Eviction cases proceed in San Francisco, even while Alameda and Contra Costa courts shut down

Update: Elected officials urge ‘absolutely insane’ situation at state courts be remedied. See end.

In a Kafkaesque situation involving orders and incomplete rescindings of orders and blame deflection for all of the above, eviction cases are still proceeding, even while the rest of San Francisco Superior Court is shuttered.

And, even while the city is embarking on a sweeping shelter-at-home order — and even during city and state COVID-19 “eviction moratoriums” — San Francisco tenants are still being served with unlawful detainers and expected to make their case in court.

“This is absolutely insane,” sums up Tony Burchell, an eviction defense attorney at Legal Assistance to the Elderly. “We have been told by every public health official that everyone needs to be staying at home.”

Burchell serves a particularly vulnerable population: The same population that was specifically told by the governor, the mayor and all public health officials to shelter behind closed doors.

“But the one case proceeding in San Francisco Superior Court is the one that forces you from your home and into the streets,” Burchell said,”It just makes no sense whatsoever.”

Eviction cases have ceased for the time being in Alameda and Contra Costa Counties — along with all other proceedings. But not here in San Francisco.

Why? That grows complicated. And, as you’d expect in a matter involving courts of law, the law is involved.

Specifically: California Civil Procedure 1170.5. This law sets strict time limits regarding procedures in landlord-tenant cases: The court may extend the period for trial upon the agreement of all of the parties. No other extension of the time for trial of an action under this chapter may be granted unless the court, upon its own motion or on motion of any party, holds a hearing…

“I’m told that unless there is a legislative change to the law regarding evictions, there is no change in eviction proceedings,” court spokesman Ken Garcia wrote to Mission Local on Monday.

Carolyn Gold, the founder of the Eviction Defense Collaborative and a judge-elect, says that San Francisco Superior Court Presiding Judge Garrett Wong told her his hands are tied: He can’t unilaterally disregard this law without dispensation from California Supreme Court Chief Justice Tani Cantil-Sakauye.

And yet Superior Courts in Alameda and Contra Costa Counties have shut down eviction proceedings, along with all other matters.

Mission Local was unable to reach Wong or Garcia on Tuesday — or Cantil-Sakauye. But the orders she issued to each county’s superior courts do differ — which may explain a lot.

The order she gave to Contra Costa — where eviction proceedings are not taking place — specifically notes that the dates from March 16 to April 1 “be deemed holidays.” The order given to San Francisco makes no reference to “holidays.”

“Holidays would work,” says Burchell. “When the court is closed, nothing can happen. If someone is served with an unlawful detainer, they still have to file a response in San Francisco. If it was declared a court holiday, it’d have to stop.”

Mission Local, again, was unable to contact Wong, Garcia or Cantil-Sakauye. But the responses given by Cantil-Sakauye would appear to track the requests made by individual presiding judges. A broad request to curtail court activities could have resulted in permission to broadly declare court holidays. But a more narrowly tailored request could have resulted in more narrowly tailored permissions — leaving the underlying legal language in CCP 1170.5 in place.

As such, eviction proceedings took place in court per the usual on Monday, even though the San Francisco Sheriff’s Department yesterday told Mission Local it would cease physically carrying out evictions. And while both Mayor London Breed and Gov. Gavin Newsom have put forward COVID-19 “eviction moratoriums,” we earlier today reported that these do not prevent no-fault evictions such as owner move-ins or the Ellis Act.

Gold said it’s not clear to her if the city’s moratorium covers tenants on stipulated agreements to repay back rent who suddenly find themselves in a COVID-19-related crunch, and miss a payment.

“They’re subject to 48-hour notice to go to court for a judgment,” she says. “That’s a problem.”

Tenants’ attorneys, in what figures to double as an act of protest, plan to file into court en masse at 9 a.m. on Wednesday and request a stay in every pending eviction case.

Tom Drohan, the director of litigation at Legal Assistance to the Elderly, hopes those cases are stayed — or that authorities step in sooner and shut the court down. He’s due in court on Monday to represent a tenant being evicted in the midst of a pandemic and stay-at-home order after being accused of stealing his neighbor’s lawn chair.

“The courts think it’s necessary to go forward with these cases now,” he says. “Unfathomably.”

Update, 5:40 p.m.: A platoon of state elected leaders, including Assemblyman David Chiu and Sen. Scott Wiener, sent a letter Friday to both the governor and state chief justice imploring a number of the problems noted above be solved.

Among other measures, the elected officials urge a stay on all pending unlawful detainer proceedings before the court; a moratorium on new unlawful detainers; and a moratorium on issuances of eviction notices, regardless of cause.

Meanwhile, evictions continue in San Francisco. Gold says the Eviction Defense Collaborative took in seven newly filed unlawful detainer cases today. It took in six yesterday, including one involving an 81-year-old tenant.

Letter to Governor and Chief Justice Moratorium 3.13.2020 by Joe Eskenazi on Scribd

Update, Wednesday, March 18, 10 a.m.: Eviction defense attorneys filed into court at around 9 a.m. today, as promised, to ask for stays in every pending eviction case.

It was not a noisy affair; Mission Local is told that the court muzzled the lawyers. There were no oral arguments; moving and opposing papers were submitted to Judge Ronald Quidachay. His ruling on what onlookers pegged at “at least a dozen” cases is pending; he told attorneys that if he found the situation constituted an emergency, he’d likely grant the stays.

“I put this in the papers I submitted: We are all in violation of the health officer’s order,” said Tyler Rougeau, an attorney at Tenderloin Housing Clinic. “I don’t think evictions are a legally mandated activity. If the sheriff is not going to be executing writs of possession, there’s no emergency. All we’re doing is potentially spreading this virus around. I have tenants who are elderly, disabled, and vulnerable people. We are putting their health at risk. It’s obscene.”

Of note, Quidachay retired in 2018 but still fills in as needed as a visiting judge. He is well into his 70s.

Rougeau said no new protocols have been put in place with respect to sanitizer or social distancing. “There are people mingled in the hallways before they go into the courtroom; I was one of them. I don’t know how they’re going to bring in jury trials.”

A group of people Rougeau believes to be unrepresented tenants were “packed” into a hallway on the fifth floor. “They were told to show up, and they showed up.”

Even though the sheriff is not physically carrying out evictions, tenants are still incentivized to show up in court. Failure to do so could result in a default judgment.

In the meantime, Assemblymen Phil Ting and David Chiu and Sen. Scott Wiener today wrote a letter to San Francisco Superior Court Presiding Judge Garrett Wong.

In it, they unequivocally ask for a moratorium on all unlawful detainer cases with only the exception of “health and safety issues (e.g. tenants harming or threatening to harm other tenants).”

An announcement from Wong may be coming sooner rather than later.

3-18-2020 Presiding Judge Wong Letter Re Unlawful Detainers by Joe Eskenazi on Scribd

Update, 2:10 p.m.: San Francisco Superior Court this afternoon belatedly announced that, along with all other divisions, eviction cases will be suspended.

Per the court’s website:

All actions of unlawful detainer cases, including trials, motions, discovery, and ex parte applications, with the exception of unlawful detainer cases resulting from violence, threats of violence, or health and safety issues, will be stayed for 90 days.

“My only worry is ‘health and safety’: What does that mean?” asks Tony Burchell, an eviction defense attorney at Legal Assistance to the Elderly. “We do a lot of hoarding cases. Is a hoarder a threat to the safety of others? I think this is a great step in the right direction, but I do have some questions.”

Still, “this is as appropriate a balance as you can strike, without shutting down the courts for everyone.”

How juries will be impaneled remains to be seen.

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