Local attorney sends CA Chief Justice email supporting prompt termination of temporary emergency rules on evictions and foreclosures

I did a post earlier today about the California Judicial Council considering rescinding the temporary emergency rules on evictions and foreclosures.

Local attorney, Mr. Dustin Owens, sent the following email to the California Chief Justice Tani Cantil-Sakauye.



"Dear Chief Justice Cantil-Sakauye:

I wanted to write this email to show my support for the prompt termination of Temporary Emergency Rules of Court, Rule 1 and 2 pertaining to evictions and foreclosures.

I do understand the purpose behind the rules and sympathize with tenants, particularly in these times.  Most local jurisdictions have enacted ordinances to prohibit eviction proceedings based upon financial losses caused by COVID-19, in accordance with the Governor's order.  Those ordinances appear to be well thought out and provide relief to tenants specifically where the eviction would be based upon non-payment of rent.

Temporary Emergency Rule 1, however, goes beyond that.  It, without any determinable end time, prohibits Courts from issuing a summons without an express finding that the action is necessary to protect public health and safety.  In my experience to date, this finding is made where there are illegal firearm issues; ongoing physical threats; repeated violence; and repeated drug activity at a property.  There are arguments to be made that some other nuisances should result in the issuance of a summons, such as a failure to maintain causing a wildfire risk or vicious dogs.  However, I have not received any rulings on those issues yet.

There are two serious problems with the rule.  The first is that it appears to be beyond the authority of the Judicial Branch and Judicial Council.  As I'm sure you know, Court rules may not be enacted to the extent that they override applicable statutes or principles of law.  (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967).  The issuance of a summons is a ministerial act which, by established principles of law must occur on the same day it is requested, so long as the submission documents are proper in form.  The issuance of a default and clerk's default judgment is, likewise, a ministerial act.  The setting of an unlawful detainer trial, by statute, must occur within 20 days of a request therefore.

The second problem is that the exceptions fail to account for many circumstances.  Examples of that, which I have personally seen since the rule was circulated, are as follows:

1.  Evictions of tenants who are repeatedly causing damage to the real property.

2.  Evictions of commercial tenants, in general, unrelated to the nonpayment of rent.  Including evictions where the commercial tenants have abandoned the property, or otherwise do not reside at the property.

3.  Evictions for repeated nuisances that are not direct risks to public health and/or safety.

4.  Evictions for tenants who have failed to pay rent for significant periods of time.  Periods of time that, in some circumstances, preceded the pandemic by nearly a year.

5.  Other evictions where the tenant no longer resides at a property, but has personal property there and claims an ongoing right of possession.

6.  Evictions of persons who are tenants at will, or tenants at sufferance.  Many of whom aren't paying rent, or never had.

7.  Evictions that are necessary to close property transactions.

8.  Evictions to permit occupancy by the owner's family members, who are in need as a result of the pandemic.


Regarding Judicial Foreclosure actions, many of the same issues apply. However, unlike unlawful detainers, Judicial Foreclosures are not summary actions.  In my experience, it typically takes 8 to 10 months, or longer, to complete a judicial foreclosure action and, after obtaining judgment, complete an appropriately noticed sale of the property where the defendant defaults.  It generally takes years where the defendant responds.  This is followed by a one year right of redemption.  Finally, judicial foreclosures are extremely rare compared to Trustee's sale and, typically, are only sought in cases where either (a) the lender is entitled to a deficiency [uncommon as a result of Civ. Code 580b and 580d], or (b) cases where it is a nonstandard mortgage transaction [ie. a recorded deed used as security for a loan, which actually constitutes a mortgage].  It is difficult to see what purpose Emergency Rule 2 actually serves in terms of protecting public health and safety.

Thank you for your time in reviewing this email.  I do truly appreciate your time and efforts and, although I don't do this often, I felt it important to share my support for the prompt termination of these two rules.

Earlier post:
https://johnchiv.blogspot.com/2020/07/ca-judicial-council-will-soon-consider.html?m=1