From left, Fresno City Councilmembers Nelson Esparza and Tyler Maxwell introduce the residential Eviction Protection Program in May 2021. Photo by Edward Smith

The City of Fresno has begun dipping its toe into eviction mediation and legal representation for tenants, but the legal professionals who would carry out those protections have varying views on their effectiveness and appropriateness.

On May 13, the Fresno City Council unanimously passed a resolution to create the Eviction Protection Program. Councilmember Garry Bredefeld recused himself from the vote because he leases a number of apartments in the area.

The resolution came after two separate proposals — one for a mediation program for tenants and another for a right to counsel for tenants — were brought to council earlier this year and in late 2020, respectively.

These proposals aim to curb the effects of an eviction wave as moratoriums put in place during the pandemic expire.

The resolution passed will allow the City to issue a Request for Proposals to bring in outside legal counsel to represent tenants in Fresno facing unlawful evictions. It also would create an in-house mediation program through the City Attorney office for landlords and tenants.

During the May 13 council meeting, both council members and advocates urged further legislation to address eviction in Fresno. Representatives from Faith in the Valley asked that the provisions in their Right to Counsel proposal be integrated to better protect tenants.

Both mediation and right to counsel work differently for those involved and have different legal implications.

 

Mediation

Mediation programs for eviction vary from place to place, but usually involve settling disputes between tenants and landlords before going before a judge.

Sometimes that means the tenant maintaining residency and committing to a payment plan. Other times it can mean a more lenient period of time for them to move out, said Tessa Husemann, operational manager for Santa Clara-based Project Sentinel, which runs mediation programs across the state.

A number of cities in California already have mediation programs, particularly around San Francisco and Los Angeles. Husemann said the programs have helped drive down evictions because they’re able to intervene in a conflict before an eviction case is filed.

“It’s great for a city because there are few eviction cases filed and both parties are usually happier with the outcome,” Husemann said.

In mediation, Husemann said the relationship between tenant and landlord can’t always be repaired, but an additional one to six months before being required to leave a rental property also allows tenants to be financially and functionally prepared to move.

However, mediation can fall short when the landlord is in the wrong, said Brandi Snow, housing team supervising attorney at Central California Legal Services in Fresno.

In mediation, the legal representative has no obligation to the outcome for either party — they just want to resolve the case before it goes to court, she said.

“The big difference (from having legal representation) is the tenant can never really win with a mediation,” Snow said. “They’re going to give something up whether or not their rights have been respected by the landlord.”

Mediation also doesn’t help tenants who have already had an eviction case filed against them, said John Pollock, coordinator of National Coalition for a Civil Right to Counsel. He said mediation alone can’t fix disparities in housing stabilities and eviction.

Husemann said mediation does, though, mitigate homelessness for a number of tenants because it allows more flexibility when disputes come up.

 

Right to Counsel

While the resolution passed by the Fresno City Council did not include a provision for a right to counsel, or representation for tenants provided by the government, housing advocates at the meeting asked that it be added.

A right to counsel proposal was submitted to the council in December 2020 by The Fresno Right to Counsel Coalition, which asked, among other things, the City provide legal counsel to tenants like in Los Angeles and San Francisco.

“At the heart of the idea is, like in a criminal case, if you’re charged with a felony you have a right to counsel,” Snow said. “The same would be true in an unlawful detainer or an eviction — that you have a right to counsel to represent you.”

Snow said legal counsel could ease the large disparity of representation between landlords and tenants. According to the proposal, in Fresno 76% of landlords have legal representation while less than 1% of tenants do.

The eviction process is also a very fast-paced process, and it often takes tenants more time to find an attorney who will take their case than they have to respond to an eviction filing, Snow said.

Pollock said that difference creates an imbalance of power where tenants aren’t able to seek justice in courts, but are merely processed through them.

 

Question of resources

Both Snow and Pollock said many cities don’t have enough attorneys to take on pro-bono eviction cases. While CCLS tries to take on as many tenants facing eviction in Fresno as possible, Snow said they know they’re seeing fewer than 5% of total cases.

Fresno-based attorney Bob Abbrams said while representation for tenants is lacking, he feels it’s inappropriate for the city to pay for legal counsel for one side in a civil case. He also said a Right to Counsel measure would demonize landlords, who Abbrams said the measure perceives as wealthy entities but are often mom-and-pop operations.

Abbrams said it would be more legally appropriate to provide representation for tenants through a non-profit or low-cost, for-profit organization. By his own calculations it would take a few attorneys and three full-time staff members to meet Fresno’s case load.

With the eviction moratoriums coming to an end this summer and Fresno already facing a homelesness crisis, Pollock said there is no time to waste in implementing a right to counsel program.

“Data shows that intervention is effective at preserving housing stability for tenants and saving cities money,” Pollock said. “Right to counsel has to be passed and needs to be implemented if a crisis is going to be avoided. It has to happen now.”