self-help” evictions. Prior to the adoption of the statutory UD process, a landlord could legally terminate a tenancy on his own, forcing the tenant out of the premises without any intervention by the judicial process. 28 Current UD process is “intended as a compromise between landlords’ and tenants’ interests.” 29 The process, while requiring landlords to prove to the court that a tenant no longer has a right to inhabit the unit, is normally fairly quick and simple. 30

Types of Notices The landlord initiates the UD process by serving a written notice upon the tenant. The notice may demand that the tenant “cure” (correct a lease violation) or that she “quit” the premises (move). Three types of notices are the most common in California under current law: (1) a 3-day notice to cure or quit (including the 3-day notice to pay rent or quit); 31 (2) a 3-day notice to quit (for cause);32 and (3) a 30-day notice to quit (without stating cause). 33

3-Day Notice to Cure or Quit (and 3-Day Notice to Pay Rent or Quit) A 3-day notice to cure or quit demands that the tenant either cure a specified lease violation or quit the unit within three days. If she does neither, the landlord may file a UD complaint on the fourth day. The tenant has no right to cure the lease violation after the three days have run. An example of this situation is a This report will not examine UD procedure in detail, but provides enough background information for the reader to understand deficiencies in the unlawful detainer process and our policy proposals for addressing those deficiencies. Several practice manuals explore the subject in great detail. See e.g. Myron Moskovitz, California Eviction Defense Manual, Cal. Cont. Ed. Bar, (2003); and California Practice Guide, Landlord-Tenant, Rutter Group, (2002).

28 See Hartman & Robinson, supra note 3, at 475.

29 Randy G. Gerchick, Comment, No Easy Way Out: Making the Summary Eviction Process a Fairer and More Efficient Alternative to Landlord Self-Help, 41 UCLA L. REV. 759, 791 (1994).

30 Id. 31 CAL. CIV. PROC. CODE § 1161.

32 Id. at § 1161(4).

33 Id. at § 1946.

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tenant who has a pet in violation of the lease, and the landlord gives her three days to remove the pet.

Please see Appendix E for an example of a 3-day notice to cure or quit.

The most common type of notice is a specific kind of 3-day notice to cure or quit that demands payment of rent. By serving a 3-day notice to pay rent or quit, a landlord demands that the tenant either pay the rent that is due or move out before the expiration of the 3-day period. Please see Appendix F for an example of a 3-day notice to pay rent or quit.

3-Day Notice to Quit (for cause) A 3-day notice to quit is a notice demanding that the tenant vacate the unit within three days. A landlord may serve a 3-day notice to quit in cases where the tenant “commits serious waste, causes a substantial nuisance, or employs the rental unit for illegal uses.” 34 This type of notice to quit is used when the landlord believes that the activity is so serious that it cannot be cured or rises to the level of criminal wrongdoing. 35 An example of this situation is a tenant who is dealing drugs. Please see Appendix G for an example of a 3-day notice to cure or quit.

30-Day Notice to Quit (no cause) When there is neither a written lease still in effect nor any local regulation that would bar such action, a landlord may serve a 30-day notice to quit. In jurisdictions without just cause eviction ordinances, and unlike the 3-day notices, a landlord may serve a 30-day notice to quit without “cause,” meaning that the landlord can properly serve the notice without the tenant having violated the law or any provisions of the lease agreement.

This type of notice to quit is used in several different situations. Typically, a landlord uses this no-fault notice for business reasons, such as to empty the unit in preparation for major renovations or to sell the building. In some cases, a landlord may have reason to evict a tenant for cause but wants to avoid having to develop evidence to prove that reason in court. Please see Appendix H for an example of a 30-day notice to quit.

34 35

CAL. CIV. PROC. CODE § 1161(4).

In addition, leases often include a clause stating that a landlord may serve a 3-day notice to quit if the tenant has previously received a specified number of 3-day notices to cure or quit. For example, if a landlord has repeatedly warned a tenant (by giving her several 3-day notices to cure or quit) that she must stop having loud parties, and the tenant continues to have them, the landlord may serve the tenant with a 3-day notice to quit.

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What Happens if a Tenant Does Not Comply with a Notice?

Failure to comply with the terms of any of the above notices may result in the landlord filing a UD complaint with the court. The tenant must be served with a copy of the complaint. Within five days of being served, the tenant must file a responsive pleading, 36 or she risks losing the case by default without a hearing. 37 If the tenant files an answer,38 the UD case will then be set for trial within about two or three weeks. 39 While other procedural maneuvers may occur, those are rare, especially among the vast majority of tenants not represented by an attorney. Please see Appendices J and K for reproductions of the complaint and answer court forms, respectively.

If the landlord wins the case and the court awards possession to the landlord, the landlord may enforce the judgment by applying for issuance of a writ of possession40 from the court clerk. 41 The writ is then provided to the local sheriff ’s office, which serves the writ on the premises being reclaimed by the landlord. 42 After the writ is delivered by the sheriff, the tenant has at least five days to vacate the unit. 43 If the tenant does not vacate within the allotted time, the sheriff may forcibly remove the tenant. 44 The two figures below set out an approximate timeline for the entire UD process in 3-day and 30-day notice cases, respectively.

Day 0

Notice served

Day 3

Expiration of 3-day notice

Day 4

Day 9

UD Filed and Served

Answer (or Default)

Day 10

Request for Setting Trial Date

Day 31

Trial

Day 41

Sheriff Evicts Tenant

Figure 1: 3-day notice timeline in the UD process

Day 0

Notice served

Day 30

Expiration of 30 day notice

Day 31

UD Filed and Served

Day 36

Day 37

Answer Request for (or Default) Setting Trial Date

Day 58

Trial

Day 68

Sheriff Evicts Tenant

Figure 2: 30-day notice timeline in the UD process For an explanation of this term, see Glossary, Appendix A. There are many problems with tenants not being properly served, but those problems are beyond the scope of this report.

38 For an explanation of this term, see Glossary, Appendix A. 39 For further discussion of UD defenses and procedure, see Appendix I. 40 For an explanation of this term, see Glossary, Appendix A. 41 CAL. CIV. PROC. CODE §§ 1170.5(a), 1174(c).

42 Id. at § 715.020(a).

43 Id. at § 715.020(c).

44 Id. 36 37

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We collected data from two prominent nonprofit Legal Aid organizations in Los Angeles about the new UD cases that were presented to their offices in February 2006. Our goal was to take a snapshot of how many UDs arose from each type of notice. The Eviction Defense Center branch of the Legal Aid Foundation of Los Angeles and the Eviction Defense Network both participated. The organizations recorded the type of notice on which each UD intake case was based for the entire month. Figure 3 represents the percentages of the types of notices involved in a sample of 202 UDs.

9%

3-day pay rent or quit (154 cases) 3-day cure or quit (18 cases) 3-day quit (5 cases) 30-day no fault (12 cases) 60-day no-fault (6 cases) Other (7 cases)

2% 6% 3% 3%

Notes: The total percentage does not equal 100% because of rounding. The category of “Other” includes all types of notices not included within the common categories specifically listed. The other notices were most likely related to specific federally subsidized housing rules that require different notice periods in some situations.

76%

Figure 3: Sample of UD types, February 2006

These data indicate the prevalence of UDs resulting from the different types of notices. This information is useful generally in assessing the potential impact of recommendations (related to specific notice types) on reducing evictions.

Costs Associated with the UD Process A lack of data about evictions makes it difficult to quantify accurately the aggregate impact of them. To the extent possible, we have identified the most significant costs imposed on the parties involved in the unlawful detainer (UD) process – landlords, tenants and the court system.

The prevailing party may have their costs awarded to them as part of the judgment. However, there may be difficulty collecting on the judgment, particularly for landlords collecting judgment awards from lowincome tenants. 45

Landlords The most significant costs landlords incur in the UD process include: • Time lost to the process; • Lost rental income; and • Court filing fees, process server fees, and attorney fees.

45

Landlords may pursue various means to execute on these judgments, including for wage garnishment.

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Time and Lost Rental Income The UD process operates quickly compared to other types of judicial proceedings. 46 If uncontested, 47 the UD process can be completely resolved in favor of the landlord in as little as about 17 days (from service of the notice to sheriff ’s lock-out).48 In contrast, California’s judicial foreclosure process, in which a lawsuit is filed to obtain a court order to foreclose on a deed or mortgage in default, takes approximately 120 days to complete.49 Landlords assert that the UD process is cumbersome and that it can take a substantial amount of time to effect an eviction.50 A landlord typically cannot accept rent payments from a tenant while a UD is pending because to do so would constitute a “waiver” of his claim against the tenant. As a result, a UD process that lasts 45 days, a typical amount of time, can mean a loss of almost two months’ rent for the landlord. These costs, accrued during the UD process, may be in addition to back rent that the landlord is attempting to recover in the case.

In addition, landlords assert that the length of time taken to carry through a UD to eviction can cause them to lose additional tenants and related rental income. Because the tenant-defendant may remain in her unit throughout the entire process, she could negatively impact other tenants, perhaps causing them to consider vacating, until the tenant-defendant is physically removed from the unit. 51 Court Filing Fees, Process Server Fees, and Attorney Fees Court filing fees for UDs vary by county. The civil filing fee for UDs in Los Angeles County is $304.50. 52 A landlord may hire a process server for between $25 and $55 to serve a complaint upon the tenant.53 A landlord’s total litigation costs, including attorney fees, process server fees, and filing fees, can range between

A tenant has only 5 days after being served with the UD complaint to file a responsive pleading, as compared to 30 days in most general civil litigation, including other types of debt collection cases.

47 For an explanation of this term, see Glossary, Appendix A. 48 Gerchick, supra note 29, at 807 (“First, the landlord must serve the tenant with a three-day notice, which will expire at the end of the fourth day. On the fifth day, the landlord may serve the tenant with a copy of the unlawful detainer complaint and a summons notifying the tenant that he has five days to answer the complaint. The answer period will expire at the end of the tenth day, and the following day, if the tenant has not answered the complaint, the landlord may move for the tenant’s default. Upon moving for a default judgment, the landlord may obtain a writ of possession directing the marshal or sheriff to serve the defaulting tenant with a five-day notice to vacate. The vacate period will expire on the sixteenth day, and the following day the marshal may evict the tenant and restore possession to the landlord.”) (citations omitted).

49 For an overview of the judicial foreclosure process, see generally RESTATEMENT (THIRD) OF PROP.: MORTGAGES § 8.2 (1997); see also www.stopforeclosure.com, California Foreclosure Law Summary, at http://www.stopforeclosure.com/ California_Foreclosure_Law.htm (last visited May 3, 2006).

50 Compare JUDICIAL COUNCIL OF CALIFORNIA, COURT STATISTICS REPORT 2005 Table 6A (2005). In Los Angeles County in FY 2003-04, 55% of UDs were disposed of in 30 days or less and 74% in 45 days or less. In Orange County, the figures were 65% and 81%, respectively; Riverside, 71% and 84%; San Diego, 69% and 88%; and San Bernardino, 74% and 90%. Five smaller counties report that 100% of their UDs are disposed of within 45 days.

Though landlords often criticize the UD process for taking an undue amount of time to return possession of property to a landlord, landlords may personally play a role in delaying the process. “Practically every step of the [unlawful detainer] process requires the landlord to take action to keep the process moving.” Gerchick, supra note 29, at 844.

Those landlords who follow the process diligently are able to cut the average time for eviction in half. The landlord decides when to file the initial notice, is responsible for serving the summons and complaint as well as moving for default judgment or requesting a trial date, and for applying for the writ of possession after judgment is granted. Id. 51 Tenant advocates, however, contest this assertion. They argue that due to California’s low vacancy rate, tenants are likely to tolerate disruptive neighboring tenants because they have no reasonable options for securing affordable replacement housing.

52 Los Angeles County Superior Court, Civil Fee Schedule (July 1, 2004), http://www.lasuperiorcourt.org/fees/pdf/feeschedule%20old.pdf.

53 See, e.g., American Eagle Attorney Services, Inc., at http://americaneagle.lawinfo.com/process_services.html (indicating that typical fees are $25 to $55) (last visited May 3, 2006).

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$500 and $1,000, 54 depending on whether the tenant contests the UD. For example, an attorney representing landlords in San Bernardino County charges $504 for an uncontested eviction, including the court filing fee. This attorney charges another $150 to $400 if the eviction is contested. 55

Tenants The most significant costs tenants incur in the UD process include: • • • • •

Court fees; Negative mark on tenant’s credit record; Tough competition in the rental housing market; Displacement from neighborhood or city; and Increased rent if replacement housing is located.

Court Fees Unless the tenant applies for and is granted an income-based fee waiver, proceeding in forma pauperis, 56 she will be responsible for court filing fees. For example, in Los Angeles County, a tenant contesting the UD by filing an answer would have to pay a $304.50 filing fee. The tenant’s legal representation, if she has an attorney at all, would likely be free (from a Legal Aid organization) or determined on a sliding scale based on the tenant’s income. 57 If the tenant loses the UD, the landlord’s attorney fees and costs may be awarded to him as part of the judgment.58 Negative Mark on Tenant’s Credit Record Any type of negative credit reporting about the tenant will affect her ability to obtain housing in the future.

A landlord may pay a fee to a tenant screening service to check whether a housing applicant has been a defendant in a UD in the past seven years.59 Even the names of tenant-defendants who had their cases dismissed or settled may be reported by a private credit reporting agency, such as the U.D. Registry, Inc., 60 which compiles the names of UD defendants. As of 2004, the court files of tenants who “prevailed in the action” 61 within 60 days after the UD was filed are supposed to be sealed or “masked,” meaning that their names are not public record and should not be listed by credit reporting agencies. Whether a tenant whose case was dismissed or settled is considered to have “prevailed in the action” may vary by county depending on the local court staff ’s interpretation of the law.

For landlords, a rental applicant’s presence on the U.D. Registry is a signal that the applicant was seen as a “problem tenant” to another landlord. Some landlords reference the U.D. Registry in rental applications and leases. 62 They may deny rental applications of tenants whose names appear on the U.D. Registry,

Interview with Commissioner, Los Angeles County Superior Court, in Los Angeles, CA (Feb. 17, 2006). The Commissioner hearing UDs encourages parties to settle, in part to avoid being liable for their opponent’s attorney fees if they lose.

55 Advertisement for Express Evictions, Robert A. Krasney, Attorney-at-Law, www.expressevictions.com (last visited March 10, 2006).

56 For an explanation of this term, see Glossary, Appendix A. 57 See, e.g., Eviction Defense Network, Fee Scale, http://www.evictiondefensenetwork.org/fees.html (last visited March 10, 2006).

58 CAL. CIV. CODE § 1717(a).

59 See, e.g., CAL. CIV. CODE §§ 1785.13(a)(2), (3).

60 See, e.g., U.D. Registry, Inc., at www.udregistry.com (last visited May 3, 2006). See Appendix L for further explanation of the U.D. Registry, the leading tenant reporting firm in California.

61 CAL. CIV. PROC. CODE § 1161.2(e).

62 See, e.g., U.D. Registry, Inc., supra, at note 60.

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based on perceived lack of creditworthiness. Please see Appendix L for further explanation of the U.D. Registry, the leading tenant screening service in California.

Tough Competition in the Rental Housing Market Even without a negative credit history, it is difficult to locate affordable replacement housing. California is the least affordable state in the nation. 63 Low supply and low vacancy rates drive up rental housing prices, making it difficult for tenants to relocate. California’s current vacancy rate is 5.4%, while vacancy rates in Southern California are only about 3%.64 Given some natural rate of turnover and the need to prepare units for rental, a 5% vacancy rate is considered a fully-rented market. 65 Only two states, Vermont and New Hampshire, have lower vacancy rates than California. 66 Nearly one quarter of California renters spend over 50% of their income on rent, and 40% of them spend more than 30% of their income on housing. 67 A minimum wage worker in California would have to work 107 hours per week in order to afford a fair market rent onebedroom apartment. 68 Because finding affordable replacement housing is so difficult in areas with low vacancy rates, many displaced tenants encounter homelessness as a result of eviction. The majority of UDs filed by landlords in California relate to nonpayment of rent. 69 In one national sample, 15% of homeless, and an even higher percentage for those with children, said that not being able to pay rent was a primary reason for their being homeless. 70 It is unclear whether these tenants experience homelessness temporarily or become permanently homeless.

It is also unknown how many tenants voluntarily vacate their units after receiving a notice and what ultimately happens to these tenants. A San Francisco study indicates that about 29% of eviction notices

National Low Income Housing Coalition, Out of Reach 2005- Least Affordable Jurisdictions. at http://www.nlihc.org/ oor2005/leastaffordabletable.pdf (last visited May 3, 2006). Hawaii is the least affordable state.

64 U.S. CENSUS BUREAU, HOUSING VACANCIES AND HOMEOWNERSHIP ANNUAL STATISTICS (2004), http:// www.census.gov/hhes/www/housing/hvs/annual04/ann04ind.html (last viewed May 3, 2006).

65 SB 51 Assembly Floor Analysis, 2005 Reg. Sess. (Cal. 2005) (Aug. 26, 2005), http://info.sen.ca.gov/pub/bill/sen/ sb_0051-0100/sb_51_cfa_20050826_184246_asm_floor.html.

66 Id. 67 California Department of Housing and Community Development, California’s Deepening Housing Crisis (Feb. 15, 2006), at 3, http://www.hcd.ca.gov/hpd/hc021506.pdf.

68 National Low Income Housing Coalition, Out of Reach 2005 – California, at http://www.nlihc.org/oor2005/ data.php?getstate=on&state%5B%5D=CA (last visited May 3, 2006).

69 See, e.g., Zucker, supra note 16, at 177-78; Courthouse Surveys, supra note 19.

70 See Hartman & Robinson, supra note 3, at 468-69 (citing Martha Burt, Homeless Families, Singles, and Others: Findings form the 1996 National Survey of Homeless Assistance Providers and Clients, 12 HOUSING POL’Y DEBATE 737-780 (2001). In Santa Cruz, CA, as many as 25% of homeless individuals may have become homeless because of evictions. Id. (citing DONNA MEROKEE, SANTA CRUZ TENANTS RIGHTS UNION, HOUSING CRISIS, SANTA CRUZ (2001). Various studies indicate that roughly 40% of those receiving care from homeless shelters have no history of mental illness, substance abuse problems or history of committing crimes. This proportion of the homeless population is considered the “housable homeless” or homeless people who could meet the responsibilities of being a tenant if they had the ability to pay rent. In California, the estimate of individuals and children meeting this definition ranges anywhere from 21,000 to 118,000 households. JOHN QUIGLEY, STEVEN RAPHAEL, EUGENE SMOLENSKI, PUBLIC POLICY INSTITUTE OF CALIFORNIA (PPIC), HOMELESSNESS IN CALIFORNIA 31 (2001).

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eventually became UDs.71 The study indicates that a majority of tenants vacate their unit before a UD is filed, not that the problem is somehow resolved without their displacement. Because few localities keep official records of notices given, it is nearly impossible to track the effect of displacement on those who move prior to the UD process.

Even tenants who do not become homeless after being displaced may face overcrowded or substandard conditions when they do find replacement housing. For example, over 30% of all housing units in Los Angeles County are classified as “overcrowded.”72 In the City of Los Angeles, approximately 40,000 families live in garages. 73 More than 125,000 apartment units in Los Angeles, about one out of seven, are substandard. 74 As reported in a national magazine, it is not uncommon in Los Angeles for families, including children, to live “in subhuman conditions – in garages and tiny apartments with rats, peeling lead paint and no hot water – some with rents as high as $1,000 a month.”75 Displacement from Neighborhood or City From 2003 to 2004, approximately 33% of renter households in Los Angeles moved to a new location (it is unknown how many of these moves were voluntary or involuntary). Of those households, 20% moved to worse neighborhoods.76 Data are not available regarding how many of these moves were due either to UDs or the threat of them via eviction notices. A study by the San Francisco Tenants Union indicated that nearly 70% of evicted tenants were forced to move to another part of the city. 77 Another study demonstrated that approximately one out of every five displaced households were forced to leave the city altogether.78 Of the tenant-defendants we surveyed at Los Angeles County courthouses, 67% indicated they would have to relocate to another city or neighborhood after a UD judgment was entered against them. 79 It is unclear to what extent rent control contributes to this problem. In some of these cases, tenants who have lived in a rent-controlled unit will now have to face market prices and therefore may not be able to afford a comparable unit in the same neighborhood.80 Tenants’ inability to find replacement housing within the same neighborhood or city disrupts their ties to their community and proximity to other family members. In addition, an eviction may force children into different schools, potentially mid-year, complicating school adjustment and slowing academic progress. 81

J. SCOTT WEAVER, ORA PROCHOVNICK, ROBERT BOUCHERT, MARCO SULTZI, JULIA KILEY AND HOLLY DELANEY, NEW COLLEGE OF THE LAW, WHEN THE LANDLORD SAYS MOVE (July 15, 2005), http://www.newcollege.edu/law/ housing_study.cfm.

72 Howard Fine, L.A. Eyes Development Fee to Create Housing Fund, LOS ANGELES BUS. J., May 15, 2000, http:// www.findarticles.com/p/articles/mi_m5072/is_20_22/ai_62386358.

73 Peter Dreier & Kelly Candaele, Housing: An L.A. Story, THE NATION, April 15, 2002, http://www.thenation.com/ doc.mhtml?i=20020415&c=2&s=dreier.

74 Id. Overcrowded units are also considered “substandard” by Los Angeles City building codes. See, e.g., City of Los Angeles General Plan, http://cityplanning.lacity.org/Cwd/GnlPln/HsgElt/HE/Ch2Bkgnd.htm (last visited May 3, 2006).

75 Dreier & Candaele, supra note 73.

76 U.S. Census Bureau, Current Housing Reports, American Housing Survey for the Los Angeles-Long Beach Metropolitan Area: 2003 Series H170/03-7, http://www.census.gov/prod/2004pubs/h170-03-7.pdf.

77 SAN FRANCISCO TENANTS UNION (SFTU), DISPLACEMENT IN SAN FRANCISCO: A STUDY OF RENTERS WHO HAVE MOVED (JULY 1989) [Hereinafter SFTU].

78 Hartman & Robinson, supra note 3, at 469, n.8 (citing SFTU, supra note 77).

79 Courthouse Surveys, supra note 19.

80 Rent control may also discourage tenants from vacating sooner, and compel them to contest a UD without a meritorious defense.

81 K.L. Alexander, D.R. Entwisle, S.L. Dauber, Children in Motion: School Transfers and Elementary School Performance, J. EDUC. RES. 90, 1-11 (1996).

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Increased Rent if Replacement Housing is Located A tenant forced to move as a result of the UD process, or who moves after receiving a notice, may be unable to find another unit with the same or less rent. For example, in San Francisco, nearly 80% of displaced tenants stated they were unable to find housing comparable in quality and price to their previous unit. 82 In Los Angeles in 2003, roughly half of renters who moved within the year, either voluntarily or involuntarily, paid increased rent in their new location.83 Relocation costs for a low-income tenant are often estimated at $5,000. 84 These costs may include: increases in rent, actual moving expenses, utility connections, and storage. 85 In addition, tenants often need cash equal to two times or more of monthly rent to pay for first- and last-month rent and security deposit.

Court System UDs are time-consuming and costly for landlords and tenants, as well as to the court system. An average of 110.5 minutes of staff time and 16.2 minutes of judicial time are required to handle each UD filing. 86 The Judicial Council of California has not calculated the monetary costs related to the staff and judicial time spent on UDs.87 Though these calculations are unavailable, it is likely that a significant amount of staff time and pay could be used more efficiently to reduce the number of UDs filed in California’s courts.

Preventing evictions that could otherwise have been avoided from entering the court system, and reducing the amount of time devoted to UDs being handled in the courts, will reduce overall costs to the court system.

SFTU, supra note 77. As discussed in the previous section, this problem may be due, in part, to rent control.

U.S. Census Bureau, supra note 76. As discussed in the previous section, this problem may be due, in part, to rent control.

84 See, e.g., DAVID PAUL ROSEN & ASSOCIATES, ANALYSIS OF CITY OF LOS ANGELES RENT STABILIZATION ORDINANCE MAJOR REHABILITATION PROGRAM 35 (March 1, 2003) (describing the amount of relocation assistance to be paid to a low-income tenant forced to relocate under West Hollywood’s Rent Stabilization Ordinance), http:// www.lacity.org/lahd/rehab.pdf. $5000 is a standard amount for relocation payment to tenants being displaced for some reason that entitles them to receive cash assistance.

85 Los Angeles Rent Adjustment Commission (RAC) minutes, at 3 (February 3, 2005), http://www.lacity.org/lahd/ racmin020305.pdf.

86 PAT SWEETEN, KRISTIN NICHOLS, & DAG MACLEOD, JUDICIAL COUNCIL OF CALIFORNIA, RESOURCE ALLOCATION STUDY: OVERVIEW OF THE INTERIM FINAL REPORT Table 5 (July 18, 2005), http:// www.courtinfo.ca.gov/jc/documents/0705item1.pdf.

87 The Judicial Council of California provides administrative support to the state court system. See also id.

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PROBLEMS AND RECOMMENDATIONS

III. A NALYSIS :

Problems and Recommendations The status quo produces too many avoidable evictions at too high a cost. Our policy recommendations focus on three broad areas for reform both before and during the UD process. There may not be many viable options, within the constraints of political and economic feasibility, for addressing the basic problem in cases of tenants’ inability to pay rent. However, improvements can be made to the UD process that will lead to better results overall in these cases as well as the other types of cases.

We conclude that the most effective UD reform for now would encompass the recommendations stated below in the form of a one-county pilot program. We recommend implementing a pilot program for two reasons: 1. It is currently more politically feasible than adopting all of these policies statewide; and 2. It would provide an opportunity to collect data to measure the outcomes of the new policies.

The pilot program should be implemented in a county represented by state legislators who have working relationships with both landlord and tenant advocates. This county should also be one in which landlords, tenants, and the courts have already demonstrated a willingness to work together productively, such as by utilizing existing mediation services. Furthermore, this county should have a relatively well-funded court system with budget flexibility to support new programs and a strong Legal Aid program with the capacity to adapt its UD practice. We leave it to the expertise of our client, the Western Center on Law & Poverty, to determine the most appropriate county and legislators for introducing this pilot program.

The pilot program should not be implemented until one year after the program is approved. This time will allow for data collection starting one year before the pilot program begins and will provide opportunities to compare data collected after implementation. In order to ensure data are not skewed by local ordinances, this pilot program should be implemented in a non-rent controlled jurisdiction. Such data could include the number of UDs filed in the county and a breakdown of UDs based on what type of notice was involved. The pilot program could also include a formal mechanism to collect data about notices themselves and the amount of tenant displacement that occurs outside of the UD process. 88

88

According to data obtained from Judicial Council of California staff, many local court systems simply have not reported the numbers of UDs in their jurisdictions on a regular basis. Over the time period of fiscal years 1998-99 to 2003-04, the court systems in half of California’s counties did not report their total number of UDs to the Judicial Council of California.

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Landlords and tenants share a common interest in reducing the costs involved with the UD process. Our goal for this pilot program is to demonstrate an improved process and reveal this underlying interest.

PROBLEM 1: The current eviction notice process is inadequate. It fails to provide either enough information or enough time for landlords and tenants to resolve their disputes without going to court.

Serving the tenant with a notice is the first step in the unlawful detainer (UD) process, but current notice language and substance is inadequate. 89 If a tenant does not understand the meaning of the notice and how to respond to it, she is even less likely to understand subsequent steps of the UD process. Eviction notices are inadequate because: • Notices are too difficult to understand and written mainly in English; • Notices do not provide enough time for tenants to move out or negotiate agreements with landlords; and • Notice times are not varied enough and do not reflect the nature of the underlying dispute.

A. Notices are too difficult to understand and written mainly in English.

Tenants often have difficulty understanding the notices served upon them for a variety of reasons. Notices are typically written in English, using sophisticated, legal language. 90 Many tenants are unable to understand the meaning of the notice and fail to respond adequately to its demands. With a better understanding of the consequences of the notice, they could respond by seeking legal representation or searching for replacement housing.

Sometimes tenants do not receive a notice the landlord claims to have served, or they receive a notice that contains incorrect information. The extent to which tenants fail to receive and understand notices and complaints is partially indicated by the high number of defaults 91 that occur. A landlord can request, and will most likely be granted, default judgment after the time has expired for a tenant to answer.

One tenant we interviewed sought help from the Association of Community Organizations for Reform Now (ACORN) after she received a 30-day notice to quit. She did not speak English and therefore did not comprehend the implications of the notice. She was unaware that by the time she sought ACORN’s assistance the notice had already expired and a UD had been filed against her.

In a sample of 400 UDs in Los Angeles, 165 tenants defaulted (41.3% of the cases), meaning that they failed to file an answer. 92 According to an unpublished study, tenants defaulted in 10,591 of 23,099 UD cases (46%) in Los Angeles during the first half of 1991.93 See Appendices E - H for examples of different types of notices.

See, e.g., NEW YORK COUNTY LAWYERS’ ASSOCIATION, THE NEW YORK CITY HOUSING COURT IN THE 21ST CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 9 (October 2005).

91 For an explanation of this term, see Glossary, Appendix A. 92 Zucker, supra note 16, at 178.

93 Gerchick, supra note 29, at 794 n. 127 (citing Richard T. LeGates & Allan Heskin, The Case Against Pre-Trial Rent Deposits in California (April 1992) (unpublished manuscript)).

89 90

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Several of the tenants we surveyed said they did “nothing” in response to receiving the notice. One said that she simply “didn't pay much attention” because she thought the dispute had already been resolved. Another said that she didn’t understand the nature of the dispute and wondered why she was there in court at all since it seemed unnecessary. She said of her landlord, “I don't know why he didn't just call me up” to discuss whatever the problem was.

Recommendations: Require more effective language on notices so more tenants will comply with proper notices. Give tenants the opportunity earlier in the process to learn about what the notice means and what their rights are by using more direct language, laying out their options, the risks of those options, and their chances of successfully defending the case without representation.

• Require that notices list telephone numbers and website addresses for local Legal Aid providers and tenant organizations, as well as for a neutral website maintained by the State that provides more information about notices and the UD process.94 • Translate notice materials into languages reflecting the ethnic composition of the county.

• Test notice materials using different media, including video, DVD, or audio (CD) notices that can be delivered to tenants or that may accompany written notices. 95 • In some types of cases, inform tenants that mediation is available.

Advantages: Clearly written notices will enhance tenants’ ability to resolve disputes, particularly by giving them more access to legal information. Better information for tenants will reduce the number of avoidable evictions.

Disadvantages: Providing tenants with a better understanding of the notice could result in more tenants contesting UDs. Rather than vacating or defaulting, more tenants might carry UDs through to trial and increase time to return possession of the premises to landlords. Furthermore, improving notices may not reduce displacement. Many tenants already understand the consequences of not moving, but lack the time to vacate.

B. Notices do not provide enough time for tenants to move out or negotiate ag reements with landlords.

Current notice periods provide little time for tenants to seek alternative housing or negotiate agreements with landlords. Upon being served with a notice, a tenant has only 3 days to pay rent or cure another alleged breach of her lease, 3 days to move, or in “no-fault” cases, 30 days to move.

The California Department of Consumer Affairs provides this information. See www.dca.ca.gov/legal/landlordbook (last visited March 23, 2006).

95 This idea was discussed in an expert interview. Interview with Gary Blasi, supra note 10.

94

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California state law used to require landlords to provide tenants with at least 60 days’ notice of their intent to terminate a tenancy without cause when the tenant had lived in the unit for one year or more. 96 However, that law sunset on December 31, 2005, and reverted back to the 30-day notice requirement. 97

A tenant we interviewed came to ACORN for help after she had been served with a 30-day no-cause notice. She said that she did not know what to do if she had to move. Even if she were able to afford to move, she was worried that she would need to find a new neighborhood along with three new schools for her children who are in elementary, junior high, and high school.

Recommendations: Establish longer notice periods in some types of cases – increasing informal settlements during the notice period, thereby reducing overall costs to both landlords and tenants by reducing the number of unlawful detainer cases that are necessary. This will reduce case processing time and costs as well as minimize the costs of involuntary displacement.

• Reestablish the 60-day no-fault requirement but with a better process so that more tenants actually move out within that time period: 98 Establish a new procedure for intervention where the tenant is informed that in most cases like hers, when a 60-day no-fault notice is provided, she will likely lose at trial if she does not move before then (but she is also informed of possible defenses and how to get help with preparing that case if it appears meritorious). To accomplish this process, the landlord must file a copy of the notice with the court and pay a small filing fee, but the case is not a UD. An appointment will be scheduled for the tenant to talk with a mediator. This recommendation should be coupled with better notices.

• Establish a limited right to cure in nonpayment cases: For cases involving 3-day notices to pay rent or quit, establish a right to cure up to the day of trial, upon payment of all the landlord’s costs related to the case, effectively extending the notice period and creating possibilities for settlement. It should be limited in use to no more than once a year.

Advantages: Longer notice periods give tenants a more realistic chance of either resolving the problem or moving before the time period expires. With fewer disputes requiring the full UD process, the court system can speed up the processing time for remaining UD cases, as well as other cases on the judge’s calendar.

In 2004, the Legal Aid Foundation of Los Angeles (LAFLA) and Inner City Law Center (ICLC) compared all the UD filings at the Long Beach courthouse for a one-month period before and after the 60-day law was enacted. 99 The number of no-cause cases dropped from 89 to 28, a 69% decrease. Part of this decrease can be explained by there being fewer total UDs filed in April 2004, compared to April 2002. However, the decrease is significant enough that it also is partially explained by the 60-day notice requirement, which allowed more tenants to move before UDs were filed.

Andrew LePage, California Renters to Lose Eviction Shield, SACRAMENTO BEE, Sept. 13, 2005, at D1, http:// www.sacbee.com/content/business/story/13558049p-14398679c.html.

97 SB 51 Assembly Floor Analysis, supra note 65.

98 For mediation requirements pertaining to our proposal for a new 60-day notice provision, see Problem 2, Mediation.

99 Our client, the Western Center on Law & Poverty, provided us with data relating to the 2004 Long Beach study. All data and findings pertaining to the Long Beach study described in this report were extracted from these materials.

96

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While the data show a decrease in UDs, the 60-day law is only one factor in a more complicated story explaining yearly fluctuations in UDs. With better data collection, this trend could be analyzed in greater detail.

320 303 240

245

160

80

0

89

28 For cause

Not for cause 2002

2004

Figure 4: UD case type comparison, Long Beach Courthouse, April 2002 & April 2004

The Long Beach data indicate that longer notice periods are helpful for reducing the number of UDs. Our recommendation goes a step further and should reduce UDs even more as a result. Furthermore, this proposal may enjoy broad political support. With a longer notice period and improved communication through mediation, more tenants will move within the notice period. As a result, landlords will recognize the benefits of this proposal. For further discussion of recent legislative efforts regarding the 60-day notice requirement, please see Appendix M.

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Regarding nonpayment cases in particular, extending the time to cure creates possibilities for settlement before resorting to the full court process. This saves overall time and expense, while also effectively extending the notice period. Landlords will also be less likely to engage in “posturing,” and instead be forced to consider reasonable settlement options given that there is no longer any guarantee they will win on the day of 52% of the landlords we surveyed stated they trial. Fearing that he may lose his case would favor re-establishing the 60-day notice at trial, a landlord will want to explore period if they could be assured tenants would what agreement might be reached move within the notice period. earlier on. Voluntary mediation100 will help the parties come to a reasonable agreement.

Disadvantages: Landlords may not support either of these proposals. Landlords may see extended notice periods or increased time to cure simply as additional time tenants will occupy the unit. Rather than taking the extra time to relocate or cure, tenants may take advantage of the extended time period and continue residing in the premises until they are forced to move. As a result, the number of UDs and the resulting costs may not decrease.

Also, it is clear from our earlier discussion of percentages of UDs based on different notice types that nofault notices account for a minority of UDs. Accordingly, recommendations that improve the process surrounding 3-day notices to pay rent or quit will have a larger impact than recommendations that achieve the same proportional impact for any other type of notice.

C. Notice times are not varied enough and do not reflect the nature of the underlying dispute.

Notice periods do not correspond with the underlying dispute. For example, both a tenant who is conducting illegal activity out of her unit, e.g., selling drugs, and a tenant who owns a pet in violation of her lease potentially have only three days before a UD is filed against them. Landlord lobbyists argue that they rely heavily on the 30-day “no-cause” notice to evict problem tenants because the “for-cause” legal process is too costly, lengthy, and demanding. As a result, a drug-dealing tenant may receive the same amount of notice as a tenant who owns a pet in violation of her lease, and potentially the same as a tenant who has done nothing wrong. Lease violations of widely varying magnitudes receive identical treatment.

Recommendations: Create a variety of notice periods, making them relate more directly to the nature of the underlying disputes.

• Establish intermediate options for landlords and widen the spectrum of available notice periods – create options between 60-day notices for no-fault eviction and 3-day notices for urgent cases: Establish a new 14-day notice for “minor fault” cases, and as a replacement to the current 3-day notice to cure or quit. Mediation will be required in these cases. UDs based on 14-day notices might involve loud parties or owning a pet in violation of the lease. (Note: If the 60-day notice requirement is implemented without accompanying intermediate notice options, it may serve as a perverse incentive for landlords to opt to give more 3-day notices to quit.)

100

See Problem 2, Mediation.

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• Fast-track “Urgent UDs” on 3-day notices to quit: Where a tenant’s behavior violates criminal law or severely and repeatedly impacts his neighbors in a detrimental way, a landlord should be able to obtain possession of the property quickly. These cases will be given scheduling priority in court. However, filing fees for UDs resulting from this notice will be higher than filing fees based on other types of notices. To prevail, a landlord will need substantial evidence of the tenant’s serious wrongdoing.

Advantage: A varied notice structure will not unduly punish tenants who have not committed serious harm to the landlord or other tenants. Landlord lobbyists maintain they would consider supporting a 60-day notice requirement if landlords were assured a better process for evicting “problem” tenants. 101

Disadvantage:

91% of landlords surveyed indicated they would be willing to pay as much as $150 more for their court filing fee if it meant a faster and easier process for removing tenants engaged in criminal activity on the premises.

Even a more varied notice system may not guarantee that tenants are able to locate replacement housing before a UD is filed against them. Neither 14 days nor, as discussed earlier, 30 days provides sufficient time to locate replacement housing.

Unless landlords are truly willing to support an extended notice period of 60 days for no-fault cases, this proposal may do little to reduce the number of UDs.

Gregory McConnell, Welcome to 2006, Sacramento Report (The Apartment Owners Association, Van Nuys, CA), Jan. 2006, at 2, http://www.aoausa.com/Mag/articles/2006/Jan%202006/05%20-%20Sacramento%20Report.pdf.

101

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PROBLEM 2: The current system provides insufficient incentives for parties to resolve disputes before, or earlier in, the unlawful detainer process.

A. The current practice of encouraging informal negotiation on the day of trial is costly and avoidable.

About 85% to 95% of general civil cases never make it to trial.102 Rather, most cases are resolved through settlements of some kind. In the UD context, because of the heavy volume of landlord-tenant disputes, settlement is nearly always encouraged by judges. In many courthouses, informal negotiations between parties on the day of trial have become standard operating procedure. 103 In our tenant surveys, 57% of the cases (12 out of 21) that were resolved on the day of trial were settled. 104 However, there were an additional 6 cases that were undecided on the days of our surveys, some of which may have also later ended in settlement.

While encouraging settlement discussions may reduce the time spent conducting trials, many costs involved with UD case processing only increase by waiting until the day of trial to settle. Parties will have already incurred court filing fees and possibly attorney fees and other costs. Weeks and months may have passed since the dispute began, probably with rent not being paid throughout the duration of the dispute.

82% of the landlords we surveyed would have favored resolving their disputes out of court if it cost them less time and money. However, many expressed reluctance that tenants would live up to their agreements. One landlord believed tenants simply contested evictions in order to “make me spend more money.”

Certain barriers prevent parties from coming to an agreement until an outside party, like a judge, intervenes.

Both landlords and tenants express frustration with the process. In our surveys, many landlords said that they had given their tenants the opportunity to cure lease violations before pursuing the formal eviction process, but when tenants failed to comply, landlords turned to litigation as a last resort. 105 The vast majority said that they would have favored resolving the dispute out of court if it meant spending less time and money, which we believe is possible with better policy. It is not the appeal of the court process that compels landlords to pursue UD litigation, but the lack of any better alternatives.

Joel Kurtzberg & Jamie Henikoff, Freeing the Parties From the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53, 72 (1997).

103 Interviews with Commissioner, Los Angeles County Superior Court, in Los Angeles, CA (Feb. 10, 2006 & Feb. 17, 2006). The Commissioner explained that he begins court each morning “by driving the fear of God, or at least economics” into the litigants. In our courtroom observation, he explained to the packed courtroom that 50% of the people who stand before him will walk away with nothing. In UD cases, he says, 99% of the time the landlord regains possession of the unit. The loser, most likely the tenant, may be forced to pay thousands of dollars to the winning party and end up with a negative mark on their credit report “that can follow you around for the rest of your life.” At least with settlement, the commissioner explained, the potential exists for both parties to walk away with something. Agreements may be made whereby a tenant agrees to pay a decreased amount of money than was previously demanded or gets additional time to vacate the premises. Like many judges who hear UDs, he orders the parties to leave the courtroom to talk and attempt to settle their cases.

104 Courthouse Surveys, supra note 19.

105 Id. 102

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With many cases resulting in informal settlement, pursuing litigation is often unnecessary – except to the extent that the litigation has served more as a threat to get parties to finally resolve the dispute. Costs that accrue between an initial dispute and judgment at the courthouse could be avoided if negotiations occurred closer in time to when the dispute first arose.

B. Informal negotiations overwhelmingly favor landlords to the detriment of tenants, resulting in higher rates of displacement than necessary.

The emphasis on informal and unmonitored settlements is a cause for tremendous concern in UDs. Informal negotiations favor landlords for two main reasons. First, most landlords have navigated the court system before and are well aware of the legal intricacies of landlord-tenant law. 106 Second, the majority of landlords are represented by attorneys.

In contrast, many tenants going through the UD process are poor, unsophisticated, and unrepresented by attorneys. 107 Many tenants are both unaware of their rights and frightened or intimidated by the situation.

Therefore, they often fail to assert properly their position In our surveys of tenants at the and legal claims in the case.108 courthouse on the day of their trials, it was clear that many of them simply did not understand the consequences of what was happening. 15% of tenants admitted that they did not understand what had happened in their cases. However, many tenants, even if they felt prepared for court, and even if they thought they understood the terms of a settlement they had agreed to, did not appear to completely understand. One tenant, even though he said he understood what was happening in his case, commented, “You don't know what you're agreeing to.”

Despite judges’ encouraging informal settlement, tenants often fare worse through informal negotiation than through adjudication. 109 Parties often agree to a stipulated judgment,110 most likely including a payment plan and/or a timeline for the tenant to vacate the unit.

However, agreements entered as judgments will negatively impact tenants’ credit and, in turn, their ability to successfully apply for and rent other housing.

Also, in cases where tenants have asserted defenses based on substandard housing conditions, 111 landlord attorneys may draft agreements that do not address these issues.112 There is little judicial oversight of same-day settlements.

As one Legal Aid attorney noted, “Settlement, in theory, almost always is preferable to litigation, but what happens in landlord-tenant court is not true settlement.

With little information and even less bargaining power, many tenants sign away their rights and the court does little or nothing to protect them.” 113

Marc Galanter Why the Haves Come Out Ahead: Speculations on the Limits of Legal Changes, 9 L. & SOC’Y REV. 95, 97 (1974).

107 Interviews with Commissioner, Los Angeles County Superior Court, supra note 103.

108 Kurtzberg & Henikoff, supra note 102, at 72.

109 Id at 99.

110 For an explanation of this term, see Glossary, Appendix A. 111 Cases where tenants have asserted defenses based on substandard housing conditions (habitability cases) are discussed in Problem Section 3.

112 Kurtzberg & Henikoff, supra note 102, at 72.

113 Hartman & Robinson, supra note 3, at 479 (citing Julie Becker, Letter to the Editor, WASH. POST, Oct. 27, 2002).

106

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Recommendations: Create a mediation process for those cases that could be handled more efficiently and equitably than they are in the current system.114 Providing mediation services can be an effective, low-cost way to clear overloaded court dockets in a manner that is fair to the parties. Mediation is a participatory process in which two parties can agree on a settlement that would have otherwise been unattainable through adjudication. Rather than settling in courtroom hallways and exposing tenants to potentially unfair agreements, two parties engage in mediation with the assistance of an unbiased third party who facilitates the process.

A mediator does not act as an attorney, judge, or arbitrator, but instead facilitates communication between the parties and helps to generate ideas for resolving the dispute. In mediation, the parties are free to consider how a judge might decide the case, but are not bound by law to reach only one specific resolution to the matter. For instance, parties could reach a conditional agreement whereby the case is continued and judgment is avoided on the condition that the parties execute the terms of their agreement.

The initial step of the mediation process may require the mediator to speak with one party at a time, by telephone, to assess the situation.115 Once both sides provide some initial information, the mediator might request both parties to resolve the issue with a simple proposed solution. If “phone conciliation� fails, the mediator may then schedule a date for both parties to discuss the issue together in person. If no agreement is reached during mediation, in phone or in person, the parties are in the same position as before mediation, and can then pursue resolution through adjudication.

114 115

22% of the tenants we surveyed were not aware of the possibility of having a negative mark of their credit record because of being named as a defendant in a UD. Others commented that they were aware of that possibility but thought it would happen only if they lost the case. It is likely that the settlements that some tenants agreed to in court were to be entered as stipulated judgments, which would not be masked and would appear on the tenant’s credit record at some point in the near future. It is unlikely that these tenants understood the potential credit reporting consequences of their settlements. To the extent they had considered the issue at all, they probably thought that a settlement would protect their credit when in fact the opposite was likely to be true.

For more information on mediation generally, including implementation strategies, see Appendix N. Interview with Mediation Staff, Project Sentinel, in Palo Alto, CA (March 15, 2006).

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We recommend mandatory or voluntary mediation for cases, based on the nature of the dispute: Voluntary 3-day nonpayment 3-day urgent

Mandatory 3-day nonpayment with credible habitability defense 14-day cure or quit 30-day notice to quit 60-day notice to quit

Mandatory mediation cases will be “no fault” cases, 14-day cure or quit cases, and 3-day nonpayment cases where the tenant has credible claims relating to substandard housing conditions. 116 No-fault cases are particularly ripe for mandatory mediation because they offer longer timelines, allowing for opportunities to reduce costs by intervening before a UD is filed.

Cases based on 3-day notices, other than where tenants are asserting a credible defense based on substandard housing conditions, will be resolved as they currently are through the UD process, or landlords may opt for voluntary mediation. These cases may not be good candidates for mandatory mediation because of their urgent nature and because it may be difficult to resolve these disputes through mediation.

Still, landlords will have the option of voluntary mediation in these cases. We believe that, through this pilot project, landlords will realize that mediation is a more efficient process for certain types of cases.

Voluntary Mediation • Create an incentive to engage in mediation for cases by increasing filing fees for non-mediated UDs. By creating higher filing fees for non-mediation cases, some landlords will choose to engage in mediation. Filing fees for mediated cases would be set at the current rate for UD filings, about $300, 117 while fees for nonmediated cases would markedly increase. In order not to increase UD processing time significantly, the mediation track would have to run parallel to the UD track. A request for mediation would be made by the landlord when the UD is filed.

Mandatory Mediation • Create a new process for cases based on “no-fault” and 14-day notices in which proof of mediation is required prior to filing a UD. 118 For 30- and 60-day notices, a landlord can file with the court a copy of the notice served on a tenant and request mediation for a small filing fee. If the landlord believes that he will need to file a UD, then mediation is mandatory beforehand. If mediation fails and the UD becomes necessary, then the mediation filing fee will be credited to the UD filing fee. A landlord cannot file a UD unless a mediator has certified that mediation was attempted by the landlord in good faith.

Because the underlying disputes in cases based on 14-day notices are more substantial, these cases will require the standard $300 filing fee and require mediation after a notice is served upon a tenant and before filing for a UD. Cases based on 14-day notices receive scheduling priority for mediation (so that they can be

This will be discussed in Problem 3.

See “Costs Associated with the UD Process,” in Section II, “Background: Overview of the UD Process.”

118 Mediation related to habitability cases will be discussed separately in Problem 3. See Problem 1 for discussion of notice periods.

116 117

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mediated before the notice period has expired). implementation strategies, please see Appendix N.

PROBLEMS AND RECOMMENDATIONS

For further discussion of mediation generally and

!Advantages of Mediation: Compromises and settlements are more likely to mirror the desires of the parties: 119 Well-trained mediators can produce potential gains for both parties that were not previously realized.

Faster dispositions and less burdensome on the courts: Mediation can be conducted out of the courthouse, in a private setting or over the telephone. As a result, mediation would relieve court congestion. With some cases being resolved through mediation, the number of UD cases on the courts’ trial dockets will be reduced, allowing the courts to process those cases that remain in the system more efficiently. Even in those cases where a mediated agreement is not reached, parties who attempted mediation before trial are more likely to understand each other’s positions and be better prepared for trial.

Less costly in terms of time and money: By improving communication and understanding between the parties, costs involved with pursuing unnecessary litigation – e.g., filing fees, attorney fees, and time – will be reduced. Typically, a case mediated over the phone lasts approximately 30 minutes to 75 minutes, and an in-person mediation may last up to three hours.120 In our experience, landlords, tenants, and attorneys spend anywhere from two to seven hours at the courthouse for their trial, depending on the court’s docket for the day. Typically, court cases are all scheduled for a calendar call at the same time, so parties may then wait all day for their turn to be heard in court. Mediation sessions, on the other hand, can be conducted easily by telephone or by personalized appointment.

Landlords have little incentive to come to an agreement by the time they are already at court on the day of trial. Mediation offers landlords and tenants an opportunity to come to a reasonable agreement with fewer costs and earlier in the process.

Opportunity to minimize involuntary displacement: A study at four different mediation clinics, comparing mediation outcomes with adjudication and informal settlement outcomes, found that tenants fared better in mediation than in the other two processes. 121 In one mediation clinic, 33% of tenants ultimately agreed to vacate the premises. 122 By comparison, landlords regained possession 100% of the time through both adjudication and informal settlement. 123 A successful payment plan for tenants was set up in 60% of the mediated cases. 124 These findings suggest that mediation can reduce unnecessary involuntary displacement of tenants, while allowing for mutually beneficial outcomes to be reached by both landlords and tenants.

Disadvantages of Mediation: Lack of incentives for landlords: Landlords may not support mediation if it does not significantly reduce costs and/or case processing time. The current process, while costly to landlords, strongly favors them. Unless

Zucker, supra note 16, at 164.

Interview with Mediation Staff, Project Sentinel, supra note 115.

121 Kurtzberg & Henikoff, supra note 102, at 109. The authors of this study selected four separate mediation programs as representative of mediation approaches. “The first program seeks to completely avoid incorporation of the law into landlord-tenant mediation; the second incorporates the law through the use of a ‘neutral manual,’ which parties may request to see but mediators will not explain; the third program has mediators directly tell the parties what the law says, but only if asked; and the fourth has mediators not only explain the law, but encourages mediators to predict court outcomes if the case were to proceed.” Id. 122 Id. 123 Id., at 98.

124 Id., at 100.

119 120

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mediation can be proven to reduce time and cost while maintaining favorable outcomes, landlords will oppose the idea.

Landlord posturing may increase costs: Mediation could potentially increase costs to the courts because it would encourage posturing by landlords. If a landlord does not find a deal acceptable, he can simply take his case to trial and will likely win.

The number of UDs based on 3-day notices will not decrease: In order not to increase UD case processing time significantly, the mediation track in 3-day notice cases would have to run parallel to the UD track, meaning that mediation would have to occur after the UD was filed. Therefore, while this option may decrease the full case processing and trial costs to courts in some cases, and decrease involuntary displacement in those cases, it may not prevent initial filings of these types of UDs.

C. Settlements often take longer than the 60-day unlawful detainer masking period provides.

Even where parties are able to reach an agreement after a UD has been resolved and judgment has not been entered against the tenant, the tenant’s credit may still be adversely affected. If the tenant settles her case on the day of trial, the court file has already been masked for approximately 35 days in a typical case.

Often, with a conditional agreement when no judgment has been entered in the case yet, the case will need to stay open beyond another 25 days to be finally resolved either by dismissal or judgment. This would push resolution of the case past the 60-day masking threshold. Consequently, even a case dismissed upon proper completion of terms of the agreement could result in the tenant being listed in the U.D. Registry. In that case, the tenant’s credit record would be impaired even if she vacated as agreed and the landlord dismissed the case.

Recommendation: Create incentives for the parties to reach agreements through mediation and protect tenants’ credit records.

• Lengthen the masking period time from 60 days to 90 days: In some cases, a mediated agreement will not result in judgment being entered against the tenant if she has complied with terms of the agreement. By extending the masking period for UD cases, courts will have adequate time to review and dismiss a case upon fulfillment of the terms of the agreement. Extending the masking period would preserve the tenant’s credit and future ability to rent.

Advantage: Because most adjudicated cases result in judgments entered against tenants and negative marks on their credit reports, informed tenants should prefer to settle their cases and avoid the consequences associated with being placed on the U.D. Registry. This recommendation would provide a more reasonable window of time for mediated agreements to be reached and fulfilled.

Disadvantage: Extending the masking period for UD files may act as a perverse incentive in that it may encourage bad faith participation in mediation by tenants. Tenants may feign agreement during the mediation process but then not abide by the terms of the mediated agreement. In addition, even a tenant who participates in the mediation process in good faith may ultimately be unable to fulfill the terms of the agreement. In either case, tenants could pursue replacement housing without prospective landlords being made aware of the UD at issue. As a result, landlords may not support extending the masking period.

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PROBLEM 3: Substandard housing conditions are not properly considered by judges as a defense to nonpayment cases.

Much of California’s low-income rental housing stock is legally uninhabitable. It is this segment of the market that produces much of the state’s unlawful detainer (UD) activity. In our courthouse surveys, 56% of UD defendants in nonpayment cases asserted habitability as a defense, arguing that they did not owe the amount of rent claimed by the landlord because of their substandard housing conditions. 125 Despite the frequency with which tenants assert habitability defenses, tenants hardly ever win. This is likely not due to the habitability defenses not being meritorious, but rather to the fact that most of the tenants were not represented by attorneys and judges did not properly consider their defenses.

Habitability issues range from what might be considered fairly minor problems to dangerous and lifethreatening conditions. However, even minor problems can be major inconveniences to tenants when landlords do not respond to repair requests promptly. Specific habitability violations are defined by both state law and local housing code ordinances, but the types of conditions at issue in a typical habitability case include: • • • •

roach and vermin infestation; sewage backed up and overflowing; exposed electrical wiring and outlets that do not work; no working heat;

• • • •

broken or defective floors, ceilings, windows and walls; defective or missing locks on doors and windows; stairs and railing that are not maintained in safe condition; and mold.

The California Department of Housing and Community Development reported that approximately 12% of rental housing is considered substandard. 126 In Los Angeles, 8% of all renters, and 11% of renters below poverty level, observed signs of rodents in their homes. 127 Poor families are 2.8 times more likely to have incomplete kitchen facilities, 2.3 times more likely to suffer a lack of heating, and 1.5 times more likely to have incomplete plumbing facilities than non-poor families. 128 In Green v. Superior Court (1974), the California Supreme Court held that a warranty of habitability129 is implied by law in residential leases and that the breach of the warranty may be raised as a defense in a UD. 130 Under this implied warranty, a residential landlord covenants that the premises he or she leases for living quarters will be maintained in a habitable state for the lease’s duration. The fact that tenants remain

Courthouse Surveys, supra note 19.

See CAL. HEALTH & SAFETY CODE § 17998(a) (“The [California] Department of Housing and Community Development reports that one in every eight dwelling units in the state is substandard . . .”); see also CALIFORNIA BUDGET PROJECT, STILL LOCKED OUT: NEW DATA CONFIRM THAT CALIFORNIA’S AFFORDABLE HOUSING CRISIS CONTINUES (March 2001), http:// www.cbp.org/2001/r0102slo.html.

127 U.S. Census Bureau, supra note 76.

128 Id. 129 For an explanation of this term, see Glossary, Appendix A. 130 Green v. Superior Court, 10 Cal. 3d 616 (1974).

125 126

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living in premises they claim are uninhabitable has no bearing on the legal question of whether the premises are habitable. 131 The Green Court addressed the reality of “the scarcity of adequate housing” and recognized that “even when defects are apparent, the low income tenant frequently has no realistic alternative but to accept such [poor quality] housing with the expectation that the landlord will make the necessary repairs.”132 The Legislature has adopted common law habitability principles in various code sections. In 1986, it attempted to codify some of the key points of the Green holding and provide guidance for how a court should adjudicate a UD where the habitability defense has been raised: If the court finds that a substantial breach has occurred, the court (1) shall determine the reasonable rental value of the premises in its untenantable state to the date of trial, (2) shall deny possession to the landlord and adjudge the tenant to be the prevailing party, conditioned upon the payment by the tenant of the rent that has accrued to the date of the trial as adjusted pursuant to this subdivision within a reasonable period of time . . ., (3) may order the landlord to make repairs and correct the conditions which constitute a breach of the landlord's obligations, (4) shall order that the monthly rent be limited to the reasonable rental value of the premises as determined pursuant to this subdivision until repairs are completed. . . . 133 A “substantial breach” occurs if the landlord fails “to comply with applicable building and housing code standards which materially affect health and safety.” 134 Given the apparent strength of established state law, it seems that the process ought to work better for enforcing tenant protections. However, because habitability case procedures are complicated and can divert the court’s attention away from quickly determining whether the landlord is entitled to possession of the unit, landlords and judges tend not to like the habitability defense. From their perspective, often it is raised only in response to a demand to pay rent, and many times is not justified.135 In some cases, landlords complain that they have not been sufficiently informed about the habitability issue until it is raised as a defense in the UD case.

Judges also find the process unwieldy. To properly decide a habitability case, they must consider much more evidence than is usually required in a UD trial. Making that process even more unpleasant for judges, tenants usually are unaware of how to garner and present admissible evidence. As a result, because the process is complex and time-consuming, judges may not follow the law, even when a tenant has a strong habitability case and presents it properly.

For example, if the landlord’s claim is that the tenant owes rent, but the judge finds the tenant has proven her habitability claims, then the judge must assign a dollar or percentage value to the substandard conditions and reduce that amount from the rent allegedly owed. The judge cannot simply enter judgment for one party or the other but must enter a conditional judgment, ordering the tenant to pay the reduced rent. The case is not disposed of by a final judgment that day in court. Rather, the case will likely return to the judge at some later time to follow-up on what has transpired, including whether or not the tenant has paid the lesser amount of rent she was ordered to pay and whether the landlord has made any repairs.

Knight v. Hallsthammar, 29 Cal. 3d 46 (1981).

Green, 10 Cal. 3d at 625.

133 CAL. CIV. PROC. CODE § 1174.2(a).

134 Id. at § 1174.2(c).

135 For a discussion of a previous effort to address supposedly frivolous habitability claims, see Zucker, supra note 16, at 159; see also Bruce Zucker, Green Perseveres: The Implied Warranty of Habitability Enters the 21st Century in California, 20 T. JEFFERSON L. REV. 277 (1998).

131 132

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Judges and landlords often ask rhetorically why a complaining tenant does not just move if the conditions are as bad as claimed. In fact, this question was raised during one of our courtroom observations. 136 The question, however, fails to consider the reality of the rental housing market, including the high cost barriers to moving, as well as the difficulty in finding another affordable, but more suitable, unit. In a tight housing market with few affordable housing alternatives, tenants are often willing to tolerate substandard conditions with the hope of creating as little disturbance to their landlord as possible, so as to avoid the threat of eviction.

The “slum housing” market is generally more accessible than other segments of the market to people with low incomes and poor credit ratings. Indeed, it thrives, in part, on a revolving class of tenants who may have never known anything better in their housing conditions. The threat of eviction and displacement is commonplace. While many of these disputes find their way to the court system, a substantial and unknown number do not. As one Harvard law professor notes: Tenants do not enforce their legal rights for a variety of reasons. These include ignorance of their rights, the frequent unavailability of free legal services, the prohibitive cost of private representation, and the fear that if they successfully sue the landlord, he or she will improve the premises to Code, and then raise the rent. . . . The legal norm, according to which a tenant who contracts with full knowledge to pay the market rate for sub-code premises can default on that payment and resist eviction, may well be ignored because it violates the informal norm. Given that most units in low-income neighborhoods are subcode, and that neither tenants nor public authorities enforce the formal norms, it follows that market rents for many units are set on the basis of sub-code conditions. When a tenant successfully sets up defenses to non-payment or forces improvement, he or she is going back on what both parties understood to be their agreement. If large numbers of tenants behaved in this way over a long time, rents would have to rise to correspond to the increased maintenance costs needed to keep the units up to code, and/or to correspond to increased default levels, if tenants simply skipped rather than forcing improvement.137 Simply put, there is no viable legal procedure for a low-income tenant to force a landlord to make necessary repairs. If demands for repairs are not acted upon by the landlord, the tenant is placed in the uneasy and risky position of having to withhold rent to get the landlord’s attention and to try to force the issue. The tenant will then likely have to defend her actions in the context of UD litigation when the landlord sues her for nonpayment of rent.

Given the reality of a tight housing market, even if a tenant did not complain to her landlord about any problems before, she may have a valid habitability defense. Without legal representation, however, successfully asserting this affirmative defense will be near impossible. A study conducted by Gary Blasi, Professor at the UCLA School of Law, showed “a consistent pattern of a ‘law of the courtroom’ that was completely at odds with clear statutory and appellate authority.” 138 Out of 151 tenants who had valid habitability defenses to a UD, none of these tenants prevailed in court, including the ones who had been prepared by attorneys beforehand. Some of them settled their cases, but on “terms [that] were no better than what would have happened had they gone to trial and lost.” 139 The units in which the defendants

Courthouse Surveys, supra note 19.

Duncan Kennedy, Legal Economics of U.S. Low Income Housing Markets in Light of ‘Informality’ Analysis, 4 J.L. SOC’Y 71, 82-84 (2002).

138 Blasi, supra note 20, at 868 n. 14 (citing Blue Ribbon Citizens’ Comm. on Slum Housing, Executive Summary, The Los Angeles Civil Justice System and the Warranty of Habitability 3-4 (June 15, 1997) (unpublished report)). “The full final report was never issued by the Blue Ribbon Committee because court officials agreed to remedy many of the problems identified in a preliminary version of the Executive Summary.” Id. For an explanation of “appellate authority,” see Glossary, Appendix A. 139 Blasi, supra note 20, at 869.

136 137

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lived were “twice as likely to have housing code violations as the average apartment building in Los Angeles. . . . [and] we could be reasonably certain that a fair number of the pro se tenants would have been expected to prevail in decisions based on the law and the facts.”140

“I can give a tenant all the documents he or she needs to present a winning defense, I can tell the tenant exactly what he or she should say to the judge in the courtroom, but once it comes time for the tenant to speak, they freeze up and forget what to say.

They forget everything I’ve told them.”

- Interview with Staff Attorney, Inner City Law Center, in Los Angeles, California (February 2006)

Because of these pitfalls in existing legal procedures, the lack of accessible legal representation for tenants, and the current housing market, the warranty of habitability often is not properly asserted by tenants or considered by judges.

Still, improvements to legal procedures and providing incentives to create a market for private attorneys to represent tenants in habitability cases can force substantial improvements over time. Further, doing so will encourage landlord investment in proper maintenance of their properties and discourage frivolous UD filings by landlords who need to make repairs before demanding full payment of rent. For more details on the law of habitability, please see Appendix O.

Recommendations: Create a better process for habitability cases that prioritizes using available resources on the most serious cases.

The following process will serve to screen cases to determine whether habitability defenses are meritorious. In effect, habitability will be harder for a tenant to claim, but easier to win with good proof. The new process will assist all parties in marshalling information that is or should be readily available. There are five components to this process: 1. Standardize forms for tenants to request repairs.

A standardized form on which tenants may request repairs helps establish the validity of the tenant’s habitability defense and discourages frivolous habitability defenses from being claimed against the landlord.

A standardized form will encourage better understanding by parties about what the law requires. Better documentation and reporting of habitability problems by tenants will give landlords an earlier opportunity to resolve problems and avoid learning about them only after filing a UD. In cases where the repair request is credible, the parties may agree to “stop the clock” on a nonpayment dispute for a short period of time.

Rather than litigating the case, the parties can negotiate the specifics of what repairs are needed and the timeline for completing them. At the same time, the parties can renegotiate the amount of rent due, pending the completion of the repairs.

Unfortunately, in many local jurisdictions, it is unreasonable to think that this period of time could also be used for independent investigation by code enforcement officials since they have a long backlog of cases already. 141 2. Improve language on notices to better inform tenants about the habitability procedure.

The language on a 3-day notice to pay rent or quit should establish that there is a high burden to claim habitability as a defense and inform the tenant of her options for resolving the matter.

140 141

Id., at 876. For an explanation of some terms contained in this quote, see Glossary, Appendix A. Interview with Gary Blasi, supra note 10.

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3. Coordinate code enforcement information with unlawful detainer file information.

Require court staff to investigate briefly the habitability claims being asserted in a tenant’s answer by referring to code enforcement agencies’ data to determine whether there have been prior code violations at the tenant’s premises or by the landlord at other premises. For instance, in Los Angeles, the Systematic Code Enforcement Program (SCEP) mandates regular inspections of all rental units rather than performing inspections based only on tenants’ complaints. 142 Court staff could easily access these records, perhaps even online, in preparing a habitability case for further processing through this new system.

To streamline the process, this evidence will be admissible on the Court’s own motion. While this information may not be directly relevant to the tenant’s case, it will provide circumstantial evidence as to whether the tenant’s claims are likely to be true based on the landlord’s prior record and the conditions generally at the building.

4. In cases where court staff finds evidence that corroborates the defendant’s habitability claim based on code enforcement records or based on the number of defendants who have claimed habitability defenses at that premises or against that landlord, those cases are referred to mandatory mediation.

Properly trained mediators can play an intermediary role in helping parties communicate and find common ground, if there is any to be found, on how to resolve the problem. It is realistic to believe that this type of process will lead to better resolution of many habitability cases that may arise from good faith143 disagreements about conditions and repairs and the proper amount of rent to be paid pending resolution of the problems. This process should reduce the number of UDs that need to be fully litigated and improve overall outcomes in habitability cases, with more repairs being made and less displacement occurring.

5. Provide incentives for private attorneys to represent tenants and strengthen the capacity of local Legal Aid organizations to handle serious habitability cases.

Ask local bar associations to create a referral list of private attorneys who are willing to consider representing tenants in strong habitability cases that are scheduled for trial (those where the likelihood of substandard conditions have been corroborated in Step 3 and where the mediation in Step 4 has failed to produce an agreement). Since attorneys can be assured that the cases being referred have merit and may yield attorney fees, more attorneys should be willing to take these cases, resulting in more repairs being made and less tenant displacement. Furthermore, in a strong habitability case, defending the UD may lead to the possibility of bringing an affirmative case that may lead to a substantial money judgment.

Advantages: These recommendations have a strong possibility of reducing the number of habitability cases that will require full court intervention by way of trial. Habitability is a common defense in UDs based on nonpayment of rent, the largest category of UDs by far. As a result, these proposals could markedly improve the process for handling a high percentage of total UDs. In cases where agreement is possible at all, a workable agreement is much more likely to be achieved via mediation, where the parties retain control of the decision. In minor habitability cases, it should be relatively simple for the parties to agree that eviction is a drastic and unnecessarily expensive way to resolve a problem. Time and money can be saved by simply making repairs and improving communication between the parties. For cases that cannot be successfully mediated and trial is required, the court will have

142 143

Los Angeles Municipal Code (LAMC) § 161.351, et seq.

For an explanation of this term, see Glossary, Appendix A.

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better information available to it and more attorneys available to handle the warranty of habitability defense.

Disadvantages: There is the possibility that tenants will abuse this system. Tenants may use any step in this process to continue not paying rent, or paying a reduced amount of rent, before eventually having to vacate. In cases where a tenant has withheld rent due to habitability violations, there is no guarantee that a tenant will be able to pay rent owed even after repairs are performed. It is also possible that landlords will abuse this system. Landlords may claim they never received the tenant’s repair form.

Contrary to the danger of tenants abusing this system, tenants may also be hesitant or unwilling to raise habitability concerns for fear of retaliation, either in the form of eviction or increased rent. Providing a form on which to indicate needed repairs does not ensure tenants will feel comfortable using it.

Increasing landlord responsibility to make repairs will be a significant undertaking. In Los Angeles, 78% of renters stated that major repairs were needed on their apartments.144 A better process for getting repairs made may result in greater costs to landlords. Moreover, landlords may decide to convert their buildings to other uses or charge higher rents, resulting in less affordable housing, and furthering or commencing gentrification of a particular neighborhood. Court staff may be concerned that this proposal adds bureaucratic layers or increases the amount of time and work spent on cases involving habitability defenses.

144

U.S. Census Bureau, supra note 76.

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CONCLUSION

C ONCLUSION :

The Importance of a Pilot Program We envision implementing our recommendations in a pilot program in order to more accurately measure the extent of the problem and the impact our proposals may have on the current system. Lack of data collection about the unlawful detainer process limits the potential to understand the problems associated with it and to devise policy solutions that address those problems.145 The pilot program should be conducted in a county where key legislators who will support the idea have working relationships with both the landlord and tenant communities. Also, this pilot program should be conducted in a county where features of the program will not conflict with local rent control ordinances. If either landlord or tenant groups oppose the recommendations that make up the pilot program, there is little chance that it can become successful, or even adopted.

Currently, the large number of evictions and inefficiencies in the UD process impose too many costs to landlords, tenants, and the court system. With enough support from all stakeholders, the pilot program holds the possibility to change the political landscape between landlords and tenants, allowing for mutual benefits that were previously unrecognized. Implementing these recommendations146 will help prevent avoidable evictions, reduce the number of UDs, and allow for more efficient processing of remaining UDs.

145 146

See Appendix P for further information on the problem of insufficient data about UDs. See Appendix Q for a complete listing of our problem statements and recommendations compiled in one place.

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APPENDIX A

A PPENDIX A

Glossary This glossary contains informal definitions based on our experience and is not intended to be authoritative or to be used for purposes other than to better understand this report.

Answer In a lawsuit, the defendant’s written response to the complaint filed by the plaintiff.

Appellate Authority Decisions of the appeals courts of the state that must be followed by lower courts, including trial courts.

Breach Violate. A tenant may be accused of breaching the lease. A landlord may be accused of breaching the warranty of habitability.

Code Enforcement Local enforcement of housing codes. The local department responsible for enforcing housing codes.

Complaint The first paper served on a defendant and filed with a court by the plaintiff to initiate a lawsuit.

Default When a party in a lawsuit fails to respond and file the necessary paperwork with the court within the time allowed. In an unlawful detainer case, when the tenant fails to file an answer within 5 days of being served with the complaint, after which time the landlord requests and is granted a default judgment, meaning that the tenant has lost the case.

Displacement When a tenant moves. May be voluntary or involuntary.

Eviction When a tenant is forced to vacate the premises involuntarily. This may happen when a tenant moves in response to an eviction notice and/or following the tenant losing an unlawful detainer case.

Good/Bad Faith When a party is acting in an honest/dishonest way.

Habitability The conditions of a housing unit, whether it is in decent and livable condition, usually referred to in the negative sense. A housing unit with habitability problems has substandard housing conditions and needs repairs.

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APPENDIX A

In Forma Pauperis (IFP) When a party to a lawsuit cannot afford to pay the court filing fee, she can file a fee waiver application and request to proceed in the case in forma pauperis, without having to pay the filing fee.

Judgment A court order, the judge’s decision, entered as the final resolution in a litigated case.

Judicial Council of California The administrative arm of the state court system, responsible for data collection, research, and analysis.

Posturing The tendency during negotiations to not be completely honest and to “puff up” one’s own position to try to force the other side to accept a settlement that is better for his own side and worse for the other side.

Pro Se or Pro Per When a litigant (party to a lawsuit) is not represented by an attorney. “In pro per” is short for the Latin “in propia persona.”

Rent Control/Rent Control Ordinance Some localities in California, but not the state as a whole, limit the amount of annual increases in rent that a landlord can charge an existing tenant. However, “vacancy decontrol” allows landlords to charge any amount to a new tenant moving in. While rent control benefits long-term tenants, it may increase prices for new tenants and provide perverse incentives to landlords to not maintain the property and to evict tenants (so that they can then raise the rent).

Rental Agreement The agreement between a landlord and a tenant regulating their relationship concerning the premises being rented. The most important terms of a rental agreement are usually the rent amount and the term (length). Here, we use the more inclusive term “rental agreement,” which can include oral and implied agreements, to also include a “lease,” usually thought of as a more formal written rental agreement.

Responsive Pleading A document filed with the court in response to a lawsuit. In an unlawful detainer case, a tenant defendant usually files an answer first, but she may also file certain types of motions, such as to request that the court to dismiss the case.

Statute/Statutory A state law/referring to state law.

Stipulated Judgment An agreement by the parties to settle the case that is entered as a judgment in the case and has the same effect as if there had been a trial and the judge made the decision.

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Uncontested When a defendant defaults (fails to file a responsive pleading within the time allowed), the case is uncontested and she will probably lose, as long as there are no technical errors in the plaintiff ’s pleadings. Similarly, when a tenant fails to appear for a trial date, but the landlord does appear and present evidence, that evidence is uncontested and the landlord will probably win.

Unlawful Detainer A type of court case that a landlord files against a tenant when the landlord has demanded that the tenant vacate the premises, but the tenant has not yet done so. The landlord is required to use this judicial process rather than “self-help” (forcing the tenant out himself).

Wage Garnishment A method of collecting a judgment. The judgment creditor can file papers to request that the sheriff contact the judgment debtor’s employer to have part of her wages taken for the purpose of paying the judgment.

Warranty of Habitability The implied agreement of a landlord to ensure that the living conditions of the premises are habitable, up to code, with no major problems.

Writ of Possession After a landlord wins an unlawful detainer case, and judgment is entered in his favor, this is the next document in the process that confirms the court’s order that the landlord is now entitled to obtain possession of the premises back from the tenant.

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APPENDIX B

A PPENDIX B

Methodology This study used three instruments: interviews, printed surveys (Appendix C), and courtroom observations.

This section includes information on these instruments and other forms of data collection.

Our process was iterative, going through lists of preliminary policy ideas and discussing and weighing them among ourselves and with our client and academic advisor. Our final recommendations were arrived at by relying on the experience and analysis within that group of people. We relied partly on the extensive experience of one of the authors of this report, who worked with both tenants and landlords as an attorney litigating unlawful detainer cases. As a result, less time was spent gathering background information pertaining to our project than might have been necessary otherwise. This allowed us to focus more on collaborating with our client to create our various proposals, weighing ideas against our criteria. Our contacts at WCLP considered our preliminary ideas from their perspective as successful advocates and based on their experience and communications with their colleagues representing other perspectives.

Due to the potential harm or embarrassment to interviewees participating in our interviews and surveys, particularly with regard to judges, tenants and landlords, this report does not reveal the identities of any of those interviewees.

Literature Review We reviewed a wide range of materials, including law review articles, housing policy periodicals, housing and unlawful detainer studies, reports produced by nonprofit institutions and government agencies, legal practice guides, and books on housing policy.

Advocate Meetings We attended two Housing Task Force meetings (a coalition of tenant advocates), hosted by the Western Center on Law & Poverty in Los Angeles in October 2005 and January 2006. The Housing Task Force meetings provided us with an opportunity to acquire feedback from a variety of tenant advocates. We took the opportunity to introduce the initial outline of our project to the group in October. By January, we were able to explain in further detail our findings, initial recommendations, and directions for further study. We also asked the coalition members for help in collecting data on the types of UDs for which tenants would seek legal assistance in February.

One member of our group also attended tenant workshops hosted by the Association of Community Organizations for Reform Now (ACORN) and Inquilidos Unidos (IU) to gather information on landlordtenant relations and housing conditions experienced by tenants.

Interviews We generated a survey instrument for tenants and landlords and conducted courthouse surveys over a period of one month in order to gain a reliable measurement of tenant and landlord perspectives and understanding of the UD process. We interviewed stakeholders by phone and in person at meetings hosted by our client and community-based organizations, at courthouses, Legal Aid offices. During our survey process (discussed below), we also informally interviewed two judges, attorneys for both landlords and tenants, and one translator at the courthouse. One of the most important discussions we had was with a prominent housing expert, Professor Gary Blasi at the UCLA School of Law, about the potential

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APPENDIX B

advantages and disadvantages of our ideas. 147 Most interviews were conducted informally and without a specific interview guide.

Surveys Courthouse surveys Over a period of one month, we surveyed 27 tenants and 23 landlords directly following their unlawful detainer hearings at two courthouses within the Los Angeles County court system – downtown Los Angeles and Long Beach. The former courthouse is located in a city with rent control. We decided to expand the survey to include a city without rent control in order to gather a more representative sample for determining differences in UD outcomes. The results obtained from our surveys provided us with qualitative information regarding both landlord and tenant perspectives on the UD process, as well as on where the process was deficient for both landlords and tenants.

Before conducting our surveys, we met with the presiding judge of the day and explained our study. The judge introduced us to the courtroom each morning, informing the litigants of the purpose of our study and giving them permission to speak with us. Most landlords and tenants were approached by one of four interviewers after their hearing and asked if they would be willing to participate in a brief and anonymous survey, written in either English or Spanish. We surveyed both English- and Spanish-speaking landlords and tenants. Unfortunately, due to the hectic environment of unlawful detainer court and the speed with which cases are heard, our limited number of surveyors was unable to solicit full participation. However, we do know that tenants who were unrepresented and who fared worst at their hearing were less likely to answer our surveys because they were upset with the outcome and left the court quickly. Because we were unable to survey this subset of tenants about their perspectives on the UD process, our data are potentially biased, producing results that may present the process more favorably than tenants actually view it.

The tenants we surveyed were probably more similar to each other than a randomly selected sample for a few reasons. Only tenants who understood the eviction process, from receipt of their first notice until their trial date, visited the courthouse. Our survey failed to capture responses from tenants who were least likely to understand the process. Tenants may not have filed an answer or appeared in court because they either did not receive or understand their notices.

Secondly, a large percentage of tenants appeared with attorney representation at the downtown Los Angeles courthouse, largely due to a higher number of tenant attorneys available in Los Angeles than in other cities within California. Tenants with better access to legal help prior to their trials, as well as attorney representation during trial, have a better understanding of the process. Moreover, as discussed in the body of the paper, tenants with attorney representation during trial are significantly more likely to obtain more positive outcomes; hence represented tenants will likely view the UD process more positively.

We are unsure how representative a sample of landlords our surveys captured. Various studies indicate the majority of landlords are small landlords, however the majority of our respondents owned over twenty units. This potentially could have biased our survey if small landlords view the eviction process differently from large landlords. The question remains if perhaps large-scale landlords employ the UD process with greater frequency than smaller landlords. If this is the case, it could be for economic reasons and this would be important information from which we could draw inferences.

147

Interview with Gary Blasi, supra note 10.

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APPENDIX B

Intake surveys Part of our task for our client was to compare the types of notices associated with UD cases this year, after the 60-day notice requirement for “no-fault” evictions expired, to last year while the 60-day notice was still in effect. Tenant advocates argued that the expiration of the 60-day notice period would lead to an increase in 30-day notice UD cases. To evaluate this, we requested the assistance of Legal Aid Foundation of Los Angeles (LAFLA), Eviction Defense Network (EDeN), and Legal Services of Northern California (LSNC) to record the types of notices associated with every UD case processed at their office in the month of February 2005 and February 2006.

Measuring for a difference in notice types between the two years was difficult due to the uncertainty as to whether accurate data were being collected from our data sources, given the heavy case loads of Legal Aid offices. Furthermore, due to the timeline for completing various drafts of this report, we used the month of February to collect these data, despite the 60-day notice requirement expiring on December 31, 2005.

February was probably too early in the year to have made adequate comparisons – a 30-day notice, which under the previous law would have been a 60-day notice, would not lead to the filing of a UD, and a tenant contacting one of the Legal Aid organizations, until at least February 1, 2006. Such cases would probably occur later. While we were unable to compare data adequately from 2005 to 2006, the February 2006 data provided an estimate of the percentages of notice types in general.

Courtroom Observations While conducting our surveys, we also observed UD trials on five different days to better understand the process as well to compare our observations of tenant understanding with tenant survey responses of their understanding of the UD process.

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APPENDIX C

A PPENDIX C

Survey Instruments UCLA Unlawful Detainer Landlord Survey

We are UCLA graduate students from the School of Public Affairs and are conducting an anonymous survey. This survey is part of a larger study on the Unlawful Detainer process in California. The study is a requirement for our Master’s Degree and will be given to legislators, landlord groups, and tenant advocates, including the Western Center on Law and Poverty.

Participation in this survey is completely voluntary, and participating in the research will have no bearing on your court case. Please note that you do not have to answer any questions that you do not want to answer. Answering completely and honestly will hopefully improve the process for everyone. The survey is completely anonymous and will take about 10 minutes. Thank you for your time and honesty.

1. How many units do you own? !

1-5 !

5-10 !

10-15 !

15-20 !

20 or more 2. What type of notice did you serve? !

3-day notice to pay rent or quit !

3-day notice to cure or quit !

3-day notice to quit !

30-day notice to quit !

60-day notice to quit !

90-day notice to quit !

Other. Please briefly explain ________________________________________________________________________ 3. What was your main reason for serving the notice? !

Failure to pay rent !

Criminal/Illegal Activity (i.e. drugs, prostitution‌) !

Repeated Nuisance !

Condo conversion !

Selling building !

Problem tenant !

Breach of lease !

Can increase rent with new occupant !

Other _______________________________________________________________________

_______________________________________________________________________

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APPENDIX C

4. Was the tenant in court today? !

Yes !

No 5. Were both you and the tenant represented by an attorney in court? (Check all that apply) !

Landlord Represented by an attorney !

Tenant Represented by an attorney 6. What was the outcome of the case? !

Won !

Lost !

Pending !

Settled 7. How was the outcome of the UD determined? !

Negotiated the terms of an agreement, with the aid of an attorney (outside of court) !

Negotiated the terms of an agreement, without the aid of an attorney (outside of court) !

Took the case to trial and won !

Took the case to trial and lost !

Other. If so, please explain. ________________________________________________________________________ 8. Has there been a noticeable difference in the number and types of notices you’ve served this year as opposed to last year? If so, how? !

No !

Yes, ________________________________________________________________________ 9. Think about the last five times you served a notice. Of those, for how many did you file a UD? !

0 !

1 !

2 !

3 !

4 !

5

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APPENDIX C

10. Of those UDs filed, in approximately how many of those cases did the tenant not file an answer and you were granted a default judgment? !

0 !

1 !

2 !

3 !

4 !

5 11. With regard to today’s case, did you pursue any alternatives prior to filing a UD? If so, what options were they? !

No !

Yes, other options included: ________________________________________________________________________ 12. Of the UDs you have filed, would you have favored resolving these disputes out of court if it cost you less time and money? !

Yes !

No 13. Which is the bigger burden to you when deciding whether to pursue a UD? !

Cost !

Time 14. Would you have paid another $150 for a UD relating to a 3-day notice to quit, such as for a tenant who has engaged in criminal activity, if it meant a faster process and your burden of proof was significantly reduced (i.e., where simply providing a police report would be enough evidence to evict your tenant)? !

Yes !

No 15. Assume it cost $150 more to file a UD based on a 3-day notice than a 30- or 60-day notice. Would you be willing to give even tenants who have committed less serious breaches – such as an occasional loud party or having a pet in violation of the lease – a longer notice (30- or 60-days) instead of a three-day notice. !

Yes !

No 16. In no-fault cases, would you support reestablishing the 60-day notice period if you could be better assured tenants would move out within that time period? !

Yes !

No THANK YOU FOR YOUR TIME AND HONESTY.

BARLOW, BULLOCK, DELWICHE, & LIM"

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TAKING NOTICE!

APPENDIX C

UCLA Unlawful Detainer Tenant Survey

UCLA UNLAWFUL DETAINER TENANT SURVEY We are UCLA graduate students from the School of Public Affairs and are conducting an anonymous survey. This survey is part of a larger study on the Unlawful Detainer process in California. The study is a requirement for our Master’s Degree and will be given to legislators, landlord groups, and tenant advocates, including the Western Center on Law and Poverty.

Participation in this survey is completely voluntary, and participating in the research will have no bearing on your court case. Please note that you do not have to answer any questions that you do not want to answer. Answering completely and honestly will hopefully improve the process for everyone. The survey is completely anonymous and will take about 10 minutes. Thank you for your time and honesty.

1. To what type of notice was your UD related? !

3-day notice to pay rent or quit !

3-day notice to cure or quit !

3-day notice to quit !

30-day notice to quit !

60-day notice to quit !

90-day notice to quit !

Don’t know !

Other. Please briefly explain. ________________________________________________________________________ 2. Why didn’t you move? (check all that apply) !

Thought I could win the case !

Not enough time, too expensive !

Didn’t know what to do !

Never received the notice !

Thought the dispute was resolved !

Other (family, kids, school, job, health, etc)

___________________________________________________________________________ 3. What kind of defense did you assert today? (check all that apply) !

Habitability !

Failure to adequately serve notice !

Discrimination !

Retaliation !

Waiver/”I thought we had resolved the dispute” !

“I paid the rent” !

Not enough time !

Other _________________________________

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APPENDIX C

4. If the court determined you need to move out, what is your best option for housing? !

Will look for a new unit !

Will move in with relatives !

Temporary shelter assistance !

I have no options !

Uncertain !

I intend to stay 5. If you have to move out, will you have to relocate to a different neighborhood or city? !

Yes !

No !

Uncertain 6. Did you receive a written notice? !

Yes !

No 7. If you did receive a notice, did you understand what the notice told you to do? If not, what made the notice difficult to understand? !

Yes !

No ____________________________________________________________ 8. Did you understand the consequences of not doing what the notice advised? !

Yes !

No 9. Are you aware that because you are a defendant in a UD case, there may be a negative mark on your credit report that may affect your ability to find future housing? !

Yes !

No 10. What did you do in response to the notice? (check all that apply) !

Called a government agency !

Called landlord !

Called Legal Aid attorney/tenant advocacy group !

Tried to pay rent or cure problem !

Nothing !

Other ________________________________________________________________

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APPENDIX C

11. Did you ever try to work out an agreement with the landlord outside of court? !

Yes !

No 12. Did an attorney help you prepare the written document filed with the court to respond to the lawsuit? !

Yes !

No 13. Did an attorney represent you in court today? !

Yes !

No 14. If you did not see an attorney, why not? (check all that apply) !

Too expensive !

Didn’t know where to find one !

Thought I could win the case without one !

The attorney wouldn’t take my case !

Not enough time !

Other _______________________________________________________________ 15. Did you feel prepared for court today? !

Yes !

No 16. Did you feel like you understood what happened in the hearing? !

Yes !

No 17. What was the outcome? !

Won !

Lost !

Settled !

Don’t know 18. If settled, what was the agreement?

_______________________________________________________________________

THANK YOU FOR YOUR TIME AND HONESTY.

BARLOW, BULLOCK, DELWICHE, & LIM"

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APPENDIX D

A PPENDIX D

Other Policy Options Considered Help tenants get better information about landlords.

Landlords are able to collect security deposits and check credit records to reduce the risk associated with renting to an unreliable tenant. It is difficult for tenants, however, to learn of past complaints or violations associated with a particular landlord, management company, or apartment complex. With more informed choices at the beginning of the rental process fewer disputes would result.

Create incentives for landlords and tenants to enter into longer, written leases rather than into vague, oral month-to-month leases.

Formal written leases would offer clear guidelines about parties’ responsibilities, procedures for resolving disputes, and rights regarding termination of a tenancy. Longer lease terms would provide for more stability.

Amend credit discrimination law to prohibit the denial of credit or rental applications based on asserting a legal right, i.e., defending an unlawful detainer case.

It would be unlawful to deny a rental application based solely on the basis of the applicant having been a party to a UD. Housing or credit could be denied only for having lost the case. (Currently, it is possible for a tenant to be effectively blacklisted from renting again simply for having been named a defendant in a UD, even if she wins the case or it is settled or dismissed. See the later discussion of this issue in the Costs section of this report.)

Allow habitability claims as a cross-claim in unlawful detainer cases, not just as a defense.

Tenants are currently able to introduce claims regarding substandard housing conditions as a defense to nonpayment of rent, but not as a cross-claim. If a tenant were allowed to assert the claim as a cross-claim, she would be able not only to partially offset what she is alleged to owe but potentially be refunded some of the past rent she overpaid, given the substandard conditions. If, after considering all the competing claims, the landlord owes the tenant more than the tenant owes the landlord, then the landlord would not be entitled to possession of the premises. This rule would make the warranty of habitability more effective.

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APPENDIX E

A PPENDIX E

3-Day Notice to Cure or Quit THREE DAY NOTICE TO COMPLY OR QUIT TO Jane Tenant and all other tenants in possession of the premises describes as: Address 1000 Main Street, Apt. 1 , County Sunny

City Anytown

, California

NOTICE IS HEREBY GIVEN that within three (3) days after service on you of this notice, you must comply with the provisions of the lease or rental agreement or quit and surrender possession of the premises described above to the landlord under which you hold possession of the premises, or your landlord's agent,. If you fail to comply with the provisions of the lease or rental agreement or to vacate and surrender possession of the premises within the three-day period, legal proceedings will be commenced against you to recover possession of the premises, and to recover a judgment and for $600.00 in Punitive Damages for your unlawful detention of the premises, together with costs of suit and attorney fees.

You are in violation of the following provisions of the lease or rental agreement.

Section 10, Clause 3

You have violated the above provisions of the lease or rental agreement by doing, or failing to do the following: Having a pet

YOU ARE FURTHER NOTIFIED that by this notice your landlord, elects to, and does hereby declare a forfeiture of said lease or rental agreement if you fail to comply within the three day period.

Dated this 8th day of May , 20 06 Owner/Manager/Agent of Owner

PROOF OF SERVICE I. the undersigned, being at least 18 years of age, declare under penalty of perjury that I served the above notice, of which this is a true copy, on the above-mentioned tenant(s) in possession in the manner(s) indicated below: On

,20___ , I handed the notice to the tenants.

On , 20___ . after attempting personal service, I handed the notice to a person of suitable age and discretion at the tenant's residence/business and mailed a copy to tenants residence by first class mail, postage prepaid..

On ,20___ . after attempting service m both manners indicated above, I posted the notice on a conspicuous place at the tenant's residence, and mailed a copy to tenants residence by first class mail, postage prepaid...

Executed on State of California.

, 20

, at the City of

, County of

Served by

Landlord's Legal Line http://www.wimer.net/landlord landlord@wimer.net Copyright 1996

BARLOW, BULLOCK, DELWICHE, & LIM"

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TAKING NOTICE!

APPENDIX F

A PPENDIX F

3-Day Notice to Pay Rent or Quit THREE DAY NOTICE TO PAY RENT OR QUIT TO Jane Tenant and all other tenants in possession of the premises describes as: Address City of

1000 Main Street, Apt. 1 Anytown

County of

Sunny

California

PLEASE TAKE NOTICE that the rent is now due and payable on the above-described premises which you currently hold and occupy.

Your rental account is delinquent in the amount itemized as follows: Rent due $ 1,000 Rent due $ Rent due $ Rent due $

Rental Period May 1 - May 31, 2006 Rental Period Rental Period Rental Period

TOTAL RENT DUE $ 1,000 You are hereby required to pay said rent in FULL within three (3) days or to remove yourself from and deliver up possession of the above-described premises, or legal proceedings will be instituted against you to recover possession of said premises, to declare the forfeiture of the Lease or Rental Agreement under which you occupy said premises and to recover rents, together with $600.00 punitive damages, with court costs and attorneys fees, according to the terms of your Lease or Rental agreement.

YOU ARE FURTHER NOTIFIED that by this notice your landlord, elects to, and does hereby declare a forfeiture of said lease or rental agreement if said rent is not paid in full .

Payment can be made between Property Management Co. Payment can in person at the hours of Check or Cashier's Check to be made payable to be made 10:00 a.m. and 4:00 p.m.

by Mail addressed to Jack Manager person authorized to receive payment 4567 Downtown Ave. Monday Through Friday By: Cash address where payment is to be made Anytown, CA 12345 Other By: Cashiers Check City, State, Zip (123) 555-6789 By: Money Order Phone Number By: Personal Check

Dated this 6th

..

2006

day of May

Owner/Manager/Attorney for Landlord

PROOF OF SERVICE I. the undersigned, being at least 18 years of age, declare under penalty of perjury that I served the above notice, of which this is a true copy, on the above-mentioned tenant(s) in possession in the manner(s) indicated below: On

,20

, I handed the notice to the tenants.

, 20 . after attempting personal service, I handed the notice to a person of suitable age and On discretion at the tenant's residence/business and mailed a copy to tenants residence by first class mail, postage prepaid.. , 20 . after attempting service m both manners indicated above, I posted the notice on a On conspicuous place at the tenant's residence, and mailed a copy to tenants residence by first class mail, postage prepaid... , at the City of Executed on , County of ,20 State of California.

Served by Landlord's Legal Line http://www.wimer.net/evict landlord@wimer.net Copyright 1997

BARLOW, BULLOCK, DELWICHE, & LIM"

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TAKING NOTICE!

APPENDIX G

A PPENDIX G

3-Day Notice to Quit THREE (3) D A Y N O T I C E T O QUIT Landlord(s)

PROPERTY MANAGEMENT CO.

Tenant(s)

JANE TENANT

and Does 1 to 10 inclusive TO TENANT(S) AND ALL PERSON(S) IN POSSESSION YOU ARE HEREBY NOTIFIED that the tenancy under which you occupy the premises shall end three (3) days after the date of service of copy of this notice upon you, and you are required to quit and deliver up possession of the premises to the undersigned on or before that date.

IF YOU FAIL TO DO SO, legal proceedings will be instituted against you for possession of the premises, for forfeiture of the rental agreement and for such monetary damages as may be allowed by law.

The premises herein referred to which you hold and/or occupied by you are: Address: City: County of:

1000 MAIN STREET

APT. 1

Apartment or Suite No.:

ANYTOWN SUNNY

State:

CA

Zip:

12345

THE REASON THIS NOTICE IS BEING SERVED IS:

THERE IS TOO MUCH TRAFFIC IN AND OUT OF YOUR APARTMENT. YOU HAVE THROWN LOUD PARTIES AND ARE A NUISANCE.

PERSON AUTHORIZED TO GIVE NOTICE

PROOF OF SERVICE I, the undersigned, being at least 18 years of age, declare under penalty of perjury that I served the above notice, of which this is a true copy, on the following tenant(s) in possession in the manner(s) indicated below: On personally.

, I handed the notice to the tenant(s)

On , after attempting personal service, I handed the notice to a person of suitable age and discretion at the residence/business of the tenant(s), AND I deposited a true copy in the U.S. Mail, in a sealed envelope with postage fully prepaid, addressed to the tenant(s) at his/her/their place of residence (date ). mailed, if different Executed on

, after attempting service in both On manners indicated previously, I posted the notice in a conspicuous place at the residence of the tenant(s) AND I deposited a true copy in the U.S. tenant(s), Mail, in a sealed envelope with postage fully prepaid, addressed to the tenant(s) at his/her/their place of residence (date mailed, if different ).

Served by This form courtesy of ExpressEvictions.com (800) 491-1951

BARLOW, BULLOCK, DELWICHE, & LIM"

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TAKING NOTICE!

APPENDIX H

A PPENDIX H

30-Day Notice to Quit THIRTY-DAY NOTICE TO QUIT

TO Jane Tenant and all other tenants in possession of the premises describes as: Address 1000 Main Street, Apt. 1 City

, County Sunny

Anytown

, California

NOTICE IS HEREBY GIVEN that your tenancy of the premises described above is terminated THIRTY (30) days after you receive this notice, and that you must vacate the premises on or before that date or you will be guilty of an unlawful detention of the premises. This notice is given pursuant to the provisions of Section 1946 of the California Civil Code. If you fail to deliver up possession within the 30-day period, legal proceedings will be commenced against you to recover a judgment of $600.00 PUNITIVE DAMAGES for the malicious holding. possession beyond the 30-day period, court costs incurred, and if . provided in the rental agreement, attorney fees.

.

YOU ARE FURTHER NOTIFIED that by this notice Your landlord, elects to, and does hereby declare a forfeiture of said lease or rental agreement.

Dated this 1st day of May 20 06

Owner/Manager/Agent of Owner

PROOF OF SERVICE I. the undersigned, being at least 18 years of age, declare under penalty of perjury that I served the above notice, of which this is a true copy, on the above-mentioned tenant(s) in possession in the manner(s) indicated below: On

,20____ , I handed the notice to the tenants.

, 20____ . after attempting personal service, I handed the notice to a person of suitable age and On discretion at the tenant's residence/business and mailed a copy to tenants residence by first class mail, postage prepaid.. , 20____ . after attempting service in both manners indicated above, I posted the notice on a On conspicuous place at the tenant's residence, and mailed a copy to tenants residence by first class mail, postage prepaid... , 20____ , I deposited a true copy of the notice in the United States Mail in a sealed envelope with On postage fully prepaid, addressed to the tenant at his place of residence. , at the City of Executed on , County of , 20 State of California.

Served by

Landlord's Legal Line http://www.wimer.net/landlord landlord@wimer.net Copyright 1997-2002

BARLOW, BULLOCK, DELWICHE, & LIM"

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APPENDIX I

A PPENDIX I

UD Defenses and Trial Procedure It is typical for a UD trial to take no longer than twenty minutes.148 In our observational experience, often the time devoted to a UD trial is much less than that. Although both the tenant and landlord may request a jury trial, most unlawful detainer cases (UDs) are tried before a judge or commissioner without a jury.149 The hearing essentially consists of the landlord presenting evidence to support a claim of nonpayment of rent or breach of the lease agreement, for example, and the tenant presenting evidence to refute the landlord’s claims. 150 The tenant may also argue and introduce evidence relating to her defenses, if they were raised in her written answer. She may claim waiver 151 or estoppel,152 claim that the landlord is retaliating against her,153 claim that the notice was inadequate or improperly served, 154 or claim that the landlord is acting in bad faith. 155 In a non-payment case, the tenant may assert the defense of breach of the implied warranty of habitability. 156 Most of the time, an unrepresented tenant does not know how to make these arguments or present her evidence in the proper way.

In cases where the tenant does not appear at the hearing, a landlord need only prove his case by making statements in support of the allegations mentioned in the complaint. 157 In these cases, a hearing may take only a matter of minutes.158 Often the result is not much different than if an unrepresented tenant was present.

If the landlord wins the case and the court awards possession to the landlord, the landlord may enforce the judgment by applying for issuance of a writ of possession from the court clerk. 159 The writ is then provided to the local sheriff ’s office, which serves the writ on the premises being reclaimed by the landlord. 160 After the writ is delivered by the sheriff, the tenant has at least five days to vacate the unit. 161 If the tenant does not vacate within the allotted time, the sheriff may forcibly remove the tenant. 162

Gerchick, supra note 29, at 830.

Id., at 827.

150 Id., at 830.

151 Zucker, supra note 16, at 160 n. 18 (citing EDC Assoc. v. Gutierrez, 153 Cal. App. 3d 167 (1984) (holding where landlord accepts payment of rent after tenant’s alleged breach occurs, the landlord has waived his right to seek forfeiture of the tenancy)).

152 Zucker, supra note 16, at 160 n. 19 (citing Salton Cmty. Servs. v. Southard, 256 Cal. App. 2d 526 (1967)).

153 CAL. CIV. CODE § 1942.5.

154 CAL. CIV. PROC. CODE § 1161.

155 Zucker, supra note 16, at 160 n. 17 (citing Strom v. Union Oil Co., 88 Cal. App. 2d 78 (1948) (holding where landlord avoided tenant and attempted to induce tenant to forfeit the lease by refusing rent, the landlord could not sustain a cause of action in unlawful detainer)).

156 Zucker, supra note 16, at 160 n. 20 (citing Green v. Superior Court, 10 Cal. 3d 616 (1974) (stating tenant can raise defense to an unlawful detainer action where the landlord breached the implied warranty of habitability)).

157 Gerchick, supra note 29, at 795.

158 Id. 159 CAL. CIV. PROC. CODE §§ 1170.5(a), 1174(c).

160 Id. at § 715.020(a).

161 Id. at § 715.020(c).

162 Id. 148 149

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APPENDIX I

Sometimes confrontations between landlords and tenants were violent, and an official process was needed to effect evictions in a peaceful and orderly manner. Now, almost every state expressly bars the use of self-help by landlords and provides a “system for expeditiously evicting tenants through a court-sanctioned process.”163 This expedited summary process takes less time and fewer resources than regular civil proceedings. 164 The UD process occurs in two phases: “(1) determining which party is entitled to possession and (2) conducting the eviction.” 165

Zucker, supra note 16, at 164.

Id. 165 Gerchick, supra note 29, at 792.

163 164

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APPENDIX J

A PPENDIX J

Unlawful Detainer Complaint COURT COUNTY OF ...................................................... : ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):

Plaintiff(s) TELEPHONE NO.:

FAX NO. (Optional):

-against-

E-MAIL ADDRESS (Optional):

Index No.

UD-100 FOR COURT USE ONLY

:

Calendar No.

:

JUDICIAL SUBPOENA

:

ATTORNEY FOR (Name):

:

SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS:

:

MAILING ADDRESS: CITY AND ZIP CODE:

BRANCH NAME: Defendant(s) : ......................................................

PLAINTIFF: DEFENDANT:

DOES 1 TO OF THE STATE OF NEW YORK THE PEOPLE

TO

COMPLAINT — UNLAWFUL DETAINER* COMPLAINT

CASE NUMBER:

AMENDED COMPLAINT (Amendment Number):

Jurisdiction (check all that apply): ACTION IS A LIMITED CIVIL CASE Amount demanded GREETINGS:

does not exceed $10,000 exceeds $10,000 but does not exceed $25,000

WE COMMAND that all(amount business and excuses being$25,000) laid aside, you and each of ACTION IS AN UNLIMITEDYOU, CIVIL CASE demanded exceeds theACTION Honorable at theor cross-complaint Court IS RECLASSIFIED by this amended complaint (check all that apply):

you attend before ,

located at civil (possession not in issue) County offrom unlawful detainer to general unlimited from limited to unlimited in room from unlawful , ondetainer the to general day oflimited civil (possession , 20 , at in issue) o'clock in the from noon, andtoatlimited any recessed not unlimited or adjourned date, to testify and give evidence as a witness in this action on the part of the

1. PLAINTIFF (name each):

alleges causes of action against DEFENDANT (name each):

Your failure to comply with this subpoena is punishable as a contempt of court and will make you liable to the party on whose behalf this subpoena was issued for a maximum penalty of $50 and all damages sustained as a an individual over the age of 18 years. (4) (1) a partnership.

Plaintiff 2. a. result of isyour failure to comply.

(2) (3)

b.

a public agency. other (specify):

Witness, Honorable County,

(5)

a corporation.

, one of the Justices of the

Plaintiff has complied with the fictitious business name laws and is doing business under the fictitious name of (specify):

Court in

day of

, 20

3. Defendant named above is in possession of the premises located at (street address, apt. no., city, zip code, and county): (Attorney must sign above and type name below)

4. Plaintiff's interest in the premises is as owner other (specify): 5. The true names and capacities of defendants sued as Does are unknown to plaintiff.

Attorney(s) 6. a. On or about (date): defendant (name each):

for

month-to-month tenancy other tenancy (specify): (1) agreed to rent the premises as a (2) agreed to pay rent of $ payable monthly (specify frequency): Office other and P.O. Address first of the month other day (specify): (3) agreed to pay rent on the b. This written oral agreement was made with (3) plaintiff's predecessor in interest. plaintiff.

(1) Telephone No.: (4) plaintiff's agent. other (specify): (2)

Facsimile No.: E-Mail Address: COMPLAINT—UNLAWFUL Mobile DETAINER Tel. No.:

* NOTE: Do not use this form for evictions after sale (Code Civ. Proc., § 1161a).

Form Approved for Optional Use Judicial Council of California UD–100 [Rev. July 1, 2005]

Page 1 of 3 Civil Code, § 1940 et seq.

Code of Civil Procedure §§ 425.12, 1166 www.courtinfo.ca.gov

American LegalNet, Inc. www.USCourtForms.com

I

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APPENDIX J

CASE NUMBER:

PLAINTIFF (Name): DEFENDANT(Name):

The defendants not named in item 6a are

6. c.

(1) (2) (3)

subtenants. assignees. other (specify):

d.

The agreement was later changed as follows (specify):

e.

A copy of the written agreement, including any addenda or attachments that form the basis of this complaint, is attached and labeled Exhibit 1. (Required for residential property, unless item 6f is checked. See Code Civ. Proc., § 1166.)

(For residential property) A copy of the written agreement is not attached because (specify reason):

f.

(1) (2) 7.

the written agreement is not in the possession of the landlord or the landlord's employees or agents. this action is solely for nonpayment of rent (Code Civ. Proc., § 1161(2)).

a. Defendant (name each):

was served the following notice on the same date and in the same manner: (1) (2) (3) b. c. d. e. f.

8. a.

3-day notice to pay rent or quit 30-day notice to quit 60-day notice to quit

The notice included an election of forfeiture.

A copy of the notice is attached and labeled Exhibit 2. (Required for residential property. See Code Civ. Proc., § 1166.)

One or more defendants were served (1) with a different notice, (2) on a different date, or (3) in a different manner, as stated in Attachment 8c. (Check item 8c and attach a statement providing the information required by items 7a–e and 8 for each defendant.)

The notice in item 7a was served on the defendant named in item 7a as follows:

(3)

by personally handing a copy to defendant on (date): , by leaving a copy with (name or description): at defendant's a person of suitable age and discretion, on (date): residence business AND mailing a copy to defendant at defendant's place of residence on because defendant cannot be found at defendant's residence or usual (date): place of business.

AND giving a copy to a by posting a copy on the premises on (date): person found residing at the premises AND mailing a copy to defendant at the premises on (date): (a) (b)

c. d.

3-day notice to perform covenants or quit 3-day notice to quit Other (specify):

the period stated in the notice expired at the end of the day.

(1) On (date): (2) Defendants failed to comply with the requirements of the notice by that date.

All facts stated in the notice are true.

(1) (2)

b.

(4) (5) (6)

because defendant's residence and usual place of business cannot be ascertained OR because no person of suitable age or discretion can be found there.

(4)

(Not for 3-day notice; see Civil Code, § 1946 before using) by sending a copy by certified or registered mail addressed to defendant on (date):

(5)

(Not for residential tenancies; see Civil Code, § 1953 before using) in the manner specified in a written commercial lease between the parties.

(Name): was served on behalf of all defendants who signed a joint written rental agreement.

Information about service of notice on the defendants alleged in item 7f is stated in Attachment 8c.

Proof of service of the notice in item 7a is attached and labeled Exhibit 3.

UD-100 [Rev. July 1, 2005]

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Page 2 of 3

COMPLAINT—UNLAWFUL DETAINER

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TAKING NOTICE!

APPENDIX J

PLAINTIFF (Name):

CASE NUMBER:

DEFENDANT(Name):

9.

10.

11.

12.

Plaintiff demands possession from each defendant because of expiration of a fixed-term lease.

At the time the 3-day notice to pay rent or quit was served, the amount of rent due was $ per day.

The fair rental value of the premises is $ Defendant's continued possession is malicious, and plaintiff is entitled to statutory damages under Code of Civil Procedure section 1174(b). (State specific facts supporting a claim up to $600 in Attachment 12.)

A written agreement between the parties provides for attorney fees.

Defendant's tenancy is subject to the local rent control or eviction control ordinance of (city or county, title of ordinance, and date of passage):

13.

14.

Plaintiff has met all applicable requirements of the ordinances.

15.

Other allegations are stated in Attachment 15.

16. Plaintiff accepts the jurisdictional limit, if any, of the court.

17. PLAINTIFF REQUESTS a. possession of the premises. b. costs incurred in this proceeding: c. past-due rent of $ reasonable attorney fees. d. forfeiture of the agreement. e.

18.

f.

g. h.

damages at the rate stated in item 11 from for each day that (date): defendants remain in possession through entry of judgment. statutory damages up to $600 for the conduct alleged in item 12. other (specify):

Number of pages attached (specify):

UNLAWFUL DETAINER ASSISTANT (Bus. & Prof. Code, §§ 6400–6415) did not did for compensation give advice or assistance 19. (Complete in all cases.) An unlawful detainer assistant with this form. (If plaintiff has received any help or advice for pay from an unlawful detainer assistant, state:) a. Assistant's name: b. Street address, city, and zip code:

c. d.

Telephone No.: County of registration:

e. f.

Expires on (date):

Registration No.:

Date:

(SIGNATURE OF PLAINTIFF OR ATTORNEY)

(TYPE OR PRINT NAME)

VERIFICATION (Use a different verification form if the verification is by an attorney or for a corporation or partnership.)

I am the plaintiff in this proceeding and have read this complaint. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:

(SIGNATURE OF PLAINTIFF )

(TYPE OR PRINT NAME)

UD-100 [Rev. July 1, 2005]

BARLOW, BULLOCK, DELWICHE, & LIM"

COMPLAINT—UNLAWFUL DETAINER

Page 3 of 3

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TAKING NOTICE!

APPENDIX K

A PPENDIX K

Unlawful Detainer Answer COURT .COUNTY . . . . . . . . .OF ............................................

TELEPHONE : NO.: Index No. ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address):

Plaintiff(s)

ATTORNEY FOR (Name): NAME OF COURT:

-against-

FOR COURT USE ONLY

:

Calendar No.

:

JUDICIAL SUBPOENA

:

STREET ADDRESS: MAILING ADDRESS:

:

CITY AND ZIP CODE: BRANCH NAME:

:

PLAINTIFF: DEFENDANT: ......

Defendant(s) : ................................................

CASE NUMBER:

ANSWER—Unlawful Detainer THE PEOPLE OF THE STATE OF NEW YORK 1. Defendant (names):

TO

answers the complaint as follows: 2. Check ONLY ONE of the next two boxes: Defendant generally denies each statement of the complaint. (Do not check this box if the complaint demands more a. GREETINGS: than $1,000).

WE COMMAND that all business and excuses being laid aside, you and each of you attend before Defendant admits that all ofYOU, the statements of the complaint are true EXCEPT b. the Honorable the Court (1) Defendant claims the following statements of theatcomplaint are false (use paragraph numbers from the complaint located at County of or explain):

,

in room , on the day of , 20 , at o'clock in the noon, and at any recessed or adjourned date, to testify and give evidence as a witness in this action on the part of the Continued on Attachment 2b(1).

(2) Defendant has no information or belief that the following statements of the complaint are true, so defendant denies them (use paragraph numbers complaintisorpunishable explain): as a contempt of court and will make you liable Your failure to comply withfrom thisthe subpoena

to the party on whose behalf this subpoena was issued for a maximum penalty of $50 and all damages sustained as a result of your failure to comply.

Continued on Attachment 2b(2).

Witness, Honorable of the ofprovided the 3. AFFIRMATIVE DEFENSES (NOTE: For each box checked, you must state brief facts to, one support it inJustices the space at the top ofCourt page in two (item 3j).)

County, day of , 20 a. b. c. d. e. f. g.

(nonpayment of rent only) Plaintiff has breached the warranty to provide habitable premises. (nonpayment of rent only) Defendant made needed repairs and properly deducted the cost from the rent, and plaintiff did not give proper credit.

(Attorney must sign above and type name below) (nonpayment of rent only) On (date): , before the notice to pay or quit expired, defendant offered the rent due but plaintiff would not accept it.

Plaintiff waived, changed, or canceled the notice to quit.

Plaintiff served defendant with the notice to quit or filed the complaint to retaliatefor against defendant.

Attorney(s) By serving defendant with the notice to quit or filing the complaint, plaintiff is arbitrarily discriminating against the defendant in violation of the Constitution or laws of the United States or California.

Plaintiff's demand for possession violates the local rent control or eviction control ordinance of (city or county, title of ordinance, and date of passage):

Office and P.O. Address h. i.

(Also, briefly state the facts showing violation of the ordinance in item 3j.)

Plaintiff accepted rent from defendant to cover a period of time after the date the notice to quit expired.

Other affirmative defenses are stated in item 3j.

Form Approved by the Judicial Council of California 982.1(95) [Rev. January 1, 1997]

Telephone No.: Facsimile No.: (Continued on reverse) E-Mail Address: ANSWER—Unlawful Detainer Mobile Tel. No.:

Civil Code, § 1940 et seq.; Code of Civil Procedure, § 425.12

American LegalNet, Inc. www.USCourtForms.com

I

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APPENDIX K

CASE NUMBER:

PLAINTIFF (Name): DEFENDANT (Name):

3. AFFIRMATIVE DEFENSES (cont'd) j. Facts supporting affirmative defenses checked above (identify each item separately by its letter from page one):

(1) All the facts are stated in Attachment 3j.

(2) Facts are continued in Attachment 3j.

4. OTHER STATEMENTS a.

Defendant vacated the premises on (date): b.

The fair rental value of the premises alleged in the complaint is excessive (explain): c.

Other (specify):

5. DEFENDANT REQUESTS a. that plaintiff take nothing requested in the complaint. b. costs incurred in this proceeding. c. reasonable attorney fees. d. that plaintiff be ordered to (1) make repairs and correct the conditions that constitute a breach of the warranty to provide habitable premises and (2) reduce the monthly rent to a reasonable rental value until the conditions are corrected. e. other (specify):

6.

Number of pages attached (specify): UNLAWFUL DETAINER ASSISTANT (Business and Professions Code sections 6400-6415)

did for compensation give advice or 7. (Must be completed in all cases) An unlawful detainer assistant did not assistance with this form. (If defendant has received any help or advice for pay from an unlawful detainer assistant, state): a. Assistant's name: b. Telephone No.: c. Street address, city, and ZIP: d. County of registration:

e. Registration No.:

. . . . . . . . . . . . . . . . . . . . . . . .

(TYPE OR PRINT NAME)

f. Expires on (date):

(SIGNATURE OF DEFENDANT OR ATTORNEY)

. . . . . . . . . . . . . . . . . . . . . . . .

(SIGNATURE OF DEFENDANT OR ATTORNEY)

(TYPE OR PRINT NAME)

(Each defendant for whom this answer is filed must be named in item 1 and must sign this answer unless his or her attorney signs.)

VERIFICATION (Use a different verification form if the verification is by an attorney or for a corporation or partnership.)

I am the defendant in this proceeding and have read this answer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:

. . . . . . . . . . . . . . . . . . . . . . . .

(TYPE OR PRINT NAME)

982.1(95) [Rev. January 1, 1997]

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ANSWER—Unlawful Detainer

(SIGNATURE OF DEFENDANT) Page two

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APPENDIX L

A PPENDIX L

More Information About U.D. Registry, Inc. A landlord may pay a fee to a tenant-screening service to check whether a housing applicant has been a defendant in an unlawful detainer action in the past seven years. 166 Tenants who have lost their case or settled their case with landlords, and have had a stipulated judgment entered against them, will be cited on the U.D. Registry. As of 2004, files of tenants whose case were “favorably resolved,” which includes dismissals, within 60 days after the unlawful detainer action was filed, are sealed. 167 As a result, credit reporting agencies cannot access those tenants’ case files.

In 1992, the California State Legislature enacted a statute prohibiting credit-reporting agencies from reporting tenants who were defendants in an unlawful detainer action if they had settled their case with the landlord. Rather, credit-reporting agencies were only allowed to report tenants if the landlord was deemed the “prevailing party” in court. 168 In 1994, U.D. Registry, Inc. and the Apartment Association of Greater Los Angeles, both credit reporting agencies that sold unlawful detainer information to landlords, sued the state of California, claiming the statute violated the First Amendment. 169 Plaintiffs argued that the information being reported by U.D. Registry, Inc. and the Apartment Association of Greater Los Angeles was public record information,170 not simply commercial regarding commercial transactions. 171 Since the court held that the speech qualified as public record speech and not commercial speech, the speech was accorded full First Amendment protection. As one commentator put it, “The court in U.D. Registry reasoned that . . . the unlawful detainer records were lawfully obtained by the plaintiffs through their examination of court records open to public inspection.”172

CAL. CIV. CODE §§ 1785.13(a)(2), (3).

CAL. CIV. PROC. CODE § 1161.2(e).

168 CAL. CIV. CODE § 1785.13(3).

169 U.D. Registry, Inc. v. State, 34 Cal. App. 107 (1995); see also Cheryl M. Sheinkopf, Comment, Balancing Free Speech, Privacy and Open Government: Why Government Should Not Restrict the Truthful Reporting of Public Record Information, 44 UCLA L. REV. 1567, 1573-74 (1997).

170 U.D. Registry, Inc., 34 Cal. App. at 116.

171 Id. at 111.

172 Sheinkopf, supra note 169, at 1576.

166 167

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APPENDIX M

A PPENDIX M

Recent Legislative Efforts Regarding the 60-Day Notice Significant effort has been made by members of the California Legislature to increase tenant notice periods in order to minimize the detrimental effects of displacement in a tight rental market. Until December 31, 2005, California state law required landlords to provide tenants with at least 60 days’ notice of their intent to terminate a tenancy without cause when the tenant resided in the dwelling for one year or more. SB 51 (Kuehl) would have extended the sunset provision of the law until 2008. The bill did not pass, thereby allowing landlords to once again give 30 days’ notice to evict tenants without cause. The bill stalled in the Assembly, falling five votes short of what was needed. 173 Nine Democrats abstained and three voted against it.174 Supporters of the 60-day no-fault notice requirement argue that 30 days simply is not enough time to find and rent a new residence in a tight housing market. Especially for low-income families, seniors, and the disabled, the ability to find an affordable unit is greatly minimized when allowed only 30 days to relocate in a housing market with low-vacancy rates. 175 Only Vermont and New Hampshire have lower vacancy rates than California, but both states have greater restrictions on no-fault evictions. Vermont requires a 90-day notice and New Hampshire has eliminated no-cause evictions entirely. 176 The availability of affordable housing units within California is estimated to be even lower than the general vacancy rate, increasing the difficulty of low-income individuals to relocate. Of California renters, nearly one quarter spent over 50% of their income on rent and 40% of renters spent more than 30% of their income on housing. 177 A minimum wage worker in California would have to work 107 hours in order to afford a fair market rent one-bedroom apartment. 178 Supporters of the 60-day notice argue that demanding working schedules of the low-income as well as the dearth of affordable housing prevent individuals from finding adequate housing comparably priced to their current dwelling within only 30 days.

The inability to relocate within the notice period, will arguably lead to greater rates of UDs filed.

Opponents of SB 51 argued that despite the low vacancy rate compared to the rest of the U.S., California’s vacancy rates had increased over the past few years and the 60-day notice was no longer necessary. 179 In their view, in light of the increased vacancy rate, landlords were being unfairly penalized because tenants had the option of providing their landlord with a 30-day notice of the tenant’s intention to vacate.

Landlord lobbyists also argued that they rely heavily on the 30-day notice rule to evict problem tenants because the “for-cause” legal process is too costly, lengthy and demanding. For example, proving a tenant is engaging in illegal activity requires significant evidence, such as neighboring tenant testimony. 180

LePage, supra note 96.

Id. 175 Id. 176 SB 51 Assembly Floor Analysis, supra note 65.!

177 California Department of Housing and Community Development, supra note 67.

178 National Low Income Housing Coalition, supra note 68.

179 SB 51 Assembly Floor Analysis, supra note 65.

180 LePage, supra note 96.

173 174

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Convincing tenants to testify against a problem tenant is often difficult for fear of retribution. According to this argument, the 60-day notice provision forced landlords to endanger their good tenants because it took longer to eliminate their complexes of the bad tenants. SB 51 did not address procedures for evicting tenants for cause. Landlord lobbyists maintain they would consider supporting the 60-day bill to allow more time for good tenants who have difficulty relocating if tenant lobbyists would include language in the bill allowing landlords easier measures to get rid of problem tenants. 181 AB 1169 (Torrico) is the current bill to re-establish the 60-day notice requirement.

181

McConnell, supra note 101.

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A PPENDIX N

More About Mediation What is Mediation?

Mediation has become a preferred compromise between adjudication and informal negotiation. Mediation is regarded by some as an efficient means to clear overloaded court dockets, and by others as a participatory process in which two parties can agree on an alternative which arrives at a settlement that would have otherwise been unattainable through adjudication. Rather than settling in hallways and exposing tenants to potential violations of their rights, two parties engage in mediation with an unbiased third-party.

Mediation is an effective, low-cost way of resolving disputes. Mediation is especially suitable for cases in which the parties generally have had a good relationship so far (perhaps other than the current dispute) and want to resolve the dispute in a fair and friendly manner. A mediator does not act as an attorney, judge or arbitrator, but instead facilitates the communication between the parties and helps to generate ideas for resolving the dispute. In mediation, the parties are free to consider how a judge might decide the case, but they are not bound by the law to decide only one specific resolution of the matter.

Through an adversarial process, litigation tends to aggravate a dispute and focus only on a bottom-line decision, such as one party paying some amount of money to the other. Resolving disputes through mediation allows for an intermediate outcome which may be preferable to both parties. In landlord/tenant cases, often the decision determines whether or not the tenant must vacate the premises. However, many disputes are about more than just money or whether the tenant should move. On a fundamental level, many disputes revolve around ineffective communication between the parties.

How Mediation Works Mediations can be conducted in many different ways depending on the specific dispute. In some cases, the mediation might be conducted entirely by telephone. Other times, the landlord and tenant will need to be present together for a mediation session.

Representation by an attorney is not necessary for mediation. However, each party has the right to be represented at his or her own expense, and all parties are encouraged to consult with their own attorneys if they so desire. The services of attorneys may also be useful in reviewing a proposed written agreement before it is signed."

When a potential mediation case is first referred, staff will ask the parties a series of questions to gather the necessary information and make sure that the case is appropriate for mediation. If it is, staff will send the parties information regarding what they need to do to prepare for the session, including what documents should be provided to the mediator for review ahead of time.

In mediation, there is not a guarantee of any particular result. Mediation does not necessarily result, like a trial does, in a judgment being entered with one party as the winner and one as the loser. Since the mediator acts only as a facilitator of the discussion between the parties, and not as a judge, he or she cannot impose a final decision. The mediation will be successful only if the parties come to the session in good faith and work hard to resolve the matter, with guidance from the mediator.

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If no agreement is reached during mediation, the parties are in the same position as they were before the mediation, except that they have more information and a better understanding of the other party’s positions and interests. Even mediations that are unsuccessful often lead the parties closer to having their dispute resolved. Parties are free to schedule another mediation session if that would be helpful, or they could pursue other legal remedies, such as arbitration or litigation.

Except as limited by law, all communications in mediation are private and confidential. A party cannot use any information gained in the mediation session as evidence in later litigation unless the evidence would otherwise be admissible under the law. For example, a party cannot later use evidence about a settlement offer made during mediation. Also, except in very limited circumstances, a party cannot call the mediator as a witness in later proceedings. When a dispute is scheduled for mediation, the parties will receive detailed information about confidentiality.

Mediation Implementation Strategies Scheduling: • When a landlord files a notice or UD with the courts, he will be given a list of accredited mediation clinics in the area to make the initial contact.

Training requirements for mediators: • Mediators must ensure that the mediation process does not allow a represented party to gain an advantage over an unrepresented party. Therefore, the role of mediator must be defined through uniform training.

• A new mediation program should follow the best practices of established programs. For example, in order to mediate for landlord-tenant cases, volunteers must: (1) complete a certified twenty-five hour basic mediation program; (2) complete a nine-hour course in California housing law; and (3) complete an apprenticeship. 182

Funding options: 1. Pay for increased mediation services by changing the UD filing fee structure based on the length of the notice.

In those cases where a landlord has given a longer notice, the chance of resolving the dispute without litigation should increase, because the tenant has more time to move, even if the dispute cannot be resolved in some other way. If the dispute has not yet been resolved, however, then the landlord should be rewarded for having tried to avoid resorting to court intervention. This will be accomplished via a lower filing fee and a faster court process that has resulted from fewer UDs being filed.

The lowest filing fee would be available for the longest notice, and the highest fee would be for the shortest notice. Using this fee structure, not all of the filing fee for UDs based on the shortest notice would be awardable to the landlord as part of a judgment, thereby forcing much of the cost to be considered as a cost of doing business. This policy would increase the incentive for landlords to try to resolve the matter without filing a UD. Any fees are to be paid by the landlord, but will be credited towards the UD filing fee if mediation is unsuccessful and may be awardable as costs to be reimbursed by the tenant.

2. Two-tiered system: higher filing fee unless landlord agrees to mediation.

182

See Kurtzberg & Henikoff, supra note 102.

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APPENDIX O

A PPENDIX O

More About the Law of Habitability A trial court commits legal error and is subject to reversal on appeal if, upon a showing of a substantial breach of the warranty of habitability, it does not grant the tenant possession of the premises and a conditional judgment in her favor. 183 Where a substantial breach of the warranty of habitability is found, a tenant is liable only for the reasonable rental value of the premises, as determined for such time as the premises were in violation of the housing codes.184 In considering the materiality of an alleged breach, both the seriousness of the claimed defects and the length of time for which they persist are relevant factors. 185 The agreed rent should be reduced by the percentage reduction of habitability because of the uninhabitable conditions, and then damages are determined by multiplying the difference by the number of months during which the condition persisted. 186 In an unlawful detainer case, the remedy for the successful habitability defense is to off-set any rent that otherwise would be due.

While the relevant code sections provide guidance in analyzing a habitability case, they fail to make clear one key point of the Green holding: It is possible for the reasonable rental value of the premises to be $0, in which case judgment should be entered for the tenant, without any conditions or payment due. The Green Court adopted the principle that “the tenant’s duty to pay rent is ‘mutually dependent’ upon the landlord’s fulfillment of his implied warranty of habitability,” and specifically contemplated this result: Once we recognize that the tenant’s obligation to pay rent and the landlord’s warranty of habitability are mutually dependent, it becomes clear that the landlord’s breach of such warranty may be directly relevant to the issue of possession. If the tenant can prove such a breach by the landlord, he may demonstrate that his nonpayment of rent was justified and that no rent is in fact “due and owing” to the landlord. Under such circumstances, of course, the landlord would not be entitled to possession of the premises.187 This implied warranty of habitability is a common law principle and is not dependent on statutory provisions, although they of course “may provide some helpful guidance in determining whether a landlord has satisfied the common law warranty of habitability.” 188 It is also possible for a tenant to owe no rent when conditions are so poor as to make the landlord/tenant contract illegal; the Green Court noted this theory but said that it had no occasion to decide that question.189 The relevant question may be this: How much would a reasonable person, assuming they had other realistic options in the local housing market, pay to live in the unit?

Hyatt v. Tedesco, 96 Cal. App. 4th Supp. 62, 67 (2002).

See Quevado v. Braga, 72 Cal. App. 3d Supp. 1 (1977) and Hinson v. Delis, 26 Cal. App. 3d 62 (1972) (both disapproved on other grounds, Knight v. Hallsthammar, 29 Cal. 3d 46 (1981).

185 See Cazares v. Ortiz, 109 Cal. App. 3d Supp. 23 (1980).

186 Id. 187 Green, 10 Cal. 3d at 639.

188 Id., at 639, n. 23.

189 Id. 183 184

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APPENDIX P

A PPENDIX P

The Problem of Insufficient Data Lack of data collection on the unlawful detainer process limits the potential to understand the problems associated with it and to devise policy solutions that address those problems We felt that this problem was significant, but fell outside of our criteria of recommendations for the pilot program. Based on our communication with the Judicial Council of California staff, one obstacle to better data collection is dated computer systems. It would require substantial investment by the State of California to upgrade court computer systems and data collection capabilities. Nevertheless, policy makers should consider this as a long term policy goal to gain a better understanding of the UD process and what is needed to fix it.

A. Not Enough Data are Collected on the Types of Notices Served Upon Tenants As seen throughout this report, data on unlawful detainer cases (UDs) in California are scarce. It is not even known for certain how many UDs are filed in California each year. According to data obtained from Judicial Council of California staff, many local court systems simply have not reported the numbers of UDs in their jurisdictions on a regular basis.190 Over the time period of fiscal years 1998-99 to 2003-04, the court systems in half of California’s counties did not report their total number of UDs to the Judicial Council.

For example, the state has no data on the number of UDs filed in Alameda County in FY 2003-2004 or in San Francisco County in most of FY 2002-03 and all of FY 2003-04. No data were reported on the number of UD cases in Sacramento County for four years, from FY 2000-01 to FY 2003-04, or in Fresno County for three years, from FY 2001-02 to FY 2003-04. Fortunately, data on the number of UDs are consistently reported from many of the most populous counties in California.

Data are also collected by the Judicial Council about processing times for UDs – at least from some counties. 191 We know, for example, that in Los Angeles County in FY 2003-04, 55% of UDs were disposed of in 30 days or less and 74% in 45 days or less. In Orange County, the figures were 65% and 81%, respectively; Riverside, 71% and 84%; San Diego, 69% and 88%; and San Bernardino, 74% and 90%.

Five smaller counties reported that 100% of their UDs are disposed of within 45 days. However, no UD case processing time was reported from and Alameda, Fresno, Kern, Sacramento and San Francisco Counties, nor from seven other counties.

Other than these two pieces of data (total numbers of UDs and average case processing times), collected from only some counties some of the time, there is no effort to systematically collect information about UD cases statewide. Important data that would be helpful for researchers and policymakers to know are the breakdown of UDs based on what type of notice was involved. We are unable to determine the impact of particular policy proposals without more concrete data on the types and numbers of UDs that are occurring, and in which parts of the state.

190 191

Email from Staff, Judicial Council of California, supra note 1.

JUDICIAL COUNCIL OF CALIFORNIA, supra note 50.

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Finally, only data on UDs can be collected currently. Because notices are not filed with the courts, the state has no record of how many notices are served. The only verification of the number of notices served on tenants is by the number of notices that eventually result in UDs. There is no formal mechanism to collect data about notices themselves and the amount of tenant displacement that occurs outside of the UD process.

Recommendations: Compile complete and accurate data on the number of unlawful detainer cases filed in each county throughout the state. Create a formal mechanism for gathering data on the number of notices filed in each county and on the number of tenants who are involuntarily displaced after receiving a notice from a landlord.

• Develop legislation requiring counties to collect data on the number of unlawful detainer cases filed in the county, the number and type of notice underlying the unlawful detainer. Such data collection should also be a component to the pilot program recommended above.

• Develop legislation requiring counties to collect sample data on the numbers and types of notices filed in the county as well as on the number of tenants who are involuntarily displaced after receiving notices by landlords. An “early warning system” 192 tracking 3-day and 30-day notices would be used to provide counties with an estimate of potential eviction cases and the extent of outreach services that will be necessary for displaced individuals.

Advantages: More complete and nuanced data will help inform policy strategies and lead to more successful policy interventions on behalf of tenants, landlords, and the court system. Information obtained on individuals who have received notices from an “early warning system” could potentially be given to homelessness prevention agencies. These agencies could intervene with monetary assistance early in the notice period, thus preventing involuntary displacement prior to the UD process. With more complete data, tailored policy interventions could lead to a reduced number of UDs, notices, displacement, and processing time.

Consequently, costs associated with the UD process will also be reduced.

Disadvantages: Increased data gathering will require increased funding. A significant number of personnel will be needed to both collect and analyze data.

An “early warning system” for tracking notices that could potentially become evictions was proposed by the Berkeley Rent Stabilization Board in Fiscal Year 1997-1998. City of Berkeley, Housing Department, Berkeley Homeless Continuum of Care Plan, http://www.ci.berkeley.ca.us/housing/CCP/ccpIIIA.html (last viewed May 3, 2006).

192

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APPENDIX Q

A PPENDIX Q

Complete List of Problems and Recommendations for Pilot Program PROBLEM 1: The current eviction notice process is inadequate. It fails to provide either enough information or enough time for landlords and tenants to resolve their disputes without going to court.

A. Notices are too difficult to understand and written mainly in English.

Recommendations:

Require more effective language on notices so more tenants will comply with proper notices. Give tenants the opportunity earlier in the process to learn about what the notice means and what their rights are by using more direct language, laying out their options, the risks of those options, and their chances of successfully defending the case without representation.

• Require that notices list telephone numbers and website addresses for local legal aid providers and tenant organizations, as well as for a neutral website maintained by the state that provides more information about notices and the UD process.

• Translate notice materials into languages reflecting the ethnic composition of the county.

• Test notice materials using different media, including video, DVD, or audio (CD) notices that can be delivered to tenants or that may accompany written notices.

• In some types of cases, inform tenants that mediation is available.

B. Notices do not provide enough time for tenants to move out or negotiate ag reements with landlords.

Recommendations:

Establish longer notice periods in some types of cases – increasing informal settlements during the notice period, thereby reducing overall costs to both landlords and tenants by reducing the number of unlawful detainer cases that are necessary. This will reduce case processing time and costs and as well as minimize the costs of involuntary displacement.

• Reestablish the 60-day no-fault requirement but with a better process so that more tenants actually move out within that time period: Establish a new procedure for intervention where the tenant is informed that in most cases like hers, when a 60-day no-fault notice is provided, she will likely lose at trial if she does not move before then (but she is also informed of possible defenses and how to get help with preparing that case if it appears meritorious). To accomplish this process, the landlord must file a copy of the notice with the court and pay a small filing fee, but the case is not a UD. An appointment will be scheduled for the tenant to talk with a mediator. This recommendation should be coupled with better notices.

• Establish a limited right to cure in nonpayment cases: For cases involving 3-day notices to pay rent or quit, establish a right to cure up to the day of trial, upon payment of all the landlord’s costs related to the case, effectively extending the notice period and creating possibilities for settlement. It should be limited in use to no more than once a year.

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C. Notice times are not varied enough and do not reflect the nature of the underlying dispute.

Recommendations:

Create a variety of notice periods, making them relate more directly to the nature of the underlying disputes.

• Establish intermediate options for landlords and widen the spectrum of available notice periods – create options between 60-day notices for no-fault eviction and 3-day notices for urgent cases: Establish a new 14-day notice for “minor fault” cases, and as a replacement to the current 3-day notice to cure or quit. Mediation will be required in these cases. UDs based on 14-day notices might involve loud parties or owning a pet in violation of the lease. (Note: If the 60-day notice requirement is implemented without accompanying intermediate notice options, it may serve as a perverse incentive for landlords to opt to give more 3-day notices to quit.)

• Fast-track “Urgent UDs” on 3-day notices to quit: Where a tenant’s behavior violates criminal law or severely and repeatedly impacts his neighbors in a detrimental way, a landlord should be able to obtain possession of the property quickly. These cases will be given scheduling priority in court. However, filing fees for UDs resulting from this notice will be higher than filing fees based on other types of notices. To prevail, a landlord will need substantial evidence of the tenant’s serious wrongdoing.

PROBLEM 2: The current system provides insufficient incentives for parties to resolve disputes before, or early on in, the unlawful detainer process.

A. The current practice of encouraging informal negotiation on the day of trial is costly and avoidable.

B. Informal negotiations overwhelmingly favor landlords to the detriment of tenants, resulting in higher rates of displacement than necessary.

Recommendations:

Create a mediation process for those cases that could be handled more efficiently and equitably than they are in the current system.

VOLUNTARY MEDIATION • Create an incentive to engage in mediation for cases by increasing filing fees for non-mediated UDs. By creating higher filing fees for non-mediation cases, some landlords will choose to engage in mediation. Filing fees for mediated cases would be set at the current rate for UD filings, about $300, while fees for non-mediated cases would markedly increase. In order not to increase UD processing time significantly, the mediation track would have to run parallel to the UD track. A request for mediation would be made by the landlord when the UD is filed.

MANDATORY MEDIATION • Create a new process for cases based on “no-fault” and 14-day notices in which proof of mediation is required prior to filing a UD. For 30- and 60-day notices, a landlord can file with the court a copy of the notice served on a tenant and request mediation for a small filing fee. If the landlord believes that he will need to file a UD, then mediation is mandatory beforehand. If mediation fails and the UD becomes necessary, then the mediation filing fee will be credited to the UD filing fee. A landlord cannot file a UD unless a mediator has certified that mediation was attempted by the landlord in good faith.

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APPENDIX Q

Voluntary 3-day nonpayment 3-day urgent

Mandatory 3-day nonpayment with credible habitability defense 14-day cure or quit 30-day notice to quit 60-day notice to quit

C. Settlements often take longer than the 60-day unlawful detainer masking period provides.

Recommendation:

Create incentives for tenants to reach agreements through mediation and protect tenants’ credit records.

• Lengthen the masking period time from 60 days to 90 days: In some cases, a mediated agreement will not result in judgment being entered against the tenant if she has complied with terms of the agreement. By extending the masking period for UD cases, courts will have adequate time to review and dismiss a case upon fulfillment of the terms of the agreement. Extending the masking period would preserve the tenant’s credit and future ability to rent.

PROBLEM 3: Substandard housing conditions are not properly considered by judges as a defense to nonpayment cases.

Recommendations: Create a better process for habitability cases that prioritizes using available resources on the most serious cases. There are five components to this process: 1. Standardize forms for tenants to request repairs.

2. Improve language on notices to inform tenants about the habitability procedure.

3. Coordinate code enforcement information with unlawful detainer file information.

4. In cases where court staff finds evidence that corroborates the defendant’s habitability claim based on code enforcement records or based on the number of defendants who have claimed habitability defenses at that premises or against that landlord, those cases are referred to mandatory mediation.

5. Provide incentives for private attorneys to represent tenants and strengthen the capacity of local Legal Aid organizations to handle serious habitability cases.

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BIBLIOGRAPHY

Bibliography Literature __________, California Practice Guide, Landlord-Tenant (Rutter Group, 2002).

Alexander, K. L., D. R. Entwisle, & S. L. Dauber, Children in Motion: School Transfers and Elementary School Performance, J. EDUC. RES. 90 (1996).

Blasi, Gary, How Much Access? How Much Justice?, 73 FORDHAM L. REV. 865 (2004).

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Electronic Resources and Other Material American Eagle Attorney Services, Inc., at http://americaneagle.lawinfo.com/process_services.html.

California Department of Consumer Affairs, at www.dca.ca.gov/legal/landlordbook.

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California Tenant Law, at http://www.caltenantlaw.com/RentControl.htm.

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Eviction Defense Network, Fee Scale, at http://www.evictiondefensenetwork.org/fees.html.

Express Evictions, Robert A. Krasney, Attorney-at-Law, www.expressevictions.com.

FY 2000 Appropriations for the Legal Services Corporation and Defender Services Before the Subcommittee on Commerce, Justice, State, the Judiciary, and Related Agencies, House Committee on Appropriations, 106th Cong. (statement of Doreen D. Dodson, Chair of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants) (April 15, 1999), http://www.abanet.org/legadv/testimony/lsc41599.html.

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Unlawful Detainer Registry, Inc., www.udregistry.com.

Western Center on Law & Poverty, Our Services, at http://www.wclp.org/aboutwclp/ourservices.php.

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Interview with Staff Attorney, Inner City Law Center, in Los Angeles, CA (January 2006) Interview with tenant-defendants and landlord-plaintiffs in unlawful detainer cases, downtown Los Angeles and Long Beach courthouses, in Los Angeles and Long Beach, CA (Feb. 10, 17, 24, 2006 & March 10, 2006).

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Statutes STATE CAL. CIV. CODE §§ 1785.13(a)(2),(3).

CAL. CIV. CODE § 1942.5.

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Hinson v. Delis, 26 Cal. App. 3d 62 (1972).

Hyatt v. Tedesco, 96 Cal. App. 4th Supp. 62 (2002).

Knight v. Hallsthammar, 29 Cal. 3d 46 (1981).

Quevado v. Braga, 72 Cal. App. 3d Supp. 1 (1977).

Salton Cmty. Servs. v. Southard, 256 Cal. App. 2d 526 (1967).

Strom v. Union Oil Co., 88 Cal. App. 2d 78 (1948).

U.D. Registry, Inc. v. State, 34 Cal. App. 107 (1995).

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