Judicial Council

By Mark Feinberg and Katie Atherly, Heinz & Feinberg

In March, 2020, the State of California and many municipalities enacted emergency orders and ordinances that temporarily prevented owners from evicting tenants who failed to pay rent and who were unable to pay all of their rent due to COVID 19. The restrictions dictated by the State Order and local ordinances rightfully caused great concern in the community of property owner. These governmental actions also received a lot of media attention. Unfortunately, the California Judicial Council (the policy and rule making body of the California court system) has acted in a way that is far more harmful to property owners than anything done by the State Of California or any municipality.

On April 6, 2020, the Judicial Council met and passed temporary emergency rules that impact many court operations. Unlawful detainer actions are significantly impacted in a way that most professionals in the industry never envisioned. As California officials are currently taking steps to “re-open” the State, now is the time to gain an understanding of the impact the Judicial Council’s actions will have on evictions.

The basics of the Judicial Council emergency order effecting unlawful detainer actions is as follows: Once the governor lifts the state of emergency, with the exception of certain health and safety involved cases: 1. For 90 days the court may not issue a summons in an unlawful detainer case (a summons is required to be issued before the lawsuit is served on the tenant(s) - the issuance of a summons is a crucial step in the process of an unlawful detainer);

2. For 90 days the court may not enter a default or default judgment; and

3. Where an answer has been filed, trials will be set at least 60 days after the trial setting request is filed. (Under normal circumstances the trial is set within 20 days of the trial setting requests.)

Special reference is made to health and safety involved matters. This would include most, if not all, unlawful detainer actions based upon a three-day quit notice involving allegations of tenants violating the law and/ or creating a nuisance. The typical example is the occasional terrible tenant who terrorizes neighbors and management with abusive, threatening, and or violent behavior. Certain perform covenant or quit notices will also likely be included in the definition of health and safety involved cases. For example, if there is a significant maintenance or pest control issue and the tenant refuses to allow maintenance or pest control to enter, legal counsel can serve a perform covenant or quit notice requiring the resident to cooperate with the needed entry/repair/treatment. The tenant’s failure to comply would more than not likely create what the court would consider a health and safety involved case. Even in those type of cases, a court will have to be convinced to issue an order that the case may proceed without delay.

Once the court is re-opened, landlords will presumably be able to file suit. Unless the unlawful detainer action is based upon a health and safety matter, there will be no ability to obtain an immediate summons to proceed with legal service of process. Depending on the type of case being handled, the following recommendations regarding commencing an unlawful detainer action should be considered.

In health and safety-related cases, unlawful detainer actions should be filed as soon as the courts open. Once the case is filed and the clerk has assigned a case number, legal counsel may schedule an ex parte court hearing where counsel will request the court order the immediate issuance of the summons. Legal counsel should be prepared to present evidence to the court as to why the case is an appropriate case for a summons to be issued and for the case to proceed to default judgment or setting of trial.

As to non-health and safety related cases (non-payment of rent, perform covenant or quits, 30/60-day terminations), while the summons will not be immediately issued by the court, landlords and their counsel should still consider filing the unlawful detainer lawsuit as soon as the court is open, or as soon as a notice expires (whichever is later). There are two reasons for this recommendation. First, once the 90-day period following the lifting of the state of emergency has transpired, the Judicial Council’s emergency rules will expire and there will be a huge number of new cases filed. We hope (but cannot guarantee) that the court will act first upon already-filed cases and issue the summons for previously filed cases before processing newly filed cases. In other words, if an unlawful detainer action is filed during the period where the court can’t issue a summons, it would be wise to submit the summons as soon as allowed by the emergency order. Ideally, the court will then issue the summons before the summons submitted with cases filed after the emergency order is lifted.

Secondly, and perhaps the more important reason to file a “normal” non-payment unlawful detainer action as soon as the courts are open, is the likely scenario that the filing will result in some tenants attempting to make a deal to pay and stay, or to negotiate a termination of tenancy. Once the lawsuit is filed, within a few days the tenant receives notifications from both the court and the landlord’s legal counsel advising the tenant as to the filing of the lawsuit (not the same as providing legal service of process). Some of the tenants who receive the filing notification letters may be proactive and try to make a deal to avoid the lawsuit.

The worst part about the Judicial Council’s recent action is that it created tremendous uncertainty. The triggering date is a moving target. The Judicial Council could have set forth timelines based upon the date of the courts reopening. The courts are very likely to reopen long before the state of emergency is lifted. Nobody knows when the governor will lift the state of emergency. All timelines impacting evictions that are imposed in the Judicial Council’s order commence only once the state of emergency is lifted. Past states of emergency declared by California governors have sometimes been extended multiple times. Once the state of emergency is lifted, the courts will be inundated. Aside from health and safety related matters, any new cases filed after the courts likely will not be concluded in the year 2020. A copy of the emergency rules instituted by the Judicial Council may be found at: https://www.courts.ca.gov/43820. htm.

Given the very significant delays that will be involved in any eviction (other than possibly health and safety cases), it may be advisable to be a lot more flexible in making deals. Property owners may decide it is in their best

interest to work with residents who don’t pay rent by making deals whereby the resident will voluntarily move out. Creativity and keeping in mind the lengthy delay in most eviction cases will help property owners through this difficult time.

"Mark Feinberg and Katie Atherly are attorneys with Heinz & Feinberg. Heinz & Feinberg provides landlord/ tenant related legal services to the owners and managers of San Diego County properties. Mr. Feinberg recently completed six years on the board of directors of the San Diego Rental Association and currently serves as a legal advisor to the board of directors."