Rapidly changing eviction law in the COVID-19 era

Undoubtedly you did not purchase this newspaper to read this article. By the time it is in print it shall be marginally out-of-date. By the time you may actually need this information, it will likely be wrong and virtually worthless. It shall merely be a listing of historical observations. But even as such it may have some value.

I sit in Department S-13 in the Gov. George Deukmejian Courthouse in Long Beach. I am the judge handling the landlord-tenant eviction cases in the South District. Like virtually all other Los Angeles County Superior Court civil departments, my department was last open March 16. While all aspects of the court have been impacted by the COVID-19 pandemic, perhaps evictions are one of the most impacted areas of law. Not only has there been a court-wide closure, but the procedural and substantive law on evictions has undergone dramatic, temporary change at the speed of light. Virtually every level of government from the governor and the chief justice through the Los Angeles Superior Court presiding judge, county government and cities have weighed in.

The unlawful detainer statute is contained in Code of Civil Procedure Sections 1159-1179a. This relatively short chapter titled "Summary Proceedings for Obtaining Possession of Real Property in Certain Cases" provides an expedited process to quickly obtain possession of real property. In most types of eviction cases a three-day notice is served to begin the eviction process. Once that time period has expired, if the tenant had failed to timely comply with the notice, the landlord may file an unlawful detainer lawsuit. Once the summons and complaint have been served, the tenant has merely five court days to file a responsive pleading. Discovery responses are due in five days. Summary judgment may be heard on five days' notice. Trial may be set on a minimum of five days' notice and shall be set within 20 days of the request to set trial. Eviction lawsuits may be tried to the court or the parties may demand a jury trial. Unlawful detainer is a "rocket-docket" by design.

Then came COVID-19 with its numerous stay-at-home orders, court closures and economic turmoil. On March 17, Presiding Judge Kevin C. Brazile issued LASC General Order 4. From March 20 until April 16, all LASC courtrooms were ordered closed, except for "time-sensitive, essential functions." All that remained of unlawful detainer proceedings were ex parte matters. The general order mandated that the period from March 17 to April 16 was deemed a holiday for purposes of computing the five-day period to file responsive pleadings in unlawful detainer suits. On March 19 Gov. Gavin Newsom issued Executive Order N-33-20 requiring all Californians to stay home.

Merely two days after General Order 4, LASC General Order 5 was issued. It provided that "[i]n light of Governor Newsom's Executive Order urging emergency action to promote housing stability, the moratoriums on evictions imposed both by the County of Los Angeles and the City of Los Angeles, and the court's inability to hold unlawful detainer related hearings ... the court finds good cause to continue all unlawful detainer trials." One month delay.

On March 23 Chief Justice Tani G. Cantil-Sakauye as the chair of the Judicial Council ordered that all jury trials were suspended for a period of 60 days from the date of the order. Presiding Judge Brazile issued LASC General Order 6 that same day echoing the chief justice's order. All

LASC civil jury and non-jury trials, including unlawful detainer trials, were suspended until further notice. Two months delay.

The Judicial Council adopted Emergency Rules 1-11 on April 6. Emergency Rule 1 addressed evictions. Unlawful detainer trials were already on hold. Now the mere commencement of an unlawful detainer was placed on hold. "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." Defaults and default judgments for restitution could no longer be entered unless the court finds that the action is necessary to protect public health and safety. No longer were unlawful detainer trials required to be set within 20 days of request. Instead, Emergency Rule 1(d) provided that "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 6, 2020 must be continued at least 60 days from the initial date of trial." Rule 1 remains in effect until 90 days after the governor declares that the state of emergency is lifted or until amended or repealed by the Judicial Council. (Emergency Rule 1(a)-(e).) More months to resolution.

General Order 9 was issued by Presiding Judge Brazile on April 14. All LASC courtrooms were to remain closed until May 12, except for time-sensitive, essential functions, which did not include unlawful detainer proceedings. The general order acknowledged Emergency Rule 1(d) and the minimum 60-day delay on unlawful detainer trials.

Substantive orders impacting unlawful detainer law also were issued at all levels of government.

President Donald Trump directed that there be an eviction moratorium on Federal Housing Administration-insured single-family mortgages for a period of 60 days.

Los Angeles Mayor Eric Garcetti issued an eviction order on March 15: "I hereby order that no landlord shall evict a residential tenant in the City of Los Angeles during this local emergency period if the tenant is able to show an inability to pay rent due to circumstances related to the COVID-19 pandemic. These circumstances include loss of income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health care expenses related to being ill with COVID-19 or caring for a member of the tenant's household who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures." Tenants remain obligated to pay lawfully charged rent but would have up to six months following the expiration of the local emergency period to repay any back due rent. "Tenants may use the protections afforded in this subsection as an affirmative defense in an unlawful detainer action."

Los Angeles County issued an executive order on March 20 establishing a temporary moratorium on evictions for non-payment of rent by residential or commercial tenants impacted by the COVID-19 crisis. "Commencing March 4, 2020, through May 31, 2020, no residential or commercial property owner (collectively 'Landlord') shall evict a residential or commercial tenant (collectively 'Tenant') in the unincorporated County for: (1) nonpayment of rent, late charges, or any other fees accrued if the Tenant demonstrates an inability to pay rent and/or related charges due to financial impacts related to COVID-19, the state of emergency regarding COVID-19, or following government-recommended COVID-19 precautions, and the Tenant has provided notice to the Landlord within seven (7) days after the date that rent was due, unless extenuating circumstances exist, that the Tenant is unable to pay; or (2) reasons amounting to a no-fault eviction under the County Code, unless necessary for health and safety reasons." Tenants are given six months after the emergency to pay the unpaid rent.

Long Beach, the second largest city in Los Angeles County, (and largest in the South District) adopted Ordinance No. 20-0010 to protect the public health and mitigate the economic impacts of COVID-19. Much like the other governmental moratorium, it prohibits eviction from residential and commercial tenancies for non-payment when it results from the adverse economic impacts of COVID-19. It requires notification of the landlord as well as providing the landlord documentation supporting the claim of adverse economic impact. Some of the other 88 cities in Los Angeles County have similarly adopted ordinances impacting evictions.

On a statewide basis Gov. Newsom issued Executive Order N-37-20 on March 27 to address the issue of evictions. "[M]any Californians are experiencing or will experience substantial losses of income as a result of business closures, the loss of hours or wages, or layoffs related to COVID-19, hindering their ability to keep up with their rent, and leaving them vulnerable to eviction." "[M]inimizing evictions during this period is critical to reducing the spread of COVID-19 in vulnerable populations by allowing all residents to stay home or at their place of residence in compliance with Executive Order N-33-20."

The governor's executive order extended the five-day period for filing responsive pleadings in unlawful detainer actions to 60 days when the suit is based on nonpayment of rent for impacted tenants. The tenant shall notify the landlord in writing before the rent is due, or within a reasonable period of time afterwards not to exceed seven days, that the tenant needs to delay all or some payment of rent because of an inability to pay the full amount due to reasons related to COVID-19. These reasons include the tenant being unavailable for work due to suspected or confirmed COVID-19 sickness, or caring for a household member who was sick with suspected or confirmed COVID-19, layoff, loss of hours, or other income reduction resulting form COVID-19, the state of emergency, or related government response, or the tenant needs to miss work to care for a child whose school was closed. The tenant is to retain verifiable documentation of the condition justifying the non-payment. This order runs through May 31.

How many other governmental entities shall adopt ordinances or issue orders impacting the substantive law of evictions cannot be predicted. How many jurisdictions that have already adopted ordinances will modify or extend them? What other provisions may be adopted to combat the adverse impact of this medical/economic crisis and the potential tidal wave of eviction suits cannot be known. When shall the cases be capable of progressing?

The ability to proceed to trial once the Los Angeles County Superior Court is able to again handle unlawful detainer lawsuits shall be impacted by the new social distancing regime that will be in place. Jury trials shall be a challenge in this new social distancing era. This shall impact unlawful detainers like all other proceedings that may involve jurors. How and when such trials advance remains to be seen.

Like all else in our COVID-19 world, eviction procedure and substantive rules are changing, at least temporarily, at the speed of light. Stay tuned (and up to date). 