Party Notice: SAN FRANCISCO APARTMENT ASSOCIATION ET AL VS. CITY AND COUNTY OF SAN FRANCISCO ET AL

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                                ZACKS, FREEDMAN & PATTERSON, PC
235 MONTGOMERY STREET, SUITE 400

SAN FRANCISCO, CALIFORNLA 94104

Comoe QUI Aw

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AANDREW M. ZACKS (SBN 147794)

EMILY L. BROUGH (SBN 284943) F I L K D
ZACKS, FREEDMAN & PATTERSON, PC County Superior Court
235 Montgomery Street, Suite 400 ‘San Francisco County

San Francisco, CA 94104 JUN 2 9 2020

Tel: (415) 956-8100
Fax: (415) 288-9755
az@zfplaw.com
emily@zfplaw.com

Attorneys for Petitioners:

SAN FRANCISCO APARTMENT ASSOCIATION

SAN FRANCISCO ASSOCIATION OF REALTORS

COALITION FOR BETTER HOUSING

SMALL PROPERTY OWNERS OF SAN FRANCISCO INSTITUTE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

SAN FRANCISCO APARTMENT case No. CPF-20-5171 36
ASSOCIATION, SAN FRANCISCO - oo
ASSOCIATION OF REALTORS, REQUEST FOR JUDICIAL NOTICE IN
COALITION FOR BETTER HOUSING, SUPPORT OF EX PARTE APPLICATION
SMALL PROPERTY OWNERS OF SAN FOR ALTERNATIVE WRIT, STAY, AND
FRANCISCO INSTITUTE, ORDER TO SHOW CAUSE RE:
ORDINANCE NO. 200375
Petitioners,
vs. Date: July 1, 2020
Time: 9:00 a.m.
CITY AND COUNTY OF SAN Judge: Hon. Charles F. Haines
FRANCISCO, BOARD OF SUPERVISORS | Dept.: 501
OF THE CITY AND COUNTY OF SAN
FRANCISCO, DOES 1-10,
Respondents.

Ha
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE seeacanl IGINAL
WRIT, STAY, AND ORDER TO SHOW CAUSE RE: ORDINANCE NO. 20

1ZACKS, FREEDMAN & PATTERSON, PC

(235 MONTGOMERY STREET, SUITE 400

SAN FRANCISCO, CALIFORNIA 94104

Pursuant to Evidence Code section 452(b), (c) & (h), and pursuant to Hogen v. Valley Hospital
(1983) 147 Cal-App.3d 119, 125 [holding judicial notice proper of records and files of an
administrative board], Petitioners SAN FRANCISCO APARTMENT ASSOCIATION, SAN
FRANCISCO ASSOCIATION OF REALTORS, COALITION FOR BETTER HOUSING, and
SMALL PROPERTY OWNERS OF SAN FRANCISCO INSTITUTE respectfully request this Court
take judicial notice of the following records, attached hereto as Exhibit A-E:

A. Executive Department State of California, Executive Order N-28-20;

B. Report to the Judicial Council, Item No. 20-141;

C. California Judicial Council Emergency Rules Related to COVID-19, effective April 6,

2020, and as amended on May 29, 2020;

D. Twelfth Supplement to Mayoral Proclamation Declaring the Existence of a Local

Emergency Dated February 25, 2020;

E. San Francisco Ordinance No. 200375;

F. Letter to San Francisco Board of Supervisors from San Francisco Apartment Association,
San Francisco Association of Realtors, Small Property Owners of San Francisco Institute,
and Coalition for Better Housing te: Proposed “COVID-19 Tenant Protection”
Ordinance—File No. 200375, Dated April 17, 2020;

G. Letter to San Francisco Board of Supervisors Land Use Committee from Zacks, Freedman,

& Patterson PC, re: Proposed San Francisco Ordinance No. 200375, Dated June 1, 2020;

H. Executive Department State of California, Executive Order N-66-20;

I. San Francisco Rent Ordinance §§ 37.9, 37.10A, 37.11A.
Respectfully submitted,
//
i
//

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION FOR ALTERNATIVE
WRIT, STAY, AND ORDER TO SHOW CAUSE RE: ORDINANCE NO. 200375

2ZACKS, FREEDMAN & PATTERSON, PC

235 MONTGOMERY STREET, SUITE 400

SAN FRANCISCO, CALIFORNIA 94104

Coe YN DA HW BP YW NY

YN YN NN KN SB Be we we we we ee
BRNREEESRKSRSSeReDWT_ABDEBHRES

Dated: June 29, 2020 ZAC.

, FREEDMAN & PATTERSON, PC

By:

Andrew M. Zacks

Emily L. Brough

Attorneys for Petitioners

SAN FRANCISCO APARTMENT
ASSOCIATION, SAN FRANCISCO
ASSOCIATION OF REALTORS, COALITION
FOR BETTER HOUSING, SMALL
PROPERTY OWNERS OF SAN FRANCISCO
INSTITUTE

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION FOR ALTERNATIVE
. WRIT, STAY, AND ORDER TO SHOW CAUSE RE: ORDINANCE NO. 200375

3EXHIBIT AEXECUTIVE DEPARTMENT
STATE OF CALIFORNIA

EXECURVE ORDER N-28-20

WHEREAS on March 4, 2020, 1 procisimed a State of Emergency to
exist in Calfomia as a result of the threat of COVID-19; and

: WHEREAS despite sustained efforts, the virus remains a threat, and
further efforts to contro) the spread of the virus to reduce and minimize the
sisk of infection and othenvise miligate the effects of COVID-19 are
needed) and

WHEREAS the economic impacts of COVID-I9 hove been
Significant, end could ithresiten to wundemine Colifomians’ housing seautly
andthe sisibilty of Calttomia businesses; and

‘WHEREAS many Calliloniions ere expefiencing substantial losses of
income os aresull of business closures, ithe loss cf hous arwages ar
loyoisreinted to COWD-19, ikintieating their cibillity to keep wp wit their
nents mortgages and willily bills amd

WHEREAS Callfoniions who ore most vulnerable ie COVID-19, those
yen ond cter and ithose with uncieiying health isswes, cre advised tp
ssiquaoniine, seltisclote, ar cithensise remain in their homes toreduce
the thonamission of COVID-19: and

WHEREAS becouse homelessness con exnoeibate wwinexciilliy to
COMD-19, Cailiomio must icike mecsurss io presewe ond incase
housing seouilty for Calliominns to protect public healitr andl

WHEREAS local jufisdiciiions, based on thet paiiculoy needs. may
thersime disiemmiine that additional menswes io promote housing seowiiy
end sisiiiltly ore mecesary to protect public hesith or to mitigate tthe
economicimpucis of COVDAS and

WHEREAS lloval juiisdictions muy cise deteutine, besed on their
porous mesds, thei promoiing sinbiliy emongst commercial iemanciss
is cis conducive to public health such as by cllowing commercial
esinbiishmenits to dacide whether and how iocemnin open hassed on
public hesith concems mother then erencatc presumes, or io mitigate the
sonnomic impacis of COVDIS and

WHEREAS in action fo these public hevlth lbenciilis, sistc andi lors
PUlicies to prossie social Gisiencing, sel-quaxaniine, and ssitisclsiion
ceguike tihat peoplc ibe alte to cocess basic villifies—including wale, gus,
Ssciicty, and iclecommusicatiions—ot ther hames, so thet Coliiemions
can work fram home, cecdive public heattthinfomneiion and cthensise
oshers to palicies oi social dsioncing, sel-quaaniine, and ssitisclation 5
nested, and .WHEREAS mony uiilfy providers, public and private, covering
elechicity, gas, water, and sewer, have voluntarily announced
moratoriums on service cisconnections and late fees for non-payment in
response fo COVID-19; and

WHEREAS many ielecommunication companies, including intemel
and cell phone providers, have voluntarily announced moratoriums on
sevice disconnections and late fees for non-payment in response to
COVID-19;

NOW, THEREFORE, |. GAVIN NEWSOM, Govemor of ithe State of
Catifomia, in accordance with the avihority vested in me by the Stale
Constitution and statvies of the State of Colifomia, andiin particular,
Govemment Code sections 8567 and 8571 do hereby issue the following
order to become effective immediately:

OT 0S HEREBY ORDERED THAT

D) The time liimitction set forth in Pencil Codie section B96, subdivision
(@). conceming proteciions agsinst residentic! eviction, islnereipy
waived These protections shail lee in effect through May 31 2020.

2) Any provision of state low ithat would preempt or othenwise resiict a
tocol govemment’s exercise of tis police power ioimpase
substontive iinttiotions on residenticl or commescidl evictions es
described in subparagraphs (i) and (i) below—including, but mot
linitied to, any such provision of Civil Code secilions 1940 eiseqg.or
1954.25 etseq—és hereby suspensied fo the extent thatittexould
meompl or othenise reshici such exercise. Mis poagesh 2sthell
ently apply to the imposition of liniitations on eviciions wtixenc

( Thetosis for the eviciionis manpayment cfrentl ora
foreclosure, ating avi ofa subsioniiel dearsascin
household or tusiness income including, Ibut mot
linified to, a substuntia demeose in houscthaldl
income coused bby lnysits or aredivciion iin the
nomiber of compensable hous cf work ora
subsiontic] dearcuse in business income caused by
Qreduciionin opening hous er consumer: demand),
oO stibsicntial out-ct-pockei medion! expenses ond

The deoresse in houschald or busines income or
I Sn

pandemic, arby enylsonl, State, or federsil
gouvenmentespane to COWMD-19, andlis
escumented.

The siciivioy cause of acilion for judicial forecionwe, Cade. of Cini)
Procedure section 7250 ef sey: tihe siciutioy onuse of action fer
unlneiul deisines, Code of Cit Procedure section 116] eiseg. and
ony other sivivigy cause of action that covlld be wsedi io evict or
Gihemise seci acesidenticl or commerncid tenant a occupant i
redidenticl resi properly alts: ioxecloswe is suspended onlyes
applied is any tensnoy, or residential cecil popenly and anyoccupaiion thereof, to which a local government has imposed a
limitation on eviction pursuant to this paragraph 2, and only to the
extent of the limitation imposed by ithe local government.

Nothing in this Order shall relieve a tenant of the obligation to pay
rent, nor restrict a landlord’s cibilily to recover rent due.

The protections in this paragraph 2 shall be in effect through May
31, 2020, unless extended.

3) All public housing authorities are requested io extend deadlines for
housing assistance recipients or applicanis to deliver records or
documents related fo their eligibility for progroms, to the extent that

_ those deadines cre within the discretion of the housing avihosity.

4) the Department of Business Ovesight in consuliction with the
Business, Consumer Semiices, ond tiowsing Agency, shail engage
‘with financial insitiuiions to identify tous ito be weed to afford
Calliontians esliet trom the test of residential foreclosure ond
displacement, and to othenvise promos housing seciniiy and
Stability during this sicite of emergency, ih futherance of he
objectives of this Oxdter.

9) Finencicl institutions healing home a commercial mottgages,
iinclusiing banks credit unions, govemment-gponsored entexpises,
qnd instiviional invesios, we requested toimplement an
immedisic mociotum on frescioswes anduclotied evictions when
the foreclosure or foxecioswesclaied eviction aes aut ofa
suipstonticl deowsss in household a ibesiness incomes, or subsonic!
oul pockel medion expenses, wikich were caused iby the
COWD-19 pandemic, er iby any! Tne siete. cr Cesisss) government
response ts COMDAS

@) the Calltomin Pubic Willies Commission iscequesied fo maxtor
mecsues wundeiaken iby pulblic and mixoke willy provides to
implement customer senice protections te cificadl willities, including
but nsf linited to cleciic, gus, waiter, intemei londine islephone,
ond cz phone semis, insesponse to COMD-19, end onaweskly
bess publicly report fihese mensures.

IStonihiing itn thts Oxdier shail ibe consimed to invellitiaiic any (initiation
oneviction enscied by alocal juisdiction beiwesn Mach 4.2020 and
ithis diste.

INeihing in this Onder shullliia ony woy reshici siete or lood avithotiy
je oder any quarantine, bolstion, cr other public hevith menswe tet
miny Comps an individual io cemain physiosilly presssit ina poiicular
residentiol reat property

This Ondieris not intended to, and dossmoit, cresic any rights or
benefits, subsioniive or procediwal eniorcesittic at law oriin equity,
egsins! the Sicie of Calffontin, iis agenries departments entities offices,
employess, or any ofthe: psssmJ FURTHER DIRECT that as soon as hereafier possible, this
proclamation be filed in the Office of the Secretary of State and that
widespread publicity and notice be given of this Order. .

JN WHNESS WHEREOF | have
hereunto set my hand and caused
the Great Seal of the Siate of
Califomia to be affixed this 1éth day
of March 2020.EXHIBIT BExhibit BJUDICIAL COUNCIL OF CALIFORNIA
455 Golden Gate Avenue * San Francisco, California 94102-3688

www,courts.ca.gov

REPORT TO THE JUDICIAL COUNCIL

Item No.: 20-141
For business meetirig on: April 6, 2020

Title Agenda Item Type
Action Required

Judicial Branch Administration | Emergency

Rules in Response to the COVID-19 Effective Date

Pandemic April 6, 2020

Rules, Forms, Standards, or Statutes Affected Date of Report
April 4, 2020

Adopt Cal. Rules of Court, emergency rules
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11

Recommended by

Hon. Marsha G. Slough, Chair, Executive
and Plarining Committee

Hon. David M. Rubin, Chair, Judicial Branch
Budget Committee and Litigation
Management Committee

Hon. Kyle S. Brodie, Chair, Technology:
Committee

Hon. Marla O. Anderson, Chair, Legislation
Committee

Hon. Harry E. Hull, Jr., Chair, Rules
Committee

Executive Summary

Due to the immediate and ongoing impact the COVID-19 pandemic is having on California’s
judicial branch, and at the request of Chief Justice Tani G. Cantil-Sakauye, Chair of the Judicial
Council, the chairs of the Judicial Council’s six internal committees recommend that the Judicial
Council adopt rules of court to: suspend the entry of defaults in unlawful detainer actions;
suspend judicial foreclosures; provide for remote appearance via technology; adopt a statewide
emergency bail schedule that sets bail at $0 for most misdemeanor and lower-level felonyoffenses; provide for personal appearance through counsel for defendants in pretrial criminal
proceedings; prioritize for juvenile dependency and juvenile delinquency proceedings various
hearing and orders and set a structure for remote hearings and continuances; extend the
timeframes for specified temporary restraining orders; and adopt miscellaneous civil proposals,
including suspending the statutes of limitations governing civil actions. The Judicial Council
should take these temporary actions in order to protect the health and safety of the public, court
employees, attorneys, litigants, and judicial officers, as well as staff and inmates in detention
facilities, and law enforcement during the state of emergency related to the COVID-19
pandemic.

On March 20, 2020 Governor Newsom issued a statewide shelter in place order! with limited
exceptions for emergency services. Adults over the age of 65 and persons of any age who have
serious underlying medical conditions are at higher risk and required to stay home. In addition,
several counties have issued local shelter in place orders that are more restrictive than the
statewide order issued by the Governor. Courts are currently operating with greatly reduced
numbers of staff and judicial officers. The courts’ workforce continues to diminish weekly as
staff and judicial officers are overtaxed and risking their health. As a result, the courts must
responsibly, carefully, stringently and strategically determine which urgent court services take
priority. Thus far, the efforts of the judicial branch have been to balance the access to justice for
critical and vulnerable populations .of people, while ensuring the health and safety of the public
we serve and those in the courts. During this time, it is critical to balance the demands on the
courts and concerns for the public, including the need to extend time to permit the courts to
establish remote technology for those who wish to use it.

Recommendation ~
The chairs of the Judicial Council’s six internal committees recommend that the Judicial Council
adopt the following rules of court, to take effect immediately:

Unlawful Detainers and Foreclosures: Proposed Emergency Rules 1-2

1. Adopt emergency rule 1 to suspend the issuance-of summons and entry of default and default
judgments on unlawful detainer complaints, and to allow courts to set trials on any unlawful
detainer actions in which a defendant has appeared more than 60 days after the request for
such a trial, unless the court finds that earlier action is needed to protect public health and
safety.

2. Adopt emergency rule 2 to stay all actions for judicial foreclosures on mortgages and deeds
of trust and extend all deadlines related to such actions.

Use of Technology to Conduct Proceedings Remotely: Proposed Emergency Rule 3

| Executive Order N-33-20: https://eovid I 9.ca. gov/img/Executive-Order-N-33-20 pdf. Adopt emergency rule 3 to provide that courts may require that judicial proceedings and

court operations be conducted remotely; however, in criminal proceedings, courts must
receive the consent of the defendant to conduct the proceeding remotely. Conducting
proceedings remotely includes, but is not limited to, the use of video, audio, and telephonic
means for remote appearances; the electronic exchange and authentication of documentary
evidence; e-filing and e-service; and the use of remote interpreting, remote reporting, and
electronic recording to make the official record of an action or proceeding.

Criminal Proceedings: Proposed Emergency Rules 4-5

4,

Adopt emergency rule 4 establishing a statewide Emergency Bail Schedule that sets bail at
$0 for most misdemeanor and lower-level felony offenses and includes other specified
provisions.

. Adopt emergency rule 5 to provide for appearance through counsel and remote appearance

via technology for defendants in pretrial criminal proceedings.

Juvenile Dependency and Juvenile Delinquency Proceedings: Proposed Emergency Rules 6-7

6.

Adopt emergency rule 6 for juvenile dependency proceedings that would prioritize specified
hearings and orders and set a structure for remote hearings and continuances.

Adopt emergency rule 7 related to juvenile delinquency that would prioritize hearings and
orders in juvenile delinquency proceedings and set a structure for remote hearings and
continuances. Emergency rule 7 would also grant an extension of time under Welfare and
Institutions Code section 709.

Temporary Restraining Orders: Proposed Emergency Rule 8

8.

Adopt emergency rule 8 related to temporary restraining orders that, among other changes,
would extend the timeframes for specified orders and allow courts to transmit an order in any
format to the entering agency for transmission into the California Department of Justice

database.”

Civil Proceedings: Proposed Emergency Rules 9-11

9.

Adopt emergency rule 9 to toll the statutes of limitation for all civil causes of action from
April 6, 2020, to 90 days after the state of emergency related to the COVID-19 pandemic is
lifted.

10. Adopt emergency rule 10 to increase by six months, for all civil actions filed on or before

April 6, 2020, the five years in which to bring the actions to trial under Code of Civil

? Family Code section 6380 requires that protective orders be entered into the California Restraining and Protective
Order System (CARPOS) maintained by the Department of Justice. 1Procedure section 583.310 and the three years in which to bring a new trial of the actions
under Code of Civil Procedure section 583.320.

11. Adopt emergency rule 11 to allow a party or nonparty deponent, at their election or the
election of the deposing party, to appear at a deposition remotely through electronic means.

Relevant Previous Council Action

This is the second action taken by the Judicial Council to address the impact of the COVID-19
pandemic as it affects California’s residents and judicial branch.

On March 28, 20203, the Judicial Council met in an emergency session and approved
recommendations authorizing and supporting the Chief Justice to, among other actions,
issue statewide orders to extend certain statutory deadlines until 90 days after the state of
emergency related to COVID-19 is lifted. Those orders include the following:

Extending the 10-day court period provided in Penal Code section 859b for the holding of
a preliminary examination and the defendant’s right of release to 30 court days;

Extending the time period provided in Penal Code section 825 within which a defendant
charged with a felony offense shall be taken before a magistrate from 48 hours to not
more than 7 days;

Extending the time period provided in Penal Code section 1382 for the holding of a
criminal trial by no more than 30 days; and

Extending the time periods provided in Code of Civil Procedure sections 583.310 and
583.320 to bring an action to trial by no more than 30 days.

The Judicial Council also directed the superior courts to:

Make use of available technology, when possible, to conduct judicial proceedings and
court operations remotely in order to protect the health and safety of the public, court
personnel, judicial officers, litigants, and witnesses. This includes the use of video, audio,
and telephonic means for remote appearances, reporting, and interpreting in judicial
proceedings; the electronic exchange and authentication of documentary evidence; and
the use of e-filing and e-service; and

For criminal and juvenile proceedings, including arraignments and preliminary
examinations, prioritize the use of available technology to meet current statutory time
requirements and ensure that defendants are not held in custody, and children are not held

3 Judicial Council of Cal., Judicial Branch Administration: Response to the COVID-19 Pandemic (Mar. 27. 2020),

hitps:iicc.legistar.com/LegislationDetail.aspx? ID=4408176&GUID=C64F8BB5-2C51-46DC-90FA-
ASIFICSOBF9A.in custody or removed from the custody of their parents or guardians, without timely due
process of law or in violation of constitutional rights.

The Chief Justice issued a statewide order? on March 30 implementing the temporary emergency
measures approved by the Judicial Council. The Chief Justice has also issued two advisories*
and one other statewide order,® as well as approximately 100 individual emergency orders at the
request of courts.”

Analysis/Rationale

Background

The United States continues to be the epicenter of the global pandemic caused by the COVID-19
virus. As of April 3, 2020, it was reported that there have been more than one million confirmed
cases of COVID-19 in the world and more than 54,000 deaths.

On March 4, 2020, Governor Gavin Newsom proclaimed.a state of emergency in California as a _
result of the threat of COVID-19.° Despite sustained efforts by all levels of government,
COVID-19 continues to spread rapidly and is impacting nearly all sectors of California.

As of this writing, the Governor’s COVID-19 website reported that in California there are more
than 10,000 positive cases and there have been 237 deaths. A surge of COVID-19 cases is
expected in the next two weeks, and the Governor predicts that the state needs another 50,000
hospital beds to accommodate new cases. Californians have been directed to stay at home to
slow the spread of the virus and to practice social distancing. Nearly all venues with public
gatherings have been closed, including state parks and beaches.

The continuous operation of our courts to provide due process and protect the public is essential
for our constitutional form of government; however, courts are clearly high-risk places during
this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys,
witnesses, defendants, law enforcement, and juries in numbers well in excess of what is allowed
for gathering under current executive and health orders. Indeed, many court facilities in
California are ill-equipped to implement social distancing and satisfy other public health

4 March 30 statewide order: Attps://newsroom.courts.ca.gov/news/chief-justice-issues-order-implementing-
tempore ‘ary-court-emergency-measures .

° The two advisories may found at: https://newsroom.courts.ca.gov/news/california-chief-justice-issues-guidance-to-
expedite-court-emergency-orders, and https://newsroom.courts.ca.gov/news/california-chief-justice-issues-second-
advisory-on-emergency-relief-measures.

® March 23 statewide order: Attps:/newsroom.courts.ca.gow/news/chief-justice-issues-statewide-order-suspending-
jury-trials.

7 Copies of the emergency orders may found at: hittps://newsroom.courts.ca.gov/news/court-emergency-orders-
(794321.

8 State of emergency proclamation: hitps:/Avww.gov.ca.gov/Avp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-
Proclamation pdf. .requirements necessary to protect people involved in court proceedings and prevent the further
spread of COVID-19.

Every state and territory in the country has now delayed jury trials. New York State Unified
Court System has implemented temporary “virtual court” operations in New York City Criminal
and Family Courts to reduce courtroom density and stem the spread of COVID-19. However,
courts must provide due process for defendants who are currently in custody and are entitled to
timely pretrial appearances.

On March 16, the California legislature voted unanimously to recess from March 20 to April 13
in response to the COVID-19 pandemic. On April 3, the legislature extended their recess to May
4,

On March 24, the Governor issued an order to suspend the intake of all incarcerated persons into
adult state prisons and Division of Juvenile Justice facilities at the county level for a minimum of
30 days, which will impact county jail and juvenile detention facility populations.* The spread of
the virus has hit California’s inmate population as well as staff members in the prison system.
Many inmates have ongoing court cases and courts cannot be assured that safe social distancing
can be maintained with the transport of in-custody defendants and the holding cells adjacent to or
within courthouses.

On March 25, the California Governor announced an agreement with multiple financial
institutions allowing Californians economically impacted by the COVID-19 pandemic to receive
90-day grace periods to make mortgage payments and for at least 60 days, the financial
institutions will not initiate foreclosure-sales or evictions.!°

On March 27, the Governor issued an executive order banning the enforcement of eviction
orders for renters affected by the COVID-19 pandemic through May 31, 2020.'! This was in
addition to his previous order on March 16 authorizing local governments to halt evictions for
renters impacted by the pandemic.”

The Governor, also on March 27, issued an order related to the emergency authority of the Chief
Justice and the Judicial Council.!3 Among other items, the order states:

In the event that the Judicial Council or its Chairperson, in the exercise of rulemaking
authority consistent with Paragraph 2, wishes to consider a rule that would otherwise be

° Executive Order N-36-20: www. gov.ca.govAvp-content/uploads/2020/03/3.24.20-EO-N-36-20.pdf.

'© Governor’s financial relief package: www.gov.ca.gow/2020/03/25/governor-gavin-newsom-announces-major-
financial-relie; -mortgage-) t-relief-during-covid-19-crisis/.

"| Executive Order N-37-20: www.gov.ca.gov/vp-content/uploads/2020/03/3.27.20-EO-N-37-20.pdf.
Executive Order N-28-20: wiw.gov.c -content/uploads/2020/03/3. 16.20-Executive-Order.,

'3 Executive Order N-38-20: www.gov.ca. gow/vp-content/uploads/2020/03/3.27.20-N-38-20.pdf.inconsistent with any statute concerning civil or criminal practice or procedure, the
relevant statute is suspended, subject to the following conditions:

a. The statute is suspended only to the extent it is inconsistent with the proposed
rule;

b. The statute is suspended only if the proposed rule is adopted; and

c. The statute is suspended only when the adopted rule becomes effective.

Unlawful detainers and foreclosures: proposed emergency rules 1-2

At a time when people are being urged to stay at home to protect public health and safety,
unlawful detainers are particularly problematic for two reasons: (1) they require very fast legal
responses (within five days) from defendants who are often self-represented and at a time when
court self-help centers and legal aid services are not readily available; (2) when involving
residential property, they threaten to remove people from the very homes they have been
instructed to remain in. In addition, the number of such actions for both commercial and
residential properties is likely to explode in coming months—as a significant portion of the
population faces severe economic losses due to the closing of businesses, loss of income, and
inability to work due to illness or the need for childcare in light of stay-at-home orders—
resulting in a surge of unlawful detainer filings and trials in the courts.

The Governor's executive order is intended to help address this crisis by providing an extended
answer period to, and banning the enforcement of evictions for, residential tenants who have *
suffered COVID-19 pandemic—telated income loss and meet certain other requirements. That
order, however, cannot by itself provide sufficient assistance to tenants and courts to avert this

. crisis. Proposed emergency rule 1 would amend current court procedures throughout the
pandemic to implement the goals of the executive order as well as protect litigants and court
staff.

Proposed rule emergency rule 1 would preclude a court from issuing summonses on unlawful
detainer complaints. Currently, the summons that must be issued on the filing of an unlawful
detainer complaint instructs the defendant that a formal response must be made within five
days—instructions that do not apply to those tenants who meet the conditions of the executive
order and which, if defendants do follow them, will deprive the defendants of the rights provided
in that order and force them to move forward in a fast-paced proceeding with little or no help
available. (Because it is not possible to tell from the face of the complaint whether a tenant might
be eligible for the extended answer period and protection from enforcement, it is not feasible to
limit issuance of summonses to only certain cases.)

The economic hardships brought on by the COVID-19 pandemic mean that many homeowners
will have difficulty making mortgage payments for the same reasons that tenants will have
difficulties making rent payments. The Federal Housing Finance Agency has directed certain
federal lenders to suspend foreclosures during this crisis, but there are many millions of home
mortgages still subject to foreclosure. Although most foreclosures in California take placewithout any court action, lenders may choose to file complaints for foreclosure and deficiency
judgments with the courts, resulting in evictions of residents at a time when they are most in
need of shelter and may find it difficult to afford legal defense. Such proceedings will also
impact court staff.

Proposed emergency rule 2 would stay court proceedings on judicial foreclosure actions until 90
days after the state of emergency related to the COVID-19 pandemic is lifted, toll the statute of

limitations for filing such actions for that same period, and continue the deadlines for exercising
any claims of redemption on foreclosure sales.

Use of technology to conduct proceedings remotely: proposed emergency rule 3

On March 28, the Judicial Council directed superior courts to make use of available technology,
when possible, to conduct judicial proceedings and court operations remotely, in order to protect
the health and safety of the public, court personnel, judicial officers, litigants, and witnesses. On
March 30", the Chief Justice issued an order suspending any rule in the California Rules of
Court to the extent such rule would prevent a court from using technology to conduct judicial
proceedings and court operations remotely, consistent with Governor Newsom’s Executive
Order N-38-20, which also provides for the suspension of related statutes that impose limitations
on the subject of these emergency orders.

This recommendation is intended to confirm and clarify those previous actions, and to support
courts in conducting essential court functions, including arraignments, preliminary hearings,
restraining orders, juvenile proceedings, and mental health hearings, while at the same time
implementing the social-distancing measures necessary to limit the spread of COVID-19.

This proposal recommends that the council adopt a rule that would suspend any rule in the
California Rules of Court and any statute to the extent that the rules and statutes are inconsistent
with or limit a court’s ability to require that judicial proceedings and court operations be
conducted remotely. Specifically, the proposed rule provides that courts may require that judicial
proceedings and court operations be conducted remotely; however, in criminal proceedings,
courts must receive the consent of the defendant to conduct the proceeding remotely and
otherwise comply with proposed emergency rule 5. The proposed rule is intended to provide
courts with broad authority to use technology to conduct proceedings remotely, including using
video, audio, and telephonic means for remote appearances; requiring the electronic exchange
and authentication of documentary evidence; requiring e-filing and e-service; and using remote
interpreting, remote reporting, and electronic recording to make the official record of an action or
proceeding.

4 March 30 statewide order, supra, note 4,Criminal proceedings: proposed emergency rules 4-5

Statewide Emergency Bail Schedule

During the COVID-19 pandemic, trial courts have a vital role to play in balancing public safety
and public health by assisting to safely reduce jail.populations in a manner that protects the
health of inmates, jail staff, those who transport defendants to courts, and others as individuals
leave jail and return to their communities. The courts can assist by permitting more persons
accused of misdemeanors and other lower-level offenses to be released from jail custody prior to
arraignment, which in turn will reduce the immediate burden on the courts to conduct
arraignments and preliminary examinations within compact timeframes.

After arrest, an accused person held in jail prior to arraignment must be brought before a
magistrate for arraignment within 48 hours (a timeframe that has been extended to seven days
under the Chief Justice’s order of March 30). Alternatively, if the person has bailed out of
custody, there is no specified timeframe within which the arraignment must occur. Whether an
accused is in or out of custody, a preliminary hearing must occur within 10 court days after
arraignment (a timeframe that has been extended to 30 days under the Chief Justice’s order of
March 30). If more individuals can bail out of custody, arraignments can be delayed and
calendared to a later date, reducing the burden on courts to hold large numbers of arraignments
and preliminary examinations within a short timeframe, especially at a time when many
courtrooms are closed, and staff is limited.

On March 20, the Chief Justice issued an advisory that recommended the following:

Revise, on an emergency basis, the countywide bail schedule to lower bail amounts
significantly for the duration of the coronavirus emergency, including lowering the bail
amount to $0 for many lower level offenses — for all misdemeanors except for those listed
in Penal Code section 1270.1 and for lower-level felonies.

Following this advisory, some courts adopted emergency bail schedules, but during this time
there is a need for greater uniformity throughout the state.

This proposal is for the Judicial Council to adopt an emergency rule of court that provides for a
statewide Emergency Bail Schedule. Proposed emergency rule 4 would require:

« The Emergency Bail Schedule to set bail at $0 for misdemeanors and certain felonies,
with exceptions for serious felonies under Penal Code section 1192.7(c) and violent
felonies under Penal Code sections 667.5(c), and other offenses such as those involving
domestic violence or stalking, driving under the influence offenses, and offenses
requiring sex offender registration.

¢ Pursuant to Penal Code section 1269b, the application of the statewide Emergency Bail
Schedule to any accused currently held in county jail custody charged with an offensecovered by the schedule. The rule would provide that each superior court’s current bail
schedule would remain in effect for all offenses other than those addressed in the
Emergency Bail Schedule and provide courts with authority to revise those remaining
portions of their schedules, including setting bail for court-specific conduct
enhancements and any status enhancements,

© Bail to be set at $0 for violations of misdemeanor probation, whether the arrest is made
with or without a bench warrant. For violations of felony probation, parole, post release
community supervision, or mandatory supervision, bail must be set in the same amount
as bail for the underlying substantive charge of conviction under the Emergency Bail
* Schedule.

e No later than 5 p.m. on April 10, 2020, requires courts to apply the statewide Emergency
Bail Schedule to every accused person arrested and in pretrial custody and to every
person held in pretrial jail custody.

¢ This rule will remain in effect until 90 days after the Governor declares that the state of
- emergency arising from the COVID-19 pandemic is lifted, ot until amended or repealed
by the Judicial Council.

Remote Appearance via Technology and Appearance through Counsel for Defendants in
Pretrial Criminal Proceedings

Article I, section 15 of the California Constitution provides, in part; “The defendant in a criminal
cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant’s
behalf, to have the assistance of counsel for the defendant’s defense, to be personally present
with counsel, and to be confronted with the witnesses against the defendant.” Consistent with the
Constitution, Penal Code section 977 provides the accused with options regarding personal
appearance, appearance through counsel, and appearances via technology for arraignment, plea,
sentencing, and other phases of criminal proceedings, requires the defendant’s presence under
specified circumstances, and provides certain protections.

During the COVID-19 pandemic, trial courts must protect defendants’ constitutional rights to
have the assistance of counsel and to be personally present with counsel, and at the same time
take steps to protect the health of defendants, judicial officers, court staff, counsel, and all those
who are required to be present in court. This proposed rule of court, together with other
protective efforts, enables courts to strike that balance.

Under the proposed rule, courts must, with the knowing and voluntary consent of the defendant,
permit the defendant to appear through counsel at all pretrial portions of a criminal proceeding.
Additionally or alternatively, and to the greatest extent possible, courts must provide for the
remote appearance of defendants via audio/visual electronic communication or other technology.
The technology must provide for private communications between the defendant and the
attorney. The rule requires courts to. accept defendants’ waivers of appearance through oral
representation of counsel or electronic communication by the defendant.

10Juvenile dependency proceedings: proposed emergency rules 6-7

During the state of emergency related to the COVID-19 pandemic, critical juvenile dependency
proceedings, also called child welfare proceedings, need to occur to ensure that a child is safe
from child abuse and neglect. Judicial oversight is needed to ensure the safety, permanency, and
well-being of children and youth who have been removed from their homes and placed into
foster care or who may need to be removed from theit homes. Prolonged or indefinite delays in
delivering services and postponements of judicial oversight place children’s safety and well-
being in jeopardy, may lead to unnecessarily long stays in foster care, and are inconsistent with
statutory and regulatory requirements. To ensure that courts can provide the critical oversight
that is necessary to protect children and families during the state of emergency related to the
pandemic, it is recommended that the council adopt an emergency rule of court for juvenile
dependency proceedings to take effect immediately that would:

¢ Prioritize hearings and orders that need to be made in juvenile dependency proceedings.
These include hearing detentions, psychotropic medication requests, emergency medical
requests, temporary restraining orders, reentry petitions for nonminor dependents, and
section 388 petitions that require immediate relief based on the state of emergency related
to the pandemic.

¢ Provide a structure for remote hearings and continuances of hearings during the state of
emergency related to the pandemic: Hearing requirements include provisions for remote
appearances, service of notice, court reports, determinations of required findings and
orders including the need for continuances in certain circumstances, and visitation orders.

Juvenile delinquency proceedings: During the state of emergency.related to the COVID-19
pandemic, critical juvenile delinquency proceedings need to occur in order to protect the
community and provide for the rehabilitation of the child. Delays in these hearings can cause
prolonged and unnecessary detention ini juvenile detention facilities that negatively impact the
well-being of the child. While there are many parallels between juvenile delinquency and
criminal proceedings, there are key differences including confidential proceedings and records,
no access to juries, and opportunities to seal records, all of which are rooted in the objective of
rehabilitating the child during a key period of development. To ensure that courts can provide the
critical oversight and judicial determinations that are necessary to protect the community and
provide services to the child during the state of emergency related to the COVID-19 pandemic, it
is recommended that an emergency rule be adopted to take effect immediately that would:

¢ Prioritize hearings and orders that need to be made in juvenile delinquency proceedings.
These include hearing detentions and other hearings for in-custody children, psychotropic
medication requests, emergency medical requests, temporary restraining orders, reentry
petitions for nonminor dependents, any request for a warrant for a child, probable-cause
determinations, proceedings for children who are not detained, and hearings for children
in foster care.

11¢ Provide a structure for remote hearings and continuances of hearings during the state of
emergency related to the pandemic. Hearing requirements include provisions for remote
appearances, service of notice, and introduction of evidence.

e Grant an extension of time for requirements under Welfare and Institutions Code section
709 concerning a child who is not competent for juvenile adjudication.

Temporary restraining orders: proposed emergency rule 8

In times of crisis, many individuals, including victims of domestic violence, are more vulnerable
as access to the court and social services become more limited. It is imperative that our courts
continue to be open to Californians who seek restraining orders to stop abuse, harassment, or
other harm. During this crisis, courts are also significantly impacted and are limiting operations
to protect the public, court staff, and judicial officers. To ensure that litigants throughout
California have access to court services statewide, and to ensure that individuals needing
protection have valid and enforceable-orders during court closures, it is recommended that the
council adopt an emergency rule of court to take effect immediately that would do the following:

1. Provide that emergency protective orders issued pursuant to Family Code section
6250 be granted for up to 30 days;

2. Allow courts to issue temporary restraining orders and gun violence emergency
protective orders for up to 90 days, to allow the matter to be heard by the court;

3. Allow courts to automatically extend any criminal protective order that is set to
expire during state of emergency related to the COVID-19 pandemic period, for up to
90 days, to allow the matter to be heard by the court;

4. Require courts to provide a means for the filing of ex parte requests for any
temporary restraining order. Courts may do so by providing a physical location, drop
box, or, if feasible, through electronic means;

5. Allow e-signatures for restraining order requests;
+ 6. Ifthe proposed restrained party appears remotely, not require further service on the
restrained party for enforcement purposes, provided that the court follows the

requirements of Family Code section 6384; and

7. When extending a temporary restraining order, if completing the mandatory Judicial
Council forms is impractical, allow courts to transmit an order in any format to the
entering agency for transmission into the California Department of Justice database. !°

'5 Family Code section 6380 requires that protective orders be entered into CARPOS.

12Civil proceedings: proposed emergency rules 9-11

The COVID-19 pandemic is having a severe impact on the lives and well-being of all

Californians. The human crisis, in turn, has disrupted and delayed the operations of superior

courts across the state. Given Constitutional imperatives, the superior courts have had to shift

their resources to address the most urgent criminal actions and proceedings affecting the most
vulnerable. The disruption to court operations will have long-term repercussions on the workload. _
of the superior courts, and civil trials of less urgent matters are likely to be the last to be resolved

in the courts’ increasing backlog.

To protect the rights of litigants in civil proceedings and to address the long-term. backlog of civil
actions, the chairs of the internal committees recommend the following rule proposals:

Toll the running of statutes of limitation for civil causes of action

Proposed emergency rule 9 tolls the statutes of limitation for civil causes of action. Tolling stops
or suspends the running of time in statutes of limitations; when the tolling period ends (90 days
‘from the end of the state of emergency), the time to bring an action will begin to run again. This
tule is necessary to allow parties and attorneys time to investigate, gather information and
evidence, and determine whether to file an action. During the pendency of the state of
emergency, the ability to do so is restricted. Proposed emergency rule 9 would, for all civil
causes of action, toll the statutes of limitation from April 6, 2020, to 90 days after the Governor
lifts the state of emergency related to the COVID-19 pandemic.

Extend the time in which to bring civil actions to trial
Proposed emergency rule 10 provides a six-month extension of the statutory limits on the time to
‘bring a civil action to trial.

¢ Proposed rule 10(a) would, for all civil actions filed before-April 6, 2020, increase by six
months the time in which the actions would otherwise have to have been brought to trial
in Code of Civil Procedure section 583.310 (for a total of five years and six months).

¢ Proposed rule 10(b) would, for all actions filed before April 6, 2020, if a new trial is
granted in the action, increase by six months to three years within which the action would
otherwise have to again be brought to‘trial in Code of Civil Procedure section 583.320
(for a total of three years and six months). Proposed subdivision (b) explicitly confirms
that nothing in the subdivision requires that an action again be brought to trial before
expiration of the time prescribed in subdivision (a) of the rule.

Remote Depositions

Proposed emergency rule 11 allows for the use of remote depositions. Under current law, a party
deponent is required to attend a deposition in person, and a nonparty deponent may appear
remotely only with the permission of the court upon a finding of good cause. (Code Civ. Proc., §
2025.310(b); Cal. Rules of Court, rule 3.1010(c) and (d).) At a time when-people are being
urged, if not required, to stay at home to protect public health and safety, and when courts are
already struggling to address the most urgent matters, the chairs of the internal committees

13recommend that litigants in civil proceedings be given broader authority to allow a deponent to
appear at a deposition through electronic means, and without seeking approval of the court.

Under proposed emergency rule 11, a party or nonparty. deponent, at their election or the election
of the deposing party, is not required to be present with the deposition officer at the time of the
deposition.

Policy implications

The COVID-19 pandemic presents an unprecedented crisis that threatens the lives, health, and
safety of all Californians. California courts, however, provide critical services that also affect the
lives of many Californians, including some of the most vulnerable. Given the length of time the
pandemic may impact the state, the courts cannot delay all proceedings indefinitely and must
find a way to continue to provide the most critical services.

Comments

This proposal has not been circulated for comment due to the incredible speed with which the
COVID-19 pandemic has spread and the urgent need to provide courts with the tools required to
keep providing necessary services while also protecting the health and safety of the public and
those who interact with the courts.

Alternatives considered

The council could take no action. Over the past month, however, individual courts have been
struggling to address the impact of COVID-19. Given the severity of the crisis, the chairs of the
Judicial Council’s six internal committees concluded that these recommendations were necessary
to help give courts the tools they need to confront the impact of the pandemic.

Fiscal and Operational Impacts

It is anticipated that the proposal will facilitate court operations, allowing courts to continue
critical functions while protecting the health and safety of all who would be attending court in
person, by effecting compliance with social-distancing mandates. It is uncertain what fiscal
impact these recommendations may have on the courts.

Attachments and Links
1. Cal. Rules of Court, Appendix, emergency rules 1-11, at pages 15-29

14EXHIBIT CMD.=
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Appendix I
Emergency Rule