Judicial Council’s Emergency Rule Suspending Evictions During Pandemic to Sunset

By: Jason Murai, Esq.

In response to the COVID-19 pandemic, Governor Newsom and many local jurisdictions issued eviction moratoriums that prevent landlords from evicting tenants for nonpayment of rent due to factors related to COVID-19.

Separately, the California Judicial Council, the policymaking body of the California courts, adopted 11 emergency rules in response to the COVID-19 pandemic. Emergency Rule 1 (“ER 1”) suspends eviction cases until 90 days after the Governor declares that the state of emergency due to COVID-19 is lifted, unless a court finds that the eviction is necessary to protect the public health or safety. Specifically, ER 1 prohibits a court from issuing a summons for an eviction case, entering an automatic default judgment against a tenant defendant, and in cases where the defendant has appeared in the action, prohibits a court from setting eviction cases for trial earlier than 60 days after a request for a trial is made. Notably, ER 1 suspends all eviction cases, not just those related to COVID-19, due to the fact that the courts are unable to handle non-urgent civil matters during the pandemic.

ER 1 was initially implemented as a short-term solution because the Legislature was not in session at the time. The Judicial Council expected the Legislature to address eviction and foreclosure issues caused by the pandemic once it reconvened but developing appropriate policy proposals and solutions has proven to be more difficult than anticipated.

In June 2020, two landlords in Kern County filed a petition for a writ of mandate against the Judicial Council to overturn ER 1. The petitioners are property owners who claim that ER 1 prevents them from evicting tenants who have failed to pay rent but have not claimed any COVID-19 injury. The petitioners also claim that the tenants have created a nuisance, damaged property, conducted illegal activity, and violated other lease terms. The lawsuit alleges that by suspending evictions, ER 1 violates the principle of separation of powers embodied in the California Constitution, and is also inconsistent with statutes related to eviction procedures and a landlord’s right to re-enter a property. The case is Christensen and Martin v. California Judicial Council, filed on June 15, 2020 in Kern County Superior Court.

The Christensen case may be rendered moot because on August 13, 2020, the Judicial Council voted to end ER 1 as of September 1, 2020. Accordingly, unless the Legislature enacts law providing otherwise, on September 2, 2020 courts will once again be authorized to issue summons on all unlawful detainer actions, enter defaults and issue writs of execution, and set trial dates on request.

The Legislature and Governor Newsom are currently negotiating over a long-term solution. One proposed bill, AB 1436, would extend eviction moratoriums for as long as California remains in a state of emergency, and protects property owners from foreclosure in the form of forbearance. Tenants would be given an additional twelve months to repay back rent. Another proposed bill, SB 1410, would offer tax credits to property owners to make up for any unpaid rent due to the pandemic. The unpaid rent is not forgiven, but the tenant would have 10 years to repay the debt back to the state.

During the unprecedented economic turmoil caused by the pandemic, the judicial branch coordinated with its sister branches of government to provide temporary relief to tenants facing eviction, and to give the Legislature and Governor additional time to work out policy and legislative proposals. It is now up to the legislative and executive branches to provide a permanent solution and to resolve the potential housing issues that could occur once the Judicial Council eviction moratorium ends.


This blog is written as of August 19, 2020.  Recommendations and legal requirements are changing rapidly, so please continue to review our legal updates or review postings on relevant government websites.

All blogs on this site are for educational purposes only, do not constitute legal advice or opinion, and should not be applied to your situation, or any specific situation, without consultation with counsel. Strategy Law, LLP does not provide any legal advice concerning any matter discussed in a blog except upon formal engagement including, without limitation, execution of Strategy Law, LLP’s formal legal services agreement, and with respect to specific factual situations.  No blog constitutes a guaranty, warranty, or prediction regarding the result of any legal matter discussed in the blog or any representation.