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The Governor’s Executive Order on Evictions: Why It Fails to Protect Tenants, and What Can Still Be Done to Provide Meaningful Protections

The Governor’s March 27th Executive Order N-37-20 is intended to be a delay—not a moratorium—on evictions. Unfortunately, it provides little practical help for renters during the COVID-19 pandemic. Under the Order, even tenants who have a COVID-related income loss and can meet the notice and documentation requirements of the Order can still be evicted. At best, the order extends the time period before they are physically locked out by the sheriff. Moreover, by relying on a flawed legal approach, the order will mislead tenants who have a real defense to the eviction, preventing them from responding in court in a timely manner.

The Executive Order is Not a Moratorium on Evictions

The Executive Order purports to extend by 60 days the time a tenant has to respond to a summons in an unlawful detainer (eviction) case filed by a landlord. However, that extension applies only for unlawful detainers based on nonpayment where the tenant (a “covered tenant”) has satisfied certain conditions:

  1. The tenant has a COVID-related loss of income;
  2. The tenant has notified the landlord within a reasonable time period not to exceed 7 days; and
  3. The tenant retains certain documentation of the COVID-related loss.

All other unlawful detainer cases are unaffected by the Order. This includes cases where the tenant can’t meet the documentation requirements, evictions alleging other breaches of a lease, no fault evictions, and others. These evictions can move forward so long as the courts are open.

The Executive Order Provides No Defense to an Eviction Even for Covered Tenants

Even for tenants who can demonstrate a COVID-related loss of income and do everything required of them, while the Executive Order is in effect a landlord can still:

  1. Issue a three-day notice demanding the tenant pay the rent or vacate their unit.
  2. Refuse to accept partial or full late rent payments after the three-day notice has expired.
  3. File an eviction action against that tenant in court.
  4. Serve the action on the tenant, requiring them to file a written response in court within five days.
  5. Obtain a default judgement against the tenant if they fail to respond within five days of being served.
  6. Obtain an order from the court directing the sheriff to remove the tenant from their home.

In addition, in some cases, a tenant may even be locked out by the sheriff, if the local sheriff is continuing to enforce evictions.

The Executive Order is Legally Flawed, Confusing to Tenants, and May Result in More Evictions

The Executive Order relies on two approaches to prevent tenants from losing their homes, both of which are legally insufficient:

  1. First, it extends the time for some tenants to answer an eviction action. This provision cannot legally or practically be implemented by the courts. When a landlord files an eviction action, the court issues a summons. If a tenant does not respond to the summons within five days, the landlord can immediately file a request for entry of default judgment. In this situation, California Code of Civil Procedure Section 1169 mandates that the court clerk issue a judgment for possession. This is a ministerial act by the clerk; if the defendant has not responded by the deadline, the clerk MUST issue the judgment. Court clerks do not have the authority to judge the underlying facts. Even if they had that authority, they would have nothing except the landlord’s initial filing to review, which would not include any information as to whether the tenant is a covered tenant under the Order.Thus, clerks will have no way of knowing whether a tenant is entitled to more time to respond pursuant to the Executive Order. Faced with a request by a landlord to enter a default judgment, it is unclear what the clerk will do. One very real possibility is they will enter a default judgment on the sixth day, as the law requires them to do, even though the Order purports to give covered tenants 60 more days. This will irreparably prejudice covered tenants who may, based on misinformation in news reports and pronouncements by the Governor’s office, believe either that there is an eviction moratorium in place or that they at least had more time to respond.
  2. Second, the Executive Order directs sheriffs not to enforce lockouts for covered tenants. When a judgment is entered for the landlord in an eviction case, the landlord can request that the court issue a writ of possession—the lockout order that the sheriff will post on the tenant’s door giving them five days to move out or be physically removed. The Executive Order does not sufficiently protect tenants during this step of the eviction process either. It is impossible for the sheriff to know from looking at the writ (or anything else) whether the tenant is a covered tenant. All they have is a valid judgment from the court and a writ directing them to enforce it. Moreover, even if somehow the sheriff knew the details of the particular tenant’s situation, the idea that the sheriff, based on facts that have presumably already been adjudicated, could second-guess the judge in the case and refuse to enforce an order of the court presents troubling separation of powers issues. Presumably, many sheriffs will avoid that legal peril and simply enforce the order. The result: covered tenants could be locked out by the sheriff, even during the pendency of the Order.

In addition to failing to achieve the goal of preventing COVID-related nonpayment evictions, the Executive Order may produce the unintended consequence of driving tenants, landlords, attorneys, and witnesses to court at a time when all residents in our state are meant to be sheltering in place. Many tenants covered by the Order but concerned about the confusion and uncertainty it creates may still choose to file an answer to the eviction action within the five-day period listed on the summons. In that case, the court is mandated to set the case for trial within 20 days of the landlord requesting it, unless the court’s trials have been suspended during the pandemic. In other words, covered tenants who have done everything asked of them could swiftly find themselves in an unlawful detainer trial for which they are required to be present.

Similarly, the many tenants who should have had more time to respond based on the Order but who have received a default judgment and a sheriff’s lockout notice will file motions to set aside the default judgment. This too will mean both tenants and landlords flooding the courts over evictions that the Executive Order failed to effectively put on hold.

California Still Needs Real Eviction Protections in the Interest of Public Health and Basic Fairness

We have heard over and over again that staying in one’s home is the most important things people who have housing can do to stop this pandemic. Allowing evictions to proceed is inconsistent with this directive. The state needs meaningful protections from eviction during this time to ensure that California can meet this public health challenge head-on and protect residents at all income levels. The virus has elevated the need to protect tenants from displacement and there are still a number of actions that can be taken to avoid the economic and social ripple effects that a wave of evictions will create.

We continue our call for Governor Newsom to enact a strong moratorium on all evictions, regardless of the underlying basis, during this public health crisis. Only those evictions meant to address a concrete and significant safety concern should be allowed to move forward during this time. The Governor has the power to accomplish this by taking the following actions for the duration of the crisis:

  1. Suspend Code of Civil Procedure Section 1161, 1161a and 1946.1, except where a landlord seeks to recover possession under Section 1161(4) of the Code of Civil Procedure to address a specific, immediate, and present danger related to health and safety, such as the grounds listed for a protective order in Section 6250 of the Family Code.
  2. Suspend the portion of the Ellis Act that authorizes a filing of notice with the local government and with tenants.
  3. Toll the notice period for all notices that have not yet expired under Code of Civil Procedure Sections 1161, 1161a, 1946.1; Government Code Section 7060.4; and Civil Code Section 798.55(b).
  4. Suspend the calendar preference for unlawful detainer matters under Code of Civil Procedure section 1179a, except those under section 1161(4) as outlined above.
  5. Suspend the five-day summons under Code of Civil Procedure 1167.
  6. Prohibit execution of a writ of possession by the sheriff during the emergency.
  7. Clarify that any action by a local government that provides more protections against eviction is not preempted.

Taking these actions would extend similar protections to renters as have been given to homeowners and would preserve the ability of tenants to follow public health directives and shelter in their homes. These actions will create the certainty and stability we need to ensure that no tenants are at immediate risk of losing their housing while we work to find longer-term solutions for handling unpaid rent, providing economic support for both tenants and landlords moving forward, and ensuring that tenants can remain stably housed even after the immediate crisis has abated.

Los Angeles will mirror New York as coronavirus surges, Newsom and Garcetti warn

“Renter groups and some Democratic lawmakers were disappointed by the limited action in the middle of a statewide mandate that residents remain at home. They said Newsom’s directive fails to protect renters evicted for other reasons, still allowing landlords to pursue evictions next month and those renters to be locked out as soon as the emergency is lifted.

‘It does very little to protect tenants against evictions, and I think essentially just kicks the can down the road for some folks,” said Sasha Harnden, a lawyer with the Western Center on Law and Poverty. ”

Los Angeles will mirror New York as coronavirus surges, Newsom and Garcetti warn

Analysis of Federal Coronavirus Aid, Relief, and Economic Security (CARES) Act

Today, Congress passed a $2 trillion aid package, the third piece of federal legislation to address the COVID-19 pandemic. While this aid package includes some direct payments, expanded unemployment benefits, and additional help for low-income communities and the organizations that serve them, it was passed without important benefits and considerations raised to address concerns for the poorest Americans, especially those who are living in deep poverty, people who are disabled or advanced in age, and people who are undocumented. The bill invests significantly more government aid for corporate America than it does for the people hit hardest by the crisis. We are hopeful that the fourth aid package, expected to be worked on by leaders while Congress is in recess for the next couple of weeks, will address these significant gaps.

Western Center is working hard to make sure that both the missed opportunities in the CARES Act and additional investments are considered in the next COVID bill, and we look forward to working with California’s Senators and our Congressional Delegation to make sure that happens.

FINANCIAL SECURITY

The CARES Act expands eligibility and benefits for unemployment insurance, but it does not provide assistance for states to manage the cost of rising TANF (Temporary Assistance for Needy Families) caseloads, as was done in the 2009 American Recovery and Reinvestment Act (ARRA). TANF, known as CalWORKs in California, serves the poorest families with children by providing them a basic needs grant, work training and support, homelessness prevention, and subsidized employment. It is critical that Congress and the President provide increased funding for state TANF programs in the fourth COVID package. Unlike many states, California spends the bulk of its combined federal and state welfare funds on direct cash aid and supports to families. Still, it only serves approximately 60 percent of eligible families with a benefit, and in most cases, isn’t even above half of the Federal Poverty Level (FPL). As the needs increase and caseloads rise, the state may find it difficult to maintain the program at its current level. While California could receive about $1.6 billion for Supplemental Security Income recipients, and another $3.5 billion for the CalFresh (SNAP) caseload, we will need to keep working to make sure that national TANF investments include additional resources for low-income families to weather this storm.

The stimulus plan includes one-time income for many families and individuals, including very low income households. Unfortunately, the bill does not provide funding for households where one adult does not have a Social Security number (SSN). This means many households who pay taxes and may have American citizens or Legal Permanent Residents (LPR) in their households will receive nothing, despite the fact that payroll taxes are taken from their checks. Congress must address this gross inequity in the next COVID package; it will disproportionately deny aid to low-income workers of color, many of whom are essential workers on the front line of our service sectors.

For those families who are eligible, they will receive $1,200 payments for each adult and $500 for each child under the rebate program. These payments are available to households that filed a federal tax return for 2018 or 2019 even if the household payed no taxes. This is important because households with incomes under $25,000 are not required to file tax returns since they have no federal tax liability, so many do not routinely file taxes. As a result, many low-income families may not get a check unless they file a tax return by July 15th (the new extended tax filing deadline). This could prove challenging since many Volunteer Income Tax Assistance (VITA) centers and other tax preparers are closed during shelter in place, and most of them would have finalized 2020 activities as of April 15th, the regular tax filing deadline.

Currently, the IRS has information on its website on free options for filing taxes. The IRS is required to do a public education campaign on the rebates, which should provide more information on what people need to do to get the rebates. The federal government has discretion on how to get payments to people, so what the options are for non-filers (beyond filing a regular return) is yet to be determined and might differ for different groups. California will need to explore how it can assist low income households with filing returns so they can secure the resources needed to meet their basic needs. A summary of the rebate process can be found here.

Both the IRS and the state Franchise Tax Board (FTB) have long utilized tax intercepts to collect unpaid taxes from those getting tax refunds and Earned Income Tax Credit (EITC). According to the Tax Policy Center, the IRS will not be intercepting rebate checks to collect unpaid taxes. The Center also reports that the IRS has temporarily suspended interception of EITC payments for unpaid federal taxes. Click here for more on the IRS policy changes.

And today, after receiving a request from the Debt Free Justice Coalition, Western Center, and our Legal Services Allies, the FTB has announced it will use existing authority to immediately stop tax intercepts and all other debt collection practices (including bank levies and wage garnishments) for state government debt, with the exception of child support.

The CARES Act includes $900 million to help lower income households heat and cool their homes through the existing Low Income Heating and Energy Assistance Program (LIHEAP), and another $1 Billion to Community Services Block Grant (CSBG) to help communities address the consequences of increasing unemployment and economic disruption. These are flexible funds to alleviate poverty, so there will be great variation from community to community for how these funds are used.

FOOD SECURITY

The Cares Act provides $8.8 billion for child nutrition programs in the form of additional funding for food purchases and demonstration projects to increase flexibility for schools; $15.51 billion for SNAP; $100 million for food distribution to low-income households living on Indian reservations and participating Indian Tribal Organizations; $200 million for U.S. territories that cannot access SNAP (Commonwealth of Northern Mariana Islands, Puerto Rico, and American Samoa), in addition to annual block grant funding; and $450 million for commodities and distribution of emergency food assistance through community partners, including food banks.

The CARES Act investments in food security mainly support administration of existing benefits, and does not establish new benefits. It will help fund H.R. 6201 implementation, support caseworker staff needed to keep up with increases in applications and caseload, and fund waivers and other accommodations necessary to comply with COVID-19 stay-at-home orders and the impending recession that our economy will face. This is important not only because this workforce will be needed to help low-income Californians meet their basic needs, but also because the county social worker workforce is made up primarily of women of color.

We are disappointed the bill doesn’t include a needed benefit increase and pause on the implementation of Trump Administration cuts to SNAP food stamp benefits. We are committed to working with local, state, and national partners, as well as California’s U.S. Senators and our Congressional Delegation, to make sure the expected fourth COVID bill includes these investments and others that are necessary to address acute levels of hunger caused by extended school feeding and congregate meal closures, and prolonged stay-at-home orders.

HEALTH

Through the passage of the CARES Act, private health plans must cover COVID-19 testing free of charge. The CARES Act also requires health plans to cover vaccinations at no-cost when it becomes available. For older adults and individuals with disabilities, the CARES Act enhances several Medicare benefits, including coverage of COVID-19 vaccination when it becomes available, more flexible provision of telehealth services, and a three-month supply of prescription drugs. For Medi-Cal beneficiaries who receive unemployment benefits under this act, these payments will not affect their Medi-Cal eligibility.

The CARES Act requires price transparency for COVID-19 testing but does not place a limit on testing costs which may skyrocket as the demand for testing increases and testing supplies remain low. Consumers will also face challenges to accessing affordable coverage for COVID-19 treatment. The CARES Act contains no prohibitions on surprise billing, such as additional costs patients often incur when using emergency care services, and no measures addressing the high out-of-pocket costs that many patients will have to pay for COVID-19 treatment. Even with this third emergency act, the federal government still has not authorized state Medicaid programs to cover COVID-19 treatment for those who are uninsured and undocumented.

HOUSING

The CARES Act provides for (1) a forbearance period for borrowers with Federally-backed loans who are financially impacted by COVID-19, (2) a moratorium on foreclosures of Federally-backed loans, and (3) a moratorium on evictions from public housing or housing with Federally-backed mortgages. 

Under the CARES Act, borrowers with Federally-backed mortgages may request a forbearance on the loan if they are experiencing a financial hardship during the COVID-19 emergency. The forbearance can last for 180 days and may be extended at the request of the borrower. No fees, penalties, or additional interest will accrue for borrowers during the period of forbearance. The CARES Act also provides a moratorium on foreclosures of federally-backed mortgages. Borrowers with Federally-backed multifamily mortgage loans may obtain forbearance of 30 days, which may be extended, and during the period of forbearance, are prohibited from evicting a household solely for non-payment. Importantly, the Act provides a 120-day moratorium on eviction filings for most federally subsidized rental housing, as well as for any housing that has a Federally-backed mortgage or multifamily mortgage loan if the eviction is based on non-payment.  Borrowers curious about their mortgages can look up the information through Fannie Mae, Freddie Mac, or by contacting your own mortgage company.

The CARES Act also dedicates $4 billion to the expansion of the existing Emergency Solutions Grant program intended to be used for people experiencing or who are at risk of homelessness. These funds can increase shelter capacity, allow communities to reconfigure shelter space to adhere to physical distancing guidelines, deliver medical care to people who acquire the virus or may be at higher risk, and provide short-term rental or utility assistance so that people who have lost jobs or income don’t also lose their housing.  Although the funds can be used for emergency assistance, the needs of shelters (and creating alternatives to current shelter options) are so great that there is unlikely to be sufficient funds to address all the emergency needs that come with such high rates of joblessness. It is unclear how California will use this funding.

Statement on Governor Newsom’s Executive Order to Shelter Unhoused Californians during COVID-19

The administration and state and local governments have a hard job right now, and we are grateful for their work to make sure people in California are taken care of. It is our intention to continue working alongside agencies and staff to ensure that California’s approach to the crisis is as humane, safe, and sensible as possible.

Governor Newsom’s new Executive Order, issued last night, directs $150 million to cities, counties and continuums of care to provide shelter for unhoused people in California during the COVID-19 pandemic. The funds are to be used to build emergency shelter and lease hotels and motels.

We believe leasing existing, unoccupied hotels and motels is the single fastest way to move homeless individuals into housing. While we appreciate the Governor reducing regulatory barriers to providing emergency housing, we believe that in most cases, expanding existing emergency shelters will not be an immediate solution.

We urge counties, cities, and continuums of care to be mindful not to displace existing individuals and families already living in hotels or motels. The CalWORKs Homeless Assistance Program (HAP) has long utilized motel vouchers as a way to keep families experiencing poverty housed when they are evicted or fleeing an abuser. Many other low-income families reside in motels as well. These existing pipelines of assistance must be kept available as we expand housing for individuals experiencing homelessness. It is imperative that local governments communicate closely with county human service programs, advocates, and local residents to avoid displacing vulnerable families when seeking appropriate sites.

We are also calling on the Governor to allow CalWORKs HAP motel vouchers to be used beyond 16 days in a month, and to allow vouchers to be provided in consecutive months to keep families housed during the COVID crisis.

 

Joint Statement on Governor Newsom’s March 16th Executive Order Regarding COVID-19 and Housing

Western Center, ACLU of California, and the Lawyers’ Committee for Civil Rights appreciate the hard work of Governor Newsom and his team during this extremely difficult time, and appreciate his recognition of the particular hardship posed by potential evictions and utility shutoffs during a public health crisis. The Governor’s Executive Order, however, stops short of implementing the full range of protections needed to ensure that vulnerable Californians are not forced to visit crowded courthouses, displaced from their homes, or disrupted by losing access to vital utilities as a result of the pandemic.

We call on the Governor to issue a blanket moratorium on all evictions and utility shutoffs for the state of California.

As organizations dedicated to protecting and advancing the rights of Californians living in poverty, we offer our brief analysis of the Governor’s Executive Order, and suggestions for additional measures needed to ensure that all members of our communities are truly protected from the risks created by the ongoing COVID-19 pandemic.

1. Waiving time limitations in Penal Code Section 396(f)

Penal Code Section 396 involves penalties for price gouging during periods of declared emergencies. Subsection (f) specifically relates to price gouging in rental housing and penalizes landlords for evicting tenants in order to increase the rent for a subsequent renter. The states of emergency declared for wildfires provide recent examples of the need for a ban on rental price gouging during public emergencies. In places devastated by fires, landlords were prevented from evicting households in order to demand higher rents to take advantage of the suddenly deeply constrained housing supply.

Subdivision (f) provides that price gouging bans in rental housing will extend for 30 days following the emergency declaration. Section One of the Executive Order from the Governor extends that period for more than a month, until the end of May. The extension of the period preventing rent gouging is positive, but it does little to keep people housed during a public health crisis, where evictions may not be based on an intent to subsequently raise the rent and where the entire machinery of eviction needs to be restricted. Penalizing price gouging does not adequately address the need to protect people from displacement during this pandemic.

2. Restrictions on Evictions Due to Documented COVID-19 Related Loss of Income

Rather than implementing the statewide ban on evictions that advocates and legislators have called for, the Executive Order expands a local government’s authority to limit residential or commercial evictions, but only as to nonpayment evictions caused by a documented loss of income caused by the pandemic or the governmental responses. This is overly complicated and does not protect tenants from evictions now, but leaves it up to local jurisdictions to enact such protections. It is imperative that there is a statewide moratorium that does not rely on local action. Furthermore, tenants would have to prove such a loss in court, subjecting them to potential exposure to COVID-19, and many tenants who suffer a loss of income due to the pandemic or our public responses may be unable to document it. We believe a stronger and more straightforward approach would be to enact immediate statewide protections that postpone any eviction, regardless of the basis, to protect vulnerable tenants and the public, and avoid the need to pass local policies in all of California’s cities and counties.

It is important to note that while the Executive Order solely grants additional authority related to nonpayment evictions, it does not prevent local governments from exercising their expansive authority to limit evictions on a much broader basis, including limiting evictions that are filed for reasons other than nonpayment of rent. Extending the limitation to all evictions would eliminate the necessity for tenants, landlords, and court staff to appear in person. Courts are high traffic areas, particularly the courtrooms where evictions are heard. To force even some tenants to continue going to court defeats the point of social distancing efforts and necessary quarantines. There are also fairness issues raised because these tenants may find it difficult to seek legal information or legal advice as many legal offices are shutting down in order to protect employees.

For all of these reasons, we call on the Governor to issue a blanket moratorium on all evictions as multiple states have done. In the absence of such action, we encourage local governments to enact policies to broadly protect tenants against all evictions.

3. Requesting Housing Authorities Postpone Document Deadlines

We are pleased to see the Governor acknowledge that now is not the time to require vulnerable tenants to obtain and deliver documentation to Housing Authorities in order to maintain their critically important housing assistance, and echo his request for policies to extend such deadlines. We recommend additional policies to postpone eligibility re-certifications and other in-person meetings, and for Housing Authorities to exercise their discretion to refrain from taking adverse decisions such as housing assistance terminations against participants, which could subject them to displacement and potential exposure while reducing their ability to protect themselves.

4. Engagement with Financial Institutions to Develop Tools to Prevent Foreclosure and Displacement

The Executive Order calls on state agencies to work with financial institutions to develop tools to combat foreclosure and displacement, and to otherwise promote housing stability and security. We applaud the Governor’s call to state agencies to develop strategies to address housing instability and ease the financial issues which could lead to foreclosure and displacement. The impacts of this virus and our responses to it will be felt by many Californians for some time, and it is important we develop these strategies while also taking the immediate action necessary to protect residents who are at immediate risk.

5. Requested Moratorium on Foreclosures Based on Documented Losses due to COVID-19

Per the Executive Order, financial lenders who hold home or commercial mortgages are being asked to halt foreclosures and evictions related to foreclosures where they would stem from a loss of income due to the pandemic or the governmental response. This is critical to ensure vulnerable homeowners, like vulnerable tenants, are not displaced and put at additional risk during this emergency. However, like the limitations on evictions discussed in part 2, these protections are limited to situations where the foreclosure is based on a documented loss of income or medical expense related to the COVID-19 pandemic. Because of the difficulty of proving this causal connection in many instances, and because it would likely require the involvement of a court, and hence a visit to a courthouse, to prove such a connection, this protection lacks the full potential to protect our communities that a more straightforward moratorium would provide.

6. Requested Monitoring and Reporting on Utility Shutoffs by CPUC

This part of the Governor’s Order seeks the assistance of the Public Utilities Commission, the body tasked with oversight of essential industries such as water and gas, in monitoring customer protections. The Governor’s request does not actually require the PUC to take action to ensure that people’s utilities are maintained during this public health crisis, but simply requires it to monitor and report. Maintaining good hygiene and nutrition becomes much more difficult if water, power, or gas is shut off, and medically vulnerable residents are put at severe risk. At a time when we have all been advised that one of the most effective preventions for COVID-19 is frequent handwashing, we recommend requiring actions to be taken to limit the shutoff of vital utilities for the duration of the emergency.

The moratorium on utility shutoffs also does not protect against phone shutoffs for the poorest consumers who rely on the Lifeline Program. The program is vital because many homeless individuals rely on their phone to get information and stay in touch with others. Unfortunately, the PUC doesn’t consider the lapse in certification to represent a cutoff. We call on the Governor to use his executive powers to prevent loss of phone connectivity for Lifeline Program customers during the emergency, when access to a phone is needed more than ever.