Eviction and Due Process

7 Jan

ANALYSIS
I. Jurisdiction: State of California
II. Elements of Due Process.
Section 6(k) of the United States Housing Act of 1937 (42U.S.C. 1437d(k), as amended by section 503(a) of the NationalAffordable Housing Act of 1990, Pub. L. 101-625, approvedNovember 28, 1990),provides that:
For any grievance concerning an eviction or termination of tenancy that involves any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises of other tenants or employeesof the public housing agency or any drug-related criminal activity on or near such premises, the agency may . . . exclude from its grievance procedure any such grievance, in any jurisdiction which requires that prior to eviction, a tenant be given a hearing in court
which the Secretary determines provides the basic elements of due process . . . .

The statutory phrase, “elements of due process,” is defined by HUD at 24 CFR 966.53(c) as:
. . . an eviction action or a termination of tenancy in a State or local court in which the following procedural safeguards are required:
(1) Adequate notice to the tenant of the grounds for terminating the tenancy and for eviction;
(2) Right of the tenant to be represented by counsel
(3) Opportunity for the tenant to refute the evidence presented by the public housing agency (PHA) including
the right to confront and cross-examine witnesses and CALIFORNIA DUE PROCESS DETERMINATION
to present any affirmative legal or equitable defense which the tenant may have; and
(4) A decision on the merits.

HUD’s determination that a State’s eviction procedures satisfy this regulatory definition is called a “due process determination.” The present due process determination is based upon HUD’s analysis of the laws of the State of California to determine if an eviction action for unlawful detainer under those laws require a hearing which comports with all of the regulatory “elements of due process,” as defined in 966.53(c).

HUD finds that the requirements of California law governing an action for unlawful detainer in the superior, municipal and justice courts include all of the elements of basic due process,as defined in 24 CFR 966.53(c). This conclusion is based upon requirements contained in the California Civil Procedure Code (CCP), the California Civil Code (CC), case law and court rules.

III. Overview of California Eviction Procedures.
CCP 1161 defines unlawful detainer to include evictions because of (1) termination of tenancy at will; (2) possession after default in rent; (3) failure to perform conditions of lease; (4) subletting, waste, nuisance and unlawful use; and (5) failure to quit after notice. This determination will focus on the use of an unlawful detainer action for those evictions which may be excluded from a PHA’s grievance procedure pursuant to a HUD due process determination (i.e., evictions for drug-related criminal activity or criminal activity that threatens a tenant’sor a PHA employee’s health or safety). Thus, the analysis will consider unlawful detainer evictions because of failure to perform conditions of the lease or because of unlawful use.
The California Constitution, Art. 6, Section 10, provides, inter alia: “Superior Courts have original jurisdiction in all causes except those given by statute to other trial courts.”
California statute gives such original jurisdiction to municipal and justice courts in most residential eviction cases. CCP 86 provides:
(a) Each municipal and justice court has original
jurisdiction of civil cases and proceedings as follows . . .
i n all proceedings in forcible entry or forcible or
unlawful detainer where the whole amount of damages claimed
is twenty-five thousand dollars ($25,000) or less . . . .
2
CALIFORNIA DUE PROCESS DETERMINATION
Owners, including PHA’s, may bring unlawful detainer actions
in municipal or justice court, or if recovery of over $25,000 is
being sought, superior court. Actions in these courts are
subject to the requirements of the CCP.
IV. Analysis of California Eviction Procedures for Each of the
Regulatory Due Process Elements.
A. Adequate notice to the tenant of the grounds for
terminating the tenancy and for eviction
(24 CFR 966.53(c)(l)).
As the first step in an eviction for breach of a lease
covenant or condition other than rent, or for violation of a
covenant or condition prohibiting use of the premises for an
unlawful purpose (CCP Section 161(2)(3)(4)), the landlord must
give three days’ notice of the termination of tenancy to the
tenant. After this notice, a verified complaint is filed
pursuant to CCP Section 1166. The complaint:
must set forth the facts on which (the plaintiff) seeks
to recover, and describe the premises with reasonable
certainty, and may set forth therein any circumstances
of fraud, force, or violence which may have accompanied
the alleged forcible entry or forcible or unlawful
detainer . . . . Upon filing the complaint, a summons
must be issued thereon.
Pursuant to CCP Section 1167, the summons and complaint in
an action for unlawful detainer are issued and served and
returned in the same manner as a summons in a civil action
“except that when the defendant is served, the defendant’s
response shall be filed within five days after the complaint is
served upon him or her, instead of the usual 30 days . . . .”
The shorter response period is required because unlawful detainer
actions are summary proceedings and has been held not to deny due
process in Deal v. Municipal Court (Tilbury), 204 Cal. Rptr. 79
(157 Cal. App. 3rd 991)(1984).
Procedures for service are prescribed by CCP 1162. The
complaints and summons required by CCP 1162 may be served by
(a) delivering a copy to the tenant personally; (b) leaving a
copy with a person of suitable age and discretion at either the
place of residence or usual place of business; (c) or by posting.
3
CALIFORNIA DUE PROCESS DETERMINATION
In addition to the above notice requirements, California
Health and Safety Code, Section 34331, in the Housing Authorities
Law, provides that:
In the operation or management of housing projects, an
authority shall not do any of the following: (a) Evict
any tenant without reasonable cause unless the tenant
has been given a written statement of such cause . . . .
B. Right to be represented by counsel
(24 CFR 966.53(c)(2)).
Statutes and court rules governing actions in superior,
municipal and justice courts include references to counsel, and
assume the right to be represented by counsel, e.g., California
Court Rule 376 (motion to be relieved as counsel), CCP 284
(change of attorney), CCP 283 (authority: attorneys and
counselors at law). CCP 1014 provides that “a defendant
appears in an action when he answers, demurs . . . or when an
attorney gives notice of appearance for him.”
C. Opportunity for the tenant to refute the evidence
presented by the PHA, including the right to confront
and cross-examine witnesses (24 CFR 966.53(c)(3)).
Under CCP 2002 the testimony of witnesses is taken in
three modes: (1) affidavit, (2) deposition and (3) oral
examination. Oral examination is defined under CCP 2005 as an
“examination in the presence of the jury or tribunal which is to
decide the fact or act upon it, the testimony being heard by the
jury or tribunal from the lips of the witness.” Section 773 of
the California Evidence Code provides that a witness examined by
one party may be cross-examined upon any matter within the scope
of the direct examination by each other party to the action in
such order as the court directs.
D. Opportunity to present any affirmative legal or
equitable defense which the tenant may have
(24 CFR 966.53(c)(3)).
CCP 1170 provides that “on or before the day fixed for his
appearance the defendant may appear and answer or demur.”
CCP 431.30(b) provides that “the answer to a complaint shall
contain: (1) the general or specific denial of the material
allegation of the complaint . . . (2) a statement of any new
matter constituting a defense.”
4
CALIFORNIA DUE PROCESS DETERMINATION
In summary the rule:
. . . is that a defense normally permitted because it
arises out of the subject matter of the original suit
is generally excluded in an unlawful detainer action if
such defense is extrinsic to the narrow issue of
possession, which the unlawful detainer procedure seeks
speedily to resolve. Fn. omitted. ‘ No . . .
California decision, however, prohibits a tenant from
interposing a defense which does directly relate to the
issue of possession and which, if established, would
result in the tenant’s retention of the premises.
(emphasis added) Fn. omitted (Green v. Superior
Court (1974) 10 Cal. 3d 616, 632-633, 111 Cal. Rptr.
704, 517 P. 2d 1168).
Deal v. Municipal Court (Tilbury), 204 Cal. Rptr. 79 (157
Cal. App. 3rd 991)(1984) noted that under the California Rules of
Court, the mandatory form of answer “contains the affirmative
defenses now recognized in California.” Deal was cited with
approval in Lynch & Freytaq v. Cooper, 267 Cal. Rptr. 189, 192
(1990): “. . . the constitutionality of these summary procedures
is based on their limitation to the single issue of right to
possession and incidental damages.”
E. A decision on the merits (24 CFR 966.53(c)(4)).
Section 632 of the CCP provides for courts in non-jury
trials to “issue a statement of decision explaining the factual
and legal basis for its decision as to each of the principal
controverted issues at trial upon the request of any party
appearing at the trial . . . .” In jury trials the jury’s
verdict must be made on the basis of the facts and the law.
CCP 592 states that ” i n actions for the recovery of . . .
real property . . . with or without damages . . . an issue of
fact must be tried by a jury unless a jury trial is waived.”
Where issues of law and fact both exist, the former must be
disposed of first by the court.
V. Conclusion.
California law governing an unlawful detainer action in the
superior, municipal and justice courts requires that the tenant
have the opportunity for a pre-eviction hearing in court which
provides the basic elements of due process as defined in 24 CFR
966.53(c) of the HUD regulations.
5
CALIFORNIA DUE PROCESS DETERMINATION
By virtue of this determination under section 6(k) of the
U.S. Housing Act of 1937, a PHA in California may evict a tenant
pursuant to a superior, municipal or justice court decision. For
such evictions, the PHA is not required to first afford the
tenant the opportunity for an administrative hearing on an
unlawful detainer action that involves any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of
the premises of other tenants or employees of the PHA or any
drug-related criminal activity on or near such premises.
6

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3 Responses to “Eviction and Due Process”

  1. Connie January 9, 2009 at 4:41 am #

    Does this Eviction and Due Process law apply to real property and property owners who were evicted and not apart of any criminal activities?
    GOD BLESS YOU!

    • timothymccandless January 9, 2009 at 4:55 am #

      Any eviction is suppose to afford a fair trial and remember its a crime to record a false document like a notice of default and trustees deed when they don’t even own the promissory note

  2. Connie January 14, 2009 at 4:12 am #

    My experiance with the UD court was heart wrenching and unfair to me as a borrower attempting to show fraud in the orgination process of a fraudulant mortgage loan. I would like to know if I can file a motion for a fair trial or fraud upon the court or some kind of motion. I know the Lender’s Attorney violated court procedures when a NOD was file. How can I get started?
    GOD BLESS

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