Cupertino Municipal Code Ch. 2.78 Landlord-Tenant Mediation–issuance of Subpoenas

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 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 the City Council or other City officer.

(Ord. 1306, § 1 (part), 1985)

Pursuant to the provisions of this chapter, the City Attorney is authorized to issue subpoenas to compel relevant parties to a rental 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.

(Ord. 1306, § 1 (part), 1985)

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 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.

D. No subpoena shall be 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 mediation and has either expressly declined to appear for such mediation 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 Hall, 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 agreeing to an alternate location after issuance of the subpoena.

(Ord. 1306, § 1(part), 1985)

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 the 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 not 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, business or residence address 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.

1. 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 such as delivering it to the person’s residence, place of business or agent for purposes of conducting the rental operations. If mailed, the material shall be addressed as follows in the listed priority:

a. To the current residence or business address of the person, if known;

b. If a mailing address is shown for the person on the most recent application for a Cupertino business license for the operation of 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 be subpoenaed is an individual known to be an owner, officer or employee of a business entity for whom the address is given;

c. To the person at the mailing address shown for the person on the most recent application for any other Cupertino business license;

d. If the person is a tenant in the rental premises which is the subject of the mediation, then to the person at the address of the premises;

e. To the person at the last known residence or business address.

2. 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 the City Attorney determines to deny the application, the notice shall so state and shall constitute the notice of determination required pursuant to subsection D of this section. Such notice shall also be forwarded to the applicant.

3. If upon such preliminary review the City Attorney determines that the application may support issuance of a subpoena, the notice shall advise the person of his or her rights under subsection C of this section.

4. Such preliminary review shall be completed not more than five working 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 before a 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 of this section. 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.

(Ord. 1306, § 1(part), 1985)

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 submit such declarations, affidavits and other supporting materials as may be desired by the applicant. The application shall, at a minimum, be accompanied by:

A. A declaration or affidavit of the applicant setting forth:

1. A factual description of the dispute which is the subject of the mediation, sufficient to allow the determinations required by Section 2.78.070;

2. A statement of any facts necessary to allow a determination of whether the application complied with the procedural requirements of this chapter;

3. 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;

4. The status of the person sought to be subpoenaed and his or her relationship to the dispute which is the subject of the mediation;

5. The business and residence address of the person sought to be subpoenaed, if known;

6. A statement that the subpoena is not being sought for the purpose of harassing any person; and

7. Such other information as may be required by the City Attorney.

B. 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 determination of whether the application complies with the procedural requirements of this chapter.

C. 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 recommendation may be incorporated in the declaration or affidavit required by subsection B of this section.

The City Attorney shall not be bound by the recommendation.

(Ord. 1306, § 1(part), 1985)

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 for its service.

(Ord. 1306, § 1(part), 1985)

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, including 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 person as to whom the subpoena is being requested;

5. The applicant has submitted the materials required by Section 2.78.050;

6. The issuance of the requested subpoena would not be contrary to the purposes of the City's rental mediation program.

B. The City Attorney shall not issue a subpoena if he is unable to make all of the findings set forth in subsection A of this section 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 his 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 C of Section 2.78.050. A subpoena shall not be issued pursuant to this chapter if the City Attorney finds that such issuance would be in conflict with any applicable provision of law.

(Ord. 1306, § 1(part), 1985)

A. Within five working days after the delivery or mailing of the notice determination required under subsection D of Section 2.78.040, 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 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.

B. The City Attorney shall forward to the City Council all materials which were filed with and considered by the City Attorney with respect to the application. 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 appeal.

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.

(Ord. 1306, § 1(part), 1985)

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.

(Ord. 1306, § 1(part), 1985)