Unlawful Landlord Conduct

Transcription

1 Chapter 13 Unlawful Landlord Conduct EVICTION DEFENSE HANDBOOK 13/1

2 Contents Issue Checklist... 13/3 Unlawful Landlord Conduct... 13/5 Lock Out... 13/5 Willful Interruption of Utilities... 13/5 28-Day Shuffle... 13/6 Unlawful Actions to Influence Tenants to Vacate... 13/7 Void Lease Provisions... 13/8 Unlawful Entry into Dwellings... 13/8 Failing to Meter Separately... 13/9 Refusing to Allow or Evicting for Operating Family Child Care... 13/9 Double Letting a Room... 13/10 Rent Skimming... 13/10 Prohibited Acts Based on Immigration or Citizenship Status... 13/12 Unfair Practices Act... 13/13 Utilities... 13/15 Getting the Utilities Turned On... 13/15 Assistance Programs... 13/27 Resources... 13/30 Appendix: Lockout - Utility Termination 13/2 EVICTION DEFENSE HANDBOOK

3 Unlawful Landlord Conduct Issue Checklist Lock Out (p. 5) Willful Interruption of Utilities (p.5; Appendix) 28-Day Shuffle (p.6) Unlawful Actions to Influence Tenants to Vacate (p.7)**provision added in 2017 Void Lease Provisions (p.8) Unlawful Entry into Dwellings (p.8) EVICTION DEFENSE HANDBOOK 13/3

4 Failing to Meter Separately (p.9) Refusing to Allow or Evicting for Operating Family Child Care (p.9) Double Letting a Room (p.10) Rent Skimming (p.11) Prohibited Acts Based on Immigration or Citizenship Status Provisions added in 2017 (p. 12) Unfair Practices Act (p.13) Public/Subsidized Housing Utilities - Getting Utilities Turned On (p. 15) - Utility Assistance (p. 27) 13/4 EVICTION DEFENSE HANDBOOK

5 Unlawful Landlord Conduct Lock Out Code of Civil Procedure Code of Civil Procedure 1159 Forcible Entry. Every person is guilty of a forcible entry who either: 1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or, 2. Who, after entering peaceably upon real property, turns out by force, threats, or menac-ing conduct, the party in possession. The "party in possession" means any person who hires real property and includes a boarder or lodger, except those persons whose occu-pancy is described in subdivision (b) of Section 1940 of the Civil Code. Code of Civil Procedure 1160 Forcible Detainer. Every person is guilty of a forcible detainer who either: 1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or, 2. Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands. Civil Code 1940(b) Persons Who Hire (b) The term "persons who hire" shall not include a person who maintains either of the following: (1) Transient occupancy in a hotel, motel, residence club, or other facility when the transient occupancy is or would be subject to tax under Section 7280 of the Revenue and Taxation Code. The term "persons who hire" shall not include a person to whom this paragraph pertains if the person has not made valid payment for all room and other related charges owing as of the last day on which his or her occupancy is or would be subject to tax under Section 7280 of the Revenue and Taxation Code. (2) Occupancy at a hotel or motel where the innkeeper retains a right of access to and control of the dwelling unit and the hotel or motel provides or offers all of the following services to all of the residents: (A) Facilities for the safeguarding of personal property pursuant to Section (B) Central telephone service subject to tariffs covering the same filed with the California Public Utilities Commission. (C) Maid, mail, and room services. (D) Occupancy for periods of less than seven days. (E) Food service provided by a food establishment, as defined in Section of the Health and Safety Code, located on or adjacent to the premises of the hotel or motel and owned or operated by the innkeeper or owned or operated by a person or entity pursuant to a lease or similar relationship with the innkeeper or person or entity affiliated with the innkeeper. Penal Code 418. Force and Violence on Entering and Detaining on Another's Land and Possession Every person using or procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and in the manner allowed by law, is guilty of a misdemeanor. Willful Interruption of Utilities Civil Code Landlord Liability for Willful Interruption of Utilities (a) A landlord shall not with intent to termin-ate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord. (b) In addition, a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully: EVICTION DEFENSE HANDBOOK 13/5

6 (1) Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device; (2) Remove outside doors or windows; or (3) Remove from the premises the tenant's personal property, the furnishings, or any other items without the prior written consent of the tenant, except when done pursuant to the procedure set forth in Chapter 5 (com-mencing with Section 1980) of Title 5 of Part 4 of Division 3. Nothing in this subdivision shall be construed to prevent the lawful eviction of a tenant by appropriate legal authorities, nor shall anything in this subdivision apply to occupancies defined by subdivision (b) of Section (c) Any landlord who violates this section shall be liable to the tenant in a civil action for all of the following: (1) Actual damages of the tenant. (2) An amount not to exceed one hundred dollars ($100) for each day or part thereof the landlord remains in violation of this section. In determining the amount of such award, the court shall consider proof of such matters as justice may require; however, in no event shall less than two hundred fifty dollars ($250) be awarded for each separate cause of action. Subsequent or repeated violations, which are not committed contemporaneously with the initial violation, shall be treated as separate causes of action and shall be subject to a separate award of damages. (d) In any action under subdivision (c) the court shall award reasonable attorney's fees to the prevailing party. In any such action the tenant may seek appropriate injunctive relief to prevent continuing or further violation of the provisions of this section during the pendency of the action. The remedy provided by this section is not exclusive and shall not preclude the tenant from pursuing any other remedy which the tenant may have under any other provision of law. The 28-Day Shuffle Civil Code Rights to Occupancy in Residential Hotels (a) No person may require an occupant of a residential hotel, as defined in Section of the Health and Safety Code, to move, or to check out and reregister, before the expiration of 30 days occupancy if a purpose is to have that occupant maintain transient occupancy status pursuant to paragraph (1) of subdivision (b) of Section Evidence that an occu-pant was required to check out and reregister shall create a rebuttable presumption, which shall affect solely the burden of producing evidence, of the purpose referred to in this subdivision. (b) In addition to any remedies provided by local ordinance, any violation of subdivision (a) is punishable by a civil penalty of five hundred dollars ($500). In any action brought pursuant to this section, the prevailing party shall be entitled to reasonable attorney's fees. (c) Nothing in this section shall prevent a local governing body from establishing inspection authority or reporting or record-keeping requirements to ensure compliance with this section. Health and Safety Code (b)(1) Residential Hotel Definition b) The following definitions govern the construction of this section: (1) "Residential hotel" means any building containing six or more guestrooms or efficiency units, as defined by Section , intended or designed to be used, or which are used, rented, or hired out, to be occupied, or which are occupied, for sleeping purposes by guests, which is also the primary residence of those guests, but does not mean any building containing six or more guestrooms or efficiency units, as defined by Section , which is primarily used by transient guests who do not occupy that building as their primary residence. Health and Safety Code Efficiency Unit Definition Notwithstanding Sections 17922, 17958, and , a city or county may, by ordinance, permit efficiency units for occupancy by no more than two persons which have a mini-mum floor area of 150 square feet and which may also have partial kitchen or bathroom facilities, as specified by the ordinance. In all other respects, these efficiency units shall conform to minimum standards for those occupancies otherwise made applicable pursuant to this part. "Efficiency unit," as used in this section, has the same meaning specified in the Uniform Building Code of the International Conference of Building Officials, as incorporated by reference in Chapter 13/6 EVICTION DEFENSE HANDBOOK

7 2-12 of Part 2 of Title 24 of the California Code of Regulations. Unlawful Actions to Influence Tenants to Vacate 2017 Legislation Civil Code Unlawful Actions (a) It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling: (1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code. (2) Engage in conduct that violates Section 518 of the Penal Code. (3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. (4) Commit a significant and intentional violation of Section (5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief. (b) A tenant who prevails in a civil action, including an action in small claims court, to enforce his or her rights under this section is entitled to a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each violation. (c) An oral or written warning notice, given in good faith, regarding conduct by a tenant, occupant, or guest that violates, may violate, or violated the applicable rental agreement, rules, regulations, lease, or laws, is not a violation of this section. An oral or written explanation of the rental agreement, rules, regulations, lease, or laws given in the normal course of business is not a violation of this section. (d) Nothing in this section shall This section does not enlarge or diminish a landlord s right to terminate a tenancy pursuant to existing state or local law; nor shall does this section enlarge or diminish any ability of local government to regulate or enforce a prohibition against a landlord s harassment of a tenant. AB-291 Housing: immigration.( ) Penal Code 484(a) Theft Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercan-tile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud. Penal Code 518 Extortion Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. Civil Code 1927 Warranty of Quiet Possession An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same. EVICTION DEFENSE HANDBOOK 13/7

8 Void Lease Provisions Civil Code 1953 Certain Lease Provisions Void (a) Any provision of a lease or rental agree-ment of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: (1) His rights or remedies under Section [security deposits] or 1954 [landlord entry into a dwelling]. (2) His right to assert a cause of action against the lessor which may arise in the future. (3) His right to a notice or hearing required by law. (4) His procedural rights in litigation in any action involving his rights and obligations as a tenant. (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law. (b) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive a statutory right, where the modification or waiver is not void under subdivision (a) or under Section ,[tenant agrees to repair as consideration of rental], [landlord retaliation], or 1954, shall be void as contrary to public policy unless the lease or rental agreement is presented to the lessee before he takes actual possession of the premises. This subdivision does not apply to any provisions modifying or waiving a statutory right in agreements renewing leases or rental agree-ments where the same provision was also contained in the lease or rental agreement which is being renewed. (c) This section shall apply only to leases and rental agreements executed on or after January 1, Information in brackets in Civil Code 1953 is not part of official text. ED. UnlawfuI Entry into Dwellings Civil Code 1954 Landlord Entry Into Dwellings (a) A landlord may enter the dwelling unit only in the following cases: (1) In case of emergency. (2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section (3) When the tenant has abandoned or surrendered the premises. (4) Pursuant to court order. (b) Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry. (c) The landlord may not abuse the right of access or use it to harass the tenant. (d) (1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary. (2) If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit. (3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice. 13/8 EVICTION DEFENSE HANDBOOK

9 (e) No notice of entry is required under this section: (1) To respond to an emergency. (2) If the tenant is present and consents to the entry at the time of entry. (3) After the tenant has abandoned or surrendered the unit. Failure to Meter Separately Civil Code (a) If the landlord does not provide separate gas and electric meters for each tenant's dwelling unit so that each tenant's meter measures only the electric or gas service to that tenant's dwelling unit and the landlord or his or her agent has knowledge that gas or electric service provided through a tenant's meter serves an area outside the tenant's dwelling unit, the landlord, prior to the inception of the tenancy or upon discovery, shall explicitly disclose that condition to the tenant and shall do either of the following: (1) Execute a mutual written agreement with the tenant for payment by the tenant of the cost of the gas or electric service provided through the tenant's meter to serve areas outside the tenant's dwelling unit. (2) Make other arrangements, as are mutually agreed in writing, for payment for the gas or electric service provided through the tenant's meter to serve areas outside the tenant's dwelling unit. These arrangements may include, but are not limited to, the landlord becoming the customer of record for the tenant's meter, or the landlord separately metering and becoming the customer of record for the area outside the tenant's dwelling unit. (b) If a landlord fails to comply with subdivision (a), the aggrieved tenant may bring an action in a court of competent jurisdiction. The remedies the court may order shall include, but are not limited to, the following: (1) Requiring the landlord to be made the customer of record with the utility for the tenant's meter. (2) Ordering the landlord to reimburse the tenant for payments made by the tenant to the utility for service to areas outside of the tenant's dwelling unit. Payments to be reimbursed pursuant to this paragraph shall commence from the date the obligation to disclose arose under subdivision (a). (c) Nothing in this section limits any remedies available to a landlord or tenant under other provisions of this chapter, the rental agreement, or applicable statutory or common law. Refusing to allow or evicting tenants for operating a child care center Landlords may not evict or prohibit tenants from operating a licensed child-care program. Tenants may provide child-care without landlords' permission if they are: small family providers caring for six children or less or large family providers caring for 12 children or less. Family childcare is considered a residential rather than a business or commercial use. Any rental agreement or lease provision that states that the dwelling may be used only as a residence does not prevent family childcare. Tenants are required to notify landlords that they intend to operate family child-care on the premises. Landlords may require an increased security deposit from tenants although not one that exceeds the maximum allowed. For more information, contact the Child Care Law Center, the legal gurus on child care law. 1 Health & Safety Code (a) It is the intent of the Legislature that family day care homes for children should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development. It is the public policy of this state to provide children in a family day care home the same home environment as provided in a traditional home setting. The Legislature declares this policy to be of statewide concern with the purpose of occupy-ing the field to the exclusion of municipal zoning, building and fire codes and regula-tions governing the use or occupancy of family day care homes for children, except as 1 content/uploads/2014/06/know-the-law-about- Family-Child-Care-in-California-Rental- Property.pdf EVICTION DEFENSE HANDBOOK 13/9

10 specifically provided for in this chapter, and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided by this chapter. (b) Every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children, is void and every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children is void. (c) Except as provided in subdivision (d), every restriction or prohibition entered into, whether by way of covenant, condition upon use or occupancy, or upon transfer of title to real property, which restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of such property for a family day care home for children is void. (d) (1) A prospective family day care home provider, who resides in a rental property, shall provide 30 days' written notice to the landlord or owner of the rental property prior to the commencement of operation of the family day care home. (2) For family day care home providers who have relocated an existing licensed family day care home program to a rental property on or after January 1, 1997, less than 30 days' written notice may be provided in cases where the department approves the operation of the new location of the family day care home in less than 30 days, or the home is licensed in less than 30 days, in order that service to the children served in the former location not be interrupted. (3) A family day care home provider in operation on rental or leased property as of January 1, 1997, shall notify the landlord or property owner in writing at the time of the annual license fee renewal, or by March 31, 1997, whichever occurs later. (4) Notwithstanding any other provision of law, upon commencement of, or knowledge of, the operation of a family day care home on his or her property, the landlord or property owner may require the family day care home provider to pay an increased security deposit for operation of the family day care home. The increase in deposit may be required notwithstanding that a lesser amount is required of tenants who do not operate family day care homes. In no event, however, shall the total security deposit charged exceed the maximum allowable under existing law. (5) Section shall not apply to this subdivision. Double Letting a Room Civil Code 1950 Penalty for Double Letting of a Room One who hires part of a room for a dwelling is entitled to the whole of the room, notwith-standing any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the term agreed upon, and every tenant in the building, under the same landlord, is relieved from all obligation to pay rent to him while such double letting of any room continues. Rent Skimming Civil Code Definitions 890 Actions against rent skimming 891 Rent Skimming 892 Affirmative Defense 893 Severability 894 Definitions 890. (a) (1) "Rent skimming" means using revenue received from the rental of a parcel of residential real property at any time during the first year period after acquiring that property without first applying the revenue or an equivalent amount to the payments due on all mortgages and deeds of trust encumbering that property. (2) For purposes of this section, "rent skimming" also means receiving revenue from the rental of a parcel of residential real property where the person receiving that revenue, without the consent of the owner or owner's agent, asserted possession or owner-ship of the residential property, whether under a false claim of title, by trespass, or any other unauthorized means, rented the property to another, and collected rents from the other person for the rental of the property. This paragraph does not apply to any tenant, subtenant, lessee, sublessee, or assignee, nor to any other hirer having a lawful occupancy interest in the residential dwelling. (b) "Multiple acts of rent skimming" means knowingly and willfully rent skimming with respect to each of five or more parcels of 13/10 EVICTION DEFENSE HANDBOOK

11 residential real property acquired within any twoyear period. (c) "Person" means any natural person, any form of business organization, its officers and directors, and any natural person who authorizes rent skimming or who, being in a position of control, fails to prevent another from rent skimming. Actions against persons engaged in rent skimming 891. (a) A seller of an interest in residential real property who received a promissory note or other evidence of indebtedness for all or a portion of its purchase price secured by a lien on the property may bring an action against any person who has engaged in rent skimming with respect to that property. A seller who prevails in the action shall recover all actual damages and reasonable attorney's fees and costs. The court may award any appropriate equitable relief. The court shall award exemplary damages of not less than three times the actual damages if the defendant has engaged in multiple acts of rent skimming and may award exemplary damages in other cases. (b) A seller of an interest in residential real property who reacquires the interest from a person who has engaged in rent skimming with respect to that property, or a law enforce-ment agency, may request the court for an order declaring that the reacquired interest is not encumbered by any lien that is or has the effect of a judgment lien against the person who engaged in rent skimming if the lien is not related to any improvement of the property and does not represent security for loan proceeds made by a bona fide lien holder without knowledge of facts constituting a violation of this title. The motion or applica-tion shall be made with at least 30 days' advance written notice to all persons who may be affected by the order, including lien holders, and shall be granted unless the interests of justice would not be served by such an order. (c) A mortgagee or beneficiary under a deed of trust encumbering residential real property may bring an action against a person who has engaged in rent skimming with respect to that property as one of multiple acts of rent skim-ming, whether or not the person has become contractually bound by an obligation secured by the mortgage or deed of trust. The mort-gagee or beneficiary who prevails in the action shall recover actual damages to the extent of the amount of the rent collected on the encumbered property and attorney's fees and costs The court also may order any appropriate equitable relief and may award exemplary damages. (d) A tenant of residential real property may bring an action against a person who has engaged in rent skimming with respect to that property for the recovery of actual damages, including any security, as defined in Section , and moving expenses if the property is sold at a foreclosure sale and the tenant was required to move. A prevailing plaintiff in such an action shall be awarded reasonable attorney's fees and costs. The court also may award exemplary damages; it shall award exemplary damages of at least three times the amount of actual damages if the payments due under any deed of trust or mortgage were two or more months delinquent at the time the tenant rented the premises or if the defendant has engaged in multiple acts of rent skimming. (e) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law. (f) Rent skimming is unlawful, and any waiver of the provisions of this section are void and unenforceable as contrary to public policy. (g) Sections 580a, 580b, 580d, and 726 of the Code of Civil Procedure do not apply to any action brought under this title. Rent Skimming 892. (a) Any person who engages in multiple acts of rent skimming is subject to criminal prosecution. Each act of rent skimming comprising the multiple acts of rent skimming shall be separately alleged. A person found guilty of five acts shall be punished by imprisonment in the state prison or by imprisonment in the county jail for not more than one year, by a fine of not more than ten thousand dollars ($10,000), or by both that fine and imprisonment. A person found guilty of additional acts shall be separately punished for each additional act by imprisonment in the state prison or by imprisonment in the county jail for not more than one year, by a fine of not more than ten thousand dollars ($10,000), or by both that fine and imprisonment. (b) If a defendant has been once previously convicted of a violation of subdivision (a), any subsequent knowing and willful act of rent skimming shall be punishable by imprison-ment in the state prison or by imprisonment in the county jail for not more than one year, or by a fine of not EVICTION DEFENSE HANDBOOK 13/11

12 more than ten thousand dollars ($10,000), or by both that fine and imprison-ment. (c) A prosecution for a violation of this section shall be commenced within three years after the date of the acquisition of the last parcel of property that was the subject of the conduct for which the defendant is prosecuted. (d) The penalties under this section are in addition to any other remedies or penalties provided by law for the conduct proscribed by this section. Affirmative Defense 893 (a) It is an affirmative defense for a natural person who is a defendant in a civil action brought under Section 891, or a criminal action brought under Section 892, if all of the following occurred: (1) The defendant used the rental revenue due but not paid to holders of mortgages or deeds of trust to make payments to any of the following: (A) Health care providers, as defined in paragraph (2) of subdivision (c) of Section 6146 of the Business and Professions Code, for the unforeseen and necessary medical treatment of the defendant or his or her spouse, parents, or children. (B) Licensed contractors or material suppliers to correct the violation of any statute, ordinance, or regulation relating to the habitability of the premises. (2) The defendant made the payments within 30 days of receiving the rental revenue. (3) The defendant had no other source of funds from which to make the payments. (b) The defendant has the burden of producing evidence of each element of the defense specified in subdivision (a) in a criminal action under Section 892 and the burden of proof of each element of the defense in a civil action under Section 891. Severability 894.If any provision of this title or the application thereof to any person or circumstances is held to be unconstitutional, the remainder of the title and the application of its provisions to other persons and circum-stances shall not be affected thereby. Prohibited Acts Based on Immigration or Citizenship Status 2017 Legislation Civil Code (a) No city, county, or city and county shall, by statute, ordinance, or regulation, or by A public entity shall not, by ordinance, regulation, policy, or administrative action implementing any statute, ordinance, or regulation, regulation, policy, or administrative action, compel a landlord or any agent of the landlord to make any inquiry, compile, disclose, report, or provide any information, prohibit offering or continuing to offer, accommodations in the property for rent or lease, or otherwise take any action regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property. (b) No landlord A landlord, or any agent of the landlord landlord, shall not do any of the following: (1) Make any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property. (2) Require that any tenant, prospective tenant, occupant, or prospective occupant of the rental property disclose or make any statement, representation, or certification concerning his or her immigration or citizenship status. (3) Disclose to any person or entity information regarding or relating to the immigration or citizenship status of any tenant, prospective tenant, occupant, or prospective occupant of the rental property for the purpose of, or with the intent of, harassing or intimidating a tenant, prospective tenant, occupant, or prospective occupant, retaliating against a tenant or occupant for the exercise of his or her rights, influencing a tenant or occupant to vacate a dwelling, or recovering possession of the dwelling. (c) Nothing in this section shall This section does not prohibit a landlord from either: doing any of the following: (1) Complying with any legal obligation under federal law. law, including, but not limited to, any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant, or a subpoena, warrant, or other order issued by a court. 13/12 EVICTION DEFENSE HANDBOOK

13 (2) Requesting information or documentation necessary to determine or verify the financial qualifications of a prospective tenant, or to determine or verify the identity of a prospective tenant or prospective occupant. (d) For purposes of this section, both of the following shall apply: (1) Public entity includes the state, a city, county, city and county, district, public authority, public agency, and any other political subdivision or public corporation in the state. (2) State includes any state office, department, division, bureau, board, or commission and the Trustees of the California State University and the California State University. AB-291 Housing: immigration ( ) (a) It is unlawful for a landlord to disclose to any immigration authority, law enforcement agency, or local, state, or federal agency information regarding or relating to the immigration or citizenship status of any tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant, for the purpose of, or with the intent of, harassing or intimidating a tenant or occupant, retaliating against a tenant or occupant for the exercise of his or her rights, influencing a tenant or occupant to vacate a dwelling, or recovering possession of the dwelling, irrespective of whether the tenant or occupant currently resides in the dwelling. (b) If a court of applicable jurisdiction finds a violation of this section in a proceeding initiated by a party or upon a motion of the court, the court shall do all of the following: (1) For each person whose status was so disclosed, order the landlord to pay statutory damages in an amount to be determined in the court s discretion that is between 6 and 12 times the monthly rent charged for the dwelling in which the tenant or occupant resides or resided. (2) Issue injunctive relief to prevent the landlord from engaging in similar conduct with respect to other tenants, occupants, and persons known to the landlord to be associated with the tenants or occupants. (3) Notify the district attorney of the county in which the real property for hire is located of a potential violation of Section 519 of the Penal Code. (c) A landlord is not in violation of this section if he or she is complying with any legal obligation under federal law, or subpoena, warrant, or order issued by a court. (d) In making findings in a proceeding under this section, a court may take judicial notice under subdivision (d) of Section 452 of the Evidence Code of the proceedings and records of any federal removal, inadmissibility, or deportation proceeding. (e) A court shall award to the prevailing party in an action under this section attorney s fees and costs. (f) The remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law. (g) Any waiver of a right under this section by a tenant, occupant, or person known to the landlord to be associated with a tenant or occupant shall be void as a matter of public policy. (h) An action for injunctive relief pursuant to this section may be brought by a nonprofit organization exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code, as amended. That organization shall be considered a party for purposes of this section. AB-291 Housing: immigration ( ) Unfair Practices Act Advocates have used the Unfair Practices Act aka Unfair Competition Law to sue landlords for the illegal conduct described in this chapter. The Act provided that civil actions could be commenced by "any person acting for the interests of itself, its members or the general public." EVICTION DEFENSE HANDBOOK 13/13

14 The 2004 amendment to the Unfair Practices Act Proposition 64 eliminates that language and permits civil actions to be commenced by "any person who has suffered injury in fact and has lost money or property as a result of such unfair competition." It also states that a party can assert claims or seek relief on behalf of others only if the requirements of California's class action statutes are satisfied. For the latest on the Act, check out The UCL Practitioner "the first and only weblog on California's Business & Professions Code section " 2 For the curious, visit a thorough overview from a defense perspective. 3 Excerpts Business & Professions Code This chapter may be cited as the Unfair Practices Act Injunctive Relief--Court Orders... Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney, or city prosecutor in this state Actions for Injunctions by Attorney General, District Attorney, County Counsel, and City Attorneys Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by complaint or upon the complaint of any board, officer, person, corporation or association or by any person who has suffered injury in fact and has lost money or property as a result of such unfair competition The Legislature declares that the purpose of this chapter is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent and discriminatory practices by which fair and honest competition is destroyed or prevented This chapter shall be liberally construed that its beneficial purposes may be subserved Any person or trade association may bring an action to enjoin and restrain any violation of this chapter and, in addition thereto, for the recovery of damages As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code /14 EVICTION DEFENSE HANDBOOK

15 Utilities Getting the Utilities Turned On SB 120 (Lowenthal) Residential: utility service. Chapter 560 Statutes of Section 1(Civil Code ) Tenants or occupants who has made a payment to a public utility or publicly owned utility may deduct the payment amount from the rent when due, as specified. Section 2.5 (Public Utilities Code 777) Where a landlord-tenant relationship exists, if a utility furnishes individually metered residential service to residential occupants in a detached single-family dwelling, multiunit residential structure, mobilehome park, or permanent residential structure in a labor camp, and the owner, manager, or operator is the customer of record, the utility must notify occupants in writing (in specified languages)when service will be terminated at least 10 days before termination. If occupants are able to assume responsibility for subsequent charges, the utility must make service available to occupants. Operative on July 1, 2010 Section 3 (Public Utilities Code 777.1) Required notices must be in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. SECTION 1. Section is added to the Civil Code, to read: Civil Code A tenant who has made a payment to a utility pursuant to Section 777, 777.1, 10009, , 12822, , 16481, or of the Public Utilities Code may deduct the payment from the rent as provided in that section. SEC. 2. Section 777 of the Public Utilities Code is amended to read: PUC Code 777. (a) Whenever an electrical, gas, heat, or water corporation furnishes individually metered residential service to residential occupants in a multiunit residential structure, mobilehome park, or permanent residential structures in a labor camp, as defined in Section of the Health and Safety Code, where the owner, manager, or operator is listed by the corporation as the customer of record, the corporation shall make every good faith effort to inform the residential occupants, by means of a notice, when the account is in arrears, that service will be terminated at least 10 days prior to termination. The notice shall further inform the residential occupants that they have the right to become customers, to whom the service will then be billed, without being required to pay any amount which may be due on the delinquent account. (b) The corporation is not required to make service available to the residential occupants unless each residential occupant agrees to the terms and conditions of service and meets the requirements of law and the corporation's rules and tariffs. However, if one or more of the residential occupants are willing and able to assume responsibility for the entire account to the satisfaction of the corporation, or if there is a physical means, legally available to the corporation, of selectively terminating service to those residential occupants who have not met the requirements of the corporation's rules and tariffs, the corporation shall make service available to those residential occupants who have met those requirements. (c) Where prior service for a period of time is a condition for establishing credit with the corporation, residence and proof of prompt payment of rent or other credit obligation acceptable to the corporation for that period of time is a satisfactory equivalent. (d) Any residential occupant who becomes a customer of the corporation pursuant to this section whose periodic payments, such as rental payments, include charges for residential electrical, gas, heat, or water service, where those charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the corporation for those services during the preceding payment period. (e) This section shall remain in effect only until July 1, 2010, and as of that date is repealed, unless a later enacted statute, that is enacted before July 1, 2010, deletes or extends that date. EVICTION DEFENSE HANDBOOK 13/15

16 SEC Section 777 is added to the Public Utilities Code, to read: PUC Code 777 (a) This section applies if there is a landlord-tenant relationship between the residential occupants and the owner, manager, or operator of the dwelling. (b) If an electrical, gas, heat, or water corporation furnishes individually metered residential service to residential occupants of a detached singlefamily dwelling, a multiunit residential structure, mobilehome park, or permanent residential structure in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the dwelling, structure, or park is the customer of record, the corporation shall make every good faith effort to inform the residential occupants, by means of written notice, when the account is in arrears, that service will be terminated at least 10 days prior to termination. The written notice shall further inform the residential occupants that they have the right to become customers, to whom the service will then be billed, without being required to pay any amount which may be due on the delinquent account. The notice shall be in English and in the languages listed in Section 1632 of the Civil Code. (c) The corporation is not required to make service available to the residential occupants unless each residential occupant agrees to the terms and conditions of service and meets the requirements of law and the corporation's rules and tariffs. However, if one or more of the residential occupants are willing and able to assume responsibility for the subsequent charges to the account to the satisfaction of the corporation, or if there is a physical means, legally available to the corporation, of selectively terminating service to those residential occupants who have not met the requirements of the corporation's rules and tariffs, the corporation shall make service available to those residential occupants who have met those requirements. (d) If prior service for a period of time is a condition for establishing credit with the corporation, residence and proof of prompt payment of rent or other credit obligation acceptable to the corporation for that period of time is a satisfactory equivalent. (e) Any residential occupant who becomes a customer of the corporation pursuant to this section whose periodic payments, such as rental payments, include charges for residential electrical, gas, heat, or water service, where those charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the corporation for those services during the preceding payment period. (f) In the case of a detached single-family dwelling, the corporation may do any of the following: (1) Give notice of termination at least seven days prior to the proposed termination, notwithstanding the notice period specified in subdivision (a). (2) In order for the amount due on the delinquent account to be waived, require an occupant who becomes a customer to verify that the delinquent account customer of record is or was the landlord, manager, or agent of the dwelling. Verification may include, but is not limited to, a lease or rental agreement, rent receipts, a government document indicating that the occupant is renting the property, or information disclosed pursuant to Section 1962 of the Civil Code. (g) This section shall become operative on July 1, SEC. 3. Section of the Public Utilities Code is amended to read: PUC Code (a) If an electrical, gas, heat, or water corporation furnishes residential service to residential occupants through a master meter in a multiunit residential structure, mobilehome park, or permanent residential structure in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the structure or park is listed by the corporation as the customer of record, the corporation shall make every good faith effort to inform the residential occupants, by means of a written notice posted on the door of each residential unit at least 15 days prior to termination, when the account is in arrears, that service will be terminated on a date specified in the notice. If it is not reasonable or practicable to post the notice on the door of each residential unit, the corporation shall post two copies of the notice in each accessible common area and at each point of access to the structure or structures. The notice shall further inform the residential occupants that they have the right to become customers, to whom the service will then be billed, without being required to pay any amount which may be due on the delinquent account. The notice 13/16 EVICTION DEFENSE HANDBOOK

17 also shall specify, in plain language, what the residential occupants are required to do in order to prevent the termination or reestablish service; the estimated monthly cost of service; the title, address, and telephone number of a representative of the corporation who can assist the residential occupants in continuing service; and the address and telephone number of a legal services project, as defined in Section 6213 of the Business and Professions Code, which has been recommended by the local county bar association. The notice shall be in English and the languages listed in Section 1632 of the Civil Code. (b) The corporation is not required to make service available to the residential occupants unless each residential occupant or a representative of the residential occupants agrees to the terms and conditions of service and meets the requirements of law and the corporation's rules and tariffs. However, if one or more of the residential occupants or the representative of the residential occupants are willing and able to assume responsibility for subsequent charges to the account to the satisfaction of the corporation, or if there is a physical means, legally available to the corporation, of selectively terminating service to those residential occupants who have not met the requirements of the corporation's rules and tariffs or for whom the representative of the residential occupants is not responsible, the corporation shall make service available to those residential occupants who have met those requirements or on whose behalf those requirements have been met. (c) If prior service for a period of time or other demonstration of credit worthiness is a condition for establishing credit with the corporation, residence and proof of prompt payment of rent or other credit obligation during that period of time acceptable to the corporation is a satisfactory equivalent. (d) Any residential occupant who becomes a customer of the corporation pursuant to this section whose periodic payments, such as rental payments, include charges for residential electrical, gas, heat, or water service, where those charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the corporation for those services during the preceding payment period. (e) If a corporation furnishes residential service subject to subdivision (a), the corporation shall not terminate that service in any of the following situations: (1) During the pendency of an investigation by the corporation of a customer dispute or complaint. (2) If the customer has been granted an extension of the period for payment of a bill. (3) For an indebtedness owed by the customer to any other person or corporation or if the obligation represented by the delinquent account or other indebtedness was incurred with a person or corporation other than the electrical, gas, heat, or water corporation demanding payment therefor. (4) If a delinquent account relates to another property owned, managed, or operated by the customer. (5) If a public health or building officer certifies that termination would result in a significant threat to the health or safety of the residential occupants or the public. (f) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, manager, or operator, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit receiving that service is occupied, the residential occupant or the representative of the residential occupants may commence an action for the recovery of all of the following: (1) Reasonable costs and expenses incurred by the residential occupant or the representative of the residential occupants related to restoration of service. (2) Actual damages related to the termination of service. (3) Reasonable attorney's fees of the residential occupants, the representative of the residential occupants, or each of them, incurred in the enforcement of this section, including, but not limited to, enforcement of a lien. (g) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, manager, or operator, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit receiving that service is occupied, the corporation may commence an action for the recovery of all of the following: (1) Delinquent charges accruing prior to the expiration of the notice prescribed by subdivision (a). EVICTION DEFENSE HANDBOOK 13/17

18 (2) Reasonable costs incurred by the corporation related to the restoration of service. (3) Reasonable attorney's fees of the corporation incurred in the enforcement of this section or in the collection of delinquent charges, including, but not limited to, enforcement of a lien. If the court finds that the owner, manager, or operator has paid the amount in arrears prior to termination, the court shall allow no recovery of any charges, costs, damages, expenses, or fees under this subdivision from the owner, manager, or operator. An abstract of any money judgment entered pursuant to subdivision (f) or (g) shall be recorded pursuant to Section of the Code of Civil Procedure. (h) No termination of service subject to this section may be effected without compliance with this section, and any service wrongfully terminated shall be restored without charge to the residential occupants or customer for the restoration of the service.in the event of a wrongful termination by the corporation, the corporation shall, in addition, be liable to the residential occupants or customer for actual damages resulting from the termination and for the costs of enforcement of this section, including, but not limited to, reasonable attorney's fees, if the residential occupants or the representative of the residential occupants made a good faith effort to have the service continued without interruption. (i) The commission shall adopt rules and orders necessary to implement this section and shall liberally construe this section to accomplish its purpose of ensuring that service to residential occupants is not terminated due to nonpayment by the customer unless the corporation has made every reasonable effort to continue service to the residential occupants. The rules and orders shall include, but are not limited to, reasonable penalties for a violation of this section, guidelines for assistance to residents in the enforcement of this section, and requirements for the notice prescribed by subdivision (a), including, but not limited to, clear wording, large and boldface type, and comprehensive instructions to ensure full notice to the resident. (j) Nothing in this section broadens or restricts any authority of a local agency that existed prior to January 1, 1989, to adopt an ordinance protecting a residential occupant from the involuntary termination of residential public utility service. (k) This section preempts any statute or ordinance permitting punitive damages against any owner, manager, or operator on account of an involuntary termination of residential public utility service or permitting the recovery of costs associated with the formation, maintenance, and termination of a tenant's association. (l ) For purposes of this section, "representative of the residential occupants" does not include a tenants' association. SEC. 4. Section of the Public Utilities Code is amended to read: PUC Code (a) This section applies if there is a landlordtenant relationship between the residential occupants and the owner, manager, or operator of the dwelling. (b) If a public utility furnishes individually metered residential light, heat, water, or power to residential occupants in a detached single-family dwelling, a multiunit residential structure, mobilehome park, or a permanent residential structure in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the dwelling, structure, or park is the customer of record, the public utility shall make every good faith effort to inform the residential occupants, by means of written notice, when the account is in arrears, that service will be terminated in 10 days. The written notice shall further inform the residential occupants that they have the right to become customers of the public utility without being required to pay the amount due on the delinquent account. The notice shall be in English and in the languages listed in Section 1632 of the Civil Code. (c) The public utility is not required to make service available to the residential occupants unless each residential occupant agrees to the terms and conditions of service, and meets the requirements of law and the public utility's rules. However, if one or more of the residential occupants are willing and able to assume responsibility for the subsequent charges to the account to the satisfaction of the public utility, or if there is a physical means, legally available to the public utility, of selectively terminating service to those residential occupants who have not met the requirements of the public utility's rules, the public utility shall make service available to 13/18 EVICTION DEFENSE HANDBOOK

19 the residential occupants who have met those requirements. (d) If prior service for a period of time is a condition for establishing credit with the public utility, residence and proof of prompt payment of rent or other obligation acceptable to the public utility for that period of time is a satisfactory equivalent. (e) Any residential occupant who becomes a customer of the public utility pursuant to this section whose periodic payments, such as rental payments, include charges for residential light, heat, water, or power, where these charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the public utility for those services during the preceding payment period. SEC. 5. Section of the Public Utilities Code is amended to read: PUC Code (a) If a public utility furnishes light, heat, water, or power to residential occupants through a master meter in a multiunit residential structure, mobilehome park, or permanent residential structures in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the structure or park is listed by the public utility as the customer of record, the public utility shall make every good faith effort to inform the residential occupants, by means of a written notice posted on the door of each residential unit at least 15 days prior to termination, when the account is in arrears, that service will be terminated on a date specified in the notice. If it is not reasonable or practicable to post the notice on the door of each residential unit, the public utility shall post two copies of the notice in each accessible common area and at each point of access to the structure or structures. The notice shall further inform the residential occupants that they have the right to become utility customers, to whom the service will then be billed, without being required to pay the amount due on the delinquent account. The notice also shall specify, in plain language, what the residential occupants are required to do in order to prevent the termination or reestablish service; the estimated monthly cost of service; the title, address, and telephone number of a representative of the public utility who can assist the residential occupants in continuing service; and the address and telephone number of a legal services project, as defined in Section 6213 of the Business and Professions Code, which has been recommended by the local county bar association. The notice shall be in English and the languages listed in Section 1632 of the Civil Code. (b) The public utility is not required to make service available to the residential occupants unless each residential occupant or a representative of the residential occupants agrees to the terms and conditions of service, and meets the requirements of law and the public utility's rules. However, if one or more of the residential occupants or the representative of the residential occupants are willing and able to assume responsibility for subsequent charges to the account to the satisfaction of the public utility, or if there is a physical means, legally available to the public utility, of selectively terminating service to those residential occupants who have not met the requirements of the public utility's rules or for whom the representative of the residential occupants is not responsible, the public utility shall make service available to the residential occupants who have met those requirements or on whose behalf those requirements have been met. (c) If prior service for a period of time or other demonstration of credit worthiness is a condition for establishing credit with the public utility, residence and proof of prompt payment of rent or other credit obligation during that period of time acceptable to the public utility is a satisfactory equivalent. (d) Any residential occupant who becomes a customer of the public utility pursuant to this section whose periodic payments, such as rental payments, include charges for residential light, heat, water, or power, where these charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the public utility for those services during the preceding payment period. (e) If a public utility furnishes residential service subject to subdivision (a), the public utility may not terminate that service in any of the following situations: (1) During the pendency of an investigation by the public utility of a customer dispute or complaint. EVICTION DEFENSE HANDBOOK 13/19

20 (2) If the customer has been granted an extension of the period for payment of a bill. (3) For an indebtedness owed by the customer to any other public agency or when the obligation represented by the delinquent account or other indebtedness was incurred with any public agency other than the public utility. (4) If a delinquent account relates to another property owned, managed, or operated by the customer. (5) If a public health or building officer certifies that termination would result in a significant threat to the health or safety of the residential occupants or the public. (f) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, manager, or operator, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit is occupied, the residential occupant or the representative of the residential occupants may commence an action for the recovery of all of the following: (1) Reasonable costs and expenses incurred by the residential occupant or the representative of the residential occupants related to restoration of service. (2) Actual damages related to the termination of service. (3) Reasonable attorney's fees of the residential occupants, the representative of the residential occupants, or each of them, incurred in the enforcement of this section, including, but not limited to, enforcement of a lien. (g) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, manager, or operator, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit receiving that service is occupied, the corporation may commence an action for the recovery of all of the following: (1) Delinquent charges accruing prior to the expiration of the notice prescribed by subdivision (a). (2) Reasonable costs incurred by the corporation related to the restoration of service. (3) Reasonable attorney's fees of the corporation incurred in the enforcement of this section or in the collection of delinquent charges, including, but not limited to, enforcement of a lien. If the court finds that the owner, manager, or operator has paid the amount in arrears prior to termination, the court shall allow no recovery of any charges, costs, damages, expenses, or fees under this subdivision from the owner, manager, or operator. An abstract of any money judgment entered pursuant to subdivision (f) or (g) shall be recorded pursuant to Section of the Code of Civil Procedure. (h) No termination of service subject to this section may be effected without compliance with this section, and any service wrongfully terminated shall be restored without charge to the residential occupants or customer for the restoration of the service. In the event of a wrongful termination by the public utility, the public utility shall, in addition, be liable to the residential occupants or customer for actual damages resulting from the termination and for the costs of enforcement of this section, including, but not limited to, reasonable attorney's fees, if the residential occupants or the representative of the residential occupants make a good faith effort to have the service continued without interruption. (i) The public utility shall adopt rules and regulations necessary to implement this section and shall liberally construe this section to accomplish its purpose of ensuring that service to residential occupants is not terminated due to nonpayment by the customer unless the public utility has made every reasonable effort to continue service to the residential occupants. The rules and regulations shall include, but are not limited to, guidelines for assistance to actual users in the enforcement of this section and requirements for the notice prescribed by subdivision (a), including, but not limited to, clear wording, large and boldface type, and comprehensive instructions to ensure full notice to the actual user. (j) Nothing in this section broadens or restricts any authority of a local agency that existed prior to January 1, 1989, to adopt an ordinance protecting a residential occupant from the involuntary termination of residential public utility service. (k) This section preempts any statute or ordinance permitting punitive damages against any owner, manager, or operator on account of an involuntary termination of residential public utility service or permitting the recovery of costs associated with the formation, maintenance, and termination of a tenant's association. 13/20 EVICTION DEFENSE HANDBOOK

21 ( l ) For purposes of this section, "representative of the residential occupants" does not include a tenants' association. SEC. 6. Section of the Public Utilities Code is amended to read: PUC (a) This section applies if there is a landlord-tenant relationship between the residential occupants and the owner, manager, or operator of the dwelling. (b) If a district furnishes individually metered residential light, heat, water, or power to residential occupants in a detached single-family dwelling, multiunit residential structure, mobilehome park, or permanent residential structure in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the dwelling, structure, or park is the customer of record of the service, the district shall make every good faith effort to inform the residential occupants, by means of written notice, when the account is in arrears, that service will be terminated in 10 days. The written notice shall further inform the residential occupants that they have the right to become customers of the district without being required to pay the amount due on the delinquent account. The notice shall be in English and in the languages listed in Section 1632 of the Civil Code. (c) The district is not required to make service available to the residential occupants unless each residential occupant agrees to the terms and conditions of service, and meets the requirements of the district's rules. However, if one or more of the residential occupants are willing and able to assume responsibility for the subsequent charges to the account to the satisfaction of the district, or if there is a physical means, legally available to the district, of selectively terminating service to those residential occupants who have not met the requirements of the district's rules, the district shall make service available to the residential occupants who have met those requirements. (d) If prior service for a period of time is a condition for establishing credit with the district, residence and proof of prompt payment of rent or other credit obligation acceptable to the district for that period of time is a satisfactory equivalent. (e) Any residential occupant who becomes a customer of the district pursuant to this section whose periodic payments, such as rental payments, include charges for residential light, heat, water, or power, where these charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the district for those services during the preceding payment period. SEC. 7. Section of the Public Utilities Code is amended to read: PUC Code (a) If a district furnishes residential light, heat, water, or power to residential occupants through a master meter in a multiunit residential structure, mobilehome park, or permanent residential structures in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the structure or park is listed by the district as the customer of record of the service, the district shall make every good faith effort to inform the residential occupants, by means of a written notice posted on the door of each residential unit at least 15 days prior to termination, when the account is in arrears, that service will be terminated on a date specified in the notice. If it is not reasonable or practicable to post the notice on the door of each residential unit, the district shall post two copies of the notice in each accessible common area and at each point of access to the structure or structures. The notice shall further inform the residential occupants that they have the right to become customers, to whom the service will then be billed, of the district without being required to pay the amount due on the delinquent account. The notice also shall specify, in plain language, what the residential occupants are required to do in order to prevent the termination or reestablish service; the estimated monthly cost of service; the title, address, and telephone number of a representative of the district who can assist the residential occupants in continuing service; and the address and telephone number of a legal services project, as defined in Section 6213 of the Business and Professions Code, which has been recommended by the local county bar association.the notice shall be in English and in the languages listed in Section 1632 of the Civil Code. (b) The district is not required to make service available to the residential occupants unless each residential occupant or a representative of the residential occupants agrees to the terms and conditions of service, and meets the requirement of law and the district's rules. However, if one or more of the residential occupants or the EVICTION DEFENSE HANDBOOK 13/21

22 representative of the residential occupants are willing and able to assume responsibility for subsequent charges to the account to the satisfaction of the district, or if there is a physical means, legally available to the district, of selectively terminating service to those residential occupants who have not met the requirements of the district's rules or for whom the representative of the residential occupants is not responsible, the district shall make service available to the residential occupants who have met those requirements or on whose behalf those requirements have been met. (c) If prior service for a period of time, or other demonstration of credit worthiness is a condition for establishing credit with the district, residence and proof of prompt payment of rent or other credit obligation during that period of time acceptable to the district is a satisfactory equivalent. (d) Any residential occupant who becomes a customer of the district pursuant to this section whose periodic payments, such as rental payments, include charges for residential light, heat, water, or power, where these charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the district for those services during the preceding payment period. (e) If a district furnishes residential service subject to subdivision (a), the district may not terminate that service in any of the following situations: (1) During the pendency of an investigation by the district of a customer dispute or complaint. (2) If the customer has been granted an extension of the period for payment of a bill. (3) For an indebtedness owed by the customer to any other public agency or when the obligation represented by the delinquent account or other indebtedness was incurred with any public agency other than the district. (4) If a delinquent account relates to another property owned, managed, or operated by the customer. (5) If a public health or building officer certifies that termination would result in a significant threat to the health or safety of the residential occupants or the public. (f) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, operator, or manager, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit is occupied, the residential occupant or the representative of the residential occupants may commence an action for the recovery of all of the following: (1) Reasonable costs and expenses incurred by the residential occupant or the representative of the residential occupants related to restoration of service. (2) Actual damages related to the termination of service. (3) Reasonable attorney's fees of the residential occupants, the representative of the residential occupants, or each of them, incurred in the enforcement of this section, including, but not limited to, enforcement of a lien. (g) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, manager, or operator, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit receiving that service is occupied, the corporation may commence an action for the recovery of all of the following: (1) Delinquent charges accruing prior to the expiration of the notice prescribed by subdivision (a). (2) Reasonable costs incurred by the corporation related to the restoration of service. (3) Reasonable attorney's fees of the corporation incurred in the enforcement of this section or in the collection of delinquent charges, including, but not limited to, enforcement of a lien. If the court finds that the owner, manager, or operator has paid the amount in arrears prior to termination, the court shall allow no recovery of any charges, costs, damages, expenses, or fees under this subdivision from the owner, manager, or operator. An abstract of any money judgment entered pursuant to subdivision (f) or (g) shall be recorded pursuant to Section of the Code of Civil Procedure. (h) No termination of service subject to this section may be effected without compliance with this section, and any service wrongfully terminated shall be restored without charge to the residential occupants or customer for the restoration of the service. In the event of a wrongful termination by the district, the district shall, in addition, be liable to the residential occupants or customer for actual damages resulting from the termination and for 13/22 EVICTION DEFENSE HANDBOOK

23 the costs of enforcement of this section, including, but not limited to, reasonable attorney's fees, if the residential occupants or the representative of the residential occupants make a good faith effort to have the service continued without interruption. (i) The district shall adopt rules and regulations necessary to implement this section and shall liberally construe this section to accomplish its purpose of ensuring that service to the residential occupants is not terminated due to nonpayment by the customer unless the district has made every reasonable effort to continue service to the residential occupants. The rules and regulations shall include, but are not limited to, guidelines for assistance to actual users in the enforcement of this section and requirements for the notice prescribed by subdivision (a), including, but not limited to, clear wording, large and boldface type, and comprehensive instructions to ensure full notice to the actual user. (j) Nothing in this section broadens or restricts any authority of a local agency that existed prior to January 1, 1989, to adopt an ordinance protecting a residential occupant from the involuntary termination of residential public utility service. (k) This section preempts any statute or ordinance permitting punitive damages against any owner, manager, or operator on account of an involuntary termination of residential public utility service or permitting the recovery of costs associated with the formation, maintenance, and termination of a tenant's association. (l ) For purposes of this section, "representative of the residential occupants" does not include a tenants' association. SEC. 8. Section of the Public Utilities Code is amended to read: PUC Code (a) This section applies if there is a landlord-tenant relationship between the residential occupants and the owner, manager, or operator of the dwelling. (b) If a district furnishes individually metered residential light, heat, water, or power to residential occupants in a detached single-family dwelling, multiunit residential structure, mobilehome park, or permanent residential structure in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator is the customer of record, the district shall make every good faith effort to inform the residential occupants, by means of written notice, when the account is in arrears, that service will be terminated in 10 days. The written notice shall further inform the residential occupants that they have the right to become customers of the district without being required to pay the amount due on the delinquent account. The notice shall be in English and in the languages listed in Section 1632 of the Civil Code. (c) The district is not required to make service available to the residential occupants unless each residential occupant agrees to the terms and conditions of service, and meets the requirements of the district's rules. However, if one or more of the residential occupants are willing and able to assume responsibility for the subsequent charges to the account to the satisfaction of the district, or if there is a physical means, legally available to the district, of selectively terminating service to those residential occupants who have not met the requirements of the district's rules, the district shall make service available to the residential occupants who have met those requirements. (d) If prior service for a period of time is a condition for establishing credit with the district, residence and proof of prompt payment of rent or other credit obligation acceptable to the district for that period of time is a satisfactory equivalent. (e) Any residential occupant who becomes a customer of the district pursuant to this section whose periodic payments, such as rental payments, include charges for residential light, heat, water, or power, where these charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the district for those services during the preceding payment period. SEC. 9. Section of the Public Utilities Code is amended to read: PUC Code (a) If a district furnishes residential light, heat, water, or power to residential occupants through a master meter in a multiunit residential structure, mobilehome park, or permanent residential structure in a labor camp, as defined in Section of the Health and Safety Code, and the owner, manager, or operator of the structure or park is listed by the district as the customer of EVICTION DEFENSE HANDBOOK 13/23

24 record, the district shall make every good faith effort to inform the residential occupants, by means of a written notice posted on the door of each residential unit at least 15 days prior to termination, when the account is in arrears, that service will be terminated on a date specified in the notice. If it is not reasonable or practicable to post the notice on the door of each residential unit, the district shall post two copies of the notice in each common area and at each point of access to the structure or structures. The notice shall further inform the residential occupants that they have the right to become customers, to whom the service will be billed, of the district without being required to pay the amount due on the delinquent account. The notice also shall specify, in plain language, what the residential occupants are required to do in order to prevent the termination or reestablish service; the estimated monthly cost of service; the title, address, and telephone number of a representative of the district who can assist the residential occupants in continuing service; and the address and telephone number of a legal services project, as defined in Section 6213 of the Business and Professions Code, which has been recommended by the local county bar association. The notice shall be in English and in the languages listed in Section 1632 of the Civil Code. (b) The district is not required to make service available to the residential occupants unless each residential occupant or a representative of the residential occupants agrees to the terms and conditions of service, and meets the requirements of law and the district's rules. However, if one or more of the residential occupants or the representative of the residential occupants are willing and able to assume responsibility for subsequent charges to the account to the satisfaction of the district, or if there is a physical means, legally available to the district, of selectively terminating service to those residential occupants who have not met the requirements of the district's rules or for whom the representative of the residential occupants is not responsible, the district shall make service available to the residential occupants who have met those requirements or on whose behalf those requirements have been met. (c) If prior service for a period of time or other demonstration of credit worthiness is a condition for establishing credit with the district, residence and proof of prompt payment of rent or other credit obligation during that period of time acceptable to the district is a satisfactory equivalent. (d) Any residential occupant who becomes a customer of the district pursuant to this section whose periodic payments, such as rental payments, include charges for residential light, heat, water, or power, where these charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the district for those services during the preceding payment period. (e) If a district furnishes residential service subject to subdivision (a), the district may not terminate that service in any of the following situations: (1) During the pendency of an investigation by the district of a customer dispute or complaint. (2) If the customer has been granted an extension of the period for payment of a bill. (3) For an indebtedness owed by the customer to any other public agency or when the obligation represented by the delinquent account or other indebtedness was incurred with any public agency other than the district. (4) If a delinquent account relates to another property owned, managed, or operated by the customer. (5) If a public health or building officer certifies that termination would result in a significant threat to the health or safety of the residential occupants or the public. (f) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, operator, or manager, by any act or omission, directs, permits, or fails to prevent a termination of service while any residential unit is occupied, the residential occupant or the representative of the residential occupants may commence an action for the recovery of all of the following: (1) Reasonable costs and expenses incurred by the residential occupant or the representative of the residential occupants related to restoration of service. (2) Actual damages related to the termination of service. (3) Reasonable attorney's fees of the residential occupants, the representative of the residential occupants, or each of them, incurred in the enforcement of this section, including, but not limited to, enforcement of a lien. (g) Notwithstanding any other provision of law, and in addition to any other remedy provided by law, if the owner, manager, or operator, by any act 13/24 EVICTION DEFENSE HANDBOOK

25 or omission, directs, permits, or fails to prevent a termination of service while any residential unit receiving that service is occupied, the corporation may commence an action for the recovery of all of the following: (1) Delinquent charges accruing prior to the expiration of the notice prescribed by subdivision (a). (2) Reasonable costs incurred by the corporation related to the restoration of service. (3) Reasonable attorney's fees of the corporation incurred in the enforcement of this section or in the collection of delinquent charges, including, but not limited to, enforcement of a lien. If the court finds that the owner, manager, or operator has paid the amount in arrears prior to termination, the court shall allow no recovery of any charges, costs, damages, expenses, or fees under this subdivision from the owner, manager, or operator. An abstract of any money judgment entered pursuant to subdivision (f) or (g) shall be recorded pursuant to Section of the Code of Civil Procedure. (h) No termination of service subject to this section may be effected without compliance with this section, and any service wrongfully terminated shall be restored without charge to the residential occupants or customer for the restoration of the service. In the event of a wrongful termination by the district, the district shall, in addition, be liable to the residential occupants or customer for actual damages resulting from the termination and for the costs of enforcement of this section, including, but not limited to, reasonable attorney's fees, if the residential occupants or the representative of the residential occupants make a good faith effort to have the service continued without interruption. (j) Nothing in this section broadens or restricts any authority of a local agency that existed prior to January 1, 1989, to adopt an ordinance protecting a residential occupant from the involuntary termination of residential public utility service. (k) This section preempts any statute or ordinance permitting punitive damages against any owner, manager, or operator on account of an involuntary termination of public utility service or permitting the recovery of costs associated with the formation, maintenance, and termination of a tenant's association. ( l ) For purposes of this section, "representative of the residential occupants" does not include a tenants' association. SEC. 10. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. (i) The district shall adopt rules and regulations necessary to implement this section and shall liberally construe this section to accomplish its purpose of ensuring that service to the residential occupants is not terminated due to nonpayment by the customer unless the district has made every reasonable effort to continue service to the residential occupants. The rules and regulations shall include, but are not limited to, guidelines for assistance to actual users in the enforcement of this section and requirements for the notice prescribed by subdivision (a), including, but not limited to, clear wording, large and boldface type, and comprehensive instructions to ensure full notice to the actual users. EVICTION DEFENSE HANDBOOK 13/25

26 13/26 EVICTION DEFENSE HANDBOOK

27 Utility Assistance Programs Where can you get funds when your clients' utilities are about to be or have been terminated? Basically, you can look to two sources: 1. Federally funded Low Income Home Energy Assistance Program (LIHEAP), the primary safety net between low-income consumers and loss of vital utility service. 2. Utility Company financial assistance programs including emergency charitable assistance. Contact information below. Low Income Home Energy Assistance Program (LIHEAP) Under the Low Income Energy Assistance Act of states must target households that have the lowest incomes and the highest energy costs. States receive regular LIHEAP funds as block grants from the federal administering agency, the Department of Health & Human Services, Administration For Children and Families, Office of Community Services, Division of Energy Assistance. 5 Find LIHEAP Guidance, Policies, and Procedures ae on Office of Energy Assistance web site. 6 The amount of LIHEAP funds a household receives varies from year to year, state to state and even within a state depending on the different types of assistance a state provides in any given year. LIHEAP is not an entitlement program; once the state spends all its allocated LIHEAP funds, the program shuts down until the next year unless HHS releases LIHEAP emergency contingency funds in response to a 4 Title XXVI of the Omnibus Reconciliation Act of 1981, Public Law 97-35; 42 U.S.C C.F.R eap crisis. The authorizing statute 7 caps income eligibility for the program at 150% of the poverty level for a state or 60 percent of the State median income. 8 This standard is referred to as the "LIHEAP federal income maximum." However, a LIHEAP grantee may choose to set its income eligibility level as low as 110% of the poverty level but not lower. In addition, a LIHEAP grantee may establish additional criteria that a household has to meet in order to be eligible for the program. State LIHEAP agencies such as California have the flexibility of providing assistance to households with at least one member who also receives assistance under the following federal programs: Temporary Assistance for Needy Families (TANF) Supplemental Security Income (SSI), Food Stamps, or certain needs-tested veteran benefits. Not all state LIHEAP programs provide this categorical eligibility. LIHEAP Clearinghouse profiles each state s programs. 9 The California Department of Community Services and Development 10 (CSD) administers LIHEAP in California. CSD submits State Plans for the block grants and programs it administers to U.S. Department of Health & Human Services U.S.C. 8624(b)(2)(B) 8 uidelines.aspx %20Fact%20Sheet%20Final%20( ).pdf %20Department%20Overview%20Brochure%20( August2013).pdf 11 EVICTION DEFENSE HANDBOOK 13/27

28 These two LIHEAP programs may help with utility bills: 1. Home Energy Assistance Program (HEAP) provides a direct payment to a lowincome household's utility to help offset heating or cooling costs. Eligibility is based on a household s monthly income. The assistance amount is based on the number of persons in the household, total household income, the cost of energy within the county where the household resides, and funding availability. HEAP provides one payment per program year. 2. Energy Crisis Intervention Program (ECIP) provides assistance to low-income households that are in a crisis situation to include: an energy related or life-threatening emergency within the household; a hour disconnect notice a service termination notice. In 2013, 156,990 Californians received a HEAP payment; 87,816 received an ECIP payment for gas or electric shut off. Under most circumstances, it takes approximately three weeks to process an HEAP application. Local community services agencies 12 and Tribal LIHEAP grantees 13 are largely responsible for processing applications. CSD is responsible for issuing payments. Some utility companies are currently under contract with CSD to provide direct LIHEAP payment services to their customers urarea.aspx 13 Utility Company Financial Assistance Programs vary from utility to utility and can include: rate reduction programs, medical baseline programs and charity programs. These programs are listed with contact information at the LIHEAP Clearinghouse. 15 Reduced Rate Programs Many utilities offer reduced rate programs, variously called "California Alternate Rates for Energy (CARE)," 'Rate Assistance Program (RAP)," "Low Income Discount Program (LIDP)" and "Energy Assistance Program Rate" (EAPR). Eligible customers receive a 20% - 25% discount on electric and natural gas bills. To qualify for reduced rate assistance, total household income cannot exceed at or below 175% FPL. Applications are processed to determine eligibility. Once approved, the discount will appear on the utility bill and often within one to two billing cycles. The process is delayed when an application is incomplete or received without the required supporting documentation such as the utility bill and income verification documents. The Community Services and Development Department verifies program eligibility for several utility companies that administer reduced rate programs. Family Electric Rate Assistance (FERA) Many public utilities offer Family Electric Rate Assistance for large households of three or more people with low- to middle-income. FERA is designed for customers who exceed the income threshold for reduced rate programs. Medical Baseline Programs Customers dependent on life-support equipment or with special heating or cooling needs may be eligible for 500 kwh of electricity and/or 25 therms of gas per month at the lowest price, in addition to standard baseline quantities. They are also exempt 14 urarea.aspx /28 EVICTION DEFENSE HANDBOOK

29 from the average 3-cent per kwh energy procurement surcharge. Energy Income Guidelines Households may qualify for assistance if their household s total gross monthly income does not exceed the income guidelines listed above. For all programs, the household s income must be verified to receive assistance. Examples of proof of income include copy of a current paycheck or benefits check CalWORKS, SSI, GA, VA. CSD lists other ways to verify income Income Guidelines Persons in Household Monthly Income Annual Income 1 $2, $25, $2, $32, $3, $40, $4, $48, $4, $55, $5, $63, $5, $65, $5, $66, $5,672,31 $68, $5, $69, Weatherization Programs 16 The California Department of Community Services and Development also administers the U.S. Department of Energy, Weatheri-zation Assistance Program (DOE WAP). DOE WAP provides free weatherization services to improve the energy efficiency of homes, including attic insulation, weather stripping, minor housing repairs, and related energy conservation measures. California Public Utilities Commission The California Public Utilities Commission provides discounts on wireline telephone service, energy bills and energy efficiency, and some water service to eligible consumers. The CPUC provides discounts for eligible applicants with special medical needs. 17 The CPUC also helps resolve a billing, service, or safety issue with a utility, moving company, or passenger carrier, such as a limousine, airport shuttle, or charter bus company lls/energyincomeguidelines.aspx Emergency Charitable Assistance Through donations, some utilities fund emergency program to help customers who do not qualify for any other assistance programs but can't pay their bills due to temporary financial hardship such as temporary unemployment or a serious family illness. Many are administered by a community agency such as the Salvation Army or United Way U.S.C ; 10 C.F.R EVICTION DEFENSE HANDBOOK 13/29

30 Resources LIHEAP Clearinghouse The Clearinghouse should be your first stop in getting information about LIHEAP and utility assistance. The Clearinghouse collects, develops, organizes and dissem-inates information on low-income energy issues. State Low-Income Energy Profiles These LIHEAP Clearinghouse profiles present a capsule view of each state's key LIHEAP characteristics, as well as details of its non-federal low-income energy programs state- and utility-funded, and charitable. a.htm National Consumer Law Center is an invaluable resource for all advocates including housing advocates. An original back-up, support center for legal services, the National Consumer Law Center now serves a much broader constituency. Its materials are among the very best. Access to Utility Service is a valuable resource well worth the price. Access to Utility Service th ed. Print + Digital $ pp. and companion web site ISBN The New Consumer Law Frontier Delivery of electricity, gas and telecommunications services are some of the biggest problem areas for consumers today. Skyrocketing prices, de-regulation, potential widespread terminations, slamming and cramming, conservation initiatives, rate caps, and affordability programs all make this an area essential to a consumer law practice. What You Need to Know in This Evolving Area Customer service issues, from deposits to late charges, from level billing plans to master metering Telephone and telecommunications issues Homeowner and tenant rights to utility service, metering issues, billing disputes, and utility terminations Utility allowances in subsidized housing Low-income affordability strategies Weatherization and conservation Using bankruptcy to restore service or prevent a disconnect. F17 13/30 EVICTION DEFENSE HANDBOOK