Advice

How Each D.A. Candidate Answered Questions About Evicting Elderly Tenants

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The District Attorney Candidates: Boudin, Loftus, Dautch and Tung (Photo credit KQED)

Guest article by David Bogachik from the Dialogue for Life Project

San Francisco has recently gained notoriety for evicting her most vulnerable citizens. Iris Canada’s story got worldwide press coverage. I wrote about other seniors who didn’t survive evictions. Almost every case involved illegal actions against seniors. Still, even when tenants had won civil cases, all those deaths went unpunished. 

Dozens cases of seniors whose death might be considered a result of cruel and unlawful actions of the landlords, were filed at the D.A. office. Not a single one was ever pursued. When activists came to learn about those cases, the D.A. staff had no better answer than to force people out from 850 Bryant, including Iris Canada, then 99 years old. Later, community organizer Lisa Tiny Gray Garcia said, they met George Gascon, the then District Attorney of San Francisco. He stated he couldn’t prosecute landlords because the property law trumps Penal Code. “That’s bullshit”, Tiny said, “because civil law cannot override criminal code.” 

Whoever wins this D.A. race can establish mechanisms to prevent criminal actions that harm tenants in the city, especially the most vulnerable. I took 3 case examples of seniors who died in evictions, and asked D.A. candidates as to the prospect of prosecuting people for fraudulent evictions and elder abuse. 

I also had a specific question for Suzy Loftus, since she seems to have played a significant role in Iris Canada’s eviction.


Cases: 

1. Martha Bini, 92

Martha died during what a jury later found was an improper eviction attempt in July 2015. The building of seven units at 1000-1022 Filbert street was the property of an old Italian family that occupied and owned it for more than 60 years. Martha, with her daughter Maria Maranghi and extended family, resided there for more than 45 years.

Anne Kihagi bought ten buildings in an 18-month period, and immediately proceeded to tell residents they had to leave. According to documents filed in Superior Court as part as a lawsuit by City Attorney Dennis Herrera against Kihagi, the owner launched on a campaign of harassment. Tenants testified, that Kihagi “harassed, intimidated us, invaded our privacy, retaliated against us, refused to cash rent checks, … performed illegal construction, falsely claimed our unit was illegal, and threatened to demolish our home. All because [Kihagi] wanted us out so they could raise the rent.”

Martha, who was almost blind, was scared by sudden visits of the landlady who used to bang at the door when Martha was alone. She went to the hospital innumerable times, and then she died. 

In the wake of Herrera’s suit, the court voided 42 evictions and awarded the plaintiffs $2.4 million.

Martha Bini was not alive to see it.

Question to D.A. candidates: Monetary charges do not regain lost seniors’ lives. With proven harassment in a civil case, can the D.A. follow up with criminal investigation? 

 

2. Carl Jensen, 93

In his last year, Carl Jensen was totally stressed out. The building at 3932-34 26th St., where he’d lived since 1954 was bought in 2015 by Ashok Gujral. One year later, the new landlord announced plans to remodel the two-unit building into a four-story house.

Carl was a World War II veteran and retired mechanical engineer who worked all his life for the city. Every morning he had breakfast at the corner café and abidingly put a $2 tip into the server’s hands. He enjoyed his independent lifestyle, walking around the neighborhood, or catching Muni to do some banking downtown.

In the application for remodeling permits submitted to the SF Planning Commission, Gujral never mentioned Jensen’s tenancy. Carl’s existence only emerged thanks to his neighbor, Lynn Rosenzweig. She called the SF Housing Rights Committee (SF HRC), and raised her concern about Carl’s destiny at a February 2017 Planning Commission hearing. Gujral’s then lawyer provided a letter, in which his client claimed that Carl Jensen had frequently expressed his willingness to be relocated. 

Tommi Mecca (SF HRC) saw Carl Jensen shaking when he read about the landlord’s claims. “I never said this! I’d rather die than leave my home!”. He was furious and frightened. “I was afraid Carl would have a heart attack. I tried to calm him down, but he was too scared,” Tommi said. Carl spent the rest of February working on a letter to the Planning Commission, testifying he never wanted to be relocated.

His letter was read into the record at the Planning Commission on March 9th. Carl was found dead in his apartment four days before.

2019 update: Nancy Tung drew our attention to Dennis Herrera’s lawsuit against Gujral, for unpermitted construction on seven residential properties. In a settlement Gujral payed $ 1,200,000. 

Question to D.A. candidates: The story doesn’t involve direct harassment, but landlord’s false statements caused apparent distress to a senior. Does it make a criminal case? 

 

3. Iris Canada, 100

In 2002, Peter Owens bought a building at 668-678 Page street and evicted everybody under Ellis Act – except for Iris. She fought back and entered into a life estate agreement. 

Years later, Owens started the condo conversion process. To submit the application he needed signatures of all current residents. According to the SF Subdivision Code, every occupant has a right to buy their unit at its current price ($1,000,000 less than after conversion). Iris received a copy; Owens had marked on behalf of her that she didn’t want to buy it. Lawyers advised her not to sign.

So, she didn’t. And that began a horror story.

According to court documents filed by Canada and her lawyer, Dennis Zaragoza, somebody banged on Iris’s door after midnight, howling voices called her name, her apartment was invaded. Owens denies he knew anything about voices but admitted that he entered Canada’s apartment and removed a box “due to fire safety reasons.” With that box, the original copy of Iris’s life estate contract disappeared.

Then, Peter Owens sued Iris for breach-of-contract. Iris’s attorney at a time of signing it, did not recognize some points in the copy presented by Owens.

Judge A. James Robertson II found that Iris Canada was not permanently residing in the unit, while she was in the hospital, staying with relatives, or traveling. He ruled to evict her. 

Sheriff Hennessy locked her out without notice, while Iris was at her daily senior program.

During the trial Iris Canada suffered three strokes. Owens continued insisting that she could change the outcome signing the application, waving her rights. After the eviction he moved her possessions. Iris’s relatives had no access to them unless they paid a substantial fee. They were able to do it only months later. 

Iris Canada was buried four months after her death: her funeral arrangements were among the items the family had no access to.

Question to D.A. candidates: The story contains many details which nobody in a civil case cared about. Is there any chance for criminal prosecution here? 


Answers from D.A. Candidates:

CHESA BOUDIN

General policy:

“We need to transform the entire role the D.A. plays in protecting public in a way that makes the city safer for all of its residents, not just for some of its residents. Now most of cases the D.A. files are prompted by the police. The police make arrests on a street, usually of person of color, or unhoused people, or LGBTQ. The D.A. files charges against those people based on police officers report. I’d like D.A. to play another role in public safety: to prevent people to become unhoused at first place. To treat the root causes of crime.

We need to dramatically extend our community presence, relationship with groups and leaders. Our investigation teams will do our own investigation rather than simply rely on the police to decide whether the crime was committed. One of my volunteers was hit by a car, and police even wouldn’t issue a citation, nothing. We cannot rely on the police to make these decisions.

I agree with reform advocate Glenn Martin’s axiom: “those closest to the problem are closest to the solution.” We will re-shuffle personnel to create a team dedicated to protecting tenants: investigating fraud and working closely with the City Attorney’s office, and creatively put pressure on landlords from both the civil and criminal side. We’re also looking at complaints filed at the Rent Board, and work with SF Tenants Union, Affordable Housing Alliance, Community Tenants Association, and many others to identify potential criminal cases and figure out the best levers to protect each specific tenant.”

The D.A. office’s power in pursuing elder abuse and fraudulent evictions cases:

40,000 tenants faced eviction in SF in the last 5 years. The majority of these evictions were served on at risk tenants, low income, elderly, non-English speakers. Many landlords use underhanded illegal tactics to force their tenants out of units, to be able to charge more or to convert units into condos.”

D.B.: Which illegal tactics are on your focus?

C.B.: “Fake OMI are the most common example. But there are other cases.

For example, when landlords use threats. Criminal threat is a violation of California Penal Code 422 PC.  Administrative Code in SF prohibits landlords from threatening tenants with eviction, or cutting off utilities. We never see those provisions enforced.

There are fraudulent tactics to evict subtenants when master tenants and landlords collude to defraud subtenants of their right to the property. That could constitute a criminal act, and I’ll investigate those sort of allegations. Subtenants are at high risk of experiencing homelessness. Not only will we prosecute this sort of fraud, we will spend resources, money and staff time, to make sure: subtenants know their rights, master tenants know their responsibilities and their exposure, and landlords know we are watching.

Landlords often fail to maintain buildings, neglecting fire escapes, electricity, and water. They do it to encourage tenants to leave. In some cases it results in people losing their lives, for example, being unable to escape the fire.”

D.B.: What about arsons? The Mission is burning, and many suspect landlords using arsons to drive out low-income tenants. However, it was never proven.

C.B.: “The problem is that usually police should do such investigation. We’ll also investigate crimes the police are unwilling or unable to investigate. If we have reasonable believe that landlord intentionally started fire, we need to do second independent round of investigation. And we will absolutely prosecute these cases.”

D.B.: What can the D.A. office can do for protected tenants – seniors, disabled?

C.B.: “Bringing the pressure of the District Attorney’s office to bear on attempted evictions, especially of vulnerable tenants, is a powerful tool that I will not hesitate to use where appropriate. We can use our resources to ensure tenants have the legal counsel they are entitled to under Prop F, while bringing charges against landlords for unlawful recovery of rental units, age discrimination, unlawful rent increases, harassment, unlawful entry, negligent/hazardous maintenance of buildings.

Once corporate landlords realize that their targets have the protection of the District Attorney’s office, they’ll think twice about harassing vulnerable populations.”

D.B.: Penal Code 368 PC (elder abuse) seems to allow a broad spectrum of interpretations. So the final interpretation is on the D.A. discretion. How’d you qualify crimes with seniors harassed to death?

C.B.: “You’re right, the D.A. has broad discretion to decide whether a crime was committed, and whether the crime is felony or misdemeanor. It all depends on particular details in the case. If someone died, that would be an aggravating factor resulting in a felony charge. Though we should see how defendant’s action contributed to that death.”

D.B.: You consider prison time as the last resort. If you do not want necessarily send landlords to jail, what other kind of punishment would you seek?

C.B.: “Sometimes criminal conviction on the record, sometimes barring them from participating in this business, an agreement that they wouldn’t operate residential real estate for a period of time. Sometimes – commitment that they will do work to help to restore communities they harmed, to restore justice – by building more affordable housing, or providing more benefits to tenants. And probation – the area we certainly look to any criminal case as a way to avoid prison time.”

***

Barring landlords from rental business corresponds with a proposal of Dean Preston. Kip and Nicole Macy who already served their sentence, are “free to buy rental property and start harassing tenants again,” Dean says. He proposes San Francisco to license big landlords and withdraw the license when landlords repeatedly violate the law and disregarding tenants’ health and safety.

***

Cases:

Martha Bini/Kihagi’s case. “Money will never bring someone back who is dead, and will never be adequate deterrent for corporate criminals. It’s just cost for doing business for them. When we see the landlord has done that is not only civilly liable, but also violated their legal obligation under Penal Code, we should absolutely enforce those laws the same way we would against someone on a street corner selling drugs.”

Carl: “This case appears to be fraud, because the landlord misrepresented the tenant’s intent and used this misrepresentation as material to obtain building permit. With these facts it would be fraud.”

Iris: “It appears to be a plain intent on a part of landlord to force Ms. Canada to leave. It becomes criminal when it intends to scare to force to leave someone their home, and the landlord would make profit on it. Yes, that’s criminal.”

D.B.: There are landlords’ lawyers serially leaving senior tenants dead. Would you investigate and criminally prosecute lawyers?

C.B.: If we have proof lawyers had knowingly advised their clients to commit a crime – sure.

D.B.:If you win, when will you start with landlord-tenant cases?

C.B.: “Housing security is a key component for public safety, so I’ll start right away. My office will work hard to get the word out to tenants that the District Attorney is in their corner now, that they have a powerful ally willing to fight for them. And the first case we have that can support credible criminal charges, we will charge. These unscrupulous landlords are like any bully: they act tough when harassing the powerless, but shrink when confronted. And I will confront them.”

 

NANCY TUNG

General policy: 

“This is a shame,” – Nancy reacted to that situation when activists were kicked out from the D.A. office. “What is important for me, that the D.A. office should be very responsive to the community. Not just waiting for cases to come, but engage in dialogue with activists and community members, neighborhood groups. We need more attorneys with staff responsible for certain types of groups, ethnic, or particular orientation, or tenants. We’ll make sure that we assign right type of people to have regular meetings with communities. And prosecutors for certain neighborhoods who’d understand what happens in Tenderloin or in the Mission. It’s not the same type of crimes, every neighborhood deserves particular approach.” 

The D.A. office’s power in handling elder abuse and unlawful evictions: 

“In elder evictions it is important to hold people committing crimes responsible. Elders are a protected group. We can use law enforcement even in civil cases. If a corporate landlord plans on eviction elderly or disabled, we can bring law enforcement actions to secure their place to stay. If we can show that immediate irreparable harm can happen, we go to court and get temporary restraining order, keeping landlord from evicting tenants.” 

D.B.: Investigation is not an immediate process, how you fit time frame in eviction lawsuits? 

N.T.: “We can investigate quickly enough. Civil cases are different. In criminal cases you should put together as much information as you can before filing the case, in civil cases you can collect evidence after the case is filed.”

Cases:

Nancy couldn’t speak specifically on cases since the standard of proof in civil cases is much lower than in criminal case. “But the D.A. office definitely has power to initiate investigation. 

The D.A. has prosecuted landlords before, there is a case of Macys, a husband and a wife, who basically terrorized tenants to get them out. The case was prosecuted, they fled to Italy, were eventually extradited, and sentenced to 4,5 years in prison. If there’s clearly criminal activity, prosecution is doable.”

*** 

“Landlords from Hell,” a software engineer Kip Macy and a real estate agent Nicole Macy were probably only landlords prosecuted by the D.A. They bought a building in SOMA in 2005 and tried to get tenants out. They cut off electricity, stole from tenants, cut holes in the floor to spy tenants, poured ammonia on tenants’ bed and clothes, cut a support beam putting at risk tenants’ lives. They purchased a handgun and threatened to shoot tenants and their former property manager who refused to participate in vandalizing the building. From a fake account Macys emailed on behalf of victims to tenants’ attorney firing him, and to their own attorney threatening to kidnap her children. They were charged for four felonies and finally went to jail in 2014. And, as a tenant lawyer and candidate for District 5 Supervisor Dean Preston notes, there is nothing in our current laws to prevent Macys from engaging in rental business again. 

***

For elder abuse, Nancy says, even if it’s hard to prove it, a prosecutor can be creative to approach these issues. She prosecuted a case: one man tried to frighten away two women, from their houses. He didn’t resort to direct violence, but was very inventive in harassing them. The women, one elderly, were basically afraid to sleep not knowing what would happen at night. He followed the elderly woman everywhere, he sent letter’s to a younger woman’s job. “I charged him for stalking. We can be creative using the law to protect people in a way that can be unexpected at time, when there is no direct violent act against somebody.” 

D.B.: Landlords are responsible for harassment and other issues, but fraudulent evictions tactics have been eldaborated by their lawyers. Can we prosecute them?

N.T.: Lawyers advise people but they aren’t considered participants directly. I don’t think it’s impossible but may be very difficult since communication between lawyers and their clients is protected. 

 

LEIF DAUTCH 

General policy: 

“We’d start with creating the Eviction Defense Unit within the D.A. office, with prosecutors and investigators. Taking referrals from the Tenants Union and the City Attorney’s office. 

The current D.A. administration didn’t pursue a single real estate fraud in the past 8 years, and not a single fraud since 2004.  We talk about mass incarceration, drugs, sex workers: cases that shouldn’t have been pursued. But it’s important to talk about cases that haven’t been pursued even though they cause substantial harm to the community. 

The D.A. office can be sort of good in people’s lives. The best way to start would be with cases like Kihagi’s, where the City Attorney has already done a substantial investigation. Resources are always limited, and it’s important to show successes quickly. Dennis Herrera, and the Tenants Union would give me names of “bad actors” to start with. Other counties – Alameda, LA, San Diego –  already have done some work in this area. We don’t need to reinvent but learn and use the best practices.”

The D.A. office’s power to handle elder abuse and fraudulent evictions: 

“Criminal fraud is the charge in most of these cases, that requires proof of a number of different elements, like material misrepresentation for the purpose of financial benefit.

One of the most common examples – OMI evictions. An NBC Bay Area report found that at least 25% of owner move-in evictions are fraudulent. NBC brought dozens of cases to the D.A., and George Gascon said that 2007 California Supreme Court case, Apartment Association v. City of Santa Monica makes it impossible to win this kind of cases. I argued at California Supreme Court, I read these decisions all the time for my day job at General Attorney’s office: there is nothing there that prohibits local D.A.s from prosecuting fraudulent evictions. It was not just a priority for the D.A. office.

Fraudulent evictions are hard to prove, but not impossible at all, especially when we have such a robust Tenants Union, providing case referrals and the City Attorney office doing a lot of work against repeat bad actor landlords.” 

Prosecuting elder abuse is hard, for a criminal case it should be physical or financial harm. But we can find hooks to criminally pursue such cases. Losing rent-controlled apartments for seniors can be financial devastation. 

Cases: 

Kihagi’s case is definitely on Leif’s focus. 

Carl’s case, with an application submitted to the Planning Commission without mentioning a tenant, shows a provable fraud. 

In Iris’s case landlord admitted at the court that he entered her apartment and took a box with documents. “It’s criminal theft right there,” Leif says. “If you have a lawful basis to enter the premises, you still cannot take belongings. If you enter residence under false pretenses, for the purposes of committing crime, that can be a burglary.” However, it is difficult to prove that a 100 year old suffered a stroke because of landlord’s harassment. “But, not impossible.”

D.B.: Is it possible to file criminal charges against attorneys who concoct fraudulent eviction scenarios? 

L.D.: “Absolutely. Look at Michael Cohen: Trump is still in office, and his attorney is in a federal prison. If they’re engaging in ongoing fraud, using their legal skills and resources to do it, then absolutely. Lawyers are not immune from criminal prosecution. They can’t hide behind their attorney client privilege.”

 

SUZY LOFTUS 

We didn’t have an opportunity to talk to Suzy Loftus in person but emailed the same questions. Plus, one more specific question. 

Iris Canada was evicted on February 10, 2017. That day activists gathered at the Sheriff’s office. Everybody was shocked. and desperate. After two years of fighting, the awareness that Iris’s eviction would amount death sentence settled in our heads.

The Sheriff decided to evict Iris immediately though “the judge gave Sheriff Hennessy until mid-April to execute the eviction”. The Sheriff’s Office planned the eviction with Andrew Zacks, the attorney to Iris’s landlord. According to Jeremy Miller, a community activist, the Sheriff’s Office in those negotiations was represented by someone called Suzy Loftus:  “Following Wednesday’s decision, I witnessed a very curious scene in the courtroom. In a hushed conversation, Suzy Loftus <…> discussed with Andrew Zacks, attorney for Peter Owens, the landlord, the desire to “keep this discreet.” Mr. Zacks then questioned Ms. Loftus about potential protesters, and they collectively came up with a self-serving premise that they could justify their “discretion” as being about the safety of protesters!”

Along with other questions I sent Suzy Loftus a link to Jeremy’s article asking to comment on it. Lauren Feuerborn, Loftus’ campaign manager, sent me this: 

“As a child of an immigrant, and whose mother was a renter for the majority of her adult life, Suzy understands firsthand the crucial need for tenant protections. She believes families should never have to compromise on safety in order to ensure that they have a roof over their head. Suzy will use the full power of the office to protect the rights of all San Francisco residents to live in safe, habitable housing. Some of her top priorities include:

·  Holding landlords who engage in unlawful evictions or fail to address unsafe housing conditions accountable.

·  Partnering with local tenants and housing rights organizations to advocate for tenant protections, fight unlawful rent gouging, and ensure safe, habitable housing for all.

·  Advocating for more affordable housing projects across the City.

The DA’s office is the appropriate office to answer your questions regarding the policies and approach to elder abuse and eviction cases.

The Sheriff’s office is the appropriate office to answer your questions on specific cases involving the SF Sheriff’s office.”

 

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