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.