Tenants who may have viewed the Superior Court’s pause on evictions as a backstop to our local eviction moratorium should know that eviction cases (and filings) will proceed as of September 1st. An amended rule by the court’s Judicial Council on August 13th imposes a sunset clause on its Emergency rule #1 promulgated in April to pause evictions. It may sound arcane but it augurs some pain for tenants who are at risk of displacement during the pandemic.
For most tenants an administrative rule change is inconsiderable if only because most tenants do not face an unlawful detainer. But for tenants with an eviction action in the pipeline, the impact of the court’s recent rule amendment is immediate: their case will proceed as of September 2nd after the Emergency rule #1 expires.
Tenants unable to pay the rent due to COVID-19 may be affected too. If the landlord again has the option to evict, he may be less-willing to accommodate a tenant’s request for rent forbearance…or challenge the tenant’s claim.
Let’s sum up the key aspects of Emergency rule #1:
- Emergency rule #1 postpones unlawful detainer trials by a minimum of 60 days. That puts the brake on proceeding in process, including cases where the tenant faces a court-ordered eviction but the tenant has filed an answer to the summons.
- Emergency rule #1 prohibits the court from issuing a new summons and the tenant isn’t required to answer a summons that was served. The case will simply not proceed.
- Emergency rule #1 prohibits the court from entering a default judgment which favors the landlord.
Emergency Rule #1 does not preclude any action by the landlord to collect on rent owed, such as demanding the rent, asking or even hounding a tenant to pay, or ominously reminding tenants of their obligation concerning delayed rent. (Renters Alliance has heard from tenants concerned about ‘soft’ harassment.) The rule also does not prevent the landlord from filing an unlawful detainer, and those cases may proceed once the rule expires depending on court capacity to handle them.
Background to the Court Rule Change
Governor Newsom on March 16th issued an executive order authorizing any local government to adopt an eviction moratorium when tenants who are materially affected by COVID–19 can’t pay the full rent. (That order has since been extended through September 30th.) On March 19th the governor subsequntly issued a statewide shelter-in-place order. The gist: it would be contrary to public health interests to have the courts displace tenants during the pandemic.
Importantly, the governor’s order also empowered the Judicial Council to pause unlawful detainer proceedings. That included not only proceedings in the pipeline but, in an unprecedented step, the filing of unlawful detainer petitions too. The Judicial Council promulgated the rule change back in April with Emergency rule #1. That rule change did not include an expiration date.
The Judicial Council stepped in with a rule change because early in the pandemic the legislature had taken a weeks-long break so neither the state senate or assembly was in session to address the issue. However the Council, the policy-making arm of the state court, viewed the rule change “inconsistent with statutes concerning civil or criminal practice or procedure.”
Namely the rule change implicated the separation of powers: the legislature has the final word on civil and criminal actions as key particulars are codified in law. The courts only promulgate rules pursuant to those statutes. The Council did not want to usurp the role of the legislature.
The Council has been looking for a way out of the conundrum. In June it was ready to put a sunset clause on Emergency rule #1 but pressure from legislators and executive branch officials staved-off that action. (Not coincidentally, a member of the Judicial Council is our own state assemblyman, Richard Bloom, who likely opposed it — as did the governor. Recent legislative activity on tenant protections, however, have provided a fig leaf for the Judicial Council to act.
Amending Emergency Rule #1: The Sunset Clause
With the legislature now in session and two proposals to halt evictions under consideration, the Judicial Council decided it could finally impose a sunset clause. So by a vote of 19–1 it did: as of September 2nd evictions and summons can proceed. The report explains the reasoning:
Because Governor Gavin Newsom and the Legislature are working on legislation relating to unlawful detainer actions and foreclosures, and to ensure the absolute integrity and fairness of the court system as an independent arbiter of law in the adjudication of unlawful detainer and judicial foreclosure cases, the chairs of the Judicial Council’s six internal committees propose that the council amend emergency rules 1 and 2 to sunset on September 1, 2020.
The troubling aspect is that the pandemic shows no sign of abating, so it only seems a matter of fairness to keep the rule in place until the legislature and governor act. For tenants there is considerable uncertainty too: the end date for state and local emergency orders is unknown and Congress has recessed without stimulus action. City of Beverly Hills has not yet stepped in with COVID-19 rental assistance.
More About the Judicial Council
The Judicial Council is the policymaking body for the California courts. The Council is charged with “ensuring the consistent, independent, impartial, and accessible administration of justice,” according to the Council’s website. The Council numbers twenty members who are predominantly sitting justices in trials and appeals courts. There are two representatives from the legislature, however, including our own sitting assemblyman, Richard Bloom (who voted to approve the rule change).