Understanding California’s (Totally Inadequate) Eviction Protections: How 186,000 Children May Soon Become Homeless In Los Angeles
A look at how California’s current tenant protections will actually work, or fail, in practice.
UPDATE: The August 14th date of the Judicial Council rule being repealed (which would allow courts to start processing new eviction cases again) now looks like it’s being changed to September 1. So, unless something big changes, on September 2 the strongest rule protecting California tenants will disappear and courts will be allowed to start processing new eviction cases.
120,000 families in Los Angeles County alone may soon become homeless if elected officials don’t dramatically improve the emergency tenant protections currently on the books. That includes 186,000 children, and it’s on top of the 70,000 people who are already unhoused in LA.
This “eviction tsunami” may begin in less than two weeks, on August 14.
We need to grapple with the scale of this humanitarian crisis that may soon unfold, and then act appropriately. No discussion of tenant protections should begin without this context.
120,000 additional families made homeless. 186,000 more children forced onto the street. These families will be disproportionately Black and Latinx.
And with the news we got last Friday that the strongest protections will likely be repealed by August 14 — allowing courts across the state to start processing new eviction cases — this impending catastrophe is closer than it’s ever been. [UPDATE: this date has now been likely changed to September 1.]
In this article I’ll try to explain as clearly as possible how this disaster may unfold even with the various emergency tenant protections in place. I’m seeing lots of confusion about all this, including from people involved in tenant organizing, so I hope I can clear things up.
The numbers above come from a recent report written by UCLA Law Professor Gary Blasi, published by the Institute on Inequality and Democracy. Importantly, “the estimates of the scale of the impending waves of eviction and homelessness are likely to be underestimates,” Blasi writes. (The Aspen Institute, for example, estimates significantly higher numbers than Blasi’s report does. Extrapolating from their state-level numbers, 1.2 million people in LA are at risk of eviction.)
These numbers are based on Blasi’s conservative calculation that there are 365,000 renter households in the county who are currently surviving without any formal employment and no savings or replacement income to pay rent. A huge number will be evicted, and many of those will become homeless. Blasi’s absolute-best-case-scenarioestimate is that 36,000 families (including 56,000 children) will become homeless in LA.
“The existing executive orders and ordinances at state and local levels, and ordinances purporting to reduce or delay evictions offer very little effective protection to tenants.” Furthermore, Blasi writes, “there is no evidence that state or local leaders have begun to plan for what now appears to be an inevitable intensification of what was already a humanitarian crisis.”
None of this is natural; it doesn’t have to be this way. But in our capitalist system you only get shelter if you have money, and right now nobody has money.
I want people to understand what the existing policies are, and how they are totally inadequate, with a particular focus on LA. An understanding of how the eviction process actually works — from the tenant’s perspective — is crucial to all of this. These details are important, but very rarely are they actually explained or understood by journalists.
So this might get a little long, but I hope that readers will come out of it with a much better grasp of how weak California’s emergency tenant protections really are. (I’m focusing here only on protections meant to apply for people who cannot pay rent.)
Here’s a summary, before we get into a lengthier explanation:
- By far the strongest protections statewide come from a rule issued by the courts (the “Judicial Council”) that essentially stops new eviction cases filed by landlords from being processed at all — this applies to all of California. BUT it looks like this rule will likely be repealed by September 1. Once this happens, the floodgates will be open and huge numbers of people may quickly be evicted.
- Beyond this rule, there are no significant statewide protections, even though Gavin Newsom has gotten away with calling his incredibly weak Executive Order a “moratorium” on evictions. Newsom has simply kicked responsibility to local governments to create their own laws.
- Local protections (from cities and counties) are totally inadequate. What most of these do is give you a defense in court if you didn’t pay rent because of COVID. So you can tell a judge: “actually, my landlord can’t evict me for not paying rent, because the reason I didn’t pay was because I lost income due to the pandemic, so I’m protected by the new law.” The problem is that you have to get before a judge in the first place to make this argument.
- Huge numbers of tenants will lose on “default judgments” — if you don’t answer your court papers correctly within 5 business days, you can lose automatically. Local measures do nothing to protect against this.
- Huge numbers of tenants will also lose eviction cases because they don’t have lawyers, even though they may technically be protected by the emergency measures.
- So local laws that claim to be “moratoriums” or “bans” on evictions are also extremely weak, and huge numbers of tenants who should beprotected by them will slip through the cracks and be evicted, and possibly become homeless.
To be totally clear, though: DO NOT LEAVE YOUR HOME IF YOU CANNOT PAY RENT. You are very likely protected under the law, and by joining a tenants organization (like the LA Tenants Union, if you’re in Los Angeles), you can fight with your neighbors and have a very good chance of enforcing your rights and beating back your landlord. A tenants union will help you in understanding exactly what your rights are, so you don’t get fooled by lying landlords. A union can also almost always connect you to a lawyer if it gets to the point where your landlord has actually filed an eviction. But more than anything, your collective power with your neighbors and community members can force major concessions from your landlords, like when the Mariachis in Boyle Heights beat back $800 rent increases and essentially won themselves rent control.
Plus, we need to cancel rent, and the only way that’s going to happen is with more people organized and fighting for it.
Let’s go over the existing policies currently in place. The strongest protection for all of California comes from the courts themselves choosing to not process eviction cases. Once that rule is lifted — on September 1 — it’s up to local governments to enact ordinances (at the city or county level) that will protect tenants, thanks to Gavin Newsom’s cowardly decision to not implement any substantive state-level measures. As I will show, even the best local ordinances will leave huge numbers of tenants who cannot pay rent without any protection at all because of how the eviction process actually works in practice.
The Judicial Council Emergency Rule — By Far The Strongest Of The Protections, But Likely Ending On September 1
The single most important protection right now is from the Judicial Council of California, a group of judges that makes rules that apply to all courts in the state. In early April they declared that courts would not be processing new eviction cases until 90 days after Governor Gavin Newsom officially lifts the state of emergency — aside from rare exceptions where it’s “necessary to protect public health and safety.”
This is crucial because, as we often say in the Westside Local of the LA Tenants Union: landlords don’t evict tenants, courts do. That is, all evictions have to go through a formal court process before the Sheriff will actually come and physically evict you. As long as courts aren’t even processing evictions, most tenants are safe, even if they’re not paying rent at all. (Of course, many landlords are just doing illegal lockouts or otherwise harassing or intimidating tenants to get them to leave.)
However, a huge problem with these protections is that the Judicial Council can change their mind at any time — which they appeared to do just last week. Now it looks like by September 1 this rule will be repealed, and courts will be free to start processing eviction cases. This will open up the floodgates as huge numbers of landlords across the state will file (and the courts will process) evictions to get rid of tenants who haven’t been able to pay rent.
It’s a disaster, especially because the other state and local protections are so weak.
(Individual court systems may choose to keep eviction proceedings on pause, or come up with other ways that slow down the process due to social distancing requirements — but I’m not holding out a ton of hope for courts to save tenants given how in other parts of the country they’ve just resorted to virtual eviction hearings.)
Gavin Newsom’s Emergency Orders — Basically Useless
In late March, Governor Gavin Newsom issued an Executive Order on evictions that applies to the entire state. It’s almost completely useless, but he was able to absurdly brand it as an “eviction moratorium.” All it did was stop evictions from being heard by courts until May 31; the Judicial Council’s order soon made this totally irrelevant, and Newsom hasn’t extended his order. He also issued one in early March that (kind of) empowered local governments to deal with the issue themselves. But in this order Newsom refused to suspend many of the state laws he could have, so local governments could still claim to have their hands tied by the state. (He could have suspended Costa-Hawkins, for example, and allowed local governments to implement strong, universal rent control for all units.)
So we got nothing of use from Newsom. It’s honestly stunning how shameless it was for him to try to claim his order was a “moratorium” on evictions, and it’s unfortunate that he seems to be getting away with doing nothing to protect tenants. See, for example, this story from ABC, which in the headline refers to Newsom’s order as an “eviction moratorium,” but then goes on to accurately explain how it actually just allows local governments to take stronger measures.
Local Protections In LA City and County — Sound Great, But Actually Totally Inadequate
Once the Judicial Council’s order is lifted and the floodgates are opened, the main protections for tenants currently come from local governments: cities and counties. There are 88 different cities in LA County alone, so it’s really a patchwork of different measures depending on where you live, all across the state.
The City of Los Angeles covers 4 million people and has some of the strongest protections in the county. Like Newsom’s, LA’s measure has been branded as a “moratorium” on evictions, even by the best journalists. But just a quick look at how these protections really work shows how incredibly weak they really are, and why it’s likely that the vast majority of tenants facing eviction may fail to benefit at all.
First, it’s extremely important to understand the details of the eviction process when assessing these protections. When tenants receive a formal eviction notice from the court they have 5 business days to respond (by filing an “answer”), or they can be evicted without any sort of trial or hearing.
So imagine this situation: you get a bunch of papers from the court that has tons of legal jargon you’ve never seen before, and if you don’t respond with the proper paperwork — which usually involves going to the court in-person — within 5 days, you can be evicted by the sheriff about a week later.
Blasi, in the UCLA report, estimates that almost two-thirds of tenants who get evictions filed against them lose because they don’t respond within 5 days with their answers. This is called losing from a “default judgment.”
LA’s rules don’t do anything to protect people from this!
What LA’s rules do is provide you a defense in court if you didn’t pay rent because of COVID-19 — but you have to get to court in the first place. So you’d have to correctly fill out and return an answer (within 5 days), and only then can you make the argument to a judge or jury that you deserve to stay in your home thanks to LA’s new protections.
But even if you make it past filing your answer (within 5 days), you’re probably screwed unless you have a lawyer. In a sample of 151 eviction cases in LA where a tenant without a lawyer tried to defend themself, not a single tenant won their case. The legal system for evictions is so needlessly complicated that it’s almost impossible to do anything right unless you have an attorney, which landlords almost always do and tenants almost always don’t.
So this is what LA’s protections actually do: they provide you a defense in court that can stop you from being evicted for not paying rent if the reason you couldn’t pay rent can be tied to COVID-19 or the associated economic collapse. You can argue to a judge or jury: “No, you can’t actually evict me, because the reason I didn’t pay can be tied to COVID, so I’m protected by the new laws.” And then once this emergency is declared to be over, you’ll have 12 months to pay back the rent for this period before your landlord can evict you for non-payment.
On paper, these look like pretty good protections — you can’t be evicted if you can’t pay rent due to COVID! Mitch O’Farrell, for example, one of the most anti-tenant members of LA’s City Council, has tweeted several times about the city’s “Eviction Moratorium,” and told his constituents that “renters dealing with COVID-19 are protected from eviction in Los Angeles and can stay in their homes.”
But the law on paper and the law in practice are very different. Having “rights” under the law is one thing; being able to enforce your rights is another. In practice, only a small number of tenants will be able to take advantage of LA’s protections — those who both file their answer (within 5 days) and get a lawyer.
Blasi sums this all up as follows: “Without a massive increase in access to both information and legal services, most tenants will face eviction within weeks because they are unable to file a legally sufficient response to the unlawful detainer complaint within 5 business days and have a default judgment entered against them not long thereafter. For those able to avoid a default judgement, nearly all of those who are forced to defend themselves will lose and be evicted.”
Ultimately, the best-case scenario for tenants who can’t pay rent, but who do manage to benefit from LA’s protections, is that they’ll have to somehow pay it all back within 12 months. Undoubtedly, huge numbers of people who already have trouble getting by will be unable to pay back thousands of dollars of rent debt, and will face eviction all over again.
So those are the protections for the City of LA, which are probably the strongest in the entire county. Many other local protections are pretty similar, like those of Santa Monica and unincorporated areas of LA County.
I hope this also helps people understand why tenants unions are so important. Your odds of beating your eviction case increase astronomically if you’re meeting and strategizing and learning together with your neighbors! Very few folks who join the LA Tenants Union, for example, will ever lose on a default judgment, because they have an immediate network they can turn to for advice and assistance. Plus, ultimately, we need to build power to change this terrible system.
Stronger Protections In San Francisco And Oakland — Better Than LA’s, But Still Not Good Enough
Finally, other existing protections worth highlighting are those in place in both San Francisco and Oakland, which are stronger than LA’s, but still have the same huge problems in which tenants will slip through the cracks and not actually get to benefit.
These measures go a step further in that they essentially say that landlords can never evict tenants for rent that was not paid during this state of emergency, as long as the tenant missed rent because they lost income due to COVID. So it’s like LA’s rule, but instead of having 12 months to pay back your rent or you’ll be evicted, tenants cannot face eviction for that rent they didn’t pay. Rather, this unpaid rent becomes consumer debt — so the landlord could try to collect it in various ways (like suing you in small-claims court), but cannot evict you if you don’t pay. This is surely a significant improvement on LA’s protections, under which many people will likely be evicted 12 months after the emergency period ends.
Again, though, that’s just what the law technically says. In practice, tenants will still lose their case and be evicted if they don’t respond within 5 days, and will have lots of trouble fighting an eviction without a lawyer. A landlord can file an eviction because the tenant hasn’t paid rent, and then it’s up to the tenant to (a) respond in time, and (b) make the argument that the reason they didn’t pay was due to the pandemic.
It’s worth noting that Oakland’s protections are stronger than SF’s — in Oakland, evictions filed during the emergency period are not allowed regardless of the reason, and regardless of your situation. But you still have to respond within 5 days to enforce these rights. As this helpful guide on Oakland’s protections states: “Under state law, if your landlord files an eviction lawsuit against you, even if the lawsuit is not for a legally valid reason, you still have to respond in order to protect your rights.”
Cancel The Damn Rent
I hope all the information above cleared some things up. Ultimately, rent needs to be cancelled, because the best-case scenario with the strongest protections we’ve seen is that people end up with crippling rent debt, which probably means they’re at far greater risk of eviction down the line.
Cancelling rent is something that cities can legally do during an emergency like this, according to a team of lawyers from across California. Even LA City Councilmember Marqueece Harris-Dawson admitted this recently, saying on the LA Podcast: “The city can suspend rents … we can absolutely suspend rents.” (Listen for yourself, about 24 minutes in.) It may be a legal risk, sure, but cities take these risks all the time; LA City Council, for example, is fine with the city getting sued for violating the constitutional rights of unhoused people.
And evictions need to be completely banned — like, actually banned. None of this “you get evicted if you don’t respond in 5 days” stuff.
Politicians at all levels are failing tenants. It’s up to us to put way more pressure on them and make sure they work for the people, not the property owners.