Eviction moratorium can cause as much homelessness as it cures

Banning evictions causes homelessness. It is counterintuitive, but it is happening.

Prompted by the COVID-19 pandemic and emboldened by the Governor’s state of emergency, the Judicial Council has banned California’s trial courts from issuing summonses in eviction cases until 90 days after the stay-at-home order is lifted.

A summons is a legal document the court generates when a lawsuit is filed, and it is usually produced quickly so the plaintiff can serve it on the defendant and get the litigation started. In an eviction lawsuit, technically known as an unlawful detainer action, the summons is produced very quickly. An unlawful detainer is a summary proceeding, meaning everything is accelerated – and that’s the point. Unlawful detainers are summary proceedings for a reason: They are designed to return homes to people who have the legal right to live in them. 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 without going through the slow, plodding process that afflicts other types of lawsuits.

Now, however, the Judicial Council, acting with the best of intentions, declared that no court shall issue a summons in an unlawful detainer action until 90 days after the Governor lifts the state of emergency. Since the Governor is not expected to do that any time soon, this means nobody can evict anyone in California for up to a year. (There is a narrow exception for evictions necessary for “public health and safety,” though that term has not been defined.)

On its face, the ban on evictions seems like it would help people, right? And surely it does help some people who can’t pay rent or who have no other options for housing – but those people already had a defense to an eviction in the form of a “hardship” exemption. That defense is written into both the Unlawful Detainer Act (Code Civil Procedure sec. 1179) and the statute governing stays of judgment (Code of Civil Procedure section 918(a)). Victims of the pandemic already had the right to stay in their homes if it would cause them a hardship to leave.

What about the people who are not victims of the pandemic, but need to live in their own homes? For example, people who just bought homes in California and can’t move into them because tenants are refusing to leave? They’re left without recourse. Think of the National Guardsman who sells a house in Colorado and buys a house in Oceanside to start work at Camp Pendleton. After selling her belongings and moving to Oceanside, she discovers the previous residents have refused to move out. Now what? Normally, she would evict them and move into the house she gave up everything to buy. But as a result of the Judicial Council’s eviction moratorium, she is stuck with no home to move into and no option to evict the tenants. Not only is she homeless, she is saddled with paying for the mortgage and maintenance on a house that other people are living in and not paying for. She is suddenly an unwilling landlord – who is also homeless.

This reality is a horrible, unintended consequence of the Governor’s eviction moratorium. It is also unconstitutional because the Judicial Council does not have the authority to enact court rules that conflict with statutes like the Unlawful Detainer Act. The Judicial Council cannot act as a super-legislature,overriding actual laws by fiat. Unlawful detainers are summary for a reason –they are designed to return houses to people with the right to live in them. The Judicial Council’s emergency rules conflict with the intent of the Legislature and are therefore an unconstitutional encroachment on the powers of the Legislature. They should be repealed immediately, before more harm is done.

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