The state policy-making body for the courts decided last week to sunset Emergency Rule #1 that puts the brake on unlawful detainers in Superior Court. The rule is providing immediate relief for tenants with cases in the eviction pipeline. But the greater effect is to prevent tenants from being summoned in such cases. Emergency rule #1 was issued by the Judicial Council in April in response to the pandemic but as of September it goes away even though we’re stuck with the pandemic. What does it mean for tenants?
As the court’s Judicial Council explains:
Emergency rule 1 prevents courts from issuing summons on unlawful detainer complaints or issuing defaults in such actions, unless the plaintiff can show the need to proceed on public health and safety grounds, and continues trials in any pending unlawful detainer actions for at least 60 days, with no new trials to be set until at least 60 days after a request for trial is filed. — Judicial Council Circulating Order CO–20–13, August 11, 2020
However the Judicial Council was recommended to sunset Emergency rule #1 on September 1st even though the governor and the legislature have not enacted any eviction protection legislation.
The change in the sunset date means that as of September 2, 2020, unless the Legislature has enacted law providing otherwise, courts will once again be authorized to issue summons on all unlawful detainer actions, enter defaults and issue writs of execution when appropriate, and set trial dates on request… — Judicial Council Circulating Order CO–20–13
The Judicial Council’s 19–1 decision to sunset the eviction protection means that unlawful detainer proceedings will go forward and we will likely see a wave of landlord filings to oust tenants who have been, or are, unable able to pay full rent.
An Essential Backstop Disappears
As we explained earlier, the rule acts as a backstop of sorts. Our own local residential eviction moratorium also does not allow the landlord to serve a tenant with a notice of eviction.
A landlord who receives notice that a tenant cannot pay some or all of the rent temporarily for the reasons set forth above shall not serve a notice pursuant to Code of Civil Procedure section 1161(2), file or prosecute an unlawful detainer action based on a 3-day pay or quit notice, or otherwise seek to evict for nonpayment of rent. — Beverly Hills Urgency ordinance 20-O-2815 section 1(1a)
The local ordinance is the first line of protection for Beverly Hills tenants. The court’s Emergency rule #1 was the backstop. (Point of information: Code of Civil Procedure §1161(2) codifies the process by which a landlord can begin eviction proceedings, starting with the 3-day notice — a process that is currently on hold by the emergency rule that will expire.)
In order to qualify for the moratorium’s protection a Beverly Hills, though, the tenant must be able to document a “substantial loss of income” or “extraordinary” expenses due to COVID–19. And the tenant seeking forbearance also must take these affirmative steps, according to the ordinance.
A landlord receives notice of a tenant’s inability to pay rent within the meaning of this Ordinance if the tenant, within seven (7) days after the date that rent is due, notifies the landlord in writing, of lost income or extraordinary expenses related to COVID–19 and inability to pay full rent due to financial impacts related to COVID–19, and within thirty (30) days after the date the rent is due, provides written documentation to the landlord to support the claim, using the form provided by the City. — Ordinance 20-O–2815 1(1a)
That last bit is important: In order to access the moratorium’s protection we must file the city’s form with both the landlord and the city. (Read more in our explainer.) Merely striking an informal understanding with the landlord will not trigger those protections (which include a 12-month grace period for the repayment of forborne rent). As a reminder, we are talking about delayed rent and not forgiven rent; no rent is forgiven.
For tenants who have already signed a formal agreement with the landlord for the repayment of rent, the Judicial Council’s action removes a backstop against eviction if the tenant runs afoul of that agreement’s terms. That is, if the tenant cannot meet the terms of the agreement that she signed, then without the court backstop the landlord can move to evict come September 2nd.
Renters Alliance has suggested that tenants carefully think through the implications of signing on to a formal rent repayment agreement because the moratorium does not require it. Unfortunately, tenants are not getting that advice from the rent stabilization office!
Who is Most Affected by the Sunset of the Court’s Emergency Rule?
Tenants who faced an unlawful detainer prior to the pandemic emergency declarations. These tenants are at immediate risk. Their cases can proceed as of September 2nd. We don’t know the court’s capacity to handle those trials, but we can expect that there will be a backlog to clear prior to turning to new filings arising from the pandemic.
Tenants who cannot pay the rent for reasons unrelated to COVID–19. These tenants can expect a notice to vacate from the landlord followed by an unlawful detainer summons. This concerns tenants who can’t benefit from the moratorium. With the court’s Emergency rule #1 expiring there will be no backstop for these tenants on September 2nd.
Tenants who ask for forbearance but who can only marshal marginal support for the request. Consider a tenant with a decrease in income that is either not ‘substantial’ (the term used in the local ordinance) or not directly related to COVID-19. Without the court backstop the landlord has an incentive to strong-arm the tenant into a larger rent payment or an accelerated rent repayment plan. Why? Because for the tenant the unlawful detainer is a threat on which the landlord can make good come September 2nd.
Tenants who have obtained forbearance outside of the city’s moratorium process. Consider the tenant that comes to an understanding with the landlord without a formal agreement. The landlord maybe had let the tenant slide. Now the landlord can move to collect the back rent with the support of the courts. If the tenant had not filed the city’s moratorium form, she cannot benefit from the moratorium protections.
Tenants who have breached the rental agreement aside from the non-payment of rent. This could include having an unauthorized occupant in the unit, causing damage to the unit, or creating a nuisance. Until now, such tenants got a temporary pass due to the backstop because only evictions related to health and safety could proceed. Without the backstop they could be evicted.
The key point for tenants is that, without the court’s emergency rule backstop in place, evictions can go forward once again. Tenants who request forbearance should carefully navigate the city’s process because there is no more backstop.
Moratorium requirements are spelled out in the city’s urgency ordinance and explained on the rent stabilization office website. Renters Alliance has also posted a how-to explainer on the moratorium process (which remains accurate because the moratorium requirements have not changed).
Hope for us precariously-housed tenants now rests with the state legislature. Word has it that two bills are under consideration to press the pause button on eviction proceedings. Knowing the legislature to never be a tenant-friendly body, we can’t hold out hope that this cavalry will ride to the rescue in time to mitigate unnecessary harm.
Additional Background on the Court’s Emergency Rule #1
On March 27, 2020, the Governor issued an executive order (N–38–20) giving the Judicial Council of California and the Chief Justice as Chair of the Judicial Council authority to take necessary action to respond to the emergency caused by the COVID–19 pandemic. On April 6, 2020, the Judicial Council voted remotely to approve 11 temporary emergency rules including pausing eviction proceedings and staying new filings.
This was an unprecedented change in how evictions were handled by the courts. Historically speaking, “access to justice” (in the Judicial Council’s phrase) was easier for landlords than for other civil plaintiffs like tenants. Unlawful detainers were put on a fast-track calendar in contrast to civil actions brought by, say, a tenant against her landlord. That tenant will stand in a long queue to see a judge!
But time was not on the tenant’s side. The Judicial Council felt it had to yield to concerns for justice. But from the Council’s Circulating Order it also was clear that the legislature was in no hurrty to act. “The council acted with the expectation that legislation to address these statutory issues would follow quickly once the Legislature reconvened,” says the order. Finally in August the chairs of the Judicial Council’s six internal committees tired of waiting and proposed that the Council amend Emergency rule #1 to sunset it on September 1, 2020. It did so on August 13th. That’s where we are today.