Revised October 2016
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.
Previous Law. Under previous law, UD filings in limited cases (involving rent of less than $25,000) were automatically sealed from public view for 60 days after the complaint was filed. Under previous law, after the 60 day period, the record was available to the public and only remained sealed if (A) 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.
New Law. AB 2819 changed the availability of limited UD court files to the public. AB 2819 amends California Code of Civil Procedure §1161.2 to automatically and permanently seal all limited UD actions, unless (A) the landlord prevails within 60 days of filing (unless a default or default judgment is set aside) or (B) after 60 days only if judgment has been entered for the landlord after a trial, and the court issues an order allowing public access to the record.
If a default or default judgment is set aside more than 60 days after the limited UD complaint is filed, the time periods above will be interpreted to begin on the date the default or default judgment is set aside (rather than on the date the complaint is filed).
Limited UD files were previously, and will continue to be, 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) 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, and (4) persons authorized to access the UD file by a court order (which can be obtained ex parte on a showing of good cause).
The new law also allows a court to issue an order barring access to the court record if the parties stipulate to bar access. As a result, during settlement negotiations, more tenants will request access to the court record be barred.
This law does not apply to:
- unlimited jurisdiction unlawful detainers (involving damages of $25,000 or more);
- unlawful detainers to terminate mobilehome park tenancies “if the statement of the character of the proceeding in the caption of the complaint clearly indicates that the complaint seeks termination of a mobilehome park tenancy”.
Additionally, under this same bill, new California Code of Civil Procedure 1167.1 will allow a court to dismiss a UD action without prejudice, if a proof of service of the summons has not been filed within 60 days after the complaint is filed.
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 pre-default/pre-trial motions such as demurrers and motions to quash, and court consolidations & 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.
The text of amended California Code of Civil Procedure §1161.2 and new California Code of Civil Procedure §1167.1 appears in the downloadable pdf.
Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. While KTS provides clients with information on legislative changes, our courtesy notifications are not meant to be exhaustive and do not take the place of legislative services or membership in trade associations. Our legal alerts are provided on selected topics and should not be relied upon as a complete report of all new changes of local, state, and federal laws affecting property owners and managers. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. For contact information, please visit our website: www.kts-law.com. For past Legal Alerts, Questions & Answers and Legal Articles, please consult the resource section of our website.
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