Wendel Rosen LLPOrdinarily, when commercial landlords are confronted with a tenant’s nonpayment of rent, the landlord’s recourse is the (relatively) swift and effective remedy of unlawful detainer (i.e., an eviction proceeding).  The COVID-19 crisis has disrupted the traditional calculus.  In response to the financial impacts of COVID-19, governmental bodies in California have implemented multiple layers of legal barriers to the initiation and prosecution of unlawful detainer proceedings.  The net effect of these barriers is to completely block for the time being the landlord’s ability to prosecute an unlawful detainer action and thus recover possession of leased premises following a tenant’s monetary default.  In this article, we briefly summarize the current COVID-19 related impediments to commercial evictions in California.

First, and most significantly, on April 6, 2020 the Judicial Council of California adopted Emergency Rule 1 which, among other things, prohibits California trial courts from issuing summons on complaints for unlawful detainer.  The rule excepts eviction proceedings “necessary to protect public health and safety,” but requires a specific factual showing to establish the exception’s applicability.  The practical effect of Emergency Rule 1 has been to prevent landlords from prosecuting unlawful detainers for nonpayment since it was enacted.  Emergency Rule 1 will remain in effect until 90 days after the Governor declares the COVID-19 state of emergency lifted, or until amended or repealed by the Judicial Council.

Second, many California cities and counties have adopted moratoria on evictions within their borders.[1]  While the terms vary from jurisdiction to jurisdiction, and some apply only to residential tenancies, many also place restrictions on commercial evictions, with such protections often limited to “small businesses” and nonprofits.  Jurisdictions which have enacted such moratoria include the cities of San Francisco, Oakland, Los Angeles, and San Diego, as well as Alameda, Santa Clara, Los Angeles, and San Diego counties.  The terms of the various ordinances vary substantially, and determining landlord and tenant rights will require careful review of both city and county ordinances, if applicable.

Third, many California state courts (which are administered at the county level) have adopted local rules staying all unlawful detainer matters, including those involving commercial tenancies. For example, the Alameda County Superior Court issued a blanket stay on evictions on March 16, 2020 and has subsequently twice extended the stay, most recently on May 28, 2020.  The Court’s press release states, “In view of the eviction-related discussions currently underway at the state and local level, the Court also orders the further stay of all unlawful detainer proceedings, including evictions, through and including Sunday, June 14, 2020.”  Similar stays or restrictions on unlawful detainer actions have been put in place by several local courts, including San Francisco Superior Court  (through June 19, 2020); San Mateo County Superior Court (limited through June 12, 2020); and Santa Clara County Superior Court (end date uncertain).

Finally, California Code of Civil Procedure section 715.020 permits only a “levying officer” (typically the county sheriff) to evict a tenant through service of a writ of possession. Many California sheriff’s departments have adopted formal or informal policies declaring that they will not serve writs of possession during the COVID-19 emergency.  Examples include the San Francisco Sheriff’s Department, San Mateo County Sheriff’s Office, and Alameda County Sheriff’s Office.  Thus, even if the commercial landlord is able to prosecute an unlawful detainer and obtain a judgment for possession, as a practical matter it may at present prove impossible to have the tenant physically removed from the leased premises.

The current restrictions on evictions in California have, for the time being, significantly altered landlord and tenant rights relative to the payment of rent.  Nonetheless, depending on the terms of a given lease, applicable city or county ordinances, and the particular tenant’s circumstances, there may be steps that landlords and tenants can take to enhance their legal position going forward.  Our Commercial Lease Dispute & Resolution attorneys are available to help guide commercial landlords and tenants alike through these challenging times.

[1] Such local commercial eviction moratoriums are expressly permitted by the Governor’s Executive Order N-28-20 and Executive Order N-37-20, both issued in March. The authority for local governments to limit commercial and residential evictions was recently extended through July 28, 2020 by the Governor’s Executive Order N-66-20.

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