Ordinance 1306;. .
ORDINANCE N0. 1306
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
CUPER'PSNO ADDING CHAPTER 2.78 TO THE CITY
MUNICIPAL CODE ESTABLISHING A PROCESS FOR
ISSUANCE OF SUBPOENAS IN RELATION TO THE
LANDLORD TENANT MEDIATION PROCESS
THE CITY COUNCIL OF THE CITY•OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. AMENDMENT OF CODE, Chapter 2.78 is
hereby added to the Cupertino Municipal Code to read as
follows; _.
°Chapter 2.78
,:LANDLORD TENANT MEDIATION - ISSUANCE OF
SUBPOENAS
2.78.010. Purpose. The city sponsors a
landlord tenant mediation program designed to
provide a mechanism to resolve disputes between
landlords and tenants in the rental of
residential property. The purpose of this
,. .
chapter is to establish a procedure for the
issuance of subpoenas to compel the attendance '
of relevant parties before a mediator assigned
pursuant to that program. It is the intent of
the city that to the greatest degree possible
the mediation process be entirely voluntary.
The use of the subpoena power established
C.C.lta) 1
r
' hereunder should be limited and should be
exercised only in those cases where the findings
set forth in this chapter are made. Nothing
contained in this chapter shall be deemed
to limit or supersede any authority otherwise
vested in,thecity,council or other city.
officer.
2.78.020 Authority .to issue subpoenas..-
Pursuant to the provisions of this chapter, the -
. city attorney is hereby authorized to issue
subpoenas to compel relevant .parties to arental
dispute which is the subject of a request for
mediation pursuant to the city's landlord tenant
mediation program to appear before the mediator
assigned and to compel the production of
testimony before the mediator. To the extent
required by law, such mediators shall be
authorized to administer oaths and receive
testimony. The authority granted to the city
attorney hereunder shall not be delegated to any
other person. A subpoena may only be issued ~
upon application therefor made pursuant to this
chapter. _.
C.C.1(a1 2 ..
I' 2.78.030 Limitations on authority. (a)
An application for a subpoena may be made only
by a party to a rental dispute who has made a
request for mediation of the dispute pursuant
to the city~s landlord tenant mediation program.
(b) Subpoenas may be issued hereunder
only to compel the attendance of a relevant
i party directly related to the dispute which is
the subject of the request for mediation.
Subpoenas may not be issued to compel the
attendance of third parties not directly related
to-the dispute. For purposes of this
subsection, a relevant party directly related to
a dispute includes the occupant, tenant, owner,
or manager of the premises which is the subject _.
of'the dispute, or any agent, representative or
contractor of such parties.
(c) Subpoenas may be issued pursuant to'
;..
this chapter only to compel the attendance of
parties before the mediator. Subpoenas duces .
tecum requiring the production of records or
other things are not authorized pursuant to this
chapter.
C.C.1(a) 3
_, _
(d) No subpoena-shall ba-'issued pursuant to this chapter unless a
request for mediation has: been .made pursuant to the City's landlord
tenant mediation program, .the person to whom the requested subpoena is
directed has been advised of the request for~medlation and has either
expressly declined to appear for such'mediatiop or has failed to appear
at a scheduled mediation session..
(e) Subpoenas issued pursuant to this chapter may compel attendance
of the person subpoenaed only at Cupertino,City Nall, 10300-Torre Avenue,
Cupertino, California, or at the offices of the mediation service designated
by the city to administer -the mediation program, except that nothing contained
in this subsection shall prevent the parties to'a dispute and the mediator
assigned from a.;rasing to an alternate location after issuance of the subpoena.
2.78.040 Application procedure. (a) An application for subpoena
must be in writing and filed with the city attorney in such form as may
be prescribed by the. city attorney. Applications shall be accompanied by
such declarations, affidavits and materials as may be required by this
chapter or by the-city attorney. All factual matters upon which•ehe
C.C.1 {a) 4 ~.
application is based shall be supported by
affidavits or declarations executed under
penalty of perjury. The determinations made by
the city attorney under this chapter shall be
made based on the application, declarations,
affidavits and supporting materials submitted
with the application or in opposition to it. No
hearing shall be held by the city attorney prior
to a determination on the application. Time
limits established in this chapter for the'
performance of any act by the city or an officer
thereof may be extended by the city with the
consent of the affected party or parties, or
without such consent in the event of the
incapacity or unavailability of the officer
required to perform the act. Failure' of any -
party to actually receive any notices or -
materials provided by the city in accordance
with the terms of this chapter shall nat affect
the validity of any action taken hereunder.
Where any written notice is required, the city
attorney may, in addition, attempt to give
telephone notice to the parties as a matter of
convenience to the parties. Any material which '
may or is required to be mailed to any party by
city, if such person has provided a mailing,
C.C.1(a) 5
s s
business or residence addr~=ss to city in the
course of the application process, may be mailed
to the person at that address in lieu of any
other address which may be provided herein.
(b: The city attorney shall forward a
copy.. of any application received, along with ,
supporting materials,... to the person as to whom.a.
subpoena is being .,sought, The material may be
delivered in person or may be mailed by first..
class mail. If .delivered, the material need not
be personally served but may be delivered in
such fashion as is reasonably calculated to
_ result in its receipt,by the intended person y ,
such as delivering it to .the person's residence,..; _;
place of business or agent for ,purposes of
conducting the xental operations.- If mailed, .
the material shall be addressed as follows in
the listed priority: -
t13 To the .current .residence or business.,,.. .
.address of the person, if known. „-.
(23 If a mailing address is shown for the
person on-..the most ,recent application for a
Cupertino. business license for the-.operation of: •_
C.C.lta> 6 ._ .
the rental property which is the subject of the
mediation, then to the person at that address.
Such address may be used where the person sought
to bo'subpoenaed is an individual known to be an
owner, officer or'employee`of a business entity
for. whom the address is given.
C3) To the person at the mailing address -
shown-for the person on the most recent
application for 'any other Cupertino business =
license. -
(4) If the person is a tenant in the -
rental-premises which is 'the subject of the
mediation, than to the person at•the address"of =-
the premises.
(5 )' To the person at the last known -~-
residence or business address. -
The city attorney shall forward with said
materials a notice of the filing of the
application which shall contain a written
summary of the procedures applicable to issuance"'
of a subpoena. If upon preliminary review of -~
the application and supporting materials ttie _~
C.C.1(a) 7
city attorney determines to deny the
application, the notice shall so state and shall
constitute the notice of determination required,:
pursuant to subsection (d). Such notice shall:
also be forwarded to the applicant. ~~
If upon such preliminary review the city,
attorney determines that the application may
support issuance of a subpoena, the noticeeahallr.
advise .the person of his or her rights under :r'..;
subsection (c).
.Such preliminary, review shall be completed
not more-than,five,wozkinq ;days from the-filing;.
of the application. ...
(c) if upon preliminary review the. city
attorney determines the application may. support
issuance of a subpoena, then on or beforera date
specified in the notice, which date shall not be
less .than five calendar days after the delivery
or mailing of the notice, the person to whom the
notice is directed may file with the city
attorney declarations, affidavits or other
material in opposition to the application. Such
material must be received by the .city attorney
by the date specified to be considered. The
notice shall specify the date by which the
material must be filed.
(d) Within five working days after the
submittal of material opposing the application,
or of the, expiration of the-time for such
submittal, whichever is earlier, the city
attorney. shall determine whether to issue .the' -
requested subpoena. Written notice of the-
determination shall be given to both parties in
the manner specified in subsection (b). If an
appeal is filed pursuant_to Section 2.78.090, --
action by the city attorney shall be stayed. If:~:°,
no appeal is filed, the action of-the city
attorney shall be final. The notice shall state
.the date by which an appeal must be filed.
2.78.050 Application contents.. An
application for subpoena shall be filed in such-
form as may be prescribed by the city attorney...
The city attorney is authorized to require the
submittal of such material or information as may
be deemed necessary. An applicant may subunit- _.
such declarations, affidavits and other...
supporting materials as may be desired by the
applicant. The application shall, at a minimum,
be accompanied by:
(1) A declaration or affidavit of the
applicant, setting: forth: - ~ - ~~
(A) A factual description: of the ~ ::~
dispute which is the subject:. of the mediation,~~< .--
sufficient:-to allow the determinations-required-''-.
by Section-. 2.78.070;.
(8) A statement of-any facts necessary
to allow a-determination of whether the -
ap~lication complied: with-the. procedural ,;?'>-
requirements of this chapter; •.
IC) A general description'of the
information considered relevant to the mediation
process known.or believed to be in the'-
possession of the person sought to be -.,-
subpoenaed;. and ~..,
(D) The status of the person sought~to
be subpoenaed and his or her relationship to-the `
dispute which is the subject of the mediation;
(E) The business and residence address
of the person sought to be subpoenaed, if known;
(F)-, A statement that the subpoena is
not bel,ng sought for the purpose, of_harassing
any person;.,and
(G) Such other information as may be.
required by the city attorney. ~ _
(2) A declaration or affidavit of the ::...
mediator assigned to the dispute or of a .
representative of ..the mediation service.- -
responsible for the administration of the,city!s
rental.mediation program containing a statement -,
of any facts..necessary to allow-,a;determinatfon
of whether the application complies with. the
procedural requirements of this .,chapter..
(3> A recommendation from the assigned
mediator or from a representative of the
mediation .service as to whether the findings
required by .Section 2.78.070 can be made-and
whether the requested subpoena should be issued.
This recorunendation may be incorporated in he
declaration or affidavit required by subsection
' (2). The city attorney shall not be bound by
the recommsndation.
2.8.060 Form of subpoena - Service of
process. Subpoenas`shall be issued in the name "-
of the city and attested by the city clerk.
Subpoenas shall be in such form as may be
prescribed by the city attorney and shall
include the date, time and place at which
attendance of the party is compelled. Nothing
contained herein shall prevent the parties from
agreeing, subsequent to the issuance of the
subpoena, to a revised time or place for the
mediation.- Subpoenas issued under this chapter?'
shall be"served in the same manner as subpoenas
issued in'-civil actions pursuant to the '
California Code of Civil Procedure, except that
such subpoenas shall be served not less than
seven calendar days prior to the required date
of appearance, unless for good cause shown the
city attorney shall authorize a shorter period."
Payment of fees or mileage shall not be required
in connection with the service or enforcement~of '
a subpoena issued pursuant to this chapter. The
person requesting the subpoena shall be
responsible fore its"service. `
C.C.1(a) 12
2.78.070 Findings. (a) The city
attorney may issue a subpoena pursuant to this
chapter if all of ,the following findings are
made: , ;.. ,.
(1) Issuance of the subpoena would comply
with all provisions of .this-chapter,_includinq. ..-
but not limited. to the provisions of Section::..
2.78.030;
(2) The attendance and testimony of the.:•:.
party-sought pursuant to the subpoena is
material and relevant to the dispute which:is:
the subject of the request for mediation;
-,(3) ;The issue which is the subject. of the
mediation is, or may be, of such nature as to
involve issues of fact either in dispute or
which may be the basis of the conflict between
the parties which, if resolved or clarified, may:,
promote .the mediation process;
(4) The application for subpoena is not
being made for the purpose of harassing the
C.C.1(a) 13
person as to whom the subpoena is being
requested;
t5) The applicant has submitted the -
materials required by Section 2.78.050s
-t6 ), The issuance of the requested
subpoena would not be contrary to the purposes'>
~ of the city's zental mediation program;
tb) The city attorney shall not issue a
subpoena,if he is unable to make all of the
findings set forth in subsection ta) or if he;
makes any of the following findings: •-
(1) Issuance of a subpoena would
constitute an undue hardship-on the person"-being
subpoenaed;
(2)' Issuance of a subpoena would be
ineffectual in light of the nature or timing of `~''
the dispute which is'the subject of`the ~ '''°
mediation;
•' (3) Issuance of a subpoena would be
detrimental to the mediation process or the
.city's rental mediation program,
(c ); The. determination. of the city.
attorney. to .issue or not.to issue a subpoena.,...
shall be based on his review and evaluation of
the material submitted in light of the purposes...
of .this chapter and the required findings. The ,.
city attorney shall exercise hia judgment in -,
making the determinations required. The city
attorney may take into consideration, but shall
not be bound by, the recommendation submitted
pursuant to subsection 2.76.050(3). A subpoena
shall not be issued pursuant to this chapter ;if
the. city attorneyfinds, that such,isauance would.;.;
be in conflict with any applicable,provision:of
law. _,
2.78.080 Appeal to city council. (a) Within five working
days after the delivery or mailing of the notice determination
required under-Section 2.78.040'(d); either-party may appeal the
determination of the city attorney.to the city. council by filing
a written appeal with the city clerk. Upon receipt of an appeal, the
15
city clerk shall schedule the appeal for
consideration by the city council at a regular
meeting within fourteen days of the filing. of
the appeal, if a regular meeting is held during
that period and not-less than five calendar days
from the 'filing of the appeal. Written notice "
of the time and place of the meeting at which"
the city council will consider the appeal shall
be mailed to the parties within two working 'days`
after receipt of the appeal. The city council
may continue its consideration from time to
time.
(bf' The city 'attorney sha11'fbrward to'"'
the city 'council all materials which `were ftlad
witte~and conaidered'by `the city attorney with'
respect'to the applicatfon.` Either party may "
provide additional material for consideration by `
the city council; provided, that the city
council shall not be obligated to consider
written material submitted to the city clerk
less than five calendar days prior to the city ,
council meeting. At the time the appeal is
considered, both parties shall be entitled to
address the city council orally concerning the e
appeal.
C.C.lta) 16
(c) Upon consideration of the appeal, the
city. council shall either grant the application
and issue the requested subpoena or deny the -
application.' The. council's determination shall
be based on its consideration of the materials..
submitted by the city attorney, such additional.
materials as may be submitted by any of the
parties, and such other information or material'',"
as may be submitted during or prior to its
consideration. The city council shall exercise
its independent judgment in reaching its
determination and shall base its determination
upon-.the same criteria as are set forth in this
chapter with respect to the determination by_the..,_
city attorney. ~,,
2.78.090 Enforcement. in addition to any
other remedy provided by .law, the party at whose
request a subpoena has been issued, the city or
the mediation service designated to administer
the city's rental mediation program shall be
authorized to bring an action in a court of
appropriate jurisdiction for the enforcement of
any subpoena issued pursuant to this chapter."
C.C.lta)
17
•
• The foregoing ordinance was introduced at
a regular meeting of the City. Council of the
City of Cupertino on the 6ch day of KaY ~,.
1985 and, was passed and: adopted at a regular.;:
meeting. of said Council:. on the 20th day of .:_..
M~~ ,.1985, by the following votes:
AYES: Gatto, Plungy, Sparks ;; .,
NOES: None
ABSENT: ;Johnson,. Rogers . ; <; . , < . .. ,
ABSTAIN: None ..
;APPROVEAa ,. ~.. :.
- ' /s/ Reed Sparks ,. , ,.:
., Acting , C ty! o Cupert no_
Mayor
... :,
ATTE$Te
/s/ Dorothy Cornelius
The foregoing ordinance was introduced at
a regular meeting of the City Council of the
City of Cupertino on the 6th day of Atay ~
1985 and was passed and adopted at a regular
meeting of said Council on the loth day of
~V , 1985, by the following vote:
AYES: Gatto, Plungy, Sparks
NOES: None
ABSENT:. Johnson, Rogers
ABSTAIN:. None
APPROVED:
~~
Mayor, C ty o uper•ino
.ATTEST:
City Clerk
C.C.1 ta) 18