“You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”
This admonition accurately characterizes the spirit and intent of the Sargent Shriver Civil Counsel Act (SSCCA), implementation of which has made Californiathe first state in the nation to recognize an individual’s “right” to attorney representation in certain civil legal matters.
By way of review, SSCCA was designed to provide pro bono (read: “free”) legal counsel and related court services to low-income parties on “critical legal issues affecting basic human needs” including housing-related matters, domestic violence claims, and certain child custody actions. While there are many other types of cases that involve critical legal issues affecting basic human needs, “housing-related” matters, mostly eviction actions, remain that with which we are most concerned.
SSCCA’s stated purpose is to address what the legislature had determined to be “substantial inequities” in uniform access to justice in civil cases, and avoid the undue risk of erroneous court decisions resulting from the nature and complexity of the law in specific proceedings or disparities between the parties in legal representation, education, sophistication, language proficiency, and/or lack of access to self-help and alternative dispute resolution (ADR).
In implementing the Act, seven statewide “pilot” projects were set up, funded with millions of dollars in grants to local courts and seven qualified “lead” legal services non-profit corporations (the “lead agencies”). These local courts and designated lead agencies have “partnered” in developing and implementing their local programs.
Statewide, five of the seven projects are dealing with “housing-related” matters. Presently, local county courts are partnered with certain lead agencies in the counties of San Diego, Bakersfield, Santa Barbara, Sacramento & Yolo (collectively), and Los Angeles. These courts and lead agencies have developed procedures and practices to ensure that those parties unable to afford legal representation have meaningful access to the courts, have their cases heard on the merits, and do not unintentionally give up their legal rights.
In San DiegoCounty, the designated lead agency is the Legal Aid Society of San Diego, Inc. (“LASSD”), and with its increased case load, LASSD hired several new attorneys to assist in housing-related cases (primarily unlawful detainer cases). When landlords file eviction lawsuits, the court then refers the tenants to LASSD to be assessed for qualification on a stated “means tested” basis. Basically, a family of four earning less than $45,000 per year qualifies for Shriver representation. However, LASSD remains solely responsible for determining eligibility and considers other factors in assessing qualification, including, but not limited to, the nature or severity of consequences if the party remains unrepresented, the merits of the case, the probability of success on the merits, case complexity, and the presence of literacy or disability issues.
Now almost a year and a half after full implementation, the Act, as most landlord/tenant attorneys had predicted, has significantly impacted the manner in which otherwise “routine” cases are prosecuted. As a direct result, landlords are experiencing:
- a significantly higher incidence of Shriver-represented tenants
- more zealous defenses
- increased discovery requests
- more pre-trial appearances
- jury trial requests; and, as natural result,
- costlier and longer case processing times
These results are especially true in cases where there is a higher probability of defense success on the merits. This is primarily because the legal services providers can obtain an award of “reasonable” attorney fees if their client is the prevailing party in litigation where there is a contract provision providing for same to the successful party. This is true even where the tenant has paid nothing at all for legal representation.
In combating this one issue, many landlords have modified their rental agreements to remove or “cap” attorney fee provisions. [AOA’s Rental Agreement and/or Lease provides this cap on attorney’s fees.] InSan Diego, capped fee provisions have thus far been upheld; however, one LASSD attorney has let slip that their goal is to ultimately defeat capped fee provisions as being against public policy. Another targeted issue is “late fee” provisions.
Other consequences have surfaced as well. As predicted, landlords have experienced a much tougher time dealing with cases where the tenant has a high probability of success on the merits, and are finding themselves settling cases on much less than desirable terms just to avoid facing exorbitant attorney fees demands should a defensible case go to trial.
Unfortunately, some landlords have suffered adverse fee awards in the thousands of dollars. While it is speculative, it might be concluded that Shriver’s active pursuit of large fee awards is calculated to act as a recurring revenue source, funding continuance of the program beyond its authorized “sunset” date.
Even in cases where there is no real defense, because LASSD needs “successes” to validate the continuing need for the program, Shriver attorneys are affirmatively soliciting, and landlords are accepting, case settlements much more favorable to tenants than would otherwise be acceptable just to avoid the “hassle” and uncertainty of taking cases to trial. These concessions often include waiver of rent, attorney fees and costs, extended lockouts, and post-judgment case dismissals. This Shriver “strategy”, i.e., reaching out for settlement of “non-defensible” cases, perfectly compliments its vigorous pursuit of “defensible” cases in that it generates “win/win” results further validating the need for continuance of the program.
Of further concern, since new attorneys were hired to deal with most all eviction cases, other LASSD attorneys have been freed up and are now bringing affirmative lawsuits against landlords on all types of issues including breach of contract, violation of habitability standards, fair housing, and unfair business practice claims. This is particularly true in manufactured housing matters, but is a developing unforeseen consequence of the Act’s implementation and should give all landlords pause for concern relative to their overall operating procedures.
In all, the Act has significantly altered the way landlords are dealing with removing undesirable or unwanted tenants. Currently, the program remains initially-authorized through mid-2014 and assuming no further revenue sources or grants are authorized, is slated to “sunset” at that time with all pilots and funding terminating in 2017. Whether the Legislature extends this statutory authority or not, until such time the program concludes, landlords should and must continue to work closely with their legal counsel to assess and minimize the impact of this legislation on their continuing operations.
Brett Wright is a partner in Owens & Wright, Attorneys at Law, a San Diego-based legal firm representing the interests of landlords in all facets of landlord/tenant law. Mr. Wright enjoys over 25 years’ experience and places special emphasis on mobile home and recreational vehicle park tenancies. He can be reached at (619) 487-9592 or through Owens & Wright’s web portal at www.sdevict.com. The perspectives presented are solely the observations and opinions of the author.