Calif. Judge Backs San Francisco Evictions Moratorium

By Hailey Konnath
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Law360 (August 4, 2020, 11:16 PM EDT) -- A California state judge on Monday upheld San Francisco's ban on evicting tenants who can't make rent during the COVID-19 pandemic, rejecting objections from several property owner and real estate groups and deeming the ordinance "a reasonable exercise of police power to promote public welfare."

San Francisco Ordinance No. 200375, which was adopted last month, permanently prohibits evictions for nonpayment of rent during the public health crisis. The measure also limits a landlord's ability to impose late fees, penalties or similar charges for unpaid rents.

In a suit filed June 29, the industry groups — including the San Francisco Apartment Association, San Francisco Association of Realtors, Coalition for Better Housing and Small Property Owners of San Francisco — slammed the evictions ban as illegal. The ordinance conflicts with an emergency order from Gov. Gavin Newsom and state law, the groups argued in their petition. And it perpetuates unconstitutional takings of private property, they said.

But Superior Court Judge Charles F. Haines disagreed Monday, holding that it's within the city's and county's power to "regulate the substantive grounds on which an owner of residential real property may seek to recover possession of residential property."

"The ordinance does not compel any uncompensated physical occupation of property or otherwise give rise to a facial taking of property" and therefore doesn't violate the contracts clauses of either the U.S. Constitution or the California Constitution, Judge Haines wrote in his brief order.

San Francisco City Attorney Dennis Herrera said in a statement provided to Law360 on Wednesday, "No one should be evicted from their home because of a global pandemic."

"We're proud to have won the day in court for San Francisco residents," Herrera said. "This is a time for everyone to pull together and help each other out."

According to the industry groups' petition for writ of mandate, Newsom ordered a statewide moratorium on residential evictions in March. The order permits local governments to temporarily restrict evictions due to the COVID-19 crisis, including those based on missing rent payments, they said.

"The order does not allow municipalities to permanently prohibit those proceedings," the groups argued. "Instead, the order specifically provides that it does not restrict a landlord's ability to recover unpaid rents."

Meanwhile, San Francisco Mayor London Breed issued an emergency proclamation imposing a temporary moratorium on evictions for nonpayment of rent by residential tenants directly affected by the crisis, the groups said. That proclamation suspends evictions through December and provides guidelines for landlords and tenants regarding payment plans, they said.

Then, on June 16, the San Francisco Board of Supervisors adopted the ordinance at the heart of the dispute, amending the city's administrative code to exclude tenants' failure to pay rent during the crisis from the list of permissible bases for eviction, per the suit. The ordinance means landlords can't use unlawful detainer proceedings to evict tenants, and are therefore required to turn to the civil debt recovery process to get back unpaid rent, the groups said.

Counsel for the industry groups and a representative of the city attorney's office didn't immediately return requests for comment late Tuesday.

Many state and local governments implemented policies at the beginning of the pandemic that largely shut down evictions in March and April. But many of those moratoria have since lapsed, despite a new surge in COVID-19 infections. Millions of Americans are anticipated to become vulnerable to a legal process in which 90% of landlords typically have lawyers while only 10% of tenants do.

Like San Francisco, some states and municipalities have extended their eviction bans. In June, New York Gov. Andrew Cuomo signed into law an extension of his state's ban on evicting tenants for unpaid rent accrued between March 7 and the complete reopening of their area, so long as the tenant can prove that they experienced financial hardship during that period.

Los Angeles is facing a similar suit over its own rent moratorium, with the Apartment Association of Los Angeles County arguing that the city's ban is overbroad and violates landlords' constitutional rights.

The eviction moratorium "will operate as rent forgiveness" as tenants are not likely to be in a position to pay back rent on top of their normal rent when the emergency period ends, the association said in its June suit.

The San Francisco industry groups are represented by Andrew M. Zacks, Emily L. Brough and Shoshana Raphael of Zacks Freedman & Patterson PC.

The city, county and board of supervisors are represented by City Attorney Dennis J. Herrera and Deputy City Attorney Wayne K. Snodgrass.

The case is San Francisco Apartment Association et al. v. City and County of San Francisco et al., case number CPF-20-517136, in the Superior Court of the State of California, County of San Francisco.

--Additional reporting by RJ Vogt, Hannah Albarazi and Emma Whitford. Editing by Breda Lund.

Update: This story has been updated to include comment from San Francisco's city attorney.

For a reprint of this article, please contact reprints@law360.com.

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