Author: Stuart E. Fagan

Under the Fair Housing Act, it is against the law to:

• Refuse to rent to you or sell you housing;
• Tell you housing is unavailable when in fact it is
available;
• Show you apartments or homes only in certain
neighborhoods;
• Set different terms, conditions, or privileges for sale or rental of a
dwelling;
• Provide different housing services or facilities;
• Advertise housing to preferred groups of people only;
• Refuse to provide you with information regarding
mortgage loans, deny you a mortgage loan, or impose different
terms or conditions on a mortgage loan;
• Deny you property insurance;
• Conduct property appraisals in a discriminatory manner;
• Refuse to make reasonable accommodations for persons with a
disability if the accommodation may be necessary to afford such
person a reasonable and equal opportunity to use and enjoy a
dwelling;
• Fail to design and construct housing in an accessible manner;
• Harass, coerce, intimidate, or interfere with anyone
exercising or assisting someone else with his/her fair housing
rights.

23 days after issuing his first executive order proclaiming a State of Emergency in the State of California, Governor Newsom issued a second executive order that brought further relief to California tenants. Below we will take a look at the significance of his order.

5 = 60?

Normally, when a landlord personally serves an unlawful detainer action (i.e., an eviction) on a tenant, the tenant has a mere five days to file a response to it. (A tenant gets 15 days to respond, if they are served by mail.) As such, tenants often scramble to find a lawyer for help. Sometimes, sadly, tenants simply don’t know what to do and just let the five days pass without doing anything. This puts the eviction in the fast lane.

Governor Newsom has done something significant for tenants in executing this latest executive order. What he has done is to give tenants 60 days to file a response to an unlawful detainer. Why is that significant? Because it means that the landlord cannot finish the eviction process in short order. As a result, the tenant cannot be evicted for at least 60 days, regardless if the tenant is paying rent or not. In fact, the tenant will not be evicted for quite some time because once a tenant files a response to an unlawful detainer action, then the matter is set for trial. The landlord then has a number of hurdles to jump through before being able to lawfully evict a tenant.

In the normal process of things, an unlawful detainer is set for trial a week or two after the tenant files a response. Trial is then conducted. It doesn’t last weeks or days. It usually lasts but a few minutes. If the landlord proves its case (it usually has no problem proving its case), then judgment is entered in favor of the landlord. The landlord then gives the necessary paperwork (a writ of possession) to the marshal, and the marshal serves the paperwork on the tenants informing the tenants that they will be physically removed from the property if they have not moved out by a certain date. This date is usually very sudden.

Governor Newsom’s order, however, forbids the enforcement of any writs while the Governor’s executive order is in effect (for qualified evictions). So when does the Governor’s order end? Right now, it ends on May 31, 2020. That’s obviously subject to change. Regardless, what this means is that a landlord cannot ask a marshal to enforce an eviction until at least June 1, 2020.

But can a landlord begin an eviction before that time? Yes, but then the landlord has to wait for the 60 days to pass from the service of the unlawful detainer on the tenant before having the matter set for trial. Practically speaking, however, 60 days from April 1st is May 31, 2020, so that is not going to be a real issue.

What’s the Catch?

While the Governor’s executive order is helpful, it does come with some prerequisites: 1) it only applies to evictions for non-payment of rent; 2) the tenant has to notify the landlord in writing (no later than 7 days from when rent is due) that the tenant needs to delay some or all of the rent because of an inability to pay due to reasons related to COVID-19; and 3) the tenant has to retain verifiable documentation explaining the tenant’s changed financial circumstances that resulted in the tenant not being able to pay the full rent. The verifiable documentation ultimately has to be turned over to the landlord. In other words, this is not a “take my word for it” type of defense.

What Qualifies as “Reasons Related to COVID-19″?

No, binge watching CNN or Fox News coverage of COVID-19 does not count! Obviously, if the tenant or one of the tenant’s children has contracted coronavirus (or suspected to have contracted the disease), then that counts. Income reduction caused by COVID-19 also counts. And a tenant whose children’s school was closed as a result of coronavirus will have a reason related to COVID-19, but only if the tenant needed to miss work to care for the child. So, if a tenant’s 17-year-old child’s school is closed, then it is going to be hard to convince a court that a tenant would need to miss work to care for that child. (Yes, litigation is looming regarding how old a child needs caring if home from school.)

When Should a Qualified Tenant File a Response to an Unlawful Detainer Action?

While a qualified tenant now has up to 60 days to file a response to the unlawful detainer action, the LAST THING IN THE WORLD that the tenant wants to do is to respond immediately. Why? Because the sooner the tenant files a response to the unlawful detainer lawsuit, the sooner the trial date is set. And the sooner the trial date is set, then sooner the tenant is going to lose. Yes, there is still some protection because the marshal will not be able to serve and enforce the writ of possession, but there is no reason for a tenant to put his or her eviction on the fast track. Some courts, in addition, have pushed back trial dates, but there is no reason for a tenant in distress to respond until the last possible date.

Evictions (During a State of Emergency) that were Already in the Process:

When the Governor’s two executive orders are read jointly, then a landlord who was in the process of evicting a tenant when the state of emergency was declared is allowed to finish up the eviction, and the marshal will be able to serve the writ of possession (effectively ending the tenants’ occupancy) because those tenants did not meet the prerequisites of the new law.

Does Anyone have to Pay their Rent?

Yes, people who don’t qualify have to pay their rent on time. If they don’t, then they will face eviction. Indeed, Governor Newsom’s executive order states expressly: “Nothing in this Order shall prevent a tenant who is able to pay all or some of the rent due from paying that rent in a timely manner or relieve a tenant of liability for unpaid rent.” Tenants who can–but don’t–pay rent will be subject to eviction, as normal. And they won’t get 60 days to respond.

You may have recently heard that California Governor Gavin Newsom issued an executive order concerning evictions and foreclosures. But what exactly did it say with respect to evictions? (We’ll leave foreclosures for another day.) Let’s address the main issues.

The first item in the executive order states: “The time limitation set forth in Penal Code section 396, subdivision (f), concerning protections against residential eviction, is hereby waived.” (Cal. Penal Code section 396 will be discussed in depth below.)

What good is the first item of the order? It only seems to extend the time before a landlord can raise rents after evicting a prior tenant. The first order continues, “Those protections shall be in effect through May 31, 2020.” Put simply, this provides a disincentive for landlords to think about evicting tenants and raising rents. That practice is prohibited by the Governor’s executive order until May 31, 2020 (with possible extensions).

The second item of the order basically says that local government is allowed–but not required–to limit when a landlord cannot evict a tenant. Basically, the Governor is passing the ball to local government to let them make the unpopular decision (unpopular, that is, from the landlords’ perspective) to stop evictions. This way, the Governor can tell all the big donors, “Hey, I didn’t forbid you from evicting delinquent tenants; the local government did.”

All kidding aside, if the local government takes no action to delay evictions, then evictions can proceed as normal. This likely will come as a surprise to most California tenants.

But even if the local government decides to implement limitations on evictions, it is very limited in the kind of evictions that it can limit. For the executive order only permits local governments to limit evictions when two conditions are met: 1) the basis for the eviction is nonpayment of rent, which is basically caused by a substantial decrease in a household’s income; and 2) the decrease in household income was caused by the COVID-19 pandemic AND it is documented. Thus the only evictions that a local government could choose to stop would be those where the tenant was unable to pay rent because the tenant’s rent was substantially reduced as a direct result of the COVID-19 pandemic and there was documentation to support the claim.

While there will be many people who actually will fit the bill, it does not mean that the tenant who was already out of work, and thus unable to pay the rent, gets to just stay in place until the pandemic passes. That tenant can be rightly evicted, even if the local government gets around to implementing limitations on evictions. So, too, may the tenant who lost a part-time job be evicted if the tenant did not have a substantial decrease in household income. (Do you think that some lawyers and judges are going to have a fun time figuring out what that means?)

The Governor’s order expressly states that the only evictions that the local government can stop are the ones talked about above. So, the local government CANNOT ban all evictions at this time.

Next, the Governor’s order is very clear: “Nothing in this Order shall relieve a tenant of the obligation to pay rent, nor restrict a landlord’s ability to recover rent due.” What does this mean? First, even if the local government limits evictions, this is not a get-out-of-paying-rent-free card. Tenants who have not had a substantial decrease in their household income still have to pay rent. The Governor’s order is meant to protect certain people who have been substantially impacted by the coronavirus, and no one else. Next, as we have discussed, the executive order is not meant to restrict a landlord from being able to collect rent that is due. In other words, if a tenant did not lose a job and thus can pay rent, but chooses not to, then the landlord can seek to collect that rent, and even evict that tenant. In the end, the Governor’s executive order protects some tenants, but not all.

Cal. Penal Code §396

Rent Increases During a State of Emergency:

In the State of California, during a state of emergency, it is illegal for a landlord to increase a tenant’s rent by more than ten percent, except for in limited situations, for the first 30 days following the proclamation. Cal. Penal Code §396(f). That’s right, it’s a crime. It is perfectly fine, however, for a landlord during that 30-day period of the state of emergency to increase an existing tenant’s rent by up to ten percent. So, if a landlord increased the tenant’s rate from $1,000/month to $1,100/month, then that ten percent increase would not be unlawful under Cal. Penal Code §396(f). 31 days after the proclamation or declaration, all bets are off, and the rules go back to normal. Thus if two months after the state of emergency is declared a landlord increases the tenants rent from $1,000/month to $1,200, then such a rent increase would not violate Cal. Penal Code §396(f). It doesn’t mean that the rental increase wouldn’t violate any other law (e.g., perhaps a local rent control ordinance), but it would not violate Cal. Penal Code §396(f).

Evictions (During a State of Emergency) for the Purpose of Selling the Rental Property:

It is also illegal for a landlord to start an eviction during a state of emergency and rent or offer to rent to another person at a rental price greater than the evicted tenant could be charged. In other words, a landlord cannot evict a tenant who is paying $1,000 a month for rent, and then turn around and immediately rent the same place to another tenant for $1,200 a month, for that is a greater amount than the landlord could have been charged. Remember, it would be okay for a landlord to raise a tenant’s rent by up to ten percent.

Note, this does not mean that a landlord is forbidden from evicting a tenant who does not pay rent. It simply means that the landlord cannot evict a tenant for the purpose of immediately getting a new, higher-paying tenant. Cal. Penal Code §396(f). But 31 days after the proclamation or declaration of the state of emergency, all bets are off, and the rules go back to normal.

When might a situation arise where a landlord is trying to evict a tenant who is not late on rent? It might occur where a tenant is on a month-to-month tenancy. (Many tenants are on month-to-month tenancies without even realizing it, for if a term lease expires, then, in most cases, it automatically becomes a month-to-month tenancy if a new term lease is not signed.) The landlord could give the tenant the required notice to terminate the tenancy (30 or 60 days, depending on how long the tenant has been renting). If the tenant does not timely move out after receiving the notice to terminate the tenancy, then the landlord normally has the right to start the eviction process. But that is not true during a state of emergency, if the reason the landlord is terminating the tenancy is to get a new tenant to pay a rent that is more than ten percent higher than the old tenant’s rent.

Evictions (During a State of Emergency) for the Purpose of Selling the Rental Property:

If during a state of emergency, however, a landlord is terminating the tenancy because, for example, the landlord wants to put the house up for sale, then that is perfectly fine. That is not illegal. Of course, if the landlord says one thing and does another, then the landlord may be guilty of a crime, if the landlord raises the rent on the new tenant by more than ten percent within the 30 days following the proclamation or declaration of the state of emergency.

Let’s imagine a landlord who truly wants to sell the rental property. The landlord evicts the tenant. But then the landlord realizes two months later that the market has tanked, then there is nothing illegal about a landlord putting the house up for rent in excess of ten percent greater than the last tenant’s rent. By way of example, if the evicted tenant were paying $1,000/month for rent, and the landlord was now offering that same place for rent at $1,500/month, then there would be nothing illegal about that because it was more than 30 days following the proclamation or declaration of the state of emergency.

Evictions (During a State of Emergency) that were Already in the Process:

A landlord who was in the process of evicting a tenant when the state of emergency was declared is allowed to finish up the eviction and set the new rental rate. In that situation, the landlord is not limited to raising the rent by only ten percent. Cal. Penal Code §396(f).

If there is one comment that I repeatedly hear from tenants, then it comes in the response to my asking them why the landlord gave them a 30-day notice (or a 60-day notice) to terminate their tenancy. “When I asked the landlord why he was terminating our tenancy, the landlord said, ‘I don’t have to give you a reason.'” Up until January 1, 2020, that was pretty much true in California.

But as of January 1, 2020, if a tenant has been living continuously in a rental property for at least 12 months, then a California landlord cannot terminate that tenant’s residency without just cause.

While it always has been illegal to terminate a person’s tenancy for an illegal reason, California landlords (for the most part) never had to state in the notice of termination of tenancy why they were evicting a tenant. Instead, they could just serve the tenant with a notice of termination of tenancy, and the clock would start running.

If the tenant were able to prove that the notice of termination of tenancy had been served on them for an unlawful reason (e.g., because of the tenants’ race), then they would be able to stop the eviction. But that always has been a tall order.

The beauty of the new law is that California landlords no longer will be able to hide their reasons for terminating residential tenancies for longer term tenants. Instead, they will have to state the reason (or at least their purported reason) for their terminating the tenancy in the actual notice of termination of tenancy.

California’s new law states what “just cause” means, but it does so a little vaguely. While this will leave the courts with some wiggle room to decide whether something amounts to “just cause” or not, what the new law definitely does is assure tenants that they will know why they are getting the boot (or, again, at least they will know the purported reason they are getting the boot). So if the landlord is evicting the tenants because they have repeatedly failed to timely pay the rent, then the notice will clearly state that reason.

Undoubtedly, some landlords will try to load up the reasons for why they are evicting a tenant. For example, the landlord may state that it served the notice because of the tenants’ noise violations, late payments of rent, etc. Without question, the new law is going to create lots of litigation over whether the landlord was being honest when it stated the reasons for a evicting a tenant. “Pretext” will adorn legal briefs throughout California courthouses.

What is a tenant to do if they are served a notice of termination that states obvious falsehoods? For example, imagine if the landlord serves a notice that list several false reasons for the service of the notice. In that situation, the tenant needs to contact a lawyer verse in the law ASAP.

Getting a landlord to confess why it served a notice of termination of tenancy always has been a tough thing to do. Now that California law compels landlords to do so (in limited situations), one can only imagine the fights that will be fought over whether the landlord truly served the notice to retaliate against a tenant, etc.

The Unruh Civil Rights Act (“Unruh Act”) stands as a bulwark protecting each person’s inherent right to “full and equal” access to “all business establishments.” The Unruh Act, like the common law principles upon which it was partially based, imposes a compulsory duty upon business establishments (including apartment complexes) to serve all persons without arbitrary discrimination. The Unruh Act thus serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.

The Unruh Act provides in pertinent portion at Cal. Civ. Code §51:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments or every kind whatsoever.” Although not specifically enumerated in Cal. Civ. Code §51, the Unruh Act also protects from discrimination on the basis of age and familial status. Cal. Civ. Code §51.2(a) (age); Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 124 (Cal. 1982) (familial status).

The Unruh Act makes it unlawful for a business establishment to deny, discriminate, or make a distinction contrary to the Unruh Civil Rights Act. The law is rather straightforward: if a business opens its doors to the public, then it cannot unlawfully discriminate against its potential customers. Thus an apartment complex which forbids children from playing outside denies families with children the full and equal advantages, facilities, or privileges of living in that apartment complex in violation of the Unruh Civil Rights Act.

Of note, Cal. Civil Code §52 does not focus on the reason for the prohibited behavior. Rather, it simply bans the denial, aiding or inciting a denial, or making of any discrimination or distinction contrary to the Unruh Civil Rights Act. The key word–“contrary” means that Civil Code §52 is violated if the defendant engaged in “willful, affirmative misconduct” that is contrary to a person’s rights to the full and complete access to the business. Consequently, the California Supreme Court has declared that only intentional discrimination–in contradistinction from discriminatory effect discrimination–is actionable under the Unruh Act:

“[T]he [Unruh] Act was passed in 1959 and its predecessor in 1897, long before the disparate impact theory was recognized by the federal courts. On the contrary, the language of the Act suggests that intentional acts of discrimination, not disparate impact, was the object of the legislation.”

The California Supreme Court continued:

“Section 52 states: ‘Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction, or restriction on account of sex, color, race . . . contrary to the provisions of section 51 . . . , is liable for each and every such offense . . . .’”

It concluded:

“In summary, we hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims.”

Thus “intentional discrimination” in the context of the Unruh Act means: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, . . .”

At the end of the day, if your landlord is forbidding your children to play outside at your apartment complex because of the fact that they are children, then your landlord is likely violating the Unruh Act. Renters have rights. The Unruh Act contains some of those rights. If you’d like to discuss your rights as a renter, then give us a call, whether you are in San Diego, Los Angeles, Sacramento, or anywhere in the State of California, we are here to help.

What’s up with all the dogs everywhere these days? You see them in the malls (that’s where people shopped before Amazon), in stores (that’s where people shop who don’t shop on Amazon), and even on planes. Don’t get me wrong, I like dogs. In fact, we even entered our dog in the Wienershcnitzel Wiener Nationals one year in San Diego. Our dog ran in one of the two heats for wiener dogs named “Oscar.” I’ll admit, up until they announced that there were two heats for dogs named “Oscar,” I thought the name was original. But once our Oscar started to run the wrong way in the race, I was actually content to leave the venue as quickly as possible. I would say that I crossed that off of my bucket list, but it was never on the bucket list in the first place. But it was a rather unique event, and if you are in San Diego when it is run, it is probably worth the time. But don’t put it on your bucket list . . . at least not if your dog is named “Oscar.”

One of the problems with the prevalence of dogs everywhere is that it gives a bad name to true service dogs and emotional support animals. As one disgruntled homeowner once put it, “Pay a few $’s on the internet and ‘Presto’ a service dog is born . . . I could ‘certify’ my ceramic toy with THAT process.” I get it. In fact, it kind of makes you wonder if Tom Hanks would have been able to certify Wilson and take it with him on a plane (not that there is some prohibition against volleyballs on planes, but I’m just saying).

Speaking of planes, passengers on planes have tried to take on board with them “service” peacocks, pigs, cats, monkeys, horses, and even a turkey! (It is unclear if the turkey was flying around Thanksgiving.) The point is that service animals have gotten out of hand. But the problem with trying to solve the problem is that people who genuinely need service dogs and emotional support animals are likely to be discarded with all the phonies. And therein lies the problem: how do you tell a genuine need from a phony need?

The answer is a doctor’s note, right? Genuine claims surely would be recognized by doctors, right? Yet one website announces, “ESA [emotional support animal] letters only $22 each. Same day delivery included.” The website guarantees “official medical signed.” It then touts, “An Emotional Support Animal (ESA) letter from a licensed therapist is all you need to gain legal access to airline cabins and pet restricted housing without extra fees and deposits.” What? You’re not satisfied with a licensed therapist signing the ESA? Then pay a little more and get a medical doctor to sign the ESA. Hey, what’s a few bucks? Think of all the money you will be saving when your dog is flying free of charge! Pet fees at your apartment complex? Forget about it; you’ve got an ESA!

In the end, the system is being abused. And when it is abused, people with a genuine need for an emotional support animal or a service dog are sadly lumped in with all the people who want to bring “service” animals on board an airplane or those who want to live an apartment complex with their “service” monkeys. In a future post I’ll talk about what you should do if you have a genuine need for a service dog or an emotional support animal. Until then, please, remember that not everyone who has a service animal or an emotional support animal is abusing the system.