Post date: Sep 27, 2016 7:6:2 PM
Legal Alert from Kimball, Tirey & Saint John
Despite strong landlord and association opposition, on September 13, 2016, Governor Jerry Brown signed California Assembly Bill (AB) 2819. This bill, amending California Code of Civil Procedure §1161.2, and adding new California Code of Civil Procedure §1167.1, will dramatically interfere with a Landlord’s ability to speedily and effectively conclude an unlawful detainer proceeding and additionally impact a landlord’s ability to obtain an applicant’s prior unlawful detainer (UD) history.
Under previous law, UD filings were automatically sealed from public view for the first 60 days following the initial court filing. After the 60 day period, the record would be made available to the public and only remained sealed (A) if the defendant prevailed at trial within the 60 day period, (B) the court permanently sealed the record, or (C) the record was sealed by a stipulation between the parties. (UD files were accessible to (1) the parties and their attorneys, (2) people who provided the court clerk with the names of at least one plaintiff and one defendant and the address of the premises, (3) to a resident of the premises who provides the clerk with the name of one of the parties or the case number and shows proof of residency, (4) to a person with a court order).
Pursuant to AB 2819, the law as amended has changed the availability of the record 60 days after the case is filed. AB 2819 amends California Code of Civil Procedure §1161.2 to automatically and permanently seal all UD actions, unless (1) the plaintiff (landlord) prevails within 60 days of filing (unless a default or default judgment is set aside) or (2) after 60 days only if judgment against all defendants has been entered for the plaintiff after a trial and the court issues an order allowing public access to the record or (3) one of the situations (numbered 1-3 above) exists.
The new law also allows a court to issue an order barring access to the court record if the parties stipulate to. As a result, during settlement negotiations, more tenants will request that access to the court record be barred.
Additionally, under this same bill, new California Code of Civil Procedure 1167.1 will allow a court to dismiss a UD action without prejudice (allowing the landlord to re-file the case if desired), if a proof of service of the summons has not been filed within 60 days of the complaint’s filing.
While we continue to see an increase in the number of contested cases statewide, the majority of UD cases (approximately 65% - 75% depending on the county) do not go to trial. Of these cases, many are currently taking more than 60 days to obtain even a default judgment. This may be due to a variety of factors, including but not limited to tenants avoiding service attempts, a rise in predefault/pre-trial motions such as demurrers and motions to quash, and court consolidations and staff reductions resulting in case processing delays.
Moreover, unlawful detainers (unlike other civil cases) often do not result in a judgment. In many instances, the defendants vacate prior to the entering of a default judgment. As possession is no longer at issue, many landlords choose not to move forward with obtaining a judgment. Under this new law, these types of cases will no longer be made available to the public.
This is problematic for owners and landlords for several reasons, including but not limited to:
By keeping more UD records sealed, landlords will not be able to obtain an accurate rental/eviction history of their applicants. This will negatively impact landlords as it will make them more susceptible to “vexatious litigants” or “career tenants”.
Defendants will no longer have incentive to settle their cases expediently (as in the past settling a case within 60 days could keep the matter sealed).
Further, the new law may encourage defendants to elongate the UD process (through meritless motions or other means) due to the fact that, if they can delay the entry of a default judgment for at least 60 days from the initial UD filing, they can prevent the lawsuit from becoming a public record.
This law is slated to go into effect as of January 1, 2017.
Kimball, Tirey and St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This alert is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. If you have questions, please contact your local KTS office. For contact information, please visit our website: www.ktslaw.com.
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