By Michael G. Olinik
The Law Office of Michael G. Olinik
San Diego County Ordinance No. 10724 (N.S.) (“Ordinance”) went into effect on June 3, 2021, essentially banning all evictions for reasons other than non-payment of rent unless the circumstances giving rise to the eviction present an “imminent health or safety threat.” The Ordinance also applies to the entire county, even where cities have their own local ordinances.
The Ordinance, which requires new notice language for termination of tenancy notices, retroactively applies to all pending unlawful detainer actions, other than non-payment of rent cases, where the notice expired during the Local Emergency — which began over a year ago. The Ordinance also prevents a landlord from evicting a tenant, even if the term of the lease naturally ends, or taking any action to terminate a lease, such as issuing a notice or suggesting that a tenant must lawfully leave the property. If a landlord violates the Ordinance, the landlord could be forced to pay the tenant’s legal fees and damages, plus emotional and mental distress damages.
On June 1, 2021, the San Diego County Bar Association hosted three speakers to discuss the issues stemming from the Ordinance in the program “Understanding the Impact of San Diego County’s Newly Passed Eviction Ban and Rent Cap” sponsored by the Real Property Law Section. The speakers were Gilberto Vera from Legal Aid Society of San Diego, Lawrence Mudgett of Safer Law, who represents both tenants and landlords, and Rachael Callahan of Callahan Firm, APC, who represents landlords in unlawful detainer actions. After making clear that, like this article, the speakers were not giving legal advice, the panel discussed issues with the Ordinance.
The panel characterized this Ordinance as an eviction ban, in order to differentiate it from previous moratoriums. Mr. Vera and Mr. Mudgett went through the history of changes to unlawful detainers at various levels of government throughout the pandemic to show that this Ordinance is unlike the previous moratoriums.
For example, the national CDC eviction moratorium does not affect home foreclosures or any breach of lease cases other than non-payment of rent. The Ordinance by contrast includes rent increase limits and goes beyond regulating leases to reach evictions where there are no landlord/tenant relationships, such as evictions following foreclosures.
Further, current state law, the California COVID-19 Tenant Relief Act, limits non-payment of rent cases, permits post-foreclosure evictions without limitation, and permits just cause evictions as defined under Cal. Code Civ. P. § 1946.2. The San Diego County Ordinance, however, replaces the state’s “just cause” definition with one created by the County and offers no additional protection for non-payment of rent cases. The San Diego County Ordinance’s rent control provisions are similar to the state’s current control law, Cal. Code Civ. P. § 1947.12, except that it is set at a slightly lower amount.
The panel discussed whether the Ordinance could apply to non-payment of rent cases. The current California COVID-19 Tenant Relief Act prevents local authorities from issuing any further regulations regarding evictions based upon non-payment of rent that occurred between March 1, 2020 and June 30, 2021. The Ordinance itself states that it does not supersede or conflict with the Tenant Relief Act, which was signed into law last January. The required notice language informs tenants that evictions may proceed in non-payment of rent cases. The Ordinance, however, does not specifically delineate what happens when Tenant Relief Act protections end, leaving the possibility of litigation open.
According to Mr. Mudgett, the Ordinance encourages landlords to file evictions based upon non-payment of rent, which is the major problem created by the pandemic, and punishes landlords who have very good reasons to evict tenants but cannot meet San Diego County’s “just cause” standard. Further, landlords who are already cash-strapped will not be able to litigate the applicability of the Ordinance.
The panel also discussed whether settlements are still permitted. The Ordinance has a no waiver clause, meaning that any stipulation, settlement agreement, or lease agreement may be challenged as void if it is found to waive any rights a tenant may have. Mr. Vera noted that settlement agreements are still permitted as long as they do not waive any rights in the Ordinance. However, he acknowledged that if a tenant agrees to move out but does not, the landlord could not obtain possession of the property, making these types of agreements largely unenforceable in practice.
Finally, the parties also discussed the end date of the moratorium. The Ordinance, by its own terms, ends 60 days after Governor Newsom “lifts all COVID-19-related stay-at-home and work-at-home orders.” When the panel spoke, the Governor was expected to lift all such orders on June 15, 2021, thereby making the Ordinance end on August 14, 2021. Since the panel discussion, however, Governor Newsom has indicated that he intends to reserve some emergency powers even after June 15, 2021. Whether the Governor will continue to keep any stay-at-home or work-at-home orders in effect past June 15, 2021 is still unknown.
The Ordinance currently faces at least two main challenges in Court: Southern California Rental Housing Association v. County of San Diego, United States District Court for the Southern District of California, Case No. 21-cv-912-L-DEB, and California Apartment Association v. the County of San Diego, 37-201-00023731-CU-MC-CTL. At the time of this writing, these cases remained pending. Whether the Ordinance is struck down in part or in whole remains to be seen. For now, it would be wise for anyone who owns property and who has another person sleeping under a roof, whether they allowed that person to live there or not, to tread lightly and consult an attorney before taking any action against a tenant.