Without circulating a proposal to the public for comment, the CA Judicial Council/Supreme Court issued an Emergency order pursuant to powers granted by Gov. Newsom’s executive order N-38-20. With regard to evictions, the order precludes the issuance of an eviction summons, in ANY case (including residential/commercial/foreclosure) for ANY reason, except if it is needed to “protect public safety and health.” The order does not define what would “protect public safety and health” and requires “on the record” judicial determination that the eviction is necessary to protect public safety and health prior to issuing the summons. My guess would be environmental hazards, unsafe business practice, or violation of an ordinance addressing health and safety would qualify.
Procedurally, if an owner believes their matter qualifies as necessary to “protect public safety and health,” the lawsuit would be filed without a summons, and then a hearing would be requested to present evidence to the judge to support the need for summons. In other words, the owner would bear the burden of proof, as well as the cost of filling, since there is no other way to know if a matter qualifies in advance. Of course nothing can be filed until the court reopens. San Diego Superior Court is scheduled to reopen May 1, 2020, extended from the original April 6th reopen date. Presumably there will be more extensions.
The order is to remain in effect for 90 days past when the Governor lifts the “state of emergency.” Currently the “stay home” order is set to expire May 31, 2020 with a likely extension. The “state of emergency” will most certainly last longer than the “stay home” order. This means, if, for example, the “state of emergency” is lifted August 1, 2020, no summons for eviction would issue until October 29, 2020. In reality this means the court will not allow any new evictions for the foreseeable future.
For existing cases filed and served prior to April 6th, where the tenant has or does respond to the lawsuit (files an Answer) the new order prevents any trial from being set within 60-days of a request for trial. Unfortunately, no trial can be requested until after the court reopens. If, for example, the court reopens May 1, 2020, the earliest trial date for an existing case would be June 30, 2020. The same applies for any trials previously vacated due to the stay home order and court closure. This is in contrast to current law (CCP 1170.5) requiring the court to set trial within 20 days of a request for trial for eviction matters. Jury trials are currently suspended, which means in any case where a tenant requests a jury trial, there is no timeline for the matter to be scheduled.
For existing cases, and the cases eventually permitted to be filed, the court will not enter a default or default judgment unless the action is “necessary to protect health and safety.” Again, the order does not define what protects health and safety. This means, if the tenant does not/has not filed an Answer, the owner is unable to get a lockout while this order is in place (through 90 days after Newsom declares we are no longer in a “state of emergency”).
In short, the Court is no longer an effective remedy in seeking an eviction. If permitted locally, notices may still be served, and eventually evictions filed, but nothing further can happen until the matter is brought before a judge, and approved for the summons to issue.
Recommendations for Owners/Landlords:
1. Communicate with your tenants even if the tenant has not complied with the COVID-19 deferment request per state and local rules.
2. Consider accepting partial rent in exchange for waiving the unpaid portion. If the rent is deferred, or non-payment eviction is eventually filed, it is unlikely you will collect on the back rent anyway. It is better to have 50% of something than 100% of nothing. Only about 5% of judgments are collectible in normal times.
3. Encourage tenants to apply for a disaster loan. Under the EIDL up to $10K in grant money is available with the possibility of no obligation to pay it back. There are also loans available to tenants for rent and business operations including the Paycheck Protection Program and 7a loans. The borrower requirements have been relaxed so a tenant should be able to find funding. The incentive for the tenant would be to avoid a balloon payment down the road, and/or a possible eviction. Here are some resources:
- San Diego COVID-19 Community Response Fund
- United Way: How to Cover Your Rent
- The San Diego Foundation
4. Check the terms of the Lease to look for a possible tenant defense based on the pandemic (i.e. forced majeure; impossibility of performance). If such a defense exists you should work particularly diligently to get whatever rent you can now.
5. If your tenant has a co-signer on the lease, apply the above suggestions to try and get payment from the co-signer.
6. Make sure any agreements reached with the tenant are in writing.
7. If local rules permit, you may still consider serving termination notices. Be careful not to violate local or state rules. Here is a guide on County of San Diego and California moratoriums.
8. Keep good records of any health and safety issues caused by tenants. If a tenant is threatening others, or breaking the law, encourage the victim(s) to seek a police report, and provide written notice to management/owner. If the behavior is extreme, the victim may consider filing for a restraining order (which is still permitted). Consider serving warning notices to tenants where appropriate. If the behavior is extreme, and you have witnesses, you may serve a Three Day Notice to Quit based on nuisance or illegal act, and once the court reopens, the matter may fall under the exception and permitted to proceed. The paper trail will be key if the matter proceeds to eviction. Be sure not to accept rent after service of such a notice, as accepting payment waives the Notice.
9. Lastly, write letters to the Judicial Council and Governor Newsom. Express your concerns about the 90-day extension past the state of emergency sunset clause, and the inevitable hardship you will face as a result. The need for emergency rules should not extend beyond the state of emergency and owners need access to the court in order to protect their property. Demand government funded rent subsidies even if only for partial. Owners cannot be made to bear the entire burden of the COVID-19 crisis.
Governor Gavin Newsom
1303 10th Street, Suite 1173
Sacramento, CA 95814
Phone: (916) 445-2841
Judicial Council of California
455 Golden Gate Ave
San Francisco, CA 94102
See CA Constitution Article 1, section one, where in your right to possess and protect your property is declared.
Actual language of the emergency rules:
Emergency rule 1. Unlawful detainers
Notwithstanding any other law, including Code of Civil Procedure sections 1166, 1167, 1169, and 1170.5, this rule applies to all actions for unlawful detainer.
(b) Issuance of summons
A court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.
(c) Entry of default
A court may not enter a default or a default judgment for restitution in an unlawful detainer action for failure of defendant to appear unless the court finds both of the following:
(1) The action is necessary to protect public health and safety; and
(2) The defendant has not appeared in the action within the time provided by law, including by any applicable executive order.
(d) Time for trial
If a defendant has appeared in the action, the court may not set a trial date earlier than 60 days after a request for trial is made unless the court finds that an earlier trial date is necessary to protect public health and safety. Any trial set in an unlawful detainer proceeding as of April 1, 2020 must be continued at least 60 days from the initial date of trial.
(e) Sunset of rule
This rule will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.
If you have any questions regarding this, or other eviction related matters, please contact me via email firstname.lastname@example.org
THIS IS NOT LEGAL ADVICE AND YOUR VIEWING DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP WITH THIS FIRM.