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Eviction ban to end in California. And a crisis looms if lawmakers don’t act

“But Madeline Howard, a senior attorney at the Western Center on Law and Poverty, says SB 1410 doesn’t go far enough. Tenants who for any reason don’t come to an agreement with their landlord could still face eviction and homelessness. Policy advocates are proposing an amendment to the bill which they say would close its loopholes and keep vulnerable tenants safe.”

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Thousands of Californians Face Homelessness With Eviction Freeze Set to End

“Nisha Vyas, Senior Attorney at the Western Center on Law and Poverty, spoke at a press conference held by Ethnic Media Services. In her presentation she detailed some mechanics of the Judicial Council’s rules, and she explained how its rescission would hurt California renters.

“We’re extremely concerned about this, as the Legislature and Governor have not yet acted to put something in place that will prevent the massive wave of evictions that will begin when this rule is lifted”

Thousands of Californians Face Homelessness With Eviction Freeze Set to End

Amid pandemic, some California sheriffs’ departments still evicting renters

“We need leadership,” said Madeline Howard, a senior attorney for the Western Center on Law and Poverty. “We need the governor to step in and do a real moratorium, because this is happening, people are being kicked out when they’re being told to shelter-in-place.”

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.

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.


Newsom did not issue a statewide eviction ban. Tenant groups say renters’ health could be threatened

“The vast majority of cities have not taken this type of action yet,” said Sasha Harnden, policy advocate with the Western Center on Law and Poverty. “Tenants won’t have a unified set of protections. It will depend on what we will be able to achieve in the local jurisdictions while they are juggling so many other considerations right now.”