June 2021 Update
COVID-19 Tenant Relief Act of 2020. On August 31, 2020, California adopted legislation (AB 3088 (Stats 2020, ch 37, §20)) to address the economic impact of the COVID-19 pandemic. That legislation included the COVID-19 Tenant Relief Act of 2020 (CCP §§1179.01–1179.07), which remains in effect until July 1, 2025. The legislature extended and clarified many of these provisions in early 2021.
The COVID-19 Tenant Relief Act imposed a statewide moratorium that prohibited filing of most residential unlawful detainers before July 1, 2021, with few exceptions. Starting July 1, 2021, unlawful detainer actions can proceed, but a landlord can never evict a tenant for failing to pay rent that was owed during the first 6 months of the pandemic—the “protected” time period from March 1, 2020, to August 31, 2020—if the tenant has provided a statutorily defined declaration of COVID-related financial distress. The amount due from that period becomes a consumer debt that the landlord can collect starting August 1, 2021. Furthermore, a tenant can never be evicted for failing to pay rent that was owed during the “transition” time period—September 1, 2020, to June 30, 2021—if the tenant has provided the required COVID-related declaration (with documentary proof if a high-income tenant) and, by June 30, 2021, paid 25 percent of the amount owed. The remaining amount due from that period becomes a consumer debt that the landlord can collect starting August 1, 2021. The legislature lifted the jurisdictional limits in small claims courts to facilitate collection of COVID-19 rental debt. See CCP §116.223. Grounds for claiming COVID-related financial distress, as well as permitted grounds for eviction during the various periods covered by the COVID-19 Tenant Relief Act, are discussed in §5.2A.
A notice to pay or quit based on rent (or other financial obligation under the lease) that came due during the COVID-19 Tenant Relief Act’s entire “covered” time period—March 1, 2020, to June 30, 2021—must be a 15-day notice, not a 3-day notice. It must be in the required form and include a blank declaration of COVID-19 financial distress for the tenant to use, if appropriate. If the notice is based on rent that came due between September 1, 2020, and June 30, 2021, the landlord may require a new declaration form for each month unpaid rent was due. Notice procedures are discussed in detail in §5.2A. When the landlord has information (e.g., a rental application) showing the tenant is a “high income” tenant, the landlord can require supporting documentation with the declaration of COVID-19 financial distress. CCP §1179.02.5. Income guidelines and the types of proof a landlord may require are set out in §14.30A.
A tenant who misses the deadline in a 15-day notice by failing to provide the landlord a declaration of COVID-19-related financial distress in time can, within 5 days of service of the summons, file the declaration with the court. The court will set a hearing and may dismiss the unlawful detainer if the tenant shows that the failure to provide the declaration was due to mistake, inadvertence, surprise, or excusable neglect. CCP §1179.03(h)(1). Optional Judicial Council Form UD-104 and Optional Judicial Council Form UD-104(A) are available to use for this procedure. See §14.30A.
Stats 2021, ch 2 (SB 91), which went into effect on January 29, 2021, extended the state’s moratorium on evictions through June 30, 2021, and added further tenant protections. For example, once a tenant provides a declaration of COVID-19-related financial distress, a landlord cannot add extra charges to rent that came due between March 1, 2020, and June 30, 2021 (“COVID-19 rental debt”), such as late fees or fees for services that were not previously charged. CC §1942.9. Furthermore, a landlord cannot apply a tenant’s monthly rental payment to any past COVID-19 rental debt, unless the tenant has agreed otherwise in writing. CC §1179.04.5. See §14.30A. Senate Bill 91 also required that, on or before February 28, 2021, a landlord must give a general notice of tenant rights under the COVID-19 Tenant Relief Act to a tenant who missed one or more rental payments by that date. See CCP §1179.04(b). However, the statute does not make clear the effect of the landlord’s failure to provide the notice by this deadline. See §5.2A.
Stats 2021, ch 5 (AB 81), which went into effect on February 23, 2021, established a state rental assistance program to administer federal emergency rent relief funds. A landlord who participates in the program will be paid 80 percent of the arrears (rent, utilities, and other charges under the lease) owed between April 1, 2020, and March 31, 2021, if the landlord agrees to forgive the remaining 20 percent and not pursue eviction. Health & S C §50897.1(d). Under some circumstances, a landlord who refuses to cooperate in securing rental assistance for an eligible tenant may have damages for unpaid rent reduced in court. CCP §871.10(b). See §5.2A.
The eviction protections of the COVID-19 Tenant Relief Act apply to mobilehome tenancies. CC §798.56(e)(1). See §5.5.
The COVID-19 Tenant Relief Act does not apply to commercial tenancies; however, many local governments enacted commercial eviction moratoriums under the authority of the governor’s March 4, 2020, COVID-19 Emergency Order, which was extended through June 30, 2021. See §19.1A. These developments are discussed in Retail Leasing: Drafting and Negotiating the Lease (Cal CEB). On force majeure provisions, see California Law of Contracts, chap 8 (Cal CEB).
A landlord must sue for all past-due rent in one action, but may not sue for rent that is more than 1 year past due. The 1-year limit does not apply to COVID-related rental debt, defined as rent (or other financial obligation under the lease) that was due and unpaid between March 1, 2020, and June 30, 2021. CCP §1161(2). See §26.7.
A prospective landlord cannot use a prospective tenant’s COVID-19 rental debt as a negative factor for the purpose of evaluating a rental application. CC §1785.20.4. See §26.38.
Federal COVID-19-Related Eviction Control. Effective September 4, 2020, the Centers for Disease Control and Prevention (CDC) placed a nationwide freeze on evictions of qualified residential tenants for nonpayment of rent. Tenants who signed a declaration of eligibility and provide it to their landlords are protected through June 30, 2021, and this date may be extended. See §14.30A.
A tenant renting a unit in a multifamily residential property that the landlord financed with a federally-insured mortgage may be protected by the Coronavirus Aid, Relief, and Economic Security (CARES) Act if the mortgage was in forbearance when the landlord brought the action, or if the landlord did not give the required 30 days’ notice after the forebearance expired. 15 USC §9057. See §14.30A.
Local Eviction Controls. Assembly Bill 3088 did not preempt existing local eviction moratoriums, which remained in place until they expired. However, AB 81 kept new local eviction moratoriums passed after August 19, 2020, from taking effect until July 1, 2021, and it amended the COVID-19 Tenant Relief Act to preempt certain local provisions extending a tenant’s time to repay COVID-19 rental debt. CCP §1179.05. See §14.30A.
A homeowner who rents out individual rooms to unrelated tenants may transform a single-unit dwelling into a multi-unit dwelling that is subject to local rent control. In Owens v City of Oakland Hous., Residential Rent & Relocation Bd. (2020) 49 CA5th 739, the First Appellate District held that the owner of a single-family home who rented out individual rooms to three unrelated tenants did not qualify for an exemption under the Costa-Hawkins Act (CC §1954.52) because the rooms were not separately titled and could not be separately alienated from the rest of the home. See §§14.30, 17.1E, 17.4.
In California Valley Props. LLC v Berlfein (2020) 48 CA5th Supp 1, 12, the court held that under LA Mun C §151.09.A (2)(b) a landlord could not evict a tenant whose wife moved in with him, despite an occupancy limitation in the rental agreement, because the landlord did not show that approval of an additional tenant was reasonably withheld. In addition, failing to notify the landlord of an additional tenant was not a ground for eviction under the ordinance or the city’s rent control regulations. See §17.12A.
In Boshernitsan v Bach (2021) 61 CA5th 883, the court considered whether property held in a revocable living trust met the “natural person” requirement of SF Rent Bd Rules & Regs §12.14. The court held that, at least when the trust at issue is “a revocable trust established by natural persons who are both settlors and trustees of the trust,” the property is held by the trustees, not the trust, and the trustees qualify as landlords under the owner or family move-in provisions of the San Francisco rent ordinance. See §17.15.
Provisions governing relocation payments for displaced tenants were updated in the text to reflect changes in local rent control ordinances in Los Angeles (see §§17.15, 17.32), Oakland (see §17.32), and San Francisco (see §17.32).
Fair Housing Laws and Evictions. Civil Code §1946.7 permits victims of domestic violence and certain other crimes, or their household members, to break a residential lease on 14 days’ notice if the tenant provides the landlord with documentation of the crime. The statute was amended to add other violent crimes to the list, ease the documentation requirements, and extend the right to terminate a lease to immediate family members who are not necessarily living with the victim. See §14.22C.
Terminating Tenancies and Eviction Actions. Whether a motion to quash service of summons is the proper remedy to test whether a complaint states a cause of action for unlawful detainer is currently pending before the California Supreme Court in Stancil v Superior Court (review granted Mar. 27, 2019, S253783, 2019 Cal Lexis 2326; lower court’s superseded opinion was unreported). See §§11.28, 13.13A, 30.10.
The California Supreme Court granted review in Siry Inv. v Farkhondehpour (review granted July 8, 2020, S262081, superseded opinion in 45 CA5th 1098) to decide whether a party in default may file a motion for a new trial raising legal error, including the issue of whether allegations pleaded in the complaint make certain remedies inapplicable. See §12.4.
Code of Civil Procedure §472 was amended to remove its sunset clause. It permits a landlord to amend the complaint once without leave of court before the tenant files an answer, demurrer, or motion to strike, or after a demurrer or motion to strike is filed but before it is heard by the court, as long as the amended complaint is filed and served no later than the date for filing an opposition to the demurrer or motion strike. See §§13.2, 13.36A.
A city’s anti-SLAPP claim in a commercial tenant’s suit for tort and breach of contract was denied because the essence of the complaint was that the city breached its contractual agreements by refusing to cooperate in the development of a shipping terminal, not that city officials publicly spoke out against the project on environmental grounds or that the city rejected the tenant’s force majeure claim and declared the lease in default. Oakland Bulk & Oversized Terminal, LLC v City of Oakland (2020) 54 CA5th 738. See §13.51.
In 2020, the legislature loosened restrictions on remote depositions in response to the COVID-19 pandemic. Under CCP §2025.310(a)–(b), a deponent or deposing party may elect to conduct a deposition remotely—i.e., the deponent need not be physically present with the court reporter during the deposition. To address concerns that a witness might be coached or refer to outside materials during a remote deposition, the statute also allows any party or attorney of record to be physically present with the deponent, subject to the provisions of CCP §2025.310 (protective orders relating to depositions). See §23.11.
Federally Assisted Housing. A public housing authority or landlord participating in a federal housing program must serve Violence Against Women Reauthorization Act of 2013 (VAWA) notices together with an eviction notice, whether or not notice to pay rent or quit is premised on domestic violence. DHI Cherry Glen Assocs., L.P. v Gutierrez (2019) 46 CA5th Supp 1. See §18.17B.
Effect of Sale of Property on Unlawful Detainer Proceedings. In Lee v Kotyluk (2021) 59 CA5th 719, the court of appeal held that new owners could file an unlawful detainer action based on the notice the former owner gave to the tenant under CCP §1161(3), even though the notice did not identify the person to whom the tenant could turn over possession of the property. The court reasoned that, because CC §821 entitled the landlords to the same remedies as their predecessor in interest for the tenant’s breach of the lease, it supported the unlawful detainer action. Based on its reading of CCP §1161(3), the court concluded that the legislature purposefully chose not to require the notice to specify how the tenant could restore possession of the property to the owner, and the court declined to read any such general requirement into the statute. See §20.1.
Until December 31, 2019, a foreclosing trustee was required to post and mail by first class an additional preforeclosure notice of sale to the tenant occupants, concurrently with the mailing to the owner of the notice of trustee sale (nonjudicial foreclosure), for residential real property, if the billing address for the loan note was different from the property address. This provision was reinstated effective March 1, 2021. CC §2924.8. See §20.7.
Effective January 1, 2021, a notice of sale given under a deed of trust secured by real property containing one to four single-family residences must include a specified notice to the tenants regarding their potential eligibility to purchase the property after the trustee auction. A mortgagee, beneficiary, trustee, or its authorized agent must make good faith efforts to provide current information about “sale dates and postponements to persons who wish this information.” Specifically, a trustee or authorized agent must maintain a website and telephone number and provide information regarding the sale date, last and highest bid amounts, and the trustee’s address. The information must be available, free of charge, 24 hours per day, 7 days per week. CC §2924f(b)(8). See §20.7.
Tenant Bankruptcies and Stay Relief to Complete Eviction. When a bankruptcy follows foreclosure but precedes an unlawful detainer action, the debtor may defend an eviction in bankruptcy court by raising the invalidity of the foreclosure sale in opposing a motion for relief from the automatic stay. In re Svacina (Bankr CD Cal 2020) 618 BR 852 is a recent case following the majority view that a creditor does not violate the automatic stay by recording the foreclosure deed after the bankruptcy petition was filed, as long as the deed was recorded within the statutory time limit after the foreclosure sale. See §§21.2, 21.9.
Appeals. Effective January 1, 2021, Cal Rules of Ct 8.845 permits the appellant in a limited case (amount in dispute $25,000 or less) to proceed by way of an appendix in lieu of a clerks transcript. See §§29.26, 29.33. This procedure is discussed in depth in California Civil Appellate Practice, chap 10 (3d ed Cal CEB).