2005 California Health and Safety Code Sections 11570-11587 Article 3. Abatement

HEALTH AND SAFETY CODE
SECTION 11570-11587

11570.  Every building or place used for the purpose of unlawfully
selling, serving, storing, keeping, manufacturing, or giving away any
controlled substance, precursor, or analog specified in this
division, and every building or place wherein or upon which those
acts take place, is a nuisance which shall be enjoined, abated, and
prevented, and for which damages may be recovered, whether it is a
public or private nuisance.
11571.  Whenever there is reason to believe that a nuisance as
described in Section 11570 is kept, maintained, or exists in any
county, the district attorney of the county, or the city attorney of
any incorporated city or of any city and county, in the name of the
people, may, or any citizen of the state resident in the county, in
his or her own name, may maintain an action to abate and prevent the
nuisance and perpetually to enjoin the person conducting or
maintaining it, and the owner, lessee, or agent of the building or
place in or upon which the nuisance exists from directly or
indirectly maintaining or permitting the nuisance.
11571.1.  (a) To effectuate the purposes of this article, the city
prosecutor or city attorney may file, in the name of the people, an
action for unlawful detainer against any person who is in violation
of the nuisance or illegal purpose provisions of subdivision 4 of
Section 1161 of the Code of Civil Procedure, with respect to a
controlled substance purpose. In filing this action, which shall be
based upon an arrest report or on another action or report by a
regulatory or law enforcement agency, the city prosecutor or city
attorney shall utilize the procedures set forth in Chapter 4
(commencing with Section 1159) of Title 3 of Part 3 of the Code of
Civil Procedure, except that in cases filed under this section, the
following also shall apply:
   (1) (A) Prior to filing an action pursuant to this section, the
city prosecutor or city attorney shall give 30 calendar days' written
notice to the owner, requiring the owner to file an action for the
removal of the person who is in violation of the nuisance or illegal
purpose provisions of subdivision 4 of Section 1161 of the Code of
Civil Procedure with respect to a controlled substance purpose.
   (B) This notice shall include sufficient documentation
establishing a violation of the nuisance or illegal purpose
provisions of subdivision 4 of Section 1161 of the Code of Civil
Procedure and shall be served upon the owner and the tenant in
accordance with subdivision (e) of this section.
   (C) The notice to the tenant shall also include on the bottom of
its front page, in at least 14-point bold type, the following:
   "Notice to Tenant: This notice is not a notice of eviction.
However, you should know that an eviction action may soon be filed in
court against you for suspected drug activity, as described above.
You should call (insert name and telephone number of the city
attorney or prosecutor pursuing the action) or legal aid to stop the
eviction action if any of the following is applicable:
   (i) You are not the person named in this notice.
   (ii) The person named in the notice does not live with you.
   (iii) The person named in the notice has permanently moved.
   (iv) You do not know the person named in the notice.
   (v) You have any other legal defense or legal reason to stop the
eviction action.
   A list of legal assistance providers is attached to this notice.
Some provide free legal help if you are eligible."
   (D) The owner shall, within 30 calendar days of the mailing of the
written notice, either provide the city prosecutor or city attorney
with all relevant information pertaining to the unlawful detainer
case, or provide a written explanation setting forth any
safety-related reasons for noncompliance, and an assignment to the
city prosecutor or city attorney of the right to bring an unlawful
detainer action against the tenant.
   (E) The assignment shall be on a form provided by the city
prosecutor or city attorney and may contain a provision for costs of
investigation, discovery, and reasonable attorney's fees, in an
amount not to exceed six hundred dollars ($600).
   (F) If the city prosecutor or city attorney accepts the assignment
of the right of the owner to bring the unlawful detainer action, the
owner shall retain all other rights and duties, including the
handling of the tenant's personal property, following issuance of the
writ of possession and its delivery to and execution by the
appropriate agency.
   (2) Upon the failure of the owner to file an action pursuant to
this section, or to respond to the city prosecutor or city attorney
as provided in paragraph (1), or having filed an action, if the owner
fails to prosecute it diligently and in good faith, the city
prosecutor or city attorney may file and prosecute the action, and
join the owner as a defendant in the action. This action shall have
precedence over any similar proceeding thereafter brought by the
owner, or to one previously brought by the owner and not prosecuted
diligently and in good faith. Service of the summons and complaint
upon the defendant owner shall be in accordance with Sections 415.10,
415.20, 415.30, 415.40, and 415.50 of the Code of Civil Procedure.
   (3) If a jury or court finds the defendant tenant guilty of
unlawful detainer in a case filed pursuant to paragraph (2), the city
prosecutor or city attorney may be awarded costs, including the
costs of investigation and discovery and reasonable attorney's fees.
These costs shall be assessed against the defendant owner, to whom
notice was directed pursuant to paragraph (1), and once an abstract
of judgment is recorded, it shall constitute a lien on the subject
real property.
   (4) Nothing in this article shall prevent a local governing body
from adopting and enforcing laws, consistent with this article,
relating to drug abatement. Where local laws duplicate or supplement
this article, this article shall be construed as providing
alternative remedies and not preempting the field.
   (5) Nothing in this article shall prevent a tenant from receiving
relief against a forfeiture of a lease pursuant to Section 1179 of
the Code of Civil Procedure.
   (b) In any proceeding brought under this section, the court may,
upon a showing of good cause, issue a partial eviction ordering the
removal of any person, including, but not limited to, members of the
tenant's household if the court finds that the person has engaged in
the activities described in subdivision (a). Persons removed pursuant
to this section may be permanently barred from returning to or
reentering any portion of the entire premises. The court may further
order as an express condition of the tenancy that the remaining
tenants shall not give permission to or invite any person who has
been removed pursuant to this subdivision to return to or reenter any
portion of the entire premises.
   (c) For the purposes of this section, "controlled substance
purpose" means the manufacture, cultivation, importation into the
state, transportation, possession, possession for sale, sale,
furnishing, administering, or giving away, or providing a place to
use or fortification of a place involving, cocaine, phencyclidine,
heroin, methamphetamine, or any other controlled substance, in a
violation of subdivision (a) of Section 11350, Section 11351,
11351.5, 11352, or 11359, subdivision (a) of Section 11360, or
Section 11366, 11366.6, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11383, if the offense occurs on the subject real property
and is documented by the observations of a peace officer.
   (d) Notwithstanding subdivision (b) of Section 68097.2 of the
Government Code, a public entity may waive all or part of the costs
incurred in furnishing the testimony of a peace officer in an
unlawful detainer action brought pursuant to this section.
   (e) The notice and documentation described in paragraph (1) of
subdivision (a) shall be given in writing and may be given either by
personal delivery or by deposit in the United States mail in a sealed
envelope, postage prepaid, addressed to the owner at the address
known to the public entity giving the notice, or as shown on the last
equalized assessment roll, if not known. Separate notice of not less
than 30 calendar days and documentation shall be provided to the
tenant in accordance with this subdivision. Service by mail shall be
deemed to be completed at the time of deposit in the United States
mail. Proof of giving the notice may be made by a declaration signed
under penalty of perjury by any employee of the public entity which
shows service in conformity with this section.
   (f) This section shall only apply to the following courts:
   (1) In the County of Los Angeles, any court having jurisdiction
over unlawful detainer cases involving real property situated in the
City of Los Angeles or in the City of Long Beach.
   (2) In the County of San Diego, any court having jurisdiction over
unlawful detainer cases involving real property situated in the City
of San Diego.
   (3) In the County of Alameda, any court with jurisdiction over
unlawful detainer cases involving real property situated in the City
of Oakland.
   (g) (1) The city attorney and city prosecutor of each
participating jurisdiction shall provide to the Judicial Council the
following information:
   (A) The number of notices provided pursuant to paragraph (1) of
subdivision (a).
   (B) The number of cases filed by an owner, upon notice.
   (C) The number of assignments executed by owners to the city
attorney or city prosecutor.
   (D) The number of three-day, 30-day, or 60-day notices issued by
the city attorney or city prosecutor.
   (E) The number of cases filed by the city attorney or city
prosecutor.
   (F) The number of times that an owner is joined as a defendant
pursuant to this section.
   (G) As to each case filed by an owner, the city attorney, or the
city prosecutor, the following information:
   (i) The number of judgments ordering an eviction or partial
eviction (specify whether default, stipulated, or following trial).
   (ii) The number of cases, listed by separate categories, in which
the case was withdrawn or in which the tenant prevailed.
   (iii) The number of other dispositions (specify disposition).
   (iv) The number of defendants represented by counsel.
   (v) Whether the case was a trial by the court or a trial by a
jury.
   (vi) Whether an appeal was taken, and, if so, the result of the
appeal.
   (vii) The number of cases in which partial eviction was requested,
and the number of cases in which the court ordered a partial
eviction.
   (H) As to each case in which a notice was issued, but no case was
filed, the following information:
   (i) The number of instances in which a tenant voluntarily vacated
the unit.
   (ii) The number of instances in which a tenant vacated a unit
prior to the providing of the notice.
   (iii) The number of cases in which the notice provided pursuant to
subdivision (a) was erroneously sent to the tenant. (List reasons,
if known, for the erroneously sent notice, such as reliance on
information on the suspected controlled substance law violator's name
or address that was incorrect; clerical error; or any other reason)
   (iv) The number of other resolutions (specify resolution).
   (2) (A) Information compiled pursuant to this section shall be
reported annually to the Judicial Council on or before January 30 of
each year.
   (B) The Judicial Council shall thereafter submit a brief report to
the Senate and Assembly Committees on the Judiciary once on or
before April 15, 2007, and once on or before April 15, 2009,
summarizing the information collected pursuant to this section and
evaluating the merits of the pilot programs established by this
section.
   (h) This section shall remain in effect only until January 1,
2010, and as of that date is repealed unless a later enacted statute
deletes or extends that date.
11571.5.  For purposes of this article, an action to abate a
nuisance may be taken by the city attorney or city prosecutor of the
city within which the nuisance exists, is kept, or is maintained.  An
action by a city attorney or city prosecutor shall be accorded the
same precedence as an action maintained by the district attorney of
the county.
11572.  Unless filed by the district attorney, or the city attorney
of an incorporated city, the complaint in the action shall be
verified.
11573.  (a) If the existence of the nuisance is shown in the action
to the satisfaction of the court or judge, either by verified
complaint or affidavit, the court or judge shall allow a temporary
restraining order or injunction to abate and prevent the continuance
or recurrence of the nuisance.
   (b) A temporary restraining order or injunction may enjoin
subsequent owners, commercial lessees, or agents who acquire the
building or place where the nuisance exists with notice of the
temporary restraining order or injunction, specifying that the owner
of the property subject to the temporary restraining order or
injunction shall notify any prospective purchaser, commercial lessee,
or other successor in interest of the existence of the order or
injunction, and of its application to successors in interest, prior
to entering into any agreement to sell or lease the property.  The
temporary restraining order or injunction shall not constitute a
title defect, lien, or encumbrance on the real property.
11573.5.  (a) At the time of application for issuance of a temporary
restraining order or injunction pursuant to Section 11573, if proof
of the existence of the nuisance depends, in whole or part, upon the
affidavits of witnesses who are not peace officers, upon a showing of
prior threats of violence or acts of violence by any defendant or
other person, the court may issue orders to protect those witnesses,
including, but not limited to, nondisclosure of the name, address, or
any other information which may identify those witnesses.
   (b) A temporary restraining order or injunction issued pursuant to
Section 11573 may include closure of the premises pending trial when
a prior order or injunction does not result in the abatement of the
nuisance.  The duration of the order or injunction shall be within
the court's discretion.  In no event shall the total period of
closure pending trial exceed one year.  Prior to ruling on a request
for closure the court may order that some or all of the rent payments
owing to the defendant be placed in an escrow account for a period
of up to 90 days or until the nuisance is abated.  If the court
subsequently orders a closure of the premises, the money in the
escrow account shall be used to pay for relocation assistance
pursuant to subdivision (d).  In ruling upon a request for closure,
whether for a defined or undefined duration, the court shall consider
all of the following factors:
   (1) The extent and duration of the nuisance at the time of the
request.
   (2) Prior efforts by the defendant to comply with previous court
orders to abate the nuisance.
   (3) The nature and extent of any effect which the nuisance has
upon other persons, such as residents or businesses.
   (4) Any effect of prior orders placing displaced residents' or
occupants' rent payments into an escrow account upon the defendant's
efforts to abate the nuisance.
   (5) The effect of granting the request upon any resident or
occupant of the premises who is not named in the action, including
the availability of alternative housing or relocation assistance, the
pendency of any action to evict a resident or occupant, and any
evidence of participation by a resident or occupant in the nuisance
activity.
   (c) In making an order of closure pursuant to this section, the
court may order the premises vacated and may issue any other orders
necessary to effectuate the closure.  However, all tenants who may be
affected by the order shall be provided reasonable notice and an
opportunity to be heard at all hearings regarding the closure request
prior to the issuance of any order.
   (d) In making an order of closure pursuant to this section, the
court shall order the defendant to provide relocation assistance to
any tenant ordered to vacate the premises, provided the court
determines that the tenant was not actively involved in the nuisance
activity.  The relocation assistance ordered to be paid by the
defendant shall be in the amount necessary to cover moving costs,
security deposits for utilities and comparable housing, adjustment in
any lost rent, and any other reasonable expenses the court may deem
fair and reasonable as a result of the court's order.
   (e) At the hearing to order closure pursuant to this section, the
court may make the following orders with respect to any displaced
tenant not actively involved in the nuisance:
   (1) Priority for senior citizens, physically handicapped persons,
or persons otherwise suffering from a permanent or temporary
disability for claims against money for relocation assistance.
   (2) Order the local agency seeking closure pursuant to this
section to make reasonable attempts to seek additional sources of
funds for relocation assistance to displaced tenants, if deemed
necessary.
   (3) Appoint a receiver to oversee the disbursement of relocation
assistance funds, whose services shall be paid from the escrow fund.
   (4) Where a defendant has paid relocation assistance pursuant to
subdivision (d), the escrow account under subdivision (b) may be
released to the defendant and no appointment under paragraph (3)
shall be made.
   (f) (1) The remedies set forth pursuant to this section shall be
in addition to any other existing remedies for nuisance abatement
actions, including, but not limited to, the following:
   (A) Capital improvements to the property, such as security gates.
   (B) Improved interior or exterior lighting.
   (C) Security guards.
   (D) Posting of signs.
   (E) Owner membership in neighborhood or local merchants'
associations.
   (F) Attending property management training programs.
   (G) Making cosmetic improvements to the property.
   (H) Requiring the owner or person in control of the property to
reside in the property until the nuisance is abated.  The order shall
specify the number of hours per day or per week the owner or person
in control of the property must be physically present in the
property.  In determining this amount, the court shall consider the
nature and severity of the nuisance.
   (2) At all stages of an action brought pursuant to this article,
the court has equitable powers to order steps necessary to remedy the
problem and enhance the abatement process.
11574.  On granting the temporary writ the court or judge shall
require an undertaking on the part of the applicant to the effect
that the applicant will pay  to the defendant enjoined such damages,
not exceeding an amount to be specified, as the defendant sustains by
reason of the injunction if the court finally decides that the
applicant was not entitled to the injunction.
11575.  The action shall have precedence over all other actions,
except criminal proceedings, election contests, hearings on
injunctions, and actions to forfeit vehicles under this division.
11575.5.  In any action for abatement instituted pursuant to this
article, all evidence otherwise authorized by law, including evidence
of reputation in a community, as provided in the Evidence Code,
shall be admissible to prove the existence of a nuisance.
11576.  If the complaint is filed by a citizen it shall not be
dismissed by him or for want of prosecution except upon a sworn
statement made by him and his attorney, setting forth the reasons why
the action should be dismissed, and by dismissal ordered by the
court.
11577.  In case of failure to prosecute the action with reasonable
diligence, or at the request of the plaintiff, the court, in its
discretion, may substitute any other citizen consenting thereto for
the plaintiff.
11578.  If the action is brought by a citizen and the court finds
there was no reasonable ground or cause for the action, the costs
shall be taxed against him.
11579.  If the existence of the nuisance is established in the
action, an order of abatement shall be entered as part of the
judgment in the case, and plaintiff's costs in the action are a lien
upon the building or place.  The lien is enforceable and collectible
by execution issued by order of the court.
11580.  A violation or disobedience of the injunction or order for
abatement is punishable as a contempt of court by a fine of not less
than five hundred dollars ($500) nor more than ten thousand dollars
($10,000), or by imprisonment in the county jail for not less than
one nor more than six months, or by both.
   A contempt may be based on a violation of any court order
including failure to pay relocation assistance.  Notwithstanding any
other provision of law, any fines assessed for contempt shall first
be held by the court and applied to satisfaction of the court's order
for relocation assistance pursuant to subdivision (d) of Section
11573.5.
   Evidence concerning the duration and repetitive nature of the
violations shall be considered by the court in determining the
contempt penalties.
11581.  (a) If the existence of the nuisance is established in the
action, an order of abatement shall be entered as a part of the
judgment, which order shall direct the removal from the building or
place of all fixtures, musical instruments, and other movable
property used in conducting, maintaining, aiding, or abetting the
nuisance and shall direct their sale in the manner provided for the
sale of chattels under execution.
   (b) (1) The order shall provide for the effectual closing of the
building or place against its use for any purpose, and for keeping it
closed for a period of one year.  This subdivision is intended to
give priority to closure.  Any alternative to closure may be
considered only as provided in this section.
   (2) In addition, the court may assess a civil penalty not to
exceed twenty-five thousand dollars ($25,000) against any or all of
the defendants, based upon the severity of the nuisance and its
duration.
   (3) One-half of the civil penalties collected pursuant to this
section shall be deposited in the Restitution Fund in the State
Treasury, the proceeds of which shall be available only upon
appropriation by the Legislature to indemnify persons filing claims
pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of
Part 4 of Division 3 of Title 2 of the Government Code, and one-half
of the civil penalties collected shall be paid to the city in which
the judgment was entered, if the action was brought by the city
attorney or city prosecutor.  If the action was brought by a district
attorney, one-half of the civil penalties collected shall be paid to
the treasurer of the county in which the judgment was entered.
   (c) (1) If the court finds that any vacancy resulting from closure
of the building or place may create a nuisance or that closure is
otherwise harmful to the community, in lieu of ordering the building
or place closed, the court may order the person who is responsible
for the existence of the nuisance, or the person who knowingly
permits controlled substances to be unlawfully sold, served, stored,
kept, or given away in or from a building or place he or she owns, to
pay damages in an amount equal to the fair market rental value of
the building or place for one year to the city or county in whose
jurisdiction the nuisance is located for the purpose of carrying out
drug abuse treatment, prevention, and education programs.  If awarded
to a city, eligible programs may include those developed as a result
of cooperative programs among schools, community agencies, and the
local law enforcement agency.  These funds shall not be used to
supplant existing city, county, state, or federal resources used for
drug prevention and education programs.
   (2) For purposes of this subdivision, the actual amount of rent
being received for the rental of the building or place, or the
existence of any vacancy therein, may be considered, but shall not be
the sole determinant of the fair market rental value.  Expert
testimony may be used to determine the fair market rental value.
   (d) This section shall become operative on January 1, 1996.
11582.  While the order of abatement remains in effect, the building
or place is in the custody of the court.
11583.  For removing and selling the movable property, the officer
is entitled to charge and receive the same fees as he would for
levying upon and selling like property on execution; and for closing
the premises and keeping them closed, a reasonable sum shall be
allowed by the court.
11584.  The proceeds of the sale of the movable property shall be
applied as follows:
   First--To the fees and costs of the removal and sale.
   Second--To the allowances and costs of closing and keeping closed
the building or place.
   Third--To the payment of the plaintiff's costs in the action.
   Fourth--The balance, if any, to the owner of the property.
11585.  If the proceeds of the sale of the movable property do not
fully discharge all of the costs, fees, and allowances, the building
and place shall then also be sold under execution issued upon the
order of the court or judge and the proceeds of the sale shall be
applied in like manner.
11586.  (a) If the owner of the building or place has not been
guilty of any contempt of court in the proceedings, and appears and
pays all costs, fees, and allowances that are a lien on the building
or place and files a bond in the full value of the property
conditioned that the owner will immediately abate any nuisance that
may exist at the building or place and prevent it from being
established or kept thereat within a period of one year thereafter,
the court, or judge may, if satisfied of the owner's good faith,
order the building or place to be delivered to the owner, and the
order of abatement canceled so far as it may relate to the property.
   (b) The release of property under the provisions of this division
does not release it from any judgment, lien, penalty, or liability to
which it may be subject.
11587.  Whenever the owner of a building or place upon which the act
or acts constituting the contempt have been committed, or the owner
of any interest therein, has been guilty of a contempt of court, and
fined in any proceedings under this division, the fine is a lien upon
the building or place to the extent of his interest in it.
   The lien is enforceable and collectible by execution issued by
order of the court.


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