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Many perspectives, 1 simple etiquette

California's Eviction Ban Isn't Just Unconstitutional — It's a Bad Idea

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Author: Daniel Watts
Created: 21 August, 2020
Updated: 14 August, 2022
4 min read

This is an independent opinion. Want to respond? Write your own commentary! Email hoa@ivn.us.

The ban on evictions is causing homelessness, not preventing it.

The Judicial Council, which sets rules for California’s court system, has banned evictions since the pandemic started in March.

That was a mistake.

The eviction ban is unconstitutional, but it’s also a bad idea. It was a bad idea when it took effect, and it’s still a bad idea today.

It’s the reason some San Diegans are homeless. For example, one of our clients — let’s call her Sarah — works for the military. She moved to San Diego from Florida, selling her house over there and buying a new condo here in America’s Finest City.

Imagine her surprise when she found squatters in her home. They refused to leave, so Sarah hired my law firm.

For months, our eviction lawsuit, also known as an unlawful detainer, has been stymied by three obstacles: COVID-19, the Governor, and the Judicial Council.

Let me explain.

When Gov. Gavin Newsom declared a state of emergency, he also issued executive orders. One of those orders empowered the judicial council to issue emergency rules to help the courts deal with the pandemic.

And the law allows him to do that — to an extent. The governor can allow courts to waive certain deadlines, for example, when an emergency prevents the courts from operating.

But Newsom and the judicial council went too far.

In that same executive order, Newsom prophylactically suspended all laws “inconsistent” with emergency rules the judicial council might come up with.

"...judicial council can invent rules that contradict actual, real laws passed by the Legislature."

He didn’t say which laws he was suspending. He didn’t put any limits on the type of laws that were suspended. He just said all laws that might conflict with a rule that the judicial council might someday come up with would be automatically suspended.

This means the judicial council can invent rules that contradict actual, real laws passed by the Legislature.

Like laws governing evictions.

And that’s what happened when the council issued Emergency Rule No. 1.

Emergency Rule No. 1 conflicts with the Unlawful Detainer Act, a law which says evictions take priority over all other civil lawsuits. The Legislature decided long ago that people with the right to live in a house should be able to quickly vindicate that right in court.

The whole point of evictions is to quickly return a home to the person with the right to it. Sometimes that’s the tenant, sometimes it’s the owner or landlord. But the goal is to resolve the dispute quickly.

Emergency Rule No. 1, however, says no court may issue a summons in an eviction case until 90 days after the governor lifts the state of emergency.

A summons is a document issued by the court whenever a lawsuit is filed. Serving the summons on the person you’re suing is the first step in a lawsuit. Without it, there’s no lawsuit.

Since the state of emergency could last until we have a coronavirus vaccine, Emergency Rule No. 1 could prevent Sarah from living in her house for a year or more. Meanwhile, she’s stuck paying the mortgage.  

Sarah doesn’t want to be a homeless landlord. She just wants to live in her house.

“But what about the squatters?” you might ask. “Shouldn’t they have a right to a house?”

Sure, but not Sarah’s house.

And if evicting them really did impose a hardship, the Unlawful Detainer Act already helps them. A tenant suffering “hardship” gets to stay. That’s already part of the law. It doesn’t take a ban on evictions to give tenants leeway during the pandemic. Banning all evictions when tenants already have this “hardship” defense is like using a sledgehammer to pound a nail. The law has a built-in hammer; the sledgehammer is overkill.

People like Sarah can’t live in their houses, but thanks to Emergency Rule No. 1, they’re living in purgatory.

Several law firms, including ours, have filed appeals to invalidate the Newsom's order and the emergency rule. But we shouldn’t have to fight this in court. Newsom should revoke his unconstitutional executive order and the Judicial Council should immediately repeal Emergency Rule No. 1.  

Then Sarah can live in her own home.